Identity politics on the bench

"Judicial activism" is when a court doesn't give you the result you want in a case. While it's a term of art for the political right, the left gets to the same point with equal facility. A common example is the belief that a gay or lesbian judge has a moral duty to rule for the gay position in all cases.

The latest case: California associate justice Carol Corrigan, one of the dissenters in the marriage equality case. Ditto Oregon justice Rives Kistler, who was one of a unanimous court decision on that state's first marriage rights case.

"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.

"Everybody's got a personal life, but you don't bring it to work," says Kistler, 57. "You're not here to impose or enforce your personal viewpoint. You're here to follow the statutes and the Constitution."

Certainly conservative groups see a gay judge and expect "gay" rulings. The Family Research Council's Peter Sprigg, who earlier this year said he wished gay Americans could be "exported," told USA Today, "We don't accept that homosexuality is any kind of cultural identity that should be sought in a judge. We think it's a behavior, not something that should be held up as a role model..."We don't think we should make an issue of it, if they keep it private," he says. "If we had reason to believe that they would pursue a pro-homosexual agenda, then we would vigorously oppose them."

The funny thing is, there's almost no openly gay or lesbian judges in America. Out of about 30,000 in the United States, 75 to 100 were known to be gay in 2006. One sits among the 900 or so federal judges. Most gay judges are in a handful of states like California, New York and Washington. Oregon justice Kistler and his colleague on the high court, Virginia Linder, are among the few who have run- and won- contested statewide races. A court of appeals judge in North Carolina is seeking a full term this fall.

The judiciary has been demonized for so long in America that every decision is thought by someone to be "activist." At the appellate level, it takes years, and really good lawyering, to thread the needle of precedent to get a controversial case up to a top court. Once there, judges just do their job.