A Supreme Court shaped by
President Donald Trump, especially if and when Justice Anthony Kennedy retires,
could not only block progress but actually erase existing LGBT rights. That
prospect looks increasingly likely. The only formal principle that counsels
against the Court overturning the cases that established rights to intimacy and
marriage—stare decisis, meaning “to
stand by things decided”—is far from an ironclad guarantee against encroachment
or even reversal.
The principal exception lies in
instances of a major new development—a clear-cut Supreme Court opinion. It is a
matter of debate how directly a Supreme Court decision must undercut precedent
before a lower court can deviate. The only thing a panel that finds precedent
flawed can do is note the flaw’s existence and push the court to hear the issue
as a full court, or en banc. En banc hearings are rare.
In all circumstances, courts are
expected to avoid deviating from precedent. In law, there are few hills steeper
than stare decisis. Squarely confronting
the weight of precedent all but guarantees a loss. The rules are a little
different for the Supreme Court.
If a Trumped-up Supreme Court
shines from a full-frontal assault on gay rights, their reluctance would likely
stem not from stare decision but from the jurisprudential gymnastics that would
be required to walk Obergefell v. Hodges back without disrupting other
precedent on marriage—and, more compellingly, without risking a blowback in
public opinion. There are hundreds of thousands of married same-sex couples
throughout the United States. Public opinion favors LGBT rights broadly and marriage
overwhelmingly. Overruling landmark gay rights cases could generate a backlash
that sees LGBT rights reinstated through legislation.
The Supreme Court can
significantly undermine LGBT rights even without reversing a singly case. Right
now, the federal prohibition against sex discrimination doesn’t bar
discrimination on the basis of sexual orientation or gender identity; the Equal
Protection Clause affords no specific protections for LGBT people, as it does
for members of groups defined by race and nationality. The Court can strip the
rights to intimacy and marriage of their meaning, carving away gradually and
masking the magnitude of changes by phrasing them in arcane legal terms.
Several pending cases could give the Court just such an opportunity. If Trump
gets to replace any liberal justice, or Kennedy, there will be no further gay
rights victories at the highest court. The next question: How many rights will
LGBT people lose?
