Homosexual Judges May Decide Defense of Marriage Cases

Excerpted from Amid Debate Over Rights, Number of Gay Judges Rising, by Joan Biskupic, published Oct 17, 2006, in USA Today:

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…

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…

…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, …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.

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