Commentary Law and Policy

Judge Kavanaugh Will Take a Sledgehammer to Justice Kennedy’s LGBTQ Rights Legacy

Eric Lesh

Kavanaugh's record shows no indication that he will decide cases involving discrimination against LGBTQ people fairly, nor that he will uphold our nation's core principles of equality and freedom for all.

Over the next few weeks, we are going to get a lot of hot takes on how President Trump’s most recent U.S. Supreme Court nominee, Brett Kavanaugh, really isn’t all that bad for queer people.

Indeed, immediately following the primetime announcement, Greg Angelo, president of the Log Cabin Republicans, was happy to hold the upside-down “LGBTs for TRUMP” flag. “Going to be difficult for anyone to credibly paint Kavanaugh as an anti-LGBT extremist,” Angelo tweeted. “Never issued any anti-LGBT opinions; clerked for the most pro-gay Justice in Supreme Court history.”

Give us a giant break.

First of all, guess who else clerked for the allegedly “most pro-gay Justice in history?” That would be the current justice occupying Merrick Garland’s seat on the Supreme Court, Neil Gorsuch. You know: The guy who, at the time of his nomination, was described by the New York Times as “not easy to pigeonhole” on LGBTQ rights because he had all those gay friends.

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When Trump selected Gorsuch, I was directing the judicial nominations research and advocacy efforts at the LGBTQ legal firm Lambda Legal. Our team spent countless hours chasing the Gorsuch paper trail. Our conclusion: “Judge Gorsuch’s judicial record is hostile toward LGBT people and his nomination to the U.S. Supreme Court is unacceptable.”

Sure enough, the first chance he got, Justice Gorsuch showed his true colors by dissenting from a case that relied on Obergefell v. Hodges‘ marriage equality ruling to smack down Arkansas for refusing to allow same-sex spouses to be listed on a newborn’s birth certificate. That dissent was followed by his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which weighed the slightest hostility toward religion over blatant discrimination toward LGBTQ folks.

Kavanaugh is Gorsuch II.

To be sure, Kavanaugh does not have much of a record of when it comes to cases that explicitly address the rights of LGBTQ people. But at the time of Gorsuch’s nomination, neither did he. For our team at Lambda Legal, it was actually then-Judge Gorsuch’s Tenth Circuit Hobby Lobby decision that showed his vision would threaten the civil rights of LGBTQ people. In it he gave support for broad religious exemptions from laws based on “complicity”—the belief that if an objector simply follows the law they are complicit in the allegedly sinful conduct of others. We found this approach would “open the door to all manner of assaults on the civil rights of ordinary citizens.”

Like Gorsuch, Kavanaugh holds a view that business and individuals should be handed a broad license to discriminate. When a three-judge panel in the D.C. circuit ruled in Priests for Life v. Burwell that the “opt-out form” option of the Affordable Care Act (ACA)—which was provided to religious nonprofits in order to get around the contraception coverage requirement—did not violate the Religious Freedom Restoration Act, Kavanaugh dissented from the denial by the full court to review the case.

Judge Kavanaugh also dissented from rulings upholding the ACA, which supplies health-care coverage for millions of the most vulnerable people in the United States and provides unprecedented federal protections for LGBTQ people.

Judge Kavanaugh tried to prevent an undocumented minor from exercising her right to abortion care, and claimed that the court opinion overruling him was creating “a new right” for immigrants in custody “to obtain immediate abortion on demand.” Trump promised that, if confirmed, his nominees would overturn Roe v. Wade. Kavanaugh will fulfill that promise. In so doing, he will also gut the right to liberty, privacy, and autonomy, which protects LGBTQ people under the U.S. Constitution.

His record also shows disdain for working people, with consistent rulings against employment discrimination. Protections against employment discrimination affecting LGBTQ people are likely to come before the Court very soon, given that several requests for review on the issue are currently pending in several cases, including one decided favorably by the Second Circuit Court of Appeals in New York.

What’s not in Kavanaugh’s record is any indication that he will decide cases involving discrimination against LGBTQ people fairly, or that he will uphold our nation’s core principles of equality and freedom for all.

And you don’t have to just take my word for it. The anti-LGBTQ hate group Family Research Council repeatedly supported Kavanaugh’s nomination to the D.C. Circuit. The bitterly anti-LGBTQ Heritage Foundation, which shaped Trump’s hateful transgender military ban, believes Kavanaugh is a “stellar judge.” Kavanaugh, like Trump’s other nominees to the federal bench, was hand-picked by the ultra-conservative Federalist Society. The society has successfully helped confirm over 40 judicial nominees, and one-third of those picks have anti-LGBTQ records.

We are truly facing a judicial tipping point. The nomination of such an extreme jurist, like Judge Kavanaugh, to replace Justice Kennedy portends a catastrophic setback for LGBT rights for decades to come. While an outright reversal of Kennedy’s rulings in Romer v. Evans, Lawrence v. Texas, U.S. v. Windsor, and Obergefell v. Hodges is unlikely, a five-justice, pro-Trump majority on the Court would quickly move to undermine these rulings and decide other issues, presented and framed by our anti-LGBTQ opponents, that could do long-lasting damage to LGBTQ people and their families.

Oh, and if you’re thinking to yourself: “Well, maybe Chief Justice Roberts will step up to protect Kennedy’s LGBTQ rights legacy,” think again.

My colleagues were in the courtroom the day Obergefell was decided. The chief looked them coldly in their tear-filled eyes as he read from his dissent: “If you are among the many Americans —of whatever sexual orientation —who favor expanding same-sex marriage, by all means celebrate today’s decision … but do not celebrate the Constitution. It had nothing to do with it.”

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