What’s At Stake: Brett Kavanaugh, LGBTQ Families, and the Supreme Court

“These are extremely perilous times for our families and our right to equal treatment under the law.

In the short time since President Trump announced Brett Kavanaugh as his choice to fill the Supreme Court seat vacated by retiring Justice Kennedy, much has been written about Judge Kavanaugh and his conservative positions on a variety of issues. If you want to know about his position on a woman’s constitutional right to an abortion, please read the article written by Planned Parenthood, the National Partnership for Women and Families, and many more; for his position on responsible gun control, you can look to Everytown for Gun Safety; his position on the Affordable Care Act is well known and is talked about by the Center for American Progress, the National Health Law Program, and others; the AFL-CIO has written about the Judge’s positions in employment law. The list goes on.

Still, there has been precious little written about Judge Kavanaugh’s views on the rights of LGBTQ people and our families. It is true that he clerked for Justice Kennedy in 1993–94, and that Kennedy apparently favored his nomination. In truth, based on what we know so far, Kavanaugh’s judicial opinions, other writings, and background do not tell us very much about how he would handle the constitutional issues that underpinned Justice Kennedy’s landmark opinions recognizing the fundamental rights and dignity of LGBTQ people, including the rights to equal protection and due process in Romer v. Evans (1996), Lawrence v. Texas (2003), Windsor(2013), and Obergefell (2015). We can only hope that Kennedy has reason to believe his former clerk would not work to undermine his legacy. However, President Trump has said that he will only nominate justices who would “automatically overturn” Roe v. Wade (the abortion rights case). This is important to note because Roe rests on the premise of personal liberty and a right to privacy. These are the very pillars of the rights to equality that our community has gained through the above referenced cases. If that landmark case were to, indeed, be overturned it could help pave the way for erosion of those rights. As Nancy Northup explains,

“The constitutional framework of Roe is about far more than abortion. It’s about rearing our children without unwarranted government interference. It’s about choosing whom we want to marry. It’s about deciding with whom we want to create a home. It’s about the right to use contraception. It’s about what the Supreme Court in Planned Parenthood v. Casey explained is the “promise of the Constitution that there is a realm of personal liberty which the government may not enter.

This guarantee of individual liberty is bound together through decades of accumulated legal precedent. Within the interconnected framework of our rights, Roe is a load-bearing element. Knock it down, and the structure falls.”

As noted earlier this week in our blog, we have some reason to believe that marriage equality, and the rights of married LGBTQ couples to equal treatment by the states, are not yet in danger. In 2017, the Supreme Court summarily struck down an Arkansas state law that would not allow the same-sex spouse of a married woman to be entered onto the birth certificate of the child she delivered. (see our blog post about Pavan v. Smith). That vote was 6–3, with Chief Justice Roberts joining the majority. Justice Roberts may be a conservative, but he seemingly had enough respect for the Court’s judicial precedent to resist joining the conservative bloc’s dissent. That dissent would have had the Court chip away at Obergefell’s very explicit mandate that the constitution requires that same-sex couples not only be permitted to marry but also be afforded all the same rights and benefits as different-sex married couples (i.e., marriage equality).

But, make no mistake — these are extremely perilous times for our families and our right to equal treatment under the law. As demonstrated by the Court’s recent vague decision — by Justice Kennedy — in Masterpiece Cakeshop v. Colorado Civil Rights Commission, there is much left undecided about whether we and our families can be openly discriminated against in the name of “religious liberty.” Even as you read this, religious extremists continue their work to undercut the rights and benefits of marriage for same-sex couples and families with court challenges to inclusive civil rights laws, as well as pushing legislative exemptions that expressly permit discrimination against us.

These attacks have largely taken the form of state laws which seek to allow individuals, businesses open to the public and, most egregiously, agencies charged with the care and placement of foster youth, the right to discriminate against LBGTQ people and same-sex couples, all under the guise of freedom of religion. See our blog posts herehere and here for discussions about some of these specific examples.

And, so Judge Kavanaugh’s position on “religious freedom,” i.e., the ability of people, businesses and government contractors to use religion as a way to avoid compliance with laws of general applicability, becomes very important to our families and our position with respect to his nomination.

If Aesop was right that one knows a person by the company they keep, we can tell a lot about how Judge Kavanaugh might rule on issues that affect our families by the enthusiastic endorsements he’s received from some of the most socially conservative organizations in the country: The Heritage Foundation, the Federalist Society and the Family Research Council. He has also received strong statements of support from expressly religiously-affiliated conservative groups. One need look no further than an article written by one of his former law clerks, who is now special counsel to the Thomas More Society, a conservative national non-profit law firm which focuses on issues of “religious liberty,” wherein she said:

“On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh. On these issues, as on so many others, he has fought for his principles and stood firm against pressure. He would do the same on the Supreme Court.”

But, what does Kavanaugh’s support for “protecting religious liberty” mean for actual families and LBGTQ individuals? It can make all the difference in the world for those fighting in the courts against religion-based discrimination. Take the cases of Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton — two prospective adoptive families that were refused services by state-contracted and taxpayer-funded child placing agencies based on those agencies’ religious objections to same-sex couples. These couples were ready, willing, and able to provide a “forever family” to children in the foster care system. After being turned away, they — with the help of the American Civil Liberties Union (ACLU) — filed a lawsuitchallenging Michigan state’s use of taxpayer funds to provide government services based on religious and discriminatory criteria. The lawsuit argues that this practice violates the Establishment and Equal Protection Clauses of the Constitution. It also points out that the needs of society’s most vulnerable children should not be sacrificed to the religious views of people who perform a public function.

As with most cases like this, the losing side is almost certain to appeal — likely all the way up to the Supreme Court. What our families need and deserve is a fair-minded jurist, unmotivated by political ideology or religious dogma, who will respect the precedent and principles laid out by the Court in Obergefell and related cases, not one whose mission is to “protect” discrimination in the name of religion. Because we believe Judge Kavanaugh is inclined to the latter position, we join other progressive organizations in our opposition to his nomination. Once again, we need to stand up and fight for our families. Join us.

By Denise Brogan-Kator, Chief Policy Officer, Family Equality Council

Originally published at www.familyequality.org on July 16, 2018.