Kavanaugh on The Supremes, Would it Halt or Reverse The Process on Anti-Gay Discrimination
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| Would those colors run?or Painted over with Orange for 30 yrs? |
Watching the confirmation hearing of Judge Brett Kavanaugh last week, I had a flashback to two defining moments of my life. Both underscore the profound anxiety gripping many advocates of LGBT rights at the prospect of this nominee replacing Justice Anthony Kennedy on the Supreme Court.
In the coming months, the high court may accept a case from one of several appeals courts that will determine whether or not LGBT people have any rights under existing federal anti-discrimination law. Meanwhile, some of the few protections we enjoy under the Constitution, for privacy and marriage equality, rest on rulings that Kennedy authored but that Kavanaugh has implicitly criticized — such his 2016 warning, in a tribute to the late Justice Antonin Scalia, against making up "new constitutional rightsthat are not in the text of the Constitution."
For Judge Kavanaugh to refuse under oath last week to say that the marriage ruling was properly decided, as he did on a Nixon-era case about presidential accountability, sends an alarming but clear signal. Not only is further progress toward equality at the high court unlikely if he fills the ninth seat, but he could put even our tenuous and hard-won footholds for federal protection at grave risk.
People have changed, but the laws haven't
Twenty-three years ago, I was in the gallery at the Supreme Court as justices heard oral arguments about a state ballot measure aimed at making discrimination against gay people the permanent policy of Colorado. That day in October 1995, I heard the unease in voices from the bench who believed that the proposal — narrowly approved by voters in 1992 amid a campaign that characterized gay people as contemptible sexual deviants and threats to public decency — went too far in using the force of law to stigmatize an entire group.
Five years earlier, as a newly out and open 20-year-old, I was seated before a roomful of residents in my college town in Ohio debating the fate of a local ordinance to stop several forms of discrimination in housing. The most vocal residents were a handful of middle-age people from two local congregations who did not want to talk about human rights or the Constitution or equal protection of the law.
They wanted to talk about the Bible’s Old Testament and sin. Any local provision of public policy that protected sin, they argued, should be taken away. If not, it would bring a horde of gay people flocking to our town. As beneficial as I might have believed such a remote prospect to be, they deemed it a foregone conclusion and downright ruinous.
In the decades since these searing episodes, a sea change has occurred in public attitudes on recognition of LGBT people. Back then, just one-quarter of people said they knew an openly gay family member, friend or colleague. Now the tables have turned, with only a quarter of Americans reporting that they don’t have a personal relationship with an openly lesbian, gay, bisexual or transgender person.
Even so, the law has not caught up with public opinion. Nearly 90 percent of Americans believe that LGBT people deserve equal opportunities in jobs. Yet there is no federal statute protecting Americans from discrimination based on sexual orientation or gender identity. Yes, that’s right. And a large majority of Americans don’t realize that what they may believe to be common sense is not reflected in federal law.
Complicating the picture further for gay people is that anti-LGBT bigotry is still prevalent, as trends in hate crimes and bias complaints to human-rights agencies still underscore. But a patchwork of policies in two dozen states and numerous localities, along with federal court rulings, provide only limited protection.
Gay people can't be 'strangers' to US law
In 1996, in the case I heard argued, Justice Kennedy wrote a ruling that blocks ballot measures that seek to pre-empt anti-discrimination laws. But it still allows for referendums that take away policies approved by lawmakers.
Transgender Americans are especially vulnerable, with more than two-thirds reporting bias in using public facilities or services.
Even in Massachusetts, the first state to usher in marriage equality, passage of a 2016 law barring discrimination in public places against transgender people prompted some religious conservatives to gather signatures to overturn it. Now, on the general election ballot, voters will cast an up or down vote on the law as Question 3, with the rights of transgender neighbors hanging in limbo.
In Ohio, the month after that debate nearly three decades ago, voters in my college town repealed the section of the fair-housing ordinance that protected gay people from eviction or denial of a lease based on sexual orientation. To this day, no local or state policy has filled that gap.
In one of his most majestic opinions, Justice Kennedy wrote that gay people in America cannot be rendered strangers to its laws.
Contrast that with the disdainful tone of Brett Kavanaugh, who complained last year about “freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
The struggle of LGBT people to bridge the divide from outcast to equal has defined the past half-century. If Judge Kavanaugh replaces Justice Kennedy on the court, that work will become far more difficult.
Hans Johnson, a longtime columnist on LGBT equality, religion and politics, has advised or managed campaigns on human rights in 25 states. Follow him on Twitter: @HansPJohnson
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