Aug Sept 2016
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The Advocate

It's Time for an LGBT Supreme Court Justice

Supreme Court

Last year, the Supreme Court made history by firmly establishing the right of every American to marry the person they love. I hope President Obama will make 2016 another historic year for LGBT equality by nominating the first openly LGBT justice to the nation's highest court.

Nearly 150 years ago, the U.S. Senate first proposed what would become the Fourteenth Amendment to the Constitution to affirm that every American is entitled to equal treatment under the law. Last year, this basic principle — which today is permanently engraved on the front of the U.S. Supreme Court building — gained new meaning for millions of LGBT Americans. Courageous plaintiffs from all over our nation fought for marriage equality so that future generations wouldn't have their marriages and families relegated to second class status.

President Obama has nominated 10 openly LGBT federal judges during his presidency, and he has appointed hundreds of LGBT officials to various significant posts within his Administration. While we still await the first openly LGBT cabinet official, Obama has demonstrated his commitment to LGBT equality and representation in the Executive and Judicial Branches. These individuals have added their talents, abilities, and unique experiences to countless decisions and actions, both large and small, that have helped shape the impact his Administration has had on LGBT people in our country.

I believe it’s now time for President Obama to build on this progress and make history by nominating a highly qualified, openly LGBT Supreme Court justice. To have a representative on our nation's highest court would send a powerful message to the millions of LGBT people who have struggled for recognition — and respect — for many decades.

Today, we have other legal champions who have helped move LGBT equality forward with unprecedented speed and visibility. Like Kathleen Sullivan, who was previously shortlisted for nomination to the Supreme Court and fought against sodomy laws in Georgia. Or United States District Court Judge Darrin Gayles, the first openly gay African-American man confirmed as a U.S. federal judge. Or Colorado Supreme Court Justice Monica Márquez, the first Latina and first openly lesbian woman to serve on the Colorado Supreme Court. Or former U.S. attorney for the Western District of Washington Jenny Durkan, who created a Civil Rights section in that office.

If the president truly wanted to be bold and bring in greater diversity to the bench, he could look to the LGBT leaders outside of the federal judiciary. We can look to our publicly elected officials for brilliant legal minds who have fought for LGBT equality on behalf of their constituents. Like Senator Tammy Baldwin, the first elected openly-LGBT U.S. Senator who introduced the Equality Act in the Senate. Or Oregon Governor Kate Brown, who championed a ban on so-called “conversion therapy” in the state, protecting LGBT children. Or Massachusetts Attorney General Maura Healey, who spearheaded the state’s challenge to the federal Defense of Marriage Act. These elected officials bring experience to the bench not only as members of the LGBT community, but as people with legislative and federal experience that has largely lacked from previous Supreme Court justices. And of course, there are more qualified candidates from across the legal and political realms whose lived experiences as being gay, lesbian, bisexual or transgender would inform their time on the bench.

Significantly, the five major Supreme Court cases that directly impacted the rights of the LGBT community — Bowers v. Hardwick in 1986, Romer v. Evans in 1996, Lawrence v. Texas in 2003, United States v. Windsor in 2013, and Obergefell v. Hodges in 2015 — were all decided by a razor-thin margin of five-to-four. There is no question that filling the vacancy created by Justice Antonin Scalia’s passing with a pro-equality judge is the most important task. But having an openly LGBT person on the bench would help to directly inform other justices of the uniquely personal impact these decisions can have on our own lives.

Notably, we have seen this happen in real time. During the oral arguments of Safford Unified School District v. Redding in 2009, Supreme Court Justice Ruth Bader Ginsburg challenged her colleagues' off hand dismissal of the humiliation a 13-year-old girl experienced when her privacy was violated by a male authority figure. As the only woman on the Supreme Court at the time of that case, Justice Ginsburg taught her fellow justices how to see the experience through an unfamiliar lens when evaluating the legal question of the reasonableness of the search. The previously skeptical justices ruled in favor of the young girl by 7 to 3.

There is no question that cases that directly impact the rights of LGBT people will be considered by the Court in the coming years, and LGBT Americans deserve a voice on the bench that can speak personally and authentically about their own experiences facing discrimination in their schools, churches and communities.

There remain countless elected officials and politicians across the country who remain fully committed to overturning Obergefell and stripping away our marriage rights, not to mention our basic dignity. These dissenters would rather adhere to their own anti-LGBT biases than accept and respect the law confirmed by the highest court in the land.

Despite the overwhelming support for full LGBT equality, millions in our community are still at risk of discrimination and violence in their daily lives all across the country.

It is time for an openly LGBT justice on our Supreme Court who will both affirm and symbolize our country’s commitment to full legal equality for its LGBT citizens.

CHAD GRIFFIN is the president of the Human Rights Campaign.

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