Kavanaugh Signals Trouble for LGBT’s SCOTUS Success [OPINION]
Associate Justice Brett Kavanaugh is probably the most polarizing sitting justice on the Supreme Court. He was confirmed by a narrow margin amid sexual assault allegations last October to fill his former mentor Anthony Kennedy’s seat. Conservatives see him as a well-qualified and respectable jurist worthy of the highest court, while liberals see him as a National Lampoon's Supreme Court Justice, a symbol of toxic bro culture draped in a judges robe.
Nevertheless, he is a duly appointed and sworn member of the Supreme Court, and approximately two weeks into his first full session, we may already have already observed one of the effects of his appointment to the Court, and it is disconcerting for the LGBT community.
In the last decade, you would be hard-pressed to find a social movement that has shifted public opinion as swiftly and effectively as the one for LGBT rights. Credit is due to effective activism and messaging, but mostly their acceleration towards equality was boosted by their legal victories in the state and federal court systems.
No judge was more important to this cause than Kavanaugh's predecessor, Anthony Kennedy. Kennedy, the recently retired Reagan appointee was no friend to judicial liberalism in general, but he was always the swing vote and majority opinion writer on landmark cases regarding the advancement of LGBT rights, including:
Lawerence v. Texas 539 U.S. 558 (2003): Struck down a Texas state law that made same-sex sexual activity between consulting adults a criminal offense.
United States v. Windsor, 570 U.S. 744 (2013): Held that Section 3 of the Defense of Marriage Act defining marriage as one man one woman violated the equal protection guarantees of the 5th Amendment Due Process Clause.
Obergefell v. Hodges, 576 U.S. ___ (2015): On the heels of Windsor, this ruling was the natural conclusion of the gay marriage debate. Kennedy, along with the majority reflected on the changes in the institution of marriage and society’s evolving understanding of the rights that should be guaranteed to the LGBT community. This ruling made gay marriage the law of the land by deciding that the 14th Amendment to the U.S. Constitution mandates state recognize and authorize licenses to same-sex couples and give Full Faith and Credit to marriage licenses from out of state.
Even when Kennedy ruled very narrowly against the LGBT community in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018) (the gay wedding cake case), he took the time to write: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.
For that reason, the laws and the Constitution can, and in some instances must protect them in the exercise of their civil rights.”
However, on Wednesday, the Supreme Court voted 5-4 to reinstate President Trump’s ban on transgender soldiers serving in the military, with Justice Kavanaugh joining the majority. This case still needs to make its way through the lower courts before the SCOTUS decides to rule on it, but it appears that the voting bloc on this policy has already been it's established. It’s impossible to know for sure, this case seems like it would have been surefire save by Kennedy for the LGBT community.
Kavanaugh does not have a judicial record on LGBT rights nor does he have any notable public comment regarding these issues. However, a 2017 speech by Kavanaugh criticizing the liberal Warren Court that was integral to the success of the Civil Rights Movement during the 50's and 60's, and lauding the more limited role of the Rehnquist Court of the 80’s and 90’s, offers an insight of his philosophy on the Courts relationship to social policy:
"Second, it pains me, I’m sad to say, that many young lawyers and law students, even Federalist Society types, have little or no sense of the jurisprudence and importance of William Rehnquist to modern constitutional law. They do not know about his role in turning the Supreme Court away from its 1960s Warren Court approach, where the Court in case after case had seemed to be simply enshrining its policy views into the Constitution, or so the critics charged. During Rehnquist tenure, the Supreme Court unquestionably changed and became more of an institution of law, where the Court’s power is to interpret, apply and to apply the law are written informed by historical practice, not by its own personal and policy predilections."
The firm belief that the Court should refrain at all costs to make decisions based on policy is a commonly held position in conservative jurisprudence, as opposed to the liberal position that the Court has a priority to rule on the legal issue but must step in and invalidate laws and policies that arbitrarily discriminate against minority based on the whim of the majority. Regardless of his personal beliefs on issues of gay rights, Kavanaugh’s aforementioned comments, and his decision on Wednesday suggest that he will not be the aisle-crossing friend to the gay community that Kennedy was.
Trump's transgender military ban hasn't had a final ruling yet, but Wednesday's decision should give LGBT rights activists legitimate cause for concern. It seems the best case scenario is the stall of their successes in the Supreme Court, and that the political unpopularity of anti-LGBT rhetoric and policies will give state officials pause in challenging them. At worst, with the brazenness of the anti-gay Religious Right, a challenge to these rulings could see the deconstruction of the hard-fought social progress LGBT activists have just achieved.
Marcus Ferro is an attorney practicing in New Bedford and a weekly contributor to The Chris McCarthy Show on 1420 WBSM. Contact him at firstname.lastname@example.org. The opinions expressed in this commentary are solely those of the author.