Supreme Court Vacancy: What’s at Stake for LGBTQ Families

Justice Kennedy’s retirement is cause for great concern. There is a tremendous amount at stake, and it is going to take ALL of our efforts to #SaveSCOTUS.

For many of us, Justice Kennedy’s announcement that he is retiring from the U.S. Supreme Court felt a lot like the day after the 2016 Presidential election — shocking, frustrating, and fraught with fear of things to come. It left many LGBTQ people wondering: what does this mean for my marriage and my family? Are the advances we’ve made toward equality in jeopardy?

To be clear, Justice Kennedy’s retirement at this juncture IS cause for great concern. There is a tremendous amount at stake, and it is going to take ALL of our efforts to #SaveSCOTUS.

Justice Kennedy’s retirement from the Court gives President Trump the opportunity to decisively tip the balance of the Court against equality for generations to come. This is especially concerning given that the Supreme Court has played a critical role in the advancement of legal protections for the LGBTQ community, and Justice Kennedy was the author and swing vote in all four landmark decisions that resulted in much of the equality we enjoy today: Romer v. Evans (1996), which prohibited states from banning nondiscrimination protections for LGBTQ people; Lawrence v. Texas (2003), which invalidated anti-sodomy laws that criminalized same-sex relationships; and United States v. Windsor (2013) and Obergefell v. Hodges(2015), which required federal recognition of marriages between same-sex couples and brought about nationwide marriage equality, respectively. Moreover, those cases made clear that Justice Kennedy understood the impact that anti-LGBTQ animus and discrimination has on our lives, our relationships, and our children. Any worthy successor must not only be committed to honoring Justice Kennedy’s legacy of fairness and equality for LGBTQ people, but also capable of serving as a fair-minded jurist.

It is extremely unlikely that the Supreme Court will overturn any of the landmark LGBTQ equality cases in the foreseeable future. There is a high bar for the Supreme Court to reverse itself, and it is unlikely that the Court will do so anytime soon given how recently the cases were decided and the growing public acceptance and support of marriage equality and LGBTQ people. Moreover, with Kennedy gone, it now seems likely that Chief Justice John Roberts is the Court’s new swing vote, and a quick reversal of a landmark case like Obergefell resulting from Trump filling a vacancy on the Court would fly in the face of the Chief Justice’s repeated commitments to avoid the appearance of political partisanship on the Court or readily rejecting established precedent. This view is reinforced by Chief Justice Roberts’ choice to not join the dissent led by Justice Gorsuch in Pavan v. Smith last year, a case from Arkansas that the Supreme Court used to summarily reinforce the core holding of Obergefell — that states must treat married same-sex couples same way as other married couples.

However, you don’t have to overturn Obergefell to undermine equality and make the underlying rights inaccessible to LGBTQ people and their children. And, to be clear, that is the far-right conservative movement’s strategy, which already is underway. As we recently highlighted in our report, Putting Children at Risk: How Efforts to Undermine Marriage Equality Harm Children (coauthored with Movement Advancement Project), the freedom to marry brought with it a whole host of rights, benefits, and responsibilities that gave same-sex couples increased security and protections such as access to healthcare benefits, social security benefits, inheritance rights, recognition of both parents on the birth certificate, access to confirmatory adoption nationwide, and the ability to jointly adopt a child as a married couple. As outlined in our report, the ongoing attacks on marriage equality by states through their rejection of equal treatment of same-sex spouses and efforts to create religious exemptions to marriage, adoption and foster care, and nondiscrimination protections pose a significant harm to LGBTQ people, our families, and our children.

There are several cases attempting to chip away at marriage and LGBTQ equality, or cases challenging attempts to do so, already in the pipeline. And, a Supreme Court with a shift to the right will be far less likely to reject discrimination toward LGBTQ people in any form and more likely to give a license to discriminate to those who object to same-sex marriages (e.g., business owners, health care providers, adoption agencies), rendering our marriages less equal to those of different-sex couples as a practical matter. Our community has an enormous amount at stake.

So, what can you do? You CAN and MUST do a lot, starting TODAY.

Trump has committed to picking a far-right conservative nominee for a lifetime appointment to the Court, which is evident from the shortlist of his nominees. However, a majority of the Senate must confirm the nomination. THIS is where we can stop Trump’s attempt to create a Court that will serve his far-right agenda to roll back LGBTQ rights, women’s rights, voting rights, racial justice, and decades of civil rights protections. It is imperative that we make clear to all Senators that the next justice appointed to the Court must be an independent and fair-minded person without political or ideological motivations — someone who will uphold the protections and values enshrined in our Constitution — for everyone. Any nominee who does not meet that criteria MUST be rejected.

Given the current state of politics, this may seem like a longshot. But, it is a battle that we CAN win. Historically, the Senate has rejected candidates that were too ideological or political and were not suitable for the Court, and we must demand that they do the same here. With only a narrow majority in the Senate, the conservative bloc need only one or two defections to lose their ability to confirm a radical nominee. Let’s help them to see what’s at stake for justice. By the same token, there are fair-minded Senators who live in states which Trump won. We must help them to stay the course and vote against radical nominees. Let them know we will support them. Look for specific action alerts from us, to these effects. And, no matter where you live, your senators need to hear from you.

There is no doubt that we will have to fight hard. But this is a battle we can win. Here are six steps you can take:

  1. Call your Senators TODAY and tell them to oppose any of the nominees on Trump’s list of conservative nominees and demand that they only confirm an independent and fair-minded person without political or ideological motivations and who will uphold the protections and values enshrined in the Constitution.
  2. If one or more of your Senators is a member of the Senate Judiciary Committee, tell them that each candidate’s commitment to upholding the Court’s precedent and the protections and values enshrined in the Constitution should be fully vetted.
  3. Visit your Senator’s district office THIS WEEK to tell them how you feel during the #SaveSCOTUS Week of Action.
  4. If you live near Washington, DC, attend the #SaveSCOTUS rally at the Supreme Court TODAY at 8:30 pm.
  5. VOTE in November and help with get out the vote (GOTV) efforts. And, let your Senators know that you will be doing so, and that this issue is a top priority for you. Make your voice heard at the ballot box.
  6. Take steps to protect your relationships, your wishes, and your family. If you have children, make sure that both parents’ rights are legally recognized (through a confirmatory adoption or court order). Do estate planning to protect your wishes, your family, and your children (wills, trusts, durable power of attorney, and an advanced directive).

Together, we can #SaveSCOTUS and protect our relationships and our families. We are committed to the fight, but we need YOU!

By Shelbi Day, Senior Policy Counsel & Denise Brogan-Kator, Chief Policy Officer, Family Equality Council

Originally published at on July 9, 2018.