The evolution toward judicial independence in the continuing quest for LGBT equality.

• Author: Becker, Susan J.
• Position: Introduction through II. Judicial Independence and LGBT Litigants, p. 863-905

ABSTRACT

Judicial decisions that hold same-sex marriage bans unconstitutional, no matter how that conclusion is reached, overturn laws or constitutional provisions that were passed with the support of a democratic majority. This Article takes an in-depth look at judicial activism and judicial independence to determine whether such victories for same-sex litigants were done properly by the judiciary. In the eyes of the Framers, an independent judiciary was to be a crucial check on the other branches' constitutional limitations. With this in mind, judicial independence--where, in contrast with activism, judges meticulously apply the well-examined facts to controlling precedent without accounting for majority views--is a key to maintaining our democratic system.

This Article examines many of the cases that resulted in victories for LGBT litigants. First, cases ruling state same-sex marriage bans unconstitutional, for example, Hawaii's Baehr v. Lewin and Iowa's Varnum v. O'Brien, are analyzed. Also, the cases declaring the federal Defense of Marriage Act unconstitutional, including Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services, and the district court, circuit court, and Supreme Court decisions in Windsor, are discussed. Although these cases tend to overturn laws supported by democratic majorities, the courts pay great attention to the details of the cases and steadfastly analyze and apply precedent.

After looking in detail at cases establishing same-sex marriage rights, one must conclude that the courts engaged in strong judicial independence. Such independent judicial decision making contains sound legal analysis and is constitutionally necessary.

CONTENTS INTRODUCTION I. JUDICIAL INDEPENDENCE OVERVIEW A. The Theoretical Ideal B. Theory Meets Reality 1. The Formalism-Realism Divide 2. Empirical Data on Judicial Decision Making a. General Empirical Analyses b. Empirical Analyses of Decisions Involving LGBT Litigants 3. Additional Theories of Judicial Decision Making 4. In Their Own Words: How Judges Decide Cases a. Acknowledging the Obvious b. Commitment to Neutrality: Personal and Institutional Restraints c. Activism 1. In Search of a Definition 2. Flaws Inherent in Contemporary "Activism" Label a. Judges Must Judge b. Judges Must Constrain Legislators c. Judges Must Facilitate the Law's Evolution II. JUDICIAL INDEPENDENCE AND LGBT LITIGANTS A. Possible Degrees of Judicial Independence B. Demonstrative Failures of Judicial Independence III. JUDICIAL INDEPENDENCE SHIFT IN LGBT MARRIAGE CASES A. The Long Shadow of Baker v. Nelson B. Pro-Equality State Decisions Prior to Windsor and Perry 1. Hawaii's Saga: Baehr v. Lewin 2. Massachusetts, California, and Iowa Equality Decisions 3. Lower Federal Court DOMA Decisions Prior to Windsor C. Windsor 1. District Court 2. Second Circuit 3. Supreme Court CONCLUSION INTRODUCTION

Many years have passed since Professor Rhonda Rivera published her groundbreaking research on the disadvantaged legal status of gay and lesbian citizens in this country. Titled Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, (1) Rivera's 157-page tome documented the dearth of legal protections and abundance of judicial prejudice evident in cases where the sexual orientation of one or more litigants was at issue. (2) Her exhaustive analysis of judicial decisions resolving controversies in private and public employment, military service, professional licensing, public school teaching, family law, First Amendment free speech and association, immigration and naturalization, criminal law, and other issues amply supported the conclusion Rivera foreshadowed in the title of her article. "[J]udges in particular, as well as attorneys, need to examine their homophobic attitudes and the many popularly held myths and stereotypes," (3) Rivera wrote. "Only after such a reevaluation of judicial and societal attitudes can our legal system begin to achieve a fair and equal application of the laws to all persons." (4)

The majority of relatively recent court decisions--including the U.S. Supreme Court's groundbreaking decisions in Romer v. Evans, (5) Lawrence v. Texas, (6) and United States v. Windsor (7)--suggest that many judges have begun engaging in the reflection Rivera had hoped for, embracing a more neutral stance on homosexuality and devoting more attention to the facts and law of the cases before them that involve lesbian, gay, bisexual, and transgender (LGBT) litigants. (8)

This Article posits that court decisions extending equal rights to LGBT litigants are not, as some critics claim, the result of improperly motivated "judicial activism" or "culture wars" being waged inappropriately in courts of law. To the contrary, pro-equality decisions reflect the trend toward eradication of improper judicial bias that historically animated judicial decisions in cases involving LGBT litigants. In contrast to Justice Antonin Scalia's view that judicial decisions in which LGBT litigants prevail capitulate to the "homosexual agenda," (9) this article explains that decisions advancing LGBT equality are based on an appropriately restrained application of law to facts, thus moving the judiciary closer to the elusive ideal of judicial independence.

Arguments supporting this thesis are presented as follows. Part I of this Article contrasts the abstract principle of judicial independence as a cornerstone of U.S. democracy with the practical realities of judicial decision making. Part II highlights the historical lack of independence exercised by judges that resulted in unjust decisions and perpetuated negative stereotypes of LGBT persons. Part III explores the more recent trend of judges moving away from anti-LGBT animus towards neutrality and independence in cases involving LGBT litigants. Part III also examines the reasons for the lessening of anti-LGBT judicial bias, focusing specifically on the compelling facts and evidence presented in state and federal marriage equality cases, including the Supreme Court's Windsor decision.

1. JUDICIAL INDEPENDENCE OVERVIEW

   Only an independent judiciary can ensure that the minority is protected from the tyranny of the majority. Only an independent judiciary committed to the rule of law can safeguard every citizen's liberties and rights. (10) A. The Theoretical Ideal

   Judicial independence demands that judges resolve cases with fidelity to the "rule of law" established in case precedents, statutes, and procedural rules. (11) Decisions rendered in adherence to this principle are immunized from improper influences such as personal interests, religious beliefs, concern for popular opinion, and the desire to please special interest groups. (12) As one judicial observer explains, "[independent and impartial adjudication denies the notion that the judge will bring to bear a view which represents that of a particular section of the community." (13)

   The principal architects of the U.S. Constitution identified an independent judiciary as essential to the survival of the nascent republic. (14) James Madison observed that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny." (15) Alexander Hamilton urged that constitutional limitations imposed on Congress--"for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like" (16)--could only be achieved through "complete independence of the courts of justice." (17) Hamilton also defended the Constitution's lifetime appointment of federal judges as "the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws." (18)

   In language relevant to the contemporary struggle for LGBT equality, Hamilton recognized the crucial role of judicial independence in protecting the rights of minorities:

   This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. (19) Hamilton further cautioned that judges need "an uncommon portion of fortitude" to faithfully guard the Constitution "where legislative invasions of it ha[ve] been instigated by the major voice of the community." (20) Hamilton's perspective became a cornerstone of constitutional jurisprudence. (21)

   Several centuries after Hamilton's plea, Ninth Circuit Judge J. Clifford Wallace observed that "although the Constitution imposes no absolute limits on popular decision making, constitutional protections and structures do represent significant practical restraints on the scope of majoritarian democracy." (22) Constitutional structure, Judge Wallace explained, reflects the Framers' intent for "the judicial branch to have a special role in the protection of [individual] rights." (23) The majority of colonies and the first states adopted similar governmental structures based on this rationale. (24)

   Efforts to safeguard judicial independence are deeply embedded in state and federal constitutions and statutes and the regulatory schemes that govern judges, lawyers, and others who interact with the judiciary. The effectiveness of these measures to ensure judicial independence remains subject to debate.

   For example, the President's power to appoint federal judges is severely constrained by the requirement that nominees are elevated to the federal bench only upon the "[a]dvice and [c]onsent of the Senate." (25) This significantly limits the President's power to appoint...