Threats to Gay Rights

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?

Gay Rights In America Under Kavanaugh

Justice Kennedy's greatest legacy on the Supreme Court, and certainly what he hopes will be among his greatest legacy are his decisions expanding the scope of LGBTQ rights. 

In 1996's Romer v. Evans, he authored the Court's first major pro-gay rights decision, invoking the 14th Amendment's Equal Protection Clause in striking down a Colorado state constitutional amendment that prevented cities and towns from adopting their own bans on discrimination against gays, lesbians, or bisexuals.

Seven years later, in 2003's Lawrence v. Texas, Kennedy wrote a 6-3 decision invalidating Texas's ban on oral and anal sex between two men or two women. That decision overrode 1986's Bowers v. Hardwick, a decision upholding Georgia

s solomy law. In Lawrence, Kennedy did not use equal protection reasoning but instead found that any bans on consensual sexual behavior between adults, regardless of the genders involved, violate the due process clause's guarantee of personal liberty. (This was similar to the reasoning the Court had used in Roe and to invalidate bans on contraception in Griswold v. Connecticut.)

A decade later, in 2013, Kennedy wrote the 5-4 decision in United States v. Windsor overturning the federal Defense of Marriage Act on equal protection grounds. The decision required the federal government to respect and honor same-sex marriages at the state level, while still allowing states to ban same-sex if they wished. And two years after that, in 2015's Obergefell v. Hodges, he swept away bans on smae-sex marriage altogether, ending with a stirring tribute to the value of marriage that's become a mainstay of wedding readings in the years since:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect not to be condemned to live in loneliness, excluded from one of civilizations's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. 

It is fair, then, for gay rights advocates to worry about what could happen to the Obergefell precedent now that Kennedy has retired and will most likely be replaced by Kavanaugh, who is opposed by every LGBT rights group you can imagine.

There are certainly some conservatives on the Court who are interested in chipping away at the ruling's guarantees. Gorsuch, Thomas, and Alito in 2017 dissented from a ruling requiring Arkansas to list same-sex parents on their children's birth certificates, arguing that to do so does not violate Obergefell. That set the stages for a legal strategy based on gradually chipping away at the right to marriage until it's practically worthless.

Majorities of Americans in 44 of the 50 states now support same-sex marriage. The overwhelming public opinion shift in favor of marriage equality might make the conservatives on the Court more hesitant to chip away at the right, and also might deny the Court opportunities to take up the issue, if the popularity of same-sex marriage prevents states from trying to restrict the right in ways that would be challenged and make it to the Court.

LGBTQ rights as a part of Kennedy's legacy are probably going to be challenged now. And, the Court without Kennedy, and with Kavanaugh, will be less friendly to LGBTQ causes than one with Kennedy still around.