Monday, October 22, 2012

Gay Rights & the Judicial Process

Connecting the Dots Behind Gay Rights Decisions

By Matthew Newman
Matthew "Aidyn" Newman is a class of 2012 graduate of Albany Law School with a specialty in Criminal Law. He received his undergraduate degree in East African studies from Union College, where he researched his thesis on Japanese yakuza and spent a semester abroad studying at Kansai Gaidai in Osaka, Japan.
This paper was prepared for the Judicial Process Seminar, Fall 2011.

One of the greatest challenges confronting a judge is how to decide a case.  Some judges adhere to "originalism," others are "literalists."  Some judges take into account the consequences of their actions, others believe this to be the job of the legislature.  No matter what methodology they use, there is always a secret inner conflict in every judge, between the "realist" and the "formalist."

The "formalist" judge is a neutral observer, nothing more.  He or she applies the facts of any given case to the legal framework in question and draws a conclusion based on these factors.  The "realist," on the other hand, cannot help but to draw upon his or her own personal experiences, morals, and leanings.

This paper will examine four important gay rights cases decided by four courts in an attempt to discern just how palpable the "hidden" morals and ethics of individual judges on these courts are.  First, it will examine the Supreme Court and Justice Scalia's dissent in Lawrence v. Texas.  Then, in Fricke v. Lynch, it will examine Chief Judge Pettine and whether he fits the "realist" paradigm.  Next, the majority's opinion in Goodridge v. Department of Public Health will provide a contrast to the dissent in Lawrence.  Finally, Varnum v. Brien was chosen as a stark contrast to Goodridge.*
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.