Nearly 320 million people live in the United States. But when it comes to major U.S. legal controversies, it’s often just one person that counts: Justice Anthony Kennedy.
Half of what’s written for and about the current Supreme Court is for or about Kennedy, the swing vote. He has protested that designation — “The cases swing, I don’t” — but in eight of 10 terms since Justice Samuel Alito’s appointment in 2006, Kennedy has been the justice most often in the majority: a single voice deciding the state of the Constitution, and the fate of millions.
This is not to say that Kennedy affects all American lives equally. His vote is especially critical to certain groups, and on specific issues. Kennedy wrote all three of the Supreme Court’s landmark gay rights cases, creating gay rights jurisprudence as we know it. The problem is, this body of law is barely formed, and far from finished. These cases merely established that the right to liberty guaranteed by the Due Process Clause protects lesbians’ and gays’ rights to intimacy and marriage.
Yet rumors abound on Capitol Hill that Kennedy is readying to retire. More concrete reports begin to trickle in from other branches. A summer departure would spell disaster.
If Kennedy’s replacement resembles these two most recent Republican picks, the results will be cataclysmic for civil rights.
The newest member of the Court, Justice Neil Gorsuch, contests the jurisprudential foundations of these LGBT rights. And, as Akhil Amar, Yale University’s Sterling Professor of Law and Political Science, argued last we talked, during a field trip with me from New Haven to Guilford, Connecticut, Gorsuch is the best Democrats could have hoped for from the Trump administration. “Name three other people on the list that you would rather have had,” he demanded as we drove.
Another point from Amar: Justice Ruth Bader Ginsburg has never been the assigning justice in a five-justice majority. Puzzling out the significance of this factoid may take even the most devoted SCOTUSBlog reader a moment. She’s never been the assigning justice in such a scenario because Alito never, ever deviates from the conservative line in controversial cases. Ginsburg would only have been the senior-most justice — that is, the assigning justice — in a five-justice majority involving the four liberal justices if Alito were the fifth. If Kennedy’s replacement resembles these two most recent Republican picks, the results will be cataclysmic for civil rights.
The Supreme Court is crucial to federal protections for LGBT people. That’s because, federally speaking, there are no “gay” rights yet. The only gay rights that the Court has upheld are not, in fact, “gay” but universal. The Court merely ensured that those rights are now — finally — guaranteed to gay as well as straight Americans. No federal legislation explicitly protects LGBT rights writ large, although the Matthew Shepard Act labels crimes against LGBT people motivated by their sexual orientation or gender identity as hate crimes, and the Violence Against Women Act creates some situational protections. The Employment Non-Discrimination Act failed repeatedly, and the Equality Act stalled last year. Although the latter will be re-introduced on May 2nd, its prospects are even dimmer under the Trump administration than they were against the Republican-dominated House of Representatives under Barack Obama. The administration has already begun revoking the protections Obama created through executive orders and agency guidance.
There are two ways the Court could recognize actual gay rights — that is, protections based on a person’s identity as LGBT. The first route to gay rights, which Kennedy laid the groundwork for in Obergefellv. Hodges, would entail recognizing lesbian, gay, and transgender people as members of what is referred to as a “suspect class” per se for the purposes of the Equal Protection Clause.
Courts assess laws challenged under the Fourteenth Amendment’s Equal Protection Clause, which guarantees us “the equal protection of the laws,” using what’s called rational basis review most of the time. To oversimplify: As long as the government had a rational basis for implementing a law, that law stands. But a heightened standard applies to laws implicating fundamental rights or targeting members of a suspect class — that is, a group that has experienced historic discrimination and political disempowerment because of an immutable or distinguishing characteristic. This tougher standard of review presumes invalidity rather than validity.
Suspect classifications currently include race, religion, and nationality. An intermediate tier of classifications, referred to as quasi-suspect, encompasses gender and legitimacy of birth. For LGBT people to be recognized as members of a suspect class would deter municipalities and states from discriminating based on sexual orientation or gender identity and create a basis for challenging legislation and policies that target LGBT people unfairly.
The Court could also interpret “sex discrimination” as covering sexual orientation and gender identity discrimination. Such a finding would also create a foundation for applying intermediate scrutiny to laws targeting LGBT people. And a circuit court split on the scope of “sex discrimination” vis-à-vis employment discrimination legislation, Title VII, means that the Supreme Court will likely soon be asked to step in.
But the Supreme Court is not likely to do either without Kennedy. And a contrary finding — a definitive declaration that sexual orientation and gender identity are not suspect classifications, or that sex discrimination does not cover either — will last a lifetime, or longer. The Court’s principle of stare decisis (“to stand by things decided”) directs the justices to avoid overturning previous Supreme Court decisions. That means that if Kennedy leaves the Court under this administration, and this Congress, then all hopes for true gay rights — the protections that would ensure that LGBT people aren’t “legally married today, legally fired tomorrow” — will go with him.