How to pick the next Supreme Court justices

Where will the next Supreme Court justice stand on gay equality? At this point, no one knows. However, here are some general guidelines as the battle for the bench begins to heat up



Equal Rights Under the Law

Good nominee: gives real meaning to the Constitution’s guarantee that all persons are entitled to “equal protection under the laws.” For example, in Romer v. Evans, the Supreme Court struck down Colorado’s Amendment 2 as a violation of equal protection because it discriminated against gay people based only on bias.

Bad nominee: interprets “equal protection” very narrowly and allows government discrimination to be justified by weak excuses, including vague notions of “morality.” For example, Justice Scalia wrote that Colorado’s Amendment 2 was constitutional because it reflected voters’ “moral disapproval of homosexual conduct.”

States’ Rights (Federalism)

Good nominee: enforces the Constitution’s mandate that Congress has the power to pass laws addressing important national interests like protecting civil rights and that this power isn’t trumped by states’ rights. For example, in 2004 the Supreme Court correctly held, in Tennessee v. Lane, that the federal Americans With Disabilities Act gave disabled people the right to sue in state courts.

Bad nominee: interprets the Constitution as giving so much power to the states that Congress is denied the power to enact effective civil rights laws for the country. For example, in Tennessee v. Lane Justice Scalia said that the Americans With Disabilities Act didn’t give people with disabilities the right to go to state court because that would violate “states’ rights.”

Disability Discrimination

Good nominee: recognizes that the Americans With Disabilities Act was intended to offer broad protection to all people with disabilities, allowing them to participate as fully as possible in ordinary activities such as holding a job and securing housing. For example, in Bragdon v. Abbott Justice Anthony M. Kennedy came to the conclusion that HIV infection was a disability that limited a major life activity, and therefore the Americans With Disabilities Act prevented health care providers from refusing to treat patients with HIV.

Bad nominee: believes that people with disabilities should receive only minimal protection from discrimination and that laws like the Americans With Disabilities Act should be read narrowly in order to create loopholes allowing discrimination against people with disabilities, including people living with HIV. For example, in his dissent to the Bragdon decision Chief Justice William H. Rehnquist argued that “reproductive decisions” as well as “decisions as to who to marry, where to live, and how to earn one’s living” were not “major life activities,” and conditions limiting those activities, such as HIV infection, were not disabilities entitling people to protection under the Americans With Disabilities Act and other federal disability laws.

Gender Discrimination

Good nominee: recognizes that discrimination in employment, housing, and public accommodations based on sex or sex stereotyping is illegal. For example, in Price Waterhouse v. Hopkins Justice William J. Brennan recognized that sex stereotyping is a form of sex discrimination and that employers cannot punish female employees for failing to meet the employer’s stereotypical view of how a female should act and dress. (LGBT employees are often subjected to this kind of sex stereotyping.)

Bad nominee: believes that laws protecting people from sex discrimination should be viewed narrowly and that employers are allowed to treat people differently based on their sex. For example, in Lambda Legal’s case Jesperson v. Harrah’s Casino, a panel of federal appeals court judges held that an employer could fire a female employee for failing to wear a specific regimen of heavy makeup even though there was no similarly burdensome requirement for men.

Separation of Church and State

Good nominee: recognizes that the Constitution gives all Americans the right to choose their religion (if any), that the government cannot promote or fund activities that endorse religious beliefs, and that those beliefs can’t be used to exempt individuals from the responsibility of complying with antidiscrimination laws.

Bad nominee: believes that the Constitution allows the government to use tax money to fund religious organizations that discriminate against people of other faiths and LGBT citizens, and that individuals can invoke their personal religious beliefs to disregard gay rights and other civil rights laws. For example, some judges have ruled that landlords have a constitutional right to invoke their religious beliefs to ignore laws prohibiting discrimination against unmarried couples, and that there is no constitutional prohibition on government funding to religious agencies that refuse to hire gay people.

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