Kavanaugh could destroy Kennedy’s LGBTQ legacy

Kavanaugh could destroy Kennedy’s LGBTQ legacy
© Greg Nash

Take a minute to think back to the early days of February 2017. The newly-inaugurated President TrumpDonald TrumpKinzinger welcomes baby boy Tennessee lawmaker presents self-defense bill in 'honor' of Kyle Rittenhouse Five things to know about the New York AG's pursuit of Trump MORE just announced his nominee to replace Justice Antonin Scalia on the Supreme Court of the United States: Neil Gorsuch, who sat on the United States Court of Appeals for the Tenth Circuit.

Immediately, extremists from across the country applauded this decision, calling Gorsuch a judge firmly “in the mold” of Scalia. This descriptor sent shivers down the spines of millions of Americans, especially LGBTQ people. During his time on the Court, Scalia was a firmly anti-LGBTQ, voting against marriage equality (Windsor and Obergefell), decriminalizing same-sex relationships (Lawrence), and even the right of LGBTQ people to not be strangers to the law (Romer). A judge in his “mold” was a scary proposition, especially considering Gorsuch’s young age and the fact that he would likely sit on the court for decades.


As the Human Rights Campaign, the National Women’s Law Center, the Lawyer’s Committee for Civil Rights Under Law and many others began to raise the alarm about Gorsuch, his defenders also came out more firmly. One argument was bandied about by these folks: Gorsuch couldn’t be anti-LGBTQ, he had gay friends!

Now, think about the narrative surrounding Trump’s current nominee, Brett Kavanaugh. Once again, conservatives cheered and LGBTQ people, people of color, women, and many others felt a familiar wave of anxiety and outright fear. But, don’t worry, said Kavanaugh’s defenders: he’s a great carpool dad!

It’s a familiar script, and it’s one that is designed to gloss over the real impact that a hardline conservative Supreme Court justice can have on American life for decades to come. There is so much at stake if the Supreme Court takes a noticeably rightward shift: reproductive rights, LGBTQ rights, healthcare, and many more hard-won legal victories that ensured access to the rights that Americans enjoy today.

No matter how many “gay friends” Gorsuch claimed to have, his record speaks for itself. He voted to water down the marriages of same-sex couples by denying the children of same-sex couples the legal security of automatically having the state recognized their relationship to both parents (Pavan). He also failed to distinguish between refusing to decorate a cake with derogatory language and refusing to provide a wedding cake to a same-sex couple (Masterpiece Cakeshop). He lived up to the “mold” of Scalia. 

If confirmed, Kavanaugh would sit in the former chair of Justice Anthony Kennedy. Kennedy was a complicated figure on the Supreme Court, but he was the key architect for the cases that have most impacted the lives of LGBTQ people. In 1996, Kennedy determined that bare animus could not be a reason to deny LGBTQ people equal protection of our laws in Romer v. Evans.  In 2003, he penned the opinion overturning bans on same-sex relations in Lawrence v. Texas. In 2013, he authored yet another critical opinion in United States v. Windsor, which overturned key provisions of the Defense of Marriage Act. And then in 2015, he took on the same role in Obergefell v. Hodges, but with even larger legal significance: by writing the opinion for the majority which found that the right to marry was guaranteed to same-sex couples under the Constitution.

You’ll notice that there is no such talk from the Trump-Pence administration or conservatives that Kavanaugh would be in the “mold of Anthony Kennedy.” Likely because they understand that a Justice Brett Kavanaugh would not be a justice who affirms the rights of LGBTQ people, but one who has already worked to limit the legal rights of LGBTQ Americans in the past.

The Supreme Court could soon take cases that would determine critical issues for the LGBTQ community including whether our nation’s nondiscrimination laws include protections for LGBTQ people; whether individuals, organizations, and businesses have a license to discriminate against LGBTQ people; and whether qualified transgender people can be excluded from serving in the military, simply because of who they are. 

At a time when the Trump-Pence administration is already attacking LGBTQ people and empowering a culture of animus, our community cannot afford a Supreme Court that will not affirm the constitutional rights of all. We cannot afford another justice hand-picked from a list created by the firmly anti-LGBTQ Heritage Foundation.

The Senate must reject Kavanaugh. If confirmed, he could be a part of the majority that votes to dismantle all of the progress we’ve made. It’s time for our senators to answer: Do the rights of your LGBTQ constituents matter to you?  

Sarah Warbelow is the legal director at the Human Rights Campaign.