Supreme Beings

“There is no single factor more important to whom you support for president than the Supreme Court,” says Kate Kendell, executive director of the National Center for Lesbian Rights.

In other words, what matters most is not the candidates’ stance on health care reform, the Iraq war, or the Defense of Marriage Act but their potential picks for the highest court in the land.

“It’s very troubling,” says Kendell, “that for the past several election cycles there seems to be very little understanding about how the composition of the court could change very negatively -- not just for LGBT people but for a whole range of social justice issues.”

Of the nine current Supreme Court justices, six -- John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer -- are over 65. And while there’s no requisite retirement age on the bench (and none of the court’s members have indicated publicly that they’re planning to step down), the next president may well have the opportunity to appoint at least one new justice.

Thomas M. Keck, a political science professor at the Maxwell School at Syracuse University, says activists on both side of the political fence often use “hyperbole” when speaking about the importance of the next appointment to the Supreme Court. But this election year it’s actually critical. “I think it’s [potentially] a very key vacancy,” he says, “particularly for LGBT people.”

That’s because the two tracks of law that have led to the greatest legal gains in LGBT rights -- the right to privacy and equal protection under the law -- are particularly vulnerable right now.

The right to privacy was integral in cases such as Lawrence v. Texas, a landmark 6–3 decision in 2003 that determined individuals had a right to engage in homosexual conduct without the intervention of the government. The decision overturned a 1986 ruling by the court upholding the constitutionality of Georgia’s sodomy law. Equal protection figures in cases such as Romer v. Evans, in which the court ruled that a Colorado state law forbidding the enactment of legal protections against discrimination based on sexual orientation violated the 14th Amendment.

Conservative Supreme Court justices such as Clarence Thomas and Antonin Scalia, who are often referred to as “strict constructionists” for their belief that the court should base its ruling on the original intended meaning of the Constitution, have often argued that the document does not guarantee a general right to privacy for Americans or equal protection for gays and lesbians.

And legal scholars and court watchers say that the court’s newest members, Chief Justice John Roberts and Justice Samuel Alito, both of whom were appointed by George W. Bush, have a similar philosophy.

Ellen Andersen, an assistant professor of political science at Indiana University–Purdue University Indianapolis says both of these legal lines will be at issue -- and could possibly be overturned -- if any of the court’s more liberal justices, or moderate justices Souter and Breyer, are replaced by someone with a more conservative view of jurisprudence.

James Esseks, litigation director for the American Civil Liberties Union’s LGBT Project, worries that a more conservative court could attempt to overturn Lawrence v. Texas. “It wouldn’t be easy,” he admits. “But it’s not impossible. The Supreme Court can make a big difference toward what progress we make as a community, and what Lawrence means is very much up for grabs.”

LGBT activists have often argued that the court’s ruling on Lawrence has broader legal equal protection implications and used it to bolster their arguments for equalizing marriage rights and ending the military’s “don’t ask, don’t tell” policy.

However, if the Supreme Court -- along with other lower federal and state courts -- interprets the ruling in a more narrow, case-specific way, it could make it more difficult to use the decision to secure and expand the rights of gays and lesbians.