JUDICIAL WORDS MATTER.

• Date: 22 June 2021
• Author: Stewart, Therese M.
• Published date: 22 June 2021
• Author: Stewart, Therese M.

This special issue addresses the role of appellate judges in addressing hotly contested social-political issues. Despite our limited judicial role, we are often called on to make legal decisions that pertain to such issues, often in constitutional challenges. This article focuses on an aspect of appellate judging that has the potential either to inflame or calm the broader debate. Judges can inspire respect for people on either side of a controversy and their respective concerns, or they can take sides, not in the sense of reaching a result that favors one party, but in using words that are harsh or dismissive to one side. Judges can either disparage judicial colleagues with whom they disagree or focus on legal disagreement while expressing respect for colleagues who disagree and their point of view. The language we use in our opinions (and in public writing and speaking) can project partiality or worse, partisanship and ideology. Our words can, in the alternative, project openness, an ability to listen and a nonpartisan and impartial state of mind.

Simply put, persuasion by denigration does not turn the temperature down on matters that deeply divide us. Incivility in judicial writing does not advance thoughtful discourse among citizens who have strongly held, competing views. It encourages stridency in public discourse and mutual hostility between disputants. It undermines the willingness of the losing side to accept as legitimate decisions they do not like. And it undermines public trust in the impartiality of the judiciary and public commitment to the rule of law. The corollary is that language reflecting some understanding of the concerns of litigants on both sides of a dispute may open some minds on either side of a social divide and will at least avoid salting a wound.

In recent decades, one hotly contested set of issues that have made their way into the courts concerns LGBTQ civil rights and conflicting claims based on moral and religious beliefs. In a number of Supreme Court opinions in those cases, which I will use to illustrate my points, some Justices have appeared to take sides in the broader public dispute. They have been harsh and dismissive of one side or the other, and bitter toward their fellow Justices and accused each other of abusing judicial power. Especially in today's polarized social and political era, this kind of rhetoric undermines public trust in the judicial branch and understanding of its importance in a constitutional democracy.

In short, my message is that words matter and that we as judges should use them wisely. Failure to do so poses one more threat to our democratic form of government.

1. A BRIEF REVIEW OF THE SUPREME COURT'S LANGUAGE IN CASES INVOLVING LGBTQ ISSUES

   This section outlines some of the key LGBTQ rights decisions decided in the last three to four decades. This selection of cases is not exhaustive. To the extent these cases focused on the legal issues, the opinions are unobjectionable. Where the Justices ventured into dangerous territory is when they characterized people, their concerns, motives, views, and beliefs.

   1. Bowers v. Hardwick (1)

      In 1986, the United States Supreme Court, in a 5-4 decision authored by Justice White, upheld a Georgia statute criminalizing consensual sodomy against a challenge by a gay man who was criminally charged for private sexual acts with another man. (2) The Court defined the issue presented as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." (3) Having thus defined the right at stake, the Court observed that only "those liberties that are 'deeply rooted in this Nation's history and tradition'" qualified for heightened judicial protection as "fundamental liberties." (4) Asserting that "[p]roscriptions against [homosexual sodomy] have ancient roots," the Court considered the "claim that a right to engage in such conduct" is fundamental "at best, facetious." (5)

      Distinguishing its prior liberty and privacy decisions affording heterosexual couples the right to make decisions about private sexual activity, the Court thought it obvious "that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case." (6) "No connection between family, marriage and procreation on the one hand and homosexual activity on the other has been demonstrated." (7)

      In a concurring opinion, Chief Justice Burger referred to the "ancient roots" of laws against sodomy "throughout the history of Western civilization" and "firmly rooted in Judeao-Christian moral and ethical standards." (8) To hold that "homosexual sodomy is somehow protected as a fundamental right," he said, "would be to cast aside millennia of moral teaching." (9)

      In dissent, Justice Blackmun, joined by three other Justices, objected to the majority's narrow characterization of the right at stake as the "right to engage in homosexual sodomy" noting that in earlier cases about similar matters, the Court had described the right at stake in broader terms as "'the most comprehensive of rights and the right most valued by civilized men,' namely, 'the right to be let alone.'" (10) "[T]he fact that the acts described [in the statute] 'for hundreds of years, if not thousands, have been uniformly condemned as immoral'" was not "a sufficient reason to permit a State to ban them today." (11) Nor could "[t]he assertion that 'traditional Judeo-Christian values" alone "provide an adequate justification." (12) Justice Stevens wrote a dissent similar in substance. (13)

   2. Romer v. Evans (14)

      Just ten years later, in a 6-3 decision, the Supreme Court held a statewide referendum measure, known as Amendment 2, violated the Equal Protection Clause. (15) The measure amended the Colorado Constitution to repeal municipal ordinances banning sexual orientation discrimination and to prohibit any government action protecting LGBTQ people from discrimination. (16)

      Writing for the majority, Justice Kennedy described the change wrought by the amendment as "[s]weeping and comprehensive." (17) The amendment put "[h]omosexuals, by state decree,... in a solitary class with respect to transactions and relations in both private and governmental spheres," by "withdraw[ing] from [them], but no others, specific legal protection from the injuries caused by discrimination." (18) It applied to Colorado's public accommodations laws, which prohibited discrimination on the basis of many characteristics; "nullifie[d] specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education and employment"; and forbid laws and policies protecting "gays and lesbians" from discrimination at every level of Colorado government. (19)

      The Court rejected the state's claimed rationale for the measure, which was "respect for other citizens' freedom of association, and... the liberties of landlords or employers who have personal or religious objections to homosexuality," finding "the breadth of the amendment ... so far removed from these particular justifications" that it was "impossible to credit them." (20) It concluded, "Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else." (21)

      Justice Scalia dissented, joined by the Chief Justice and Justice Thomas, leaning into Bowers and urging that if a State may "make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct." (22) The dissent described the measure as a "modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority." (23)

      The dissent did not agree that "'animus' or 'animosity' toward homosexuality" was "un-American." (24) Having repealed its criminal sodomy law, Colorado faced repercussions if "moral and social disapprobation of homosexuality is meant to be retained." (25) Specifically, "those who engage in homosexual conduct.... possess political power much greater than their numbers," which they "devote... to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality." (26) The dissent accused the majority of imposing on others the values of the "lawyer class from which the Court's members are drawn." (27)

   3. Lawrence v. Texas (28)

      In 2003, in another closely decided opinion, the high Court overruled Bowers, struck down Texas's same-sex sodomy prohibition, and held the constitutional protections of liberty and privacy apply to same-sex sexual...