Gay Justice?

May 8, 2009 9:23am

Former Stanford Law School dean Kathleen Sullivan is, according to the National Law Journal, one of the 100 most influential lawyers in America. She’s a nationally prominent scholar and teacher of constitutional law, and author of the nation’s leading casebook in constitutional law.

Stanford Law School professor Pamela Karlan clerked for former Supreme Court Justice Harry Blackmun, is founding director of Stanford’s Supreme Court Litigation Clinic, and is a leading expert on voting and the political process.

Sullivan and Karlan are both frequently mentioned as possible Supreme Court nominees for President Obama.

Both women also happen to be openly lesbian.

Supreme Court vacancies can serve as a barometer for society. The first Catholic Supreme Court Justice, Roger B. Taney, was appointed in 1836. The first Jewish Justice, Louis Brandeis, was appointed in 1916. The first African-American Justice, Thurgood Marshall, was appointed in 1967. The first woman, Sandra Day O’Connor, in 1981.

Many Hispanic groups are pushing for a Hispanic — such as Judge Sonia Sotomayor — to be named.

Similarly, gay and lesbian groups are pushing for an openly gay or lesbian nominee.

Please note the key word: "openly." President Nixon’s ill-fated 1970 Supreme Court nominee Judge G. Harrold Carswell — rejected by the Senate after it turned out he had once advocated "white supremacy" — was in 1976 arrested Tallahassee after making an "unnatural and lascivious" advance towards an undercover police officer whom he met in a Tallahassee mall men’s room.

(An interesting side debate: should the late Benjamin Cardozo, a Justice of Portuguese descent — count as the first Hispanic Justice? The Census Bureau does not classify Portuguese-Americans as "Hispanic," though historically the term was a reference to the Iberian Peninsula, which included Portugal. Anyway.)

Peter Sprigg, a senior fellow at the conservative Family Research Council, says that "the real issue would not be the person’s private life but the issue would be would they be imposing their personal ideology upon the court. In this case would they be imposing a pro homosexual ideology, a pro-same sex marriage ideology."

Sullivan, for instance, joined a friend of the court brief arguing that same sex marriage should be legal even if the "equal protection" clause "would not always have been interpreted by the courts to forbid discrimination against gay people." Not allowing same sex marriage is a violation of "both due process and equal protection; the former because the right to marry is a form of liberty and the latter because the restriction treats lesbians and gay men differently from straight individuals."

That she believes that because she’s lesbian, and not because she believes the refusal to allow same sex marriage constitutes unconstitutional discrimination, is another matter.

Either way, discussion about a Justice Sullivan or a Justice Karlan comes at a time when the Obama administration is hearing some impatience voiced by gay and lesbian activists on other issues.

"I think there is some disappointment in the gay community that (President Obama) hasn’t in this initial period spoken more directly and more forcefully about some of the issues he spoke about on the campaign," Richard Socarides, a former adviser to President Bill Clinton on gay and lesbian issues, told us for Good Morning America today. "Specifically the ‘Don’t ask/Don’t tell’ policy in the military."

– jpt

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