In 2008, voters in California passed a ballot initiative that banned same-sex couples from getting married, after the state supreme court had already legalized marriage equality. Several same-sex couples sued in federal court, arguing that the ban violated their constitutional rights.
The state of California refused to defend the discriminatory and unconstitutional ballot initiative, so the anti-LGBTQ organization ProtectMarriage.com asked to intervene.
One of the lawyers they hired was Howard Nielson, who Trump nominated last year to the federal District Court in Salt Lake City.
During the trial that eventually legalized marriage equality in California for the second time, Nielson argued, among other things, that it was fine to discriminate against LGB people because they choose their sexual orientations.
ProtectMarriage.com lost their case at trial. The ruling specifically responded to Nielson’s claim that sexual orientation is a choice: “Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”
Nielson later filed an appeal arguing that judge Vaughn Walker, who presided over the trial, should have recused himself because he’s gay, and therefore benefited from being allowed to marry a man.
Then-state attorney general Kamala Harris filed a brief in response to Nielson’s demand that only straight judges hear cases concerning LGBTQ rights.
“Black judges pushed back firmly against attempts to question their impartiality and framed what has become the universally accepted understanding among the bench and bar: that judicial bias cannot be assumed based on racial, gender or other status of the judge,” she wrote. “Those who seek to discredit Judge Walker’s decision based on the allegation that the judge was biased are barking up the wrong tree. They are also raising the ugly specter of judicial bias based on status.”
The appeal was rejected, but it shows how mired in privilege Nielson is. He had spent years arguing that marriage equality hurts straight people, but he believed that only a straight judge would be impartial?
Nielson didn’t stop his work against LGBTQ equality after losing that case. He co-wrote an amicus brief in Obergefell v. Hodges, the case that eventually legalized marriage equality in the U.S.
In that brief, he argued that marriage is fundamentally about opposite-sex couples because “societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.”
According to a report from Lambda Legal, around one-third of Trump’s judicial nominees “have records that demonstrate hostility towards the rights of LGBT people.” As a federal district court judge, Nielson will possibly hear cases that involve discrimination against LGBTQ people.