We'll return to Gov. Cuomo's two yet-to-be-confirmed nominees to New York's Court of Appeals. But first, last post's look at the party affiliation of gubernatorial appointees to the high court suggested a brief detour. Let's review the party affiliation and ideological leaning of the Supreme Court Justices' votes in cases involving equal treatment for gays and lesbians.
Everyone with the slightest interest in national politics is aware that the United States Supreme Court has agreed to decide the issue of same-sex marriage. Virtually every federal court to have confronted the issue has invalidated state bans on gay and lesbian marriages. These courts have all agreed that there is simply no legitimate reason for denying same-sex couples the same right to marry that is enjoyed by opposite sex couples.
One federal appeals court has recently decided otherwise. Now, with this newly arisen conflict among the federal courts, the Justices have agreed to settle the question for the entire country--i.e., do laws that prohibit same-sex marriage violate the federal constitutional guarantees of equal protection, or of due process, or of the right to marry? (Or, maybe, of the federal taxing power which Chief Justice Roberts dredged up to uphold Obamacare? Just kidding).
Of course, the answer to whether same-sex marriages are constitutionally protected depends upon 5 out of 9 votes. If 5 of the Justices vote that gay and lesbian couples have the same constitutional right as do straight couples, then that's what the Constitution guarantees. If 5 of them say the opposite, then the Constitution provides no such guarantee.
Sorry, but to borrow from Oliver Wendell Holmes, Constitutional law just ain't some brooding omnipresence already out there. In a nation with judicial review, and with the Supreme Court as the final arbiter of federal law, the Constitution is what a majority of the Justices say it is. And before the Court actually rules, constitutional law is--again to borrow from Holmes--little more than a prediction of what the Justices will do. Of course, it certainly helps to know the voting records.
So with that in mind, let's take a look at how the Justices have voted in previous cases dealing with gay equality issues. Specifically, as mentioned above, let's look at the party affiliation and overall ideological leaning (i.e., across all issues) of the Justices and their votes in those past decisions.
In the modern era, there have been 7 major cases in which the Supreme Court has ruled on some substantive question of equal treatment for gays and lesbians. (There may be other decisions. But I've tried to include all those--pro or con--that directly confronted an issue of discrimination on the basis of sexual orientation.)
Here they are, together with the Justices, their votes, and their party affiliations and overall ideological leanings:
BOWERS v HARDWICK (1986)
Ruling: 5-4; states may criminalize homosexual intimacy.
(I hasten to add that this decision was rendered in Justice Byron White's shameful, hateful, dishonest opinion for the majority--one of the Court's all-time worst--based on his contemptuous and contemptible argument that there is no fundamental constitutional right to engage in "homosexual sodomy." It was explicitly overruled in Lawrence v Texas [see below].
Indeed, Justice Lewis Powell, who gave the majority its 5th and winning vote, later identified this vote as one of the mistakes of his career.)
Majority against gay rights:
Warren Burger (Republican [Nixon appointee], moderate conservative)
Byron White (Democrat [Kennedy appointee], moderate liberal/turned increasingly conservative)
Lewis Powell (Democrat [Nixon appointee], moderate conservative/Court centrist)
William Rehnquist (Republican [Nixon appointee], conservative)
Sandra Day O'Connor (Republican [Reagan appointee], moderate conservative)
Dissent for gay rights:
William Brennan (Democrat [Eisenhower appointee], liberal)
Thurgood Marshall (Democrat [Johnson appointee], liberal)
Harry Blackmun (Republican [Nixon appointee], moderate conservative/turned liberal)
John Paul Stevens (Republican [Ford appointee], moderate conservative/turned liberal)
HURLEY v IRISH AMERICAN GAY, LESBIAN, AND BISEXUAL GROUP (1995)
Ruling: 9-0; state anti-discrimination law cannot be enforced against private parade organizers who wish to exclude openly gay participants.
Unanimous vote against gay rights:
William Rehnquist (Rep [Nixon/Reagan], conservative)
John Paul Stevens (Rep [Ford], moderate conservative/turned liberal)
Sandra Day O'Connor (Rep [Reagan], moderate conservative/Court centrist)
Antonin Scalia (Rep [Reagan], conservative)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
David Souter (Rep [Bush Sr.], liberal)
Clarence Thomas (Rep [Bush Sr.], conservative)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
ROMER v EVANS (1996)
Ruling: 6-3; states may not deny gays and lesbians the right to sue against discrimination.
Majority for gay rights:
John Paul Stevens (Rep [Ford], moderate conservative/turned liberal)
Sandra Day O'Connor (Rep [Reagan], moderate conservative/Court centrist)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
David Souter (Rep [Bush Sr.], liberal)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
Dissent against gay rights:
William Rehnquist (Rep [Nixon/Reagan], conservative)
Antonin Scalia (Rep [Reagan], conservative)
Clarence Thomas (Rep [Bush Sr.], conservative)
BOY SCOUTS v DALE (2000)
Ruling: 5-4; state anti-discrimination law cannot be enforced against Boy Scouts who wish to exclude gays as troop leaders.
Majority against gay rights:
William Rehnquist (Rep [Nixon/Reagan], conservative)
Sandra Day O'Connor (Rep [Reagan], moderate conservative/Court centrist)
Antonin Scalia (Rep [Reagan], conservative)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
Clarence Thomas (Rep [Bush Sr.], conservative)
Dissent for gay rights:
John Paul Stevens (Rep [Ford], moderate conservative/liberal)
David Souter (Rep [Bush Sr.], liberal)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
LAWRENCE v TEXAS (2003)
Ruling: 6-3; states may not criminalize homosexual intimacy--overruling Bowers v Hardwick.
Majority for gay rights:
John Paul Stevens (Rep [Ford], moderate conservative/turned liberal)
Sandra Day O'Connor (Rep [Reagan], moderate conservative/Court centrist)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
David Souter (Rep [Bush Sr.], liberal)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
Dissent against gay rights:
William Rehnquist (Rep [Nixon/Reagan], conservative)
Antonin Scalia (Rep [Reagan], conservative)
Clarence Thomas (Rep [Bush Sr.], conservative)
CHRISTIAN LEGAL SOCIETY v MARTINEZ (2010)
Ruling; 5-4; a state college may deny recognition and benefits to a student religious group that excludes gay and lesbian students from membership.
Majority for gay rights:
John Paul Stevens (Rep [Ford], moderate conservative/turned liberal)
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
Sonia Sotomayor (Dem [Obama], liberal)
Dissent against gay rights:
John Roberts (Rep [Bush Jr.], conservative)
Antonin Scalia (Rep [Reagan], conservative)
Clarence Thomas (Rep [Bush Sr.], conservative)
Samuel Alito (Rep [Bush Jr.], conservative)
U.S. v WINDSOR (2013)
Ruling: 5-4; federal law ("Defense of Marriage Act") may not deny federal marriage benefits to legally married same-sex couples.
Majority for gay rights:
Anthony Kennedy (Rep [Reagan], moderate conservative/Court centrist)
Ruth Bader Ginsburg (Dem [Clinton], liberal)
Stephen Breyer (Dem [Clinton], liberal)
Sonia Sotomayor (Dem [Obama], liberal)
Elena Kagan (Dem [Obama], liberal
Dissent against gay rights:
John Roberts (Rep [Bush Jr.], conservative)
Antonin Scalia (Rep [Reagan], conservative)
Clarence Thomas (Rep [Bush Sr.], conservative)
Samuel Alito (Rep [Bush Jr.], conservative)
(I have not included Hollingsworth v Perry [2013]--the case involving California's Proposition 8--despite the ultimate consequences of the Court's decision, because the ruling was based on the procedural/jurisdictional concept of standing, not on any substantive question of gay rights.)
Well there are the 7 major gay rights cases, spanning a 30 year period of Supreme Court decision-making.
Hmmm.
Anything to glean from the foregoing?
Numbers, patterns, implications?
In the next post, we'll see what we see, as well as what we might be seeing.
