Nancy Polikoff

More conservative state supreme court judges could hurt LGBT family law

Filed By Nancy Polikoff | November 06, 2010 6:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Brennan Center for Justice, Iowa justices, judicial elections, LGBT families

By now everyone knows that the three Iowa Supreme Court justices Iowa-State-Supreme-Court-Building1.jpgup for a retention election all lost their bids to remain on the court, the result of a coordinated, highly financed campaign to send a message against their vote for marriage equality.

In a segment on Democracy Now this morning, Adam Skaggs of the Brennan Center for Justice puts the Iowa vote in the larger context of judicial elections across the country. His report on the funding of state court judges elections is a sobering look at both the present and the future.

There are no same-sex marriage cases going through state courts at the moment, but the issues that affects LGBT parents are all in state courts.

I'm thinking primarily about the availability of second-parent adoption, which has been largely the result of litigation efforts. (Colorado and Connecticut are the exceptions; state legislatures there specifically amended statutes to permit second-parent adoptions). Ultimately, it is state appellate courts that determine whether existing adoption statutes permit second-parent adoption.

Over a dozen states have trial judges who grant such adoptions without any definitive ruling from the state appeals court. Advocates learn which judges believe they do have the power to grant such adoptions when in the best interests of a particular child, and they bring their adoption petitions to those judges. An appeals court could in the future decide that's not what existing law permits, and that would halt the practice in those states.

It is unlikely that anyone will pour funding into a state judicial election to send a message about second-parent adoption; it doesn't have the easy buzz of same-sex marriage. But the main reason funds are flowing into those elections is the corporate bottom line, and the issues that matter to those funders are those that protect corporate profits from tort litigation and state environmental and other regulations. The problem is that the judges who pass the litmus test for those corporate interests are likely to be more Republican and more conservative on all issues, including our families.

This isn't a new problem, but the Brennan Center report makes clear that the flow of funding facilitated by the US Supreme Court Citizens United ruling means that more money will pour into those elections. Statewide LGBT groups will need to be vigilant, even when there is no visible LGBT issue as there was in Iowa. In addition to second-parent adoption, state courts will decide in future years whether to recognize parentage deriving from marriages, civil unions and domestic partnerships from other jurisdictions. So our families may well be on the line, and this turns the funding of judicial elections into an LGBT issue.

cross-posted from Beyond Straight and Gay Marriage


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+1 Insightful

Thus should be on our radar screens, with high priority.

In Michigan, the issues attracting conservative funds to JOSC races seemed to be primarily environmental (Kalamazoo River oil spill) and employment ("right to work").

We still enjoy a liberal Chief Justice and a one vote majority on the court but it was a pretty big blow to get nothing this election cycle. We lost the governership, the state house, failed to gain the AG or Secretary of State and fell further in minority in the state senate.

Equality Michigan I know, (I'm on the board) was pretty well prepared for what was coming and is already adjusting and reaching out to the new administration and many of the new lawmakers and judiciary.

That Citizens United ruling will be the death of our country.

"There are no same-sex marriage cases going through state courts at the moment"

I assume that is accurate - but there is a case in Texas which anti-transsexual lawyers are attempting to turn into a same-sex marriage case. Of course, I can't imagine that Nikki Araguz's chances of ultimately prevailing before the Texas Supreme Court could have become any worse as a result of Tuesday than they already were.

There is another way to look at this that
I haven't heard anyone else bring up.Many of the Judges that have ruled in favor of gay rights or marriage are conservative.Could this lead to there being an opposite effect where Judges instead of caving stand up against this push? It might even create more of a pro LGBT bias, stranger things have happened.Honestly if I were in a position similar to them I wouldn't cave I'd send a message.The Supreme Court is the place to watch.It won't be to long and they'll be some pretty big LGBT cases in front of them.Hopefully they'll rule our rights are equal and send the message that screwing with any part of the judicial system won't work.