Brett Kavanaugh has replaced Anthony Kennedy on the US Supreme Court. For all the scrutiny of Justice Kavanaugh’s personal life, his hearings told us little about where he will land on gay rights. Americans across the political spectrum have reason for concern — especially pro-LGBT conservatives like ourselves who relied on Justice Kennedy as a champion of limited government. With the polarizing Kavanaugh confirmation now behind us, gay rights advocates need to prepare for the political reality of a rightward shift in the Supreme Court, because much more than marriage is at stake.
With Justice Kennedy’s retirement, America should be grateful to a man who consistently stood up for individual freedom, even when unpopular. His libertarian streak greatly advanced the lives of LGBT Americans, and his successor should honor this legacy. The next chapter of LGBT progress does not lie solely with the Supreme Court — and that was true before Justice Kennedy announced his retirement. Instead, the next chapter of LGBT progress lies in red states and in Congress, where comprehensive laws are needed to protect LGBT Americans from discrimination. Such legislation and other pressing LGBT issues will continue to be reviewed by the Supreme Court, and we will need Justice Kavanaugh’s support.
To begin, it is crucial for Justice Kavanaugh to affirm both the 2013 Windsor and 2015 Obergefell decisions, which established the legality of same-sex marriage, recognizing not only the precedential weight of those decisions but also their correctness. He came very close in answering Senator Cory Booker’s questions about Obergefell and the freedom to marry when he said, “The law of the land protects that right as dictated by the Supreme Court and the precedent of the Supreme Court.” Still, he hesitated to give this response and first tried to offer several reasons why he couldn’t answer the question.
Justice Kavanaugh’s record and position on LGBT issues is otherwise unclear. He avoided ruling on the issue during his time on the circuit court bench. Very soon, Justice Kavanaugh may be faced with cases beyond just the question of marriage, as LGBT Americans still face constant discrimination and violence.
One somber reminder of this fact is the anniversary of Matthew Shepard’s death: in 1998, his brutal murder in Wyoming shook the nation. It was recently announced that his remains will be interred later this month at Washington National Cathedral. But today, 20 years later, only 18 states have implemented hate crime laws that address sexual orientation and gender identity, and another 12 have laws for hate crimes based on sexual orientation.
Gay and trans people can be and are fired solely because they’re gay or trans. Trans people are evicted because — and especially when — they transition. Lesbians are denied medical care for their kids and themselves. Trans women of color face an epidemic of hate-motivated homicides. LGBT youth suffer huge rates of homelessness and suicide. LGBT taxpayers fund public programs that turn them away. The Trump administration has told trans soldiers and potential recruits that they are not fit to fight for our country.
These issues don’t receive the attention they deserve in our public debate. While more than half a million same-sex weddings have taken place, the far left and the far right have latched onto a handful of conflicts between same-sex couples and religious small businesses providing wedding-related services.
But in the majority opinion in the 2018 Masterpiece Cakeshop decision (a case brought by a devout Christian baker who opposes gay marriage against the Colorado Civil Rights Commission), joined by every conservative on the court as well as Justices Elena Kagan and Stephen Breyer, Justice Kennedy noted our country’s mutual recognition of full citizenship rights for gay Americans and philosophical and religious protections for those who object to gay marriage.
Without Justice Kennedy’s moderating influence, another justice could have written a 5-4 decision gutting civil rights laws in Colorado and causing a ripple effect across the country impacting minority groups beyond just the LGBT community. A similar case featuring a florist in Washington who refused to serve a gay wedding has been returned by the Supreme Court to the state for further consideration. It may return in 2020.
Listening only to the loudest voices on the political margins, it can seem like the fight for LGBT freedom is entirely about wedding cakes. From the far left, one hears attacks on organized religion that have nothing to do with LGBT people. From the far right, it’s the “slippery slope” and a wacky obsession with bathrooms. And no matter your politics, there is no way you can honestly think Caitlyn Jenner should be ordered to use the men’s room. We’re pleased President Trump agrees. These distractions do a disservice to the LGBT people living in 31 states where they still have no statewide civil rights protections and where Republicans dominate government.
This political reality demands working with Republican legislators and demonstrating respect for religious liberty. Legal protections for LGBT people must be balanced with the religious freedoms guaranteed by the First Amendment. Republicans can look to Utah’s pro-LGBT legislation as a model for how to achieve this balance.
The gay rights movement was winning with Republicans long before Justice Kennedy wrote Obergefell. We’ve had many legislative achievements, and we will have more in the future — but not if sensational claims and partisan posturing define the debate. Whether the court stands with us or not, Justice Kennedy’s legacy — balancing the country’s diverse beliefs while protecting LGBT freedom — can and must continue through responsible legislation.