Study: Judicial Elections Threaten LGBT Rights

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September 28, 2016
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If you think LGBT rights aren’t on the ballot this November, think again.

More than 60 state supreme courts and appellate courts in more than 30 states are holding elections Nov. 8. If you’re queer and you live in one of these states, your civil rights are a lot less secure as a result.

These courts have broad authority to uphold or restrict the rights of LGBT people and people living with HIV. But the scales of justice are out of balance. Judicial elections are putting LGBT equality – and our country’s very democratic principles – in increasing danger.

In 2015, an elected Tennessee judge was reprimanded for an opinion decrying the “judi-idiocracy” that resulted in the “iron fist and limp wrist” of the Supreme Court’s marriage equality ruling. Some elected judges in the South continue to resist or defy the Supreme Court’s ruling in Obergefell.

“Barack Obama would never appoint Judge Jeff Hughes to the Supreme Court because Judge Hughes is pro-life, pro-gun and pro-traditional marriage.”
—  TV ad for Judge Jeff Hughes’ campaign for Louisiana Supreme Court.

Alabama Supreme Court Chief Justice Roy Moore, who was elected on an anti-marriage-equality platform in 2012, predicted that the ruling would “cause the destruction of our country” and would generate a “great backlash. Back in 2002, Moore cited scripture in a judicial opinion in a child custody case that shockingly referred to lesbian parents as “immoral,” “detestable,” “an inherent evil,” and “inherently destructive to the natural order of society.

A new study by Lambda Legal’s Fair Courts Project released today shows that when judges are elected, LGBT people suffer. We looked at the last 13 years of state supreme court cases involving LGBT issues. Judges elected in partisan elections ruled in favor of LGBT right in 53 percent of cases. Appointed state judges who never stand for popular election ruled in favor of LGBT rights in 82 percent of cases.

Simply put, judicial elections taint the judicial process. The pressures of running for re-election, courting donors and securing endorsements often force candidates to take extreme positions in order to energize their political base. The explosion in judicial campaign spending is also affecting the impartiality of our courts.

New research indicates that the flood of money in judicial elections causes judges to issue more pro-business rulings, send more people to jail, and sentence more people to death.

The consequences are real. A recent community survey by Lambda Legal, revealed a significant lack of trust in the courts among LGBT and respondents with HIV.  When it comes to courts, win or lose, LGBT people need to know that there isn’t a thumb on the scales and that we haven’t been shut out of the process.

This power imbalance is exacerbated by the serious lack of judicial diversity in our nation’s courts.  Courts in many states are overwhelmingly homogeneous. Women are half of the population but less than a third of state judges. People of color make up 40 percent of the population but less than 20 percent of judges.

There are only 2 transgender judges in the country, and no openly bisexual judges.

Spending in judicial elections also affects judicial diversity. A recent study from the Center for American Progress found that supreme court justices of color have a harder time holding onto judicial seats than white justices.

The explosion in judicial campaign spending is affecting the impartiality of our courts.

Lambda Legal’s new research and the growing body of evidence indicate that state judges facing election, often in increasingly expensive races, are ceding justice to politics. Meanwhile, far-right groups and powerful special interests are working to game the system by stacking state courts with judges who will rule in accordance with their agendas.

The stakes are high — and not just for the LGBT community. All marginalized communities — racial and ethnic minorities, immigrants and the poor — are at greater risk of discrimination from elected judges.

Something has to be done to restore public trust and basic fairness.

Lambda Legal’s Fair Courts Project works to advance an independent, diverse and well-respected judiciary that upholds the constitutional and other legal rights of LGBT people and people living with HIV.

We need your help. Greater interest and activism can help to increase public awareness of the ways that money, politics, ideology and bias undermine judicial independence, affect case outcomes, impede diversity, and impact access to justice.

Learn more by reading our report, Justice Out of Balance.

Then get out and vote in November—and don’t forget to vote for judges!