Judges who are elected to state supreme courts are generally less supportive of LGBT rights claims than judges who are appointed, according to new research commissioned by a nonprofit law group.

A report released on Wednesday analyzed 127 rulings in state high courts involving LGBT rights claims to understand the impact of judicial selection processes on such cases. The study, produced by Lambda Legal, found that judges chosen through partisan elections are least supportive of LGBT rights claims compared to their peers around the country who are selected through other methods. Lambda Legal is a non-profit that advocates for the civil rights of lesbian, gay, bisexual and transgender people and those with HIV through litigation and other work.

“If you want to get a fair hearing in court you need to make sure that judges are free to make decisions, that they have the independence to rule on the law without fear of retaliation,” said Eric Lesh, the report’s author. “How does the way that judges are selected play or factor into the way that they are able to decide cases fairly in LGBT rights claims?”

The six state courts with partisan elections issued a pro-LGBT ruling in 53% of relevant cases, according to Lambda Legal’s findings.

State supreme courts, generally the final word on questions of state law, are filled through various means across the country. Both initial selection and retention of justices can be achieved through elections or appointment by governors or legislatures, depending on the state. The amount of money funding judicial campaigns has drawn increasing scrutiny in the past six years, with advocates for campaign finance reform concerned that justices meant to impartially rule on legal questions might be swayed by influential donors, a party platform, or an opinion popular with voters.

Anthony Kreis, the lead researcher who analyzed the data, explained that the data set included the 127 state high court cases involving LGBT claims from 2003 through 2015. The data set started with cases that came after the supreme court ruling in Lawrence v Texas, which struck down the sodomy law in Texas, and only included cases decided on merit. Of the those 127 cases, each ruling was coded as either pro-LGBT or anti-LGBT. Most cases examined were challenges to state statutes that barred recognition of same-sex couples and questions on family law such as adoptions, according to the report.

Kreis, a law professor at Chicago-Kent College of Law, noted that there were “conflating factors” to consider in evaluating states’ high court rulings. For example, a state such as Massachusetts has justices appointed to lifetime tenures by the governor, but its court’s decisions could also be impacted by the more liberal ideology of the state.

“It’s hard to say it’s absolutely because of [the judicial selection process] and not because of the ideological background” of the state, Kreis said.

Although the main variables examined were the method through which the state chose its judges, the researchers also factored in the high court’s ideology and the political context of the state. According to the report, it “is plausible that certain selection systems encourage judges to behave more ideologically than others cases dealing with LGBT rights”.

“Judges who are in partisan election systems are polarized,” Kreis said. “Judges in liberal jurisdictions where they’re ‘partisanly’ elected are much more in favor of LGBT rights in their decision making process. Conservative judges have the opposite effect; they’re much more opposed. This suggests that the selection process matters.”

The report also highlighted some notably anti-LGBT justices throughout the US, such as Roy Moore, who was suspended from the Alabama high court for his opposition to marriage equality. Moore’s trial to decide whether he can keep his seat began Wednesday.



Jefferson Hughes, a justice on Louisiana’s supreme court, was elected in 2012 after running campaign ads describing himself as pro-life, pro-gun and pro-traditional marriage. In a 2015 dissent, Hughes wrote that the “most troubling prospect of same-sex marriage is the adoption by same-sex partners of a young child of the same-sex”. Louisiana and Alabama are two of the six states that select their high court justices through partisan elections.

The report also examined the lack of diversity among state high court justices. According to Lambda Legal, 10 justices of the 340 on state high courts identify as openly gay or lesbian. Lambda Legal could find no openly HIV-positive or bisexual judges, and just two openly transgender judges. California is the only state that collects data on sexual orientation and gender identity of state judges.