Gay Lawyers Hopeful About Justice Sotomayor

Deb Price
Wed, 12 Aug 2009 00:00:00 -0700
Opinion

To gay Americans, Sonia Sotomayor isn't just any new justice: She will likely hold the balance on a Supreme Court believed to be evenly divided over gay Americans' basic constitutional rights.

The justice she replaces, David Souter, had tilted the advantage to the court's gay-friendly wing.

How might Sotomayor rule on gay marriage? Gays in the military? In custody disputes between lesbian moms living in separate states with vastly different outlooks on gay parenting rights? Or, on the employment rights of transgender Americans?
Updated: Tue Aug 11, 2009

To gay Americans, Sonia Sotomayor isn't just any new justice: She will likely hold the balance on a Supreme Court believed to be evenly divided over gay Americans' basic constitutional rights.

The justice she replaces, David Souter, had tilted the advantage to the court's gay-friendly wing.

How might Sotomayor rule on gay marriage? Gays in the military? In custody disputes between lesbian moms living in separate states with vastly different outlooks on gay parenting rights? Or, on the employment rights of transgender Americans?

At her Senate confirmation hearings, Sotomayor didn't tip her hand. On gay marriage, she ducked and sidestepped, vowing to bring a "completely open mind" to the "hotly debated" topic.

Yet gay legal experts — having sifted through her rulings, statements, civil rights advocacy, and comfort around gay clerks and friends — are cautiously optimistic that she will help gay men and lesbians finally secure legal protections that other Americans can take for granted.

Art Leonard, a New York Law School professor and "Leonard Link" blogger, sees positive signs in her handling of two gay-related cases, Holmes v. Artuz and Miller v. City of New York.

The first involved a gay prisoner's complaint about not being allowed to work in the mess hall. It was 1995, the year before the Supreme Court handed down its blockbuster Romer v. Evans ruling that the Constitution's equal protection guarantee extends to gay Americans.

"At the time, the lower federal courts, heavily influenced by the Supreme Court's 1986 decision upholding the Georgia sodomy law, Bowers v. Hardwick, were routinely rejecting equal-protection claims by gay litigants," Leonard explains.

But Sotomayor, then a district court judge, demonstrated a forward-looking mindset. "The constitutional right not to be discriminated against for any reason, including sexual orientation, without a rational basis is an established proposition of law," she wrote.

Then, in 2006 as part of a three-judge appeals court panel, she joined an unsigned decision that a gay man ridiculed by his boss for not being a "manly man" was entitled to a trial on his claim that the workplace was a hostile environment.

Those cases encourage attorney Jon Davidson of Lambda Legal, the gay legal group.

Davidson, a Yale Law School classmate of Sotomayor's, also believes Sotomayor's insistence on closely examining the facts of each case will work to gay Americans' favor.

"To the extent that judges focus more on fact, we do better," Davidson says.

When the high court eventually hears its first gay case of the Sotomayor era, gains in Congress, the states and public attitudes will influence the justices in subtle and not-so-subtle ways.

If, for example, Congress has extended health benefits to the partners of gay federal workers, that would surely undermine the law that denies federal recognition to gay couples legally married in their home states.

Progress at the Supreme Court level "is not just about the lawyers and briefs and cases," notes Evan Wolfson, head of Freedom to Marry, who argued Eagle Scout James Dale's case in 2000.

"It is about getting more states (to open marriage to gay couples), and changing more hearts and minds to create the climate in which the judges, including Sotomayor, make a decision," Wolfson said.

Of course, on the next generation of gay cases headed to the court, no votes are certain.

Let's hope the nation's first Hispanic justice will turn out to be a far-sighted and energetic progressive, someone determined to lift up gay Americans so that we can enjoy the blessings of full equality.