Gay Rights, the New Judicial Federalism, and State Supreme Courts: Disentangling the Effects of Ideology and Judicial Independence

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Justice System Journal


State supreme courts have been on the cutting edge of the movement toward equality for gays and lesbians in the areas of marriage and family law that has unfolded over the last two decades. Previous scholarship analyzing this phenomenon has emphasized the role of judicial independence, observing that supreme courts in states with judicial selection and retention systems insulating judges from popular backlash have generally been more willing to assume an activist role in the advancement of gay rights. This article reassesses this relationship using an original dataset consisting of all the votes cast by state supreme court justices in cases since 1993 in which gays and lesbians have sought legal equality in the areas of marriage and the family. Using a newer and more precise measure of judicial ideology, it finds that the voting behavior of judges in these cases is driven largely by ideology and by shifts in public opinion toward greater support for gay rights. Conversely, potential constraints on pro-gay activism such as more populist judicial selection and retention systems and the conservatism of state electorates appear to exert relatively little effect.

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