The Advocate July/Aug 2022
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Brett Kavanaugh Confirmation Means 40 More Years of Trump Values

Brett Kavanaugh

Brett Kavanaugh is apparently a very nice guy. At least that’s what his Yale Law School friends and carpool buddies say about him. And to them, I’m sure he is. But to LGBTQ+ people, he is dangerous.

We know that he is determined to end access to abortion because that’s how he got on Donald Trump’s Supreme Court short list in the first place. That makes him dangerous for LGBTQ people — not just because we need reproductive rights too, but because the precedent that secures safe, legal access to abortion and birth control is the bedrock of LGBTQ rights.

When Lambda Legal persuaded the U.S. Supreme Court to strike down state laws criminalizing sodomy in 2003, it freed us — we were no longer criminals just for being ourselves. That landmark decision, Lawrence v. Texas, built upon the liberty and privacy protections established in earlier Supreme Court cases involving abortion (Roe v. Wade) and birth control (Griswold v. Connecticut). Lawrence not only decriminalized our existence but also paved the way for other legal advancements that changed America’s legal landscape forever, from the repeal of “don’t ask, don’t tell” to marriage equality.

But if the Trump-Pence administration succeeds in putting Kavanaugh on the high court, these critical civil rights and liberties will be under immediate siege. The fact that Judge Kavanaugh satisfied President Trump’s widely touted litmus tests means that he would not only threaten a woman’s right to make her own health care choices but would also take aim at our intimate relationships, our families, and our very identities.

The most fervent supporters of Brett Kavanaugh actually share our views about what his confirmation would mean for reproductive and LGBTQ rights. This is why they are working so hard to force his nomination through.

Kavanaugh has written that employers should be allowed to deny their employees access to birth control. He thinks even filling out a form requesting an exemption from the Affordable Care Act’s birth control mandate is too great a burden on an employer’s religious beliefs. This extreme view — a view beyond anything the Supreme Court has been willing to endorse to date — would open the floodgates of discrimination, particularly against LGBTQ people.

Moreover, Judge Kavanaugh has repeatedly praised former Chief Justice William Rehnquist and Justice Antonin Scalia for their respective efforts to defend against the “creation” of what they considered to be “new” constitutional rights. Specifically, Judge Kavanaugh has publicly endorsed Justice Scalia’s narrow view that the fundamental right to marry somehow became a “new” right when same-sex couples sought access to this important institution.

Supreme Court justices should be mainstream: not too far to either end of the ideological spectrum. Support for personal liberty — the right to control your body, love who you love — is a mainstream American position. Most of the country supports LGBTQ equality — two-thirds of U.S. adults in a May Gallup poll — and an even bigger majority believe that abortion should remain legal (71 percent in a recent NBC/Wall Street Journal poll.)

A Justice Kavanaugh would undermine LGBTQ equality and reproductive freedom for decades to come. What’s at stake? Forty years of Donald Trump “values” on the Supreme Court.

What we know about Brett Kavanaugh is enough to cause us to sound the alarm. At a time when this president is using his power to target LGBTQ people — from students to service members — we need a Supreme Court justice who will apply the law fairly and who will hold the president accountable, rather than serve as a rubber stamp for this administration’s dangerous agenda.

But what we don’t know about Brett Kavanaugh’s time in the White House — including the role that he may have played in efforts to write a constitutional amendment limiting marriage to opposite-sex couples and to fund anti-LGBTQ propaganda using taxpayer dollars — could be even worse. And this is why the Senate must fulfill its constitutional duty to carefully review his entire record. Every memo, every document. And when it does, the answer will be clear: The Senate must reject this dangerous nominee.

Trump is within striking distance of his goal of overturning Roe as well as that of turning back the clock on LGBTQ rights. It is time for the American people to stand up once again and demand better. Our dignity, our families, and our lives depend on it.

SHARON M. McGOWAN is the legal director and chief strategy officer of Lambda Legal.

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