President Trump's coming announcement of his nominee to fill Justice Anthony Kennedy’s seat on the U.S. Supreme Court has many members of America’s LGBT community understandably on edge. The stakes for LGBT people are enormous, given Kennedy's history of embracing LGBT people under the constitution’s protections and questions about whether a new Trump-appointed justice may turn the court in a very different direction.
Though LGBT rights have come a long way since Kennedy began authoring pro-LGBT decisions for the court in 1996, there are numerous important sexual orientation and gender identity cases currently pending in our nation’s courts. A nominee without Kennedy’s respect for the equality, liberty and dignity of LGBT people could well do grave damage to the progress that’s been achieved.
For instance, whether the government has the power to require businesses to treat same-sex couples the same as others or whether, instead, business owners have a constitutional “right to discriminate” is still pending after the court's narrow Masterpiece Cakeshop v. Colorado Civil Rights Commission decision this term.
A nominee without Kennedy’s respect for the equality, liberty and dignity of LGBT people could well do grave damage to the progress that’s been achieved.
It's hardly the only discrimination question that may need to be answered: A growing number of federal courts have concluded that federal laws prohibiting sex discrimination in employment, education and housing cover discrimination based on sexual orientation or gender identity, but the court has yet to weigh in.
After all, if an employee named Chris is fired for dating a woman because she is female rather than male, it’s her sex that led to her termination. And, just as an employee fired for changing the religion with which they identify would be protected by laws barring discrimination based on religion, so an employee fired for changing the sex with which they identify must be protected by laws barring discrimination based on sex. But some courts have insisted this wasn’t what Congress envisioned in passing the Civil Rights Act in 1964.
Requests for the court to weigh in on these issues already are pending in two different cases that reached opposing outcomes, and it's expected to be asked as early as next month to review a ruling in favor of a transgender employee.
Meanwhile, four federal courts have enjoined President Trump’s ban on transgender military service and some of those cases are already on appeal, setting up a near-certain review by the Supreme Court. Litigation challenging state laws that authorize state-licensed, taxpayer-funded foster care and adoption agencies to refuse to place children with same-sex couples may also reach the court in the next decade.
And there undoubtedly will continue to be legal challenges brought by public school students who are kept from using restrooms that align with their gender identity.
The LGBT community was reasonably comfortable, with Kennedy on the high court, that overt discrimination against us would find no legal foothold. In 1996, for instance, Kennedy authored the court’s 6-3 opinion in Romer v. Evans, which invalidated Colorado’s constitutional amendment prohibiting any government body in the state from protecting lesbian, gay or bisexual people against discrimination. The constitution’s Equal Protection Clause does not countenance such an effort to make gay people “unequal to everyone else,” Kennedy wrote.
In 2003, he penned the court’s majority opinion in Lawrence v. Texas, which struck down any remaining laws that criminalized consensual, adult sexual intimacy. The right to liberty under the constitution’s Due Process Clause, Kennedy explained, does not permit the government to intrude into the bedroom in this way. Instead, it requires “respect” for the “private lives” of all couples, including those of the same sex.
In 2013, Kennedy wrote the majority opinion in United States v. Windsor, requiring the federal government to treat equally the marriages states had begun allowing same-sex couples to enter. Just two years later, he again wrote for the majority, extending marriage equality nationwide in Obergefell v. Hodges.
Given how recent these decisions are and how readily most of the American public has come to accept them, it’s not likely any of them will be quickly overturned. Chief Justice John Roberts, the conservative justice expected to become the court’s new "swing" vote, has repeatedly expressed that the court should not readily reject judicial precedent or appear politically partisan. A quick reversal of a ruling like one of these, which would solely result fromTrump’s replacement of one justice, would unquestionably look politically partisan.
Still, any Trump nominee should be carefully grilled about their views on these questions. The nation deserves someone who will approach them without a political agenda and with the same concern for our humanity and our rights as LGBT people to which the Kennedy-occupied Supreme Court committed itself over the past 22 years.
Jon Davidson is the chief counsel at Freedom for All Americans, a campaign dedicated to winning LGBT nondiscrimination protections nationwide.