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.

Supreme Court's Hearings on Same-sex Marriage

Just two years ago, the Supreme Court struck down part of the federal anti-gay marriage law that denied a range of government benefits to legally married same-sex couples. The decision in United States v. Windsor did not address the validity of state marriage bans, but courts across the country, with few exceptions, said its logic compelled them to invalidate state laws that prohibited gay and lesbian couples from marrying. The number of states allowing same-sex marriage has grown rapidly. As recently as October, just over one-third of the states permitted same-sex marriage. Now, same-sex couples can marry in 36 states and the District of Columbia. 

The Supreme Court justices today are hearing extended arguments, scheduled to run 2 1/2 hours, in highly anticipated cases about the right of same-sex couples to marry. The cases before the court come from Kentucky, Michigan, Ohio and Tennessee, all of which had their marriage bans upheld by the federal appeals court in Cincinnati in November. That appeals court is the only one that has ruled in favor of the states since the 2013 Windsor decision.

Two related issues would expand the marriage rights of same-sex couples. The bigger one: Do same-sex couples have a constitutional right to marry or can states continue to define marriage as the union of a man and a woman? The second: Even if states won't allow some couples to marry, must they recognize valid same-sex marriages from elsewhere?

The arguments of marriage-rights supporters boil down to a claim that states lack any valid reason to deny the right to marry, which the court has earlier described as fundamental to the pursuit of happiness. They say state laws that allow only some people to marry violate the Constitution's guarantee of equal protection under the law and make second-class citizens of same-sex couples and their families. Same-sex couples say that preventing them from marrying is akin to a past ban on interracial marriage, which the Supreme Court struck down in 1967. 

The states respond that they have always set the rules for marriage and that voters in many states have backed, sometimes overwhelmingly, changes to their constitutions to limit marriage to a man and a woman. They say a lively national debate is underway and there is no reason for courts to impose a solution that should be left to the political process. The states also argue that they have a good reason to keep defining marriage as they do. Because only heterosexual couples can produce children, it is in the states' interest to make marriage laws that encourage those couples to enter a union that supports raising children.

The Obama administration is backing the right of same-sex couples to marry, although its argument differs in one respect. The plaintiffs say that the state laws should fall, no matter what standard the court applies. The administration calls for more rigorous scrutiny than courts ordinarily apply to most laws, saying it is appropriate when governments discriminate against a group of people. 

That already is the case for claims that laws discriminate on a basis of race, sex and other factors. But the administration is silent about what the outcome should be if the court does not give gays the special protection it has afforded women and minorities. The Justice Department's decision to stop defending the federal anti-marriage law in 2011 was an important moment for gay rights and President Barack Obama declared his support for same-sex marriage in 2012.

A ruling that same-sex couples have a right to marry would invalidate the remaining anti-gay marriage laws in the country. If the court limits its ruling to requiring states to recognize same-sex unions, couples in states without same-sex marriage presumably could married elsewhere and then demand recognition at home.

The bans in 14 states would survive. Beyond that, confusion probably would reign. Some states that had their marriage laws struck down by federal courts might seek to reinstate prohibitions on gay and lesbian unions. Questions also could be raised about the validity of some same-sex weddings. Many of these problems would be of the Supreme Court's own making.

From October to January, the justices first rejected appeals from states seeking to preserve their marriage bans, then allowed court rulings to take effect even as other states appealed those decisions. The result is that the court essentially allowed the number of states with same-sex marriage to double.

Same-sex couples can marry in 36 states, the District of Columbia and parts of Missouri. More than 500 marriage licenses were issued to same-sex couples in Alabama this year after a federal court struck down the state's ban. But probate judges have not issued any more licenses to gay and lesbian couples since the Alabama Supreme Court ordered a halt to same-sex unions in early March. Gay and lesbian couples may not marry in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, most of Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas.

Gary Gates an expert at UCLA's Williams Institute on the demography of gays and lesbians in the U.S., estimated that there were 350,000 married same-sex couples as of February. Gates relied on Gallup Inc. survey date and Census Bureau information to arrive at his estimate. That's just 0.3 percent of the nations 242 million adults. Almost as many same-sex couples are unmarried, Gates said.

What are the next issues facing gay rights? One fight in the news this year is over efforts to carve out religious exemptions for people and institutions that object to same-sex marriage. It is clear that churches do not have to marry same-sex couples if doing so violates their religious tenets. What about county clerks? Can photographers refuse to shoot same-sex weddings? Can bakers decline to bake a cake for two men? 

Civil rights groups say they will continue pressing for other protections from discrimination against LGBT people in employment and housing, among other areas. Even if same-sex couples win the right to marry everywhere, people still can be fired because of their sexual orientation in more than half the states. We still have a long way to go to have the same human rights heterosexual couples take for granted.