What the Kavanaugh appointment could mean for us

By Steve Kilar, December 2018 Issue.

A few years ago, Jim Obergefell spoke in Arizona, at Shadow Rock United Church of Christ. It was early June 2015, about two weeks before the U.S. Supreme Court would declare – because of a lawsuit bearing his name – the U.S. Constitution protects same-sex marriages. Jim’s preceding years had been tragic and trying, and yet he was kindhearted and generous with his time.

Jim and his husband, John Arthur, were legally married in 2013, just months before John’s death of ALS. Because they could not marry in Ohio, where they lived, they had to fly on a medically equipped plane to Maryland, where their marriage was legal. They said “I do” in the aircraft as it sat on the tarmac. After John died, Ohio refused to list Jim on the death certificate as John’s surviving spouse. Jim sued and won but Ohio appealed, eventually pushing Jim’s case to the Supreme Court.

As Jim spoke in the North Phoenix sanctuary, he was less than a month away from hearing whether the nation’s highest court considered his marriage equal under the law. Yet there he was, standing before a group of strangers who wanted to hear all of the details about his fight for equality. Throughout the whole evening, he was friendly and thoughtful.

Jim was in my thoughts during the Senate Judiciary Committee hearings a few weeks ago, as Brett Kavanaugh frothed, displayed partisanship, and exhibited what more than 2,400 law professors described in an open letter published by The New York Times as “a lack of judicial temperament that would be disqualifying for any court.”

It distresses me that Jim’s arduous journey, and the equality he won for millions of people, might now be undermined by Kavanaugh, whose performance during the confirmation hearings revealed a person  who seems to be, in many ways, Jim’s foil.

With Kavanaugh’s appointment, the U.S. Supreme Court now has a more conservative majority. Justice Anthony Kennedy, who Kavanaugh replaced, was conservative but authored major decisions that advanced the rights of LGBTQ people, including Jim’s case. Unless one of the five conservatives now on the court surprises us, there is no longer a champion for queer people in the majority bloc.

For people who are not heterosexual and cisgender, that means we can expect to see a significant slowing, or even a reversal, of our progress toward equality.

Most Supreme Court justices understand that the public will lose faith in the institution if they make decisions far outside of public opinion or if they reverse recent precedent. For that reason – to maintain their credibility as jurists – it seems unlikely that the new majority will completely undo marriage equality. A more likely scenario is that they will follow the strategy developed to weaken abortion rights: chipping away at the freedom to marry by limiting same-sex couples’ access to marriage-related benefits.

For instance, the Supreme Court may decide that child placement organizations, even those that operate with taxpayer funds, can use religious judgments to turn away same-sex couples who want to adopt or foster children. A lawsuit challenging a Michigan law that allows this discriminatory practice is already winding its way through the federal court system and could come before the Supreme Court.

In addition, with Justice Kennedy gone, a majority of justices may now believe that businesses should be able to deny people – like same-sex couples ordering a wedding cake – service because of religious judgments.

Moreover, no one should be at risk of losing their job because they marry but it happens too often to people in same-sex relationships. Although some federal appeals courts have determined that current federal law prohibits sexual orientation discrimination in the workplace, the new U.S. Supreme Court majority could decide the opposite. Our highest court declaring that federal law allows employers to fire people in same-sex relationships without repercussion would certainly chip away at the equality of same-sex unions.

Transgender and non-binary people face the same risk with respect to employment discrimination. Some federal appeals courts have said that existing federal law protects against gender identity discrimination in employment. The new SCOTUS majority could erase that protection.

The rights of people who do not identify as cisgender are among those at the greatest risk. The new court majority may uphold President Trump’s desires to ban transgender people from military service, misgender students in public schools, and undo nondiscrimination protections for transition-related healthcare.

We all have a lot more at stake than civil rights related to sexual orientation and gender identity, too. This new, more conservative court majority threatens our voting rights, the rights of immigrants, reproductive rights, and due process for criminal defendants, among other civil liberties.

A significant transition within an institution that holds so much power over us is scary. But we cannot be deterred. Even if this Supreme Court majority ends up causing two steps back for LGBTQ rights, we must follow Jim Obergefell’s lead and keep fighting for what we know is right, no matter how bad our present circumstances may be.

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