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March 18, 2005

Double Attack on City Domestic Partner Benefit Laws

A lot of folks love when courts intervene in favor of gay rights, but they often ignore when courts strike down laws designed to protect their rights. Liberals tend to talk about the Supreme Court decision striking down (rarely used) sodomy laws in Texas as typical, but ignore cases like the Supreme Court decision that overturned the New Jersey law which prohibited private organizations like the Boy Scouts from discriminating against gays,

Similarly, we heard a lot of news about the California court declaring that gays had the right to marry, but very little coverage of a New York State court striking down New York City's law requiring companies doing business with the city to offer full domestic partner benefits.

Not that the legislative branch of government can't get in on the gay-bashing. Down in Georgia, the state legislature voted to overturn a similar Atlanta ordinance requiring city contractors to provide benefits to domestic partners. But don't expect Georgia or federal courts to step in.

Here's the reality. In "blue states" like New Jersey or New York, courts are far more likely to overturn progressive legislation than expand beyond them, while in more conservative states, judicial action usually accomplishes very little.

Even in the case of abortion -- one of the few examples of strong liberal judicial activism, which is why we talk about it a lot -- courts have protected the right to abortion, but in many states, that action is hollow since so few providers even exist. In Mississippi, for example, there is only one abortion clinic in the whole state.

Here is the reality that I see. In the last decade, the courts have struck down large portions of the Violence Against Women Act, the Americans with Disability Act, New Jersey's anti-discrimination law, state and local affirmative action programs, domestic partner laws, and a range of other progressive laws around the country. And what's been the major positive judicial activism by the Supreme Court: the largely symbolic decision to strike down a handful of sodomy laws that had rarely been enforced in the past.

We need to win these fights legislatively to win in the long term -- a point that the disappearance of abortion clinics in Mississippi highlights -- and a few isolated court victories, in the face of much larger losses of progressive legislation to the courts, just highlights why progressives should stop valorizing judicial activism. It's a net loser for progressives across the board.

Posted by Nathan at March 18, 2005 05:31 AM