Litigation

U.S. Judges Shifting on Gay Rights Issues?

By Peter Hardin

An earlier Gavel Grab posting referred to recent victories for lesbian and gay rights advocates in federal courts. Now a New York Times article picks up the thread and examines what spawned the decisions, and what’s ahead.

“Despite Setback, Gay Rights Move Forward,” is the article’s headline, and it is tied to the Senate’s failure this week to repeal the military’s “don’t ask, don’t tell” policy toward its gay members.

The article looks at a federal judge’s declaring that policy unconstitutional (see Gavel Grab), and separate decisions throwing out California’s Proposition 8 ban on gay marriage and finding unconstitutional part of the federal Defense of Marriage Act.

That federal judges have made these decisions alters conventional wisdom among activists on gay legal issues, who preferred to press for gains in state courts, which were seen as more open than the U.S. judiciary, the article says. It quotes Erwin Chemerinsky,  law dean at the University of California, Irvine, as suggesting a shift among federal judges:

?Federal judges are no longer persuaded that a moral condemnation of homosexuality justifies government discrimination.”

It remains to be seen, the article continues, whether the Supreme Court will ultimately agree with lower federal courts’ interpretations of a landmark Supreme Court ruling, Lawrence v. Texas. The decision invalidated a state sodomy law, and some analysts believe its reasoning will lead the way to a granting of rights against discrimination based on sexual orientation.

Full post as published by The Gavel on September 22, 2010 (boomark / email).