* This piece originally appeared in the Los Angeles Blade and the Washington Blade on July 12, 2018.
On July 9, President Trump nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court. Kennedy, who authored the Supreme Court’s marriage equality decision and a number of other landmark LGBTQ rights cases, was an occasional swing vote on the Supreme Court. Though he almost always sided with the conservative justices, sometimes he voted with liberal Justices Ginsburg, Breyer, Kagan, and Sotomayor on civil rights issues, including those affecting LGBTQ people.
By all measures, Brett Kavanaugh is considerably more conservative, ideological, and partisan than Justice Kennedy. When President George W. Bush nominated him to the D.C. Court of Appeals in 2003, his confirmation took three years because of his expressed partisanship. Additionally, in a rare move in 2006, the American Bar Association downgraded Kavanaugh’s ranking based on interviews with more than 90 fellow judges and colleagues who described him as “less than adequate,” “sanctimonious,” “insulated,” and “immovable and very stubborn.” A recent study by political scientist Lee Epstein found that Kavanaugh’s voting record tilted him to the right of every current justice except Clarence Thomas.
If confirmed by the Senate, Kavanaugh would tilt an already conservative court to the far right. LGBTQ people need to urge the Senate to do everything within its power to prevent his nomination. Here’s why:
Kavanaugh supports virtually unchecked executive power. From barring Muslim immigrants to separating children from their parents at the border, Trump has repeatedly taken reckless and precipitous actions that blatantly violate constitutional and humanitarian norms. But Kavanaugh’s record suggests that he will fail to subject Trump’s policies—including those targeting LGBTQ people and other vulnerable groups—to meaningful judicial review.
Kavanaugh co-authored the 1998 Starr Report that described President Bill Clinton’s sexual relationship with Monica Lewinsky in salacious detail and reportedly strongly urged Special Counsel Ken Starr to use those details to embarrass Clinton during a grand jury investigation and to get an impeachment.
Kavanaugh has since completely reversed course. He now says a sitting president should be immune from any civil suits, criminal investigation, or criminal prosecutions. More broadly, his decisions indicate that he has an extremely expansive view of executive power and might well uphold even policies that violate constitutional rights if the president claims they are necessary to combat terrorism or for other national security reasons.
The Family Research Council, one of the most venomous anti-LGBTQ groups in our country, loves him. The Southern Poverty Law Center has designated FRC as a hate group because it promotes bias against LGBTQ people. In 2005, FRC strongly supported Kavanaugh’s nomination to the D.C. Court of Appeals and, more recently, applauded his nomination to replace Justice Kennedy, vowing to work with Trump and senators to secure his confirmation.
Kavanaugh believes religion can be used to discriminate. In the recent Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission case, the Supreme Court affirmed the importance of anti-LGBTQ discrimination protections and rejected religion as a basis for discrimination. The court held that the government “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” At the same time, the court did not unequivocally resolve the question of whether businesses can ever invoke religious liberty or free speech to justify denying services to LGBTQ customers.
Meanwhile, several states have passed laws permitting taxpayer funded adoption agencies to deny services to anyone, including same-sex couples, based on their religious beliefs, and legal challenges to these laws are likely. The determination of the conservative majority in the House of Representatives to pass “license to discriminate” measures underscores the need for a balanced court that will enforce the Constitution’s commitment to equality for all.
There are strong reasons for concern that a Justice Kavanaugh would vote to permit religious-based discrimination. FRC president Tony Perkins has praised Kavanaugh for his opposition to what Perkins terms a “growing assault on religious freedom.” As an attorney in private practice, Kavanaugh supported student-led prayers at public high schools and the use of taxpayer funds for religious schools. As a judge on the D.C. Circuit, Kavanaugh wrote that an employer should be able to deny contraceptive coverage based on the employer’s religious beliefs.
Kavanaugh is willing to diminish our most fundamental Constitutional rights.
Last year, in Garza v. Hargan, Kavanaugh dissented from an appellate court decision allowing a 17-year-old detainee in a Texas immigration facility to obtain an abortion after she was raped. Kavanaugh’s dissent showed a shocking disregard for the young woman’s constitutional right to control her own reproductive choices. This decision should give the LGBTQ community and other vulnerable communities serious pause about his commitment to preventing the erosion of fundamental Constitutional rights and upholding justice and equality for all.
New LGBTQ issues are likely to come before the Supreme Court and a Justice Kavanaugh could put the rights of our community at risk. This is a time to speak out and take action. It is critical for the future of our community and others that we urge senators to use every tool available to them to oppose Kavanaugh’s nomination.