Sunday, June 09, 2013

Will Gay Law Clerks Tip the Supreme Court's Rulings?

One thing one learns from reading U.S. Supreme Court decisions is that often the justices decide how they want to rule and then work backwards to form the argument laid out in their majority opinion.  Egregious circumstances have on occasion resulted in all kinds of contortions to reach the desired result.  The other thing, of course that tilts rulings is the personal beliefs and experiences of the justices.  One need look only at the far right Catholic beliefs of Thomas and Scalia to see that they all too often put their religious dogma ahead of the law and U.S. Constitution.  One thing that has changed at the Supreme Court in the years since I was a young attorney is the presence of openly gay law clerks at the Court - some even work for the conservative justices.  Coming out is a powerful tool for change because knowing people who are gay can destroy stereotypes and even cause a rethinking of religious beliefs.  A piece in the New York Times ponders what impact, if any the gay law clerks may have in the pending rulings in Hollingsworth v. Perry and United States v. Windsor.    Here are some highlights:

WASHINGTON — As Justice Lewis F. Powell Jr. was struggling with how to cast the decisive vote in a 1986 Supreme Court case that would end up devastating the gay rights movement, he told his fellow justices that he had never met a homosexual.  In truth, one of his four law clerks that term was gay. 

The atmosphere at the court today is far different from 1986, with a pace of change that may have surpassed that in the rest of society. Openly gay law clerks are now common in the chambers of both liberal and conservative justices. In January, Chief Justice John G. Roberts Jr. formally admitted about 30 members of the National LGBT Bar Association to the Supreme Court’s bar, the first time lawyers with a gay legal group achieved that status. 

As the justices consider two major cases on same-sex marriage, with decisions expected this month, they are, of course, focused on legal issues. But students of the court say other factors may also play a role. 

“In addressing for the first time whether the law must recognize lesbian and gay couples as families,” said David C. Codell, who served as a law clerk to Justice Ruth Bader Ginsburg, “certain of the justices undoubtedly will reflect upon their real-world experiences of getting to know and to understand lesbian and gay people as individuals and as members of families.”

Paul M. Smith, a gay lawyer who clerked for Justice Powell in 1980 and 1981, said that by the 1990s, “people started to be out in their clerkship applications.” 

By 2003, when Mr. Smith argued and won Lawrence v. Texas, which overruled the Hardwick decision, openly gay clerks were becoming common. Matthew B. Berry, who is gay and served as a law clerk to Justice Clarence Thomas in 2001 and 2002, said his boss went out of his way to make his boyfriend feel welcome at the court.    “I was in a long-distance relationship,” Mr. Berry said. “When my boyfriend came to see an oral argument, the justice was very generous with his time and spent about 45 minutes talking to him and me. He would do that when clerks’ family members visited the court.” 

These days, justices are more likely to work and socialize with openly gay people than most Americans are. That is partly because 10 percent of adults who live in the District of Columbia say they are gay, lesbian, bisexual or transgender, according to a February Gallup poll. That is a much higher percentage than in any state. 

Professor Jeffries, the Powell biographer and Virginia professor, said the presence of openly gay clerks at the Supreme Court these days is but an instance of a societal transformation on gay rights.  “The universe has flipped” since 1986, he said. “Everything about the world has changed.

Will knowing gay law clerks make a difference?  Will a 2 to 1 vote for gay marriage by the House of Lords make a difference in the justices' minds.   Who knows.  Many of us will remain on pins and needles waiting for the Court to hand down its rulings.  Here in Virginia, without change mandated from the federal level, prospects look bleak.  At least until the Christofascist hold on the Virginia GOP is broken.  As an aside, Jeffries was my first year law school constitutional law professor.

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