Since 1996, with the Romer v. Evans decision, LGBTQ rights in the United States have expanded significantly — from protecting private sexual relations to ensuring marriage equality. It has taken many years, but the Courts have slowly started to recognize the humanity and equal dignity of LGBTQ persons. The pro-LGBTQ court decisions are indebted to Justice Anthony Kennedy's jurisprudence, who has written the majority opinion in every major LGBTQ decision. Kennedy, over the years, has developed a legal narrative around and about the dignity and equal status of LGBTQ persons and their lives. With announcement of his retirement, we should be wary of what the highest Court of the land will have in store for us going forward.
Justice Kennedy is probably best known by the LGBTQ community for his lead judgment in Obergefell v. Hodges, though he has been a force for LGBTQ rights on the bench for much longer. As the sole conservative defender of gay rights on the bench Kennedy's seat on the Court has been both extremely important and decisive. However, looking back before Romer, his judicial opinions were not always supportive. When then Judge Kennedy sat on the Appeals Court, he joined opinions supporting the firing of federal employees for homosexual conduct; deporting an Australian man who was in a same-sex relationship with an American; and the right of the US Navy to dismiss gay sailors. This last case, Beller v. Middendorf, can likely be seen as the beginning of Kennedy's more tolerant jurisprudence in which he recognized "academic comment which argues that the choice to engage in homosexual conduct is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual’s right to privacy.”
Since then we have seen the development of Justice Kennedy's jurisprudential narrative emerge and evolve around the dignity and equal status of LGBTQ people and their relationships. Starting in 1993, LGBTQ people started to be recognized as a protected class. Justice Kennedy stated in Romer v. Evans, “[i]f the constitutional conception of ‘equal protection of the laws’ means anything, it must... mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” With this statement, Justice Kennedy set up the equal protection clause for LGBTQ use by defining a clear legal route for future cases to take. The narrative expanded when the Court heard the seminal case Lawrence v. Texas, which held that there was a Constitutional right to privacy that protected same-sex sexual relations. He wove a legal tapestry rejecting and overturning Bowers v Hardwick, while using a right to privacy for homosexual persons that set out the language of dignity and respect which would eventually be used, along with equal protection, to bring recognition of same-sex marriages (Windsor and Obergefell). Kennedy’s notion of human dignity has been the foundational component for all modern LGBTQ jurisprudence coming from the highest Court.
Even in the most recent Masterpiece case we could see Kennedy, despite finding for the cake shop on narrow legal grounds, laid down the groundwork for relying on his principles of dignity and respect to decide the discrimination issue. “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. [These civil rights] must be given great weight and respect by the courts.” Unfortunately, the other conservative Justices on the bench never adopted Kennedy’s dignity and equal protection arguments — and now with his departure it is unlikely that they ever will. Without Kennedy in the courtroom and in chambers to make his case its likely we are about to see the death of his dignity and respect mantra in majority opinions. LGBTQ rights and dignity will become a thing of dissent again.
Kennedy's announcement of his retirement should put all minorities, but especially queer folks, on high alert. Not only are we losing an unlikely, but extremely important, ally on the bench — now we need to prepare for a real fight for our lives. Living under an administration that has been harshly anti-LGBTQ has been and will continue to be difficult. The ménage à trois of hate (Pence, Trump, and Sessions) can really come down on our communities (they can't even acknowledge when its Pride month!). Its time to rally the troops again (I'm looking at you white cis bougie gay guys) because when Trump and his bedmates inevitably nominate an under-qualified and bigoted Justice for the Court your rights will be at stake, too.
Conversion-therapy-supporting Pence, trans-military-ban-implementing Trump, and Sessions — who supports religious exemptions anti-LGBTQ discrimination laws — have already started selecting Kennedy’s replacement. The last nominee from this administration was Justice Gorsuch, ho still does not grasp the concept that same-sex marriage and opposite-sex marriage are, in their essence and core, the same. With new and important LGBTQ legal battles coming up through the appellate courts, our communities are in actual danger. Trans bathroom bills, anti-discrimination laws for employment, and yes even our wedding cakes/flowers (and maybe eventually the weddings themselves) are all on the chopping block.
The effects of Kennedy’s announcement are not limited to the bench of the Supreme Court. Republicans will be emboldened by the expectation of a new strongly conservative Court. They will be less likely or willing to compromise, in the belief that they don’t need to. The Republican Establishment will support hardline conservative values and policy agendas — progressives must not be caught off-guard.
The LGBTQ community is one of the strongest and most politically savvy communities today, and it’s time for us to step-up our game. The Republicans have opened the door for denying the sitting President the power to nominate Justices, and it’s time we progressives capitalize on their shortsightedness — the time for civility and decorum is over. It’s time to mobilize our communities, friends, and families to flood their Senators with messages asking them to protect your interests and stall any confirmation votes until after the November elections. Call, write, email, and find your local advocacy group to find volunteer opportunities. Spread the message that this administration and the Republicans that support them do not have the people’s interests at heart and We the People need to show them that that has consequences.
Otherwise maybe it’s time to take that move to Canada seriously. ;)