Amid debate over rights, number of gay judges rising
Pastor Dale Morgan
Amid debate over rights, number of gay judges rising*
Posted 10/17/2006 11:09 PM ET
By Joan Biskupic, USA TODAY
WASHINGTON — When a case testing whether Oregon should allow same-sex
marriages came before the state's Supreme Court in 2004, one of the
court's seven justices quietly wrestled with a vexing question:
Should he, a gay man, take part in the case? Or did part of Rives
Kistler's identity — his sexual orientation — mean that he should sit it
out, to avoid any appearance of a conflict of interest?
Kistler, a former Oregon assistant attorney general and the first openly
gay member of the state's highest court, consulted an ethics book to
decide "whether it was permissible for me to sit on the case." Then he
checked with a judicial ethics panel, which told him it would not be a
conflict.
When Oregon's high court heard the dispute, Kistler was on the bench.
Four months later, he joined a unanimous decision as the court ruled
that same-sex marriages were not allowed under Oregon law. He says his
sexual orientation wasn't a factor in his decision, and he agreed with
the other justices that any changes in Oregon's marriage laws had to
come from legislators, not judges.
"Everybody's got a personal life, but you don't bring it to work," says
Kistler, 57. "You're not here to impose or enforce your personal
viewpoint. You're here to follow the statutes and the Constitution."
The case was part of a recent string of state court rulings on same-sex
marriage. It shed light on the rising number of openly gay judges, and
the situations they face, at a time when gay civil rights is a key issue.
The complex issues associated with being gay and in politics also were
evident in the recent scandal involving former U.S. representative Mark
Foley, R-Fla., who resigned from Congress Sept. 29 after ABC News
confronted him with sexually explicit Internet messages he allegedly
sent to teenage pages.
Foley publicly acknowledged that he is gay, and his resignation drew
attention to the pressures some gay men and lesbians in Washington feel
to hide their sexual orientation.
It's unclear how many gay judges there are among the roughly 30,000
local, state and federal jurists in the USA. No one keeps precise
figures, but comparisons of membership lists of gay and lesbian legal
groups — including the Victory Fund and the International Association of
Gay and Lesbian Judges — suggest there are 75 to 100 openly gay judges,
most of them in California, New York and Chicago.
That's a large increase from the early 1990s, but still a tiny
percentage of the overall number of judges. It does not include any gay
judges who have kept their sexual orientation secret for a range of
reasons, including a fear it would harm them professionally.
New York trial judge Michael Sonberg, 58, a former president of the
International Association of Lesbian and Gay Judges, says California and
New York each have about 20 openly gay judges. In the Chicago area,
where jurists are elected, there are 10 openly gay judges on municipal
courts, says Chicago's Advisory Council on Lesbian, Gay, Bisexual and
Transgender Issues.
Cook County Circuit Court Judge Thomas Chiola says he expects that
number to rise to 12 after the fall elections. Chiola, who was elected
in 1994 and was the first openly gay judge in the Chicago area, says gay
judicial candidates' sexual orientation rarely has been a significant
issue in a campaign there. "Part of being successful in an election
campaign is doing the groundwork," he says. "That means being involved
in the community and already being known. That can make the gay and
lesbian issue a non-issue."
But Chiola, 54, adds that when he first ran in 1994, he had trouble
winning endorsements from some prominent lawyers because of his sexual
orientation.
Gay and lesbian judges do not appear to have had a particular impact on
gay-rights issues. However, in recent years they have been more vocal
about their sexual orientation and the notion that having gay men and
lesbians on the bench helps diversify the judiciary.
"To the extent to which the bench ought to reflect society in general,
having openly gay and lesbian judges matters," says New York Supreme
Court Judge Rosalyn Richter, 50, a lesbian who was elected in 2003 to a
trial judgeship in the Bronx. "It matters for the same reason that we
would not want a judiciary that was all men."
After joining the bench, Richter changed the questions asked of
potential jurors in her court to be more welcoming to gay men and
lesbians. Rather than ask jury candidates whether they are married and
pose questions about a spouse, "I use the word 'family' and I tell
jurors they can define it for themselves," Richter says. "In my own
case, I thought, what would happen if my domestic partner showed up for
jury duty?"
The effort by gay rights groups to increase the number of openly gay
state and local judges has drawn criticism.
"We don't accept that homosexuality is any kind of cultural identity
that should be sought in a judge," says Peter Sprigg of the Family
Research Council, a conservative advocacy group in Washington, D.C.,
that opposes same-sex marriage. "We think it's a behavior, not something
that should be held up as a role model."
'Chilling' atmosphere
Such sentiments — and the partisan politics that surround judicial
nominations on the federal level — help explain why there appears to be
only one openly gay judge on the 875-member federal bench, where
appointments are for life.
That judge is Deborah Batts, a Harvard University law school graduate
and a former professor at Fordham University. In 1994, Batts was
appointed by President Clinton to a trial court in the southern district
of New York.
Batts, 59, declined to be interviewed. She has participated in
gay-rights events, and in 2001, when her portrait was hung at Harvard
Law School, officials there said her Senate confirmation marked the
first time an openly gay person had joined the federal judiciary.
During the confirmation process, Clinton administration lawyers did not
emphasize Batts' sexual orientation. On a Senate questionnaire, Batts
noted her membership in gay legal groups, but the issue was not
discussed in hearings, and she was confirmed easily by the Senate, then
led by Democrats.
In federal court nominations, things are different now. President Bush
has vowed to make the judiciary more conservative, and it appears that
none of his nearly 300 appointments to the federal bench has involved an
openly gay person. It's unclear whether the administration has
considered any gay men or lesbians for federal courts.
White House spokeswoman Emily Lawrimore says the administration does not
reject potential nominees based on sexual orientation. "President Bush
has based his nomination decisions solely upon a person's judicial
excellence and experience," she says. "He will continue to select a
diverse group of people with sterling credentials."
Eleanor Acheson, an assistant attorney general in the Clinton
administration and now policy director of the National Gay and Lesbian
Task Force, says "many different forces" make it tough for gays to
become federal judges.
"I don't think this administration is committed in any deliberate way to
not appointing gay men and lesbians," she says. "It might even have
happened, but we don't know because the individuals are 'out' to such a
small circle" of friends or associates. "But I do think there is
probably a smaller pool of people who fall into the category of
prominent, openly gay and lesbian lawyers well known to and supported by
Republican senators. Also, the atmosphere created by the Republican
Party, the right-wing base, and the president himself contribute to a
bit of a chilling effect."
Acheson says gay men and lesbians interested in seeking a federal
judgeship might think, " 'I've got nothing to hide here. But do I want
to go forward when there's a chance that the whole buzz about my
nomination is that I'm openly gay?' It overtakes the person's
professional qualifications."
Paul Smith, a gay man who is a partner in the Washington office of the
400-lawyer firm of Jenner and Block, says "the unpleasantness of the
whole confirmation process" is a big reason there are not more openly
gay federal judges. "Who wants to get caught up in it?"
Less of an issue at law firms
The relatively small number of openly gay judges contrasts with the
increasing tendency of law firms to tout their gay and lesbian lawyers
as symbols of diversity.
"In the broader legal profession, as opposed to the judiciary, there's
been a sea change in attitudes," says Smith, whose firm highlights its
work in gay civil rights on its website and in a newsletter.
Smith, who argues regularly before the U.S. Supreme Court, says the 1993
movie Philadelphia, in which Tom Hanks played a gay lawyer who was fired
by his firm because he had AIDS, seems particularly dated today.
Mark Shields, director of the Human Rights Campaign's Coming Out
Project, says gay men and lesbians have been more open about their
orientation in recent years.
"It is difficult to quantify, but I don't think you need a survey to
look around and say, in the early 1990s we didn't have (talk-show host)
Ellen (DeGeneres) out, we didn't have Queer Eye for the Straight Guy,
and we didn't have Brokeback Mountain. Looking around us, we see
everyday people being more open and secure in their openness."
At the state and local levels, where judges can get on a bench through
appointment or election and where appointments are not for life, there
are increasing signs of acceptance of gay and lesbian judges — and not
just in California, New York and Chicago. Politicians elsewhere —
including Maryland Gov. Robert Ehrlich, a Republican, and Oregon Gov.
Ted Kulongoski, a Democrat — have appointed gay judges and then not
flinched when conservative groups protested.
When Ehrlich appointed an openly gay man, Christopher Panos, to a state
trial court in Baltimore last summer, the Family Research Council's
Sprigg complained in a conservative, online newsletter. Panos was the
first openly gay person Ehrlich had named to a court since taking office
in 2003 and filling 67 judgeships.
For Ehrlich, Panos' sexual orientation was not relevant, says Henry
Fawell, spokesman for Ehrlich.
"He is just looking for the best judge," Fawell says.
Fawell says Ehrlich was aware of Panos' sexual orientation but that it
did not help or hinder Panos' candidacy. Panos declined to comment.
In Oregon, Kulongoski appointed Kistler to fill an unexpired term on the
state's high court in 2003. The governor says Kistler's sexual
orientation wasn't a factor, and that the judge proved his merit the
next year by winning a statewide election. The Oregon Christian
Coalition backed Kistler's rival, who supported a ban on gay marriage.
However, Kistler's sexual orientation was not a big campaign issue.
Many of those calling for more gay and lesbian judges are focusing on
the federal bench, the most powerful segment of the nation's judiciary.
Nan Aron of the liberal Alliance for Justice says her organization and
gay-rights groups don't expect much from the Bush administration, so
they are pushing for more gay and lesbian judges on state courts. They
aim to create a "farm team" of judges who could be in position for the
federal bench if future presidents are willing to appoint such judges.
Sprigg says his group would fight such an effort. But he says gay judges
are acceptable to his group — as long as their sexual orientation isn't
a factor in their work.
"We don't think we should make an issue of it, if they keep it private,"
he says. "If we had reason to believe that they would pursue a
pro-homosexual agenda, then we would vigorously oppose them."