Only nine people hold the job at any given point. People work a lifetime to hear their names raised as mere possibilities for the job. And now a seat is open. As Justice Sandra Day O’Connor announced her retirement July 1, immediate attention turned to who would be chosen to replace her.
O’Connor’s retirement marks more than the first vacancy on the court in over a decade: It also marks a moment of critical importance to gay, lesbian, bisexual, transgender, and allied Americans. The battle over Justice O’Connor’s successor will be a battle between those who believe in a Constitution that protects our right to equality and those who believe that it permits states to treat GLBT Americans as criminals.
In the wake of the Supreme Court’s Lawrence v. Texas decision, which stated unremarkably that the state cannot deprive adults of liberty for engaging in private, consensual sex, Focus on the Family’s James Dobson called Justice Anthony Kennedy, a Reagan appointee, “the most dangerous man in America.” Opponents on the far right are going to do everything they can to ensure the appointment of a justice who, unlike Justice O’Connor, would have voted against fairness.
The response to Lawrence is a Rosetta Stone for understanding what’s at stake today. In that case the court held that “mere moral disapproval” is insufficient to brand a class of people as criminals. Most Americans agree. But what Justice Kennedy called “mere moral disapproval” is legally indistinguishable from what a small group of vocal opponents consider biblical disapproval of homosexuality. That’s why Lawrence was unacceptable to those who want the government to enforce their interpretation of the Bible. And that’s why the same forces that rallied unsuccessfully around the federal antimarriage amendment are going to pressure the president to appoint a justice who shares their limited view of the Constitution.
Justice O’Connor’s concurrence in the Lawrence decision concluded that GLBT people are entitled to basic equality under law. She also voted with the majority in Romer v. Evans to strike down an antigay Colorado constitutional amendment than banned any laws in that state favoring equal protection for gay people. Justice O’Connor has been a thoughtful consensus-builder in the areas of choice and the separation of church and state. If she is replaced by a justice who is less protective of individual rights, the court’s balance could tip against GLBT equality for decades to come.
President Bush has repeatedly stated that he will appoint judges who don’t “invent” new rights. This suggestion has dangerous implications for fair-minded Americans who have long relied upon the courts to safeguard individual rights from the tyranny of the majority.
It’s important to understand that even if the chosen nominee does not have an explicitly anti-GLBT record, his or her record on other issues, like choice, will be important. Roe v. Wade and Lawrence v. Texas are legally intertwined. An end to Roe could very well mean an end to Lawrence and the promise that it holds for greater GLBT rights.
Also important will be the nominee’s record on federalism, in particular whether he or she holds a restrictive view of Congress’s power to enact workplace protections and safeguard people from hate violence. Given that religion is often wrongly cited as the justification for discrimination in the civil sphere, a nominee’s record on the separation of church and state is also crucial. It is particularly important because Justice O’Connor served as a critical voice against state-endorsed religion.
Unfortunately, many of the jurists whose names are most often cited as possible successors have troubling records on choice, federalism and church-state separation. Those on the extreme right demand no less, and indeed, they are already rallying their troops to push a nominee through the Senate.
We at the Human Rights Campaign believe that there is a better way. Our Constitution says that the president appoints justices with the “advice and consent” of the Senate. Many of his appeals-court appointments—from antigay ideologue Bill Pryor to arch-federalist Jeffrey Sutton—have been exercises in confrontation.
There is no more important time for GLBT Americans and our allies to speak up in favor of the president’s consultation—not confrontation—with the Senate when he nominates the next justice. Make it clear that Americans want the next justice to comprehend the Constitution as a protector of all. There is no argument that this is the most important decision we can be involved in this year. A new justice will sit on the bench of only nine players for years, and the decisions that the court hands down will affect us all for decades, if not centuries, to come.
It is important to make your voice heard. While we can be a vocal group, our opponents will be better financed and have already started mobilizing their base on this issue. We must be louder and stronger. Visit www.hrc.org/takeaction to contact your members of Congress and www.hrc.org to learn more.
If the nominee does not respect the rights of every American and does not comprehend that the Constitution’s promise of equal protection extends to all Americans, we will be there. The Human Rights Campaign, along with its allies in the advocacy community, will continue to fight for a fair and balanced judiciary. We need you to stand with us.