Same-Sex Marriages, Judicial Nominations and the Presidential Election

The electoral race is heating up. On the democratic side, U.S. Senators Hillary Clinton and Barack Obama have spent much time recently courting various constituencies in their bids to secure their party's nominations. One group that has received little attention as of late it seems is the Gay, Lesbian, Bisexual and Transgendered (GLBTs) communities. Amongst the many issues that concern Gays and Lesbians in particular, are the numerous discriminatory laws that exist ("Don't Ask, Don't Tell"; the idea of a federal constitutional amendment to prohibit same-sex marriages; in addition to state constitutional bans against same-sex marriages). Particularly, and understandably, they should be concerned about what the next Democratic President would do about these issues. For the purposes of this posting I will restrict myself to issues of same-sex marriages.

Both Senators Clinton and Obama have stated that they would veto any federal constitutional amendment that would come across their desk. They are both in support of civil unions that confer all the rights and privileges of marriage, although not marriage itself. Apparently for many people, civil unions are a reasonable compromise, but same-sex marriage is a bridge too far.

With the exception of a proposed federal constitutional prohibition against same-sex marriages, there is little that any of the Presidential candidates can do directly about same-sex marriages or civil unions for the most part. These are issues that governed under state law. State laws that discriminate against minorities such as the GLBT community, still have to answer to the Equal Protection clause of the Fourteenth Amendment. However for reasons which I will discuss in another posting, Equal Protection unfortunately isn't all that equal under current jurisprudence.

This leads me to the importance of judicial appointments which has similarly been whisked off the list of important debate topics. The President appoints federal justices, including those on the United States Supreme Court, who then have to be approved by the Senate. As the President cannot directly overturn a state constitutional law prohibiting same-sex marriages, s/he can appoint justices that will interpret the Equal Protection Clause and any other constitutional provisions that apply in a manner that is consistent with the intent of equal protection - to strike down laws that amount to invidious discrimination against a discrete minority.

Appointed (rather than elected) judges are important protectors of individual rights and discriminatory laws. They can issue unpopular decisions without having to worry about being removed from the bench by a bigoted electorate seeking retribution for upholding civil rights.

In recent years, many states have passed constitutional amendments seeking to prohibit same-sex marriages. These may end up being challenged as violating the Equal Protection Clause, and if so, the case may rise all the way up to the U.S. Supreme Court. Thus the issue of who sits on the federal bench, at any given time is of great importance (keep in mind, the case could be brought before state courts and who sits on the bench there is also of importance).

Fundamentally, the judicial nominees that either Senator Clinton or Obama nominate (assuming they win the general election), will have a profound impact for years to come. Therefore it is important to discuss what types of judges these candidates will seek to nominate, not only for issues dealing with discrimination against the GLBT community, but a whole variety of civil liberties.

If only CNN would consider such issues rather than asking Senator Obama whether he agrees with Toni Morrison that Bill Clinton was the first Black President. A substantive issue for the ages.