Since the Supreme Court’s Windsor case in 2013 striking down the restrictive federal definition of marriage in the Defense of Marriage Act, there has been a flurry of court activity in nearly all 50 states. Almost all of it has resulted in overturned marriage bans. As the news has rolled in from dozens of states over the last year and a half, I’ve tried to keep out for an pro-marriage equality rulings from Republican or Republican-appointed judges. Today I challenged myself to actually compile them all.
It took several hours scouring websites beginning with Freedom to Marry‘s exhaustive (but imperfect) list of state and federal court rulings, then filling in the blanks at Wikipedia and Judgepedia. I have included and highlighted circuit court panel rulings on previously decided cases. Here’s the full list.
Five (5) judges have upheld marriage bans, and fifty (50) have overturned them since Windsor in 2013.
Of the five that upheld bans, three were appointed by a Republican president (all by George W Bush) and two were elected in non-partisan state elections.
Of the fifty that overturned bans, four were elected locally, 32 were appointed by Democrat presidents or governors, and 14 were appointed by Republican presidents or governors.
Same-sex marriage is often portrayed as a struggle between Republicans and Democrats, but at least at the judicial level it’s evidently much more complicated. There may only be a handful of elected Republican legislators (among the hundreds in Congress) who openly support marriage equality, but there are a lot of Republican-appointed judges who do so (14 of 50, or 28%).
Some conservatives will argue that this is a clear failure of Republican presidents and governors in their appointment process. I would argue that it instead says more about the Republican electoral process. In general, the more conservative Republican will win the local nominating primary election since the primary electorate tends to be composed of more active Republican voters who tend to be more conservative. In these contests, it’s almost always fatal to support or even tolerate same-sex marriage.
However, once a Republican has been appointed to a lifetime judicial seat, they don’t have to worry about being primaried by a more conservative challenger. They are then free to hold pro-gay views and find support for them in the Constitution and legal code on which to rule.
So it’s not that Republicans are en banc against marriage equality, especially since polls show otherwise. It’s just that the elected ones are forced to be against it for fear of their next primary campaign.