Last week Miami-Dade's Christian Family Coalition launched a campaign to put a referendum on the November 2006 ballot that would define marriage as between one man and one woman. "This will prevent rogue judges ... from striking down the Defense of Marriage Act," the group's campaign announcement read.
In response, Howard Simon, executive director of Florida's American Civil Liberties Union, assured that "the issue of gay rights is going to be a continuing civil rights battle in the state courts for us."
There's a brawl on the way, and ringside seats aren't going to be in Washington, D.C. They are going to be in local courts around the nation, including Miami-Dade County. Whether it's a gay couple seeking from an employer similar benefits as a married couple or a dispute over the county human-rights ordinance's provision that protects homosexuals from discrimination in housing, you can bet the loser is going to appeal to our Third District Court of Appeal.
Too bad the newest member of that court, Leslie Rothenberg, won't be able to participate. In all likelihood, she will be forced to recuse herself.
Rothenberg is a former circuit-court judge who resigned in order to run, this past summer, for State Attorney in the Republican primary against Al Milian. While campaigning she signed a pledge proffered by the Christian Family Coalition vowing to use the power and privileges of her office to oppose gay marriage and adoption. She lost the primary and went to work for a law firm with strong connections to the Republican Party. Almost immediately she was on a list, sent to Gov. Jeb Bush, of nominees to fill vacancies on the Third DCA.
In a column called "Judge Not" (December 9, 2004), I maintained that by signing the pledge, Rothenberg displayed a commitment to a bias that would affect her work should she win appointment to the appeals court. In turn, that showed very bad judgment -- which is, of course, the crux of being a good judge. I also brought up some issues from her criminal-court days -- how she trumpeted her background as a prosecutor who'd be tough on crime to such an extent the Florida Association of Criminal Defense Lawyers issued an unprecedented letter of protest to keep her from being assigned to criminal court; and after taking the bench in criminal court, how she had to remove herself from half a dozen cases because of allegations she showed extreme bias against defendants.
Not that the column did much good. Governor Bush appointed her to the seat two weeks later. Though she is now hearing cases, her investiture ceremony won't take place till March 4 at the Third DCA's offices (see address below).
Rothenberg wouldn't talk to me then or now, but after her appointment she told the Daily Business Review (in apparent response to my column) that concern about her signing the pledge was "much ado about nothing .... I responded to about twelve different surveys," she said. "I was no longer a judge on the bench. I was running for political office, and I think it would be cowardly to hide behind the robes that I was no longer wearing. I responded to any question that was posed to me. I've never been one to hide my own feelings."
When I talked to judicial watchdog groups and gay-rights advocates, the concern wasn't so much that Rothenberg holds the views she does, or that she made them known publicly; it's that she took the advocate's stance of signing a pledge to use her public office to pursue an agenda, even though it pertained to an office different from the one she now holds. Rothenberg told the Review she would never sign that pledge as a judge.
"There's nothing wrong, per se, with announcing your views," says Lara Schwartz, a lawyer with the Human Rights Campaign, a gay-rights group in Washington, D.C., "but I think this person taking a pledge to oppose the rights of some people and work for the agenda of some other people calls into question whether she can neutrally apply the laws of the State of Florida."
"I have no problem with her having an opinion," echoes Deborah Goldberg, democracy program director at New York University's Brennan Center for Justice, a nonprofit think tank that monitors, among other things, judicial behavior. "But judges are supposed to set aside their personal opinions to the extent they can." By signing that pledge, Rothenberg has "undermined her credibility" in that regard, Goldberg says.
Goldberg adds an important point: "It would make me a lot more comfortable if she made some sort of public commitment to ruling fairly and impartially."
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If Rothenberg is so fond of pledges, why not have her take one renouncing the previous oath? "I think it would help," says the ACLU's Howard Simon, "although it brings up the question of how believable it would be. I think she will simply have to recuse herself when these issues come up."
In the spirit of judicial integrity, I've taken it upon myself to help Rothenberg keep her seat when such cases come before her. Here, then, is the new and improved Rothenberg Pledge, which you can clip and send to her, along with encouragement to sign it:
I, Leslie B. Rothenberg, being duly sworn as a justice serving the Third District Court of Appeal in Miami, Florida, do hereby solemnly swear that I will not use the power and privilege of my office for anything other than rendering fair and impartial decisions based on the facts before me and the law on the books. No matter what I may think of Queer Eye for the Straight Guy, the insidious SpongeBob SquarePants, or those annoying drag queens who parade around Lincoln Road like they own the place, I will attempt to purge any preconceived notions I may have about two people of the same sex who want to spend their lives together when such an issue comes before me as a judge. Signed, Leslie B. Rothenberg Date:
Send to: Hon. Leslie B. Rothenberg, Third District Court of Appeal, 2001 SW 117 Ave., Miami, FL 33175. Or fax: 305-229-3232.