Study: How Judicial Selection Impacts LGBT Rights Decisions

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Study: How Judicial Selection Impacts LGBT Rights Decisions

Lambda Legal Senior Counsel and National Director of Constitutional Litigation Susan Sommer and Lambda Legal then-Executive Director Kevin Cathcart, with Nicole and Pam Yorksmith and their children standing in front of the U.S. Supreme Court on decision day, June 26, 2015.

The U.S. Supreme Court hears oral argument in fewer than 85 cases each year. State courts, in contrast, handle more than 100 million cases annually, including 2,000 constitutional law cases decided by state supreme courts.1 Nevertheless, the vast majority of research, scholarship and media attention are devoted to the U.S. Supreme Court and the lower federal courts. As a result many advocates fail to appreciate how fair and impartial state courts play a crucial role in upholding the rights of LGBT people and other vulnerable groups.

Unlike the federal system, where judges are nominated by the President, confirmed by the Senate and serve for life, judicial selection at the state level varies widely. While some state court judges are appointed, most are elected and stand for re-election, where they are increasingly susceptible to political pressure and special interest money. In recent years, academics and advocacy organizations have begun to examine how these various state judicial selection methods may threaten the impartiality of courts and cause judges to issue decisions favoring certain litigants.2

Tyron Garner and John Lawrence

Tyron Garner and John Lawrence, plaintiffs in Lawrence v. Texas, celebrate their victory on June 27, 2003.

What effect, if any, do these different state judicial selection methods have in shaping outcomes in cases dealing with LGBT rights? If we want state courts to treat LGBT people and people living with HIV fairly, then we have to understand how various judicial selection methods may influence a judge’s ability to uphold LGBT rights.

To examine the implications of judicial independence for state courts’ treatment of LGBT claims, we collected data on all cases involving LGBT issues decided by state high courts starting in 2003, after the U.S. Supreme Court handed down its ruling in Lawrence v. Texas, through 2015. The majority of these cases were constitutional challenges to statutes which barred legal recognition of the relationships of same-sex couples as well as other family law issues which affected same-sex couples, including second-parent adoptions. The cases studied also included litigation by transgender plaintiffs challenging restroom restrictions or issues related to gender on driver’s licenses. Other cases included challenges to ballot language concerning anti-LGBT referenda and disciplinary action against attorneys who were alleged to hold anti-LGBT attitudes.

The study’s two key principle findings:

  1. State high courts whose judges stand for election are less supportive of LGBT rights claims.
  2. Results suggest that lack of support for LGBT rights among state high courts with elected judges can be attributed to ideological factors playing a larger role in shaping judges’ decisions on these courts.



1. See Neal Devins and Nicole Mansker, Public Opinion and State Supreme Courts, 13 U.PA.J.CONST.L.455, 456-57 (2010).

2. See Joshua A. Douglas, State Judges and the Right to Vote, 77 OHIO STATE L.J.1 (forthcoming 2016); John D. Echeverria, State Judicial Elections and Environmental Law: Case Studies of Montana, North Carolina, Washington and Wisconsin, 16 VT. J. ENVTL. L. 363 (2015); Joanna Shepherd and Michael S. Kang, Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases (2014), available at


State Courts 101: Structure and Selection »