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
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
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."
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
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
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.
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.
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."
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
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.
Before the death
of former chief justice William Rehnquist in September
2005 and the retirement of Justice Sandra Day
O'Connor in early 2006, the court went through
one of its longest periods of stability since the
early 19th century.
And while the
newest members of the Supreme Court, Roberts (who stepped
in for Rehnquist) and Alito (who replaced O'Connor)
have only one full term under their belts, most court
watchers say it hasn't been difficult to gauge
that the wind is blowing to the right.
"We're getting a pretty good sense of their
jurisprudence," says Andersen, "and
it's not good news for LGBT rights." She
points out that the justices' 5-4 ruling
last year upholding the federal Partial-Birth Abortion
Ban Act -- a reversal of an earlier decision by the previous
court -- can serve as a bellwether. "I can't
imagine that they're going to go one way with
abortion and another way with gay rights," she says.
Kate Kendell agrees. "This court has almost
universally sided with government and big business,
and those decisions do not bode well for how the court
will decide on the next LGBT case," she explains.
"The damage that has been done by President
Bush to civil liberties in general has been
With the new
court now consisting of four clear conservatives (Roberts,
Alito, Scalia, and Thomas) and four solid moderates
(Ginsburg, Breyer, Souter, and Stevens), Kennedy has
become the key vote to tip split decisions one way or
the other. Appointed by Republican President Ronald
Reagan, Kennedy can often be unpredictable and progressive
on social issues, particularly when it comes to LGBT
rights. He wrote the majority opinions in both
Romer v. Evans and Lawrence v. Texas.
ways," says Andersen, "he's an unlikely
savior for LGBT issues." He's even
angered some of the Republican Party's right wing by
siding with more moderate members of the court. Says
Keck: "He's not a reliable
However, if any
of the more left-leaning moderate justices are replaced
in the next four years, Kennedy's role as crucial
swing vote will be significantly muted. Says Andersen:
"If we get one more justice to the right of
Kennedy, we're done for."
majority would prove fatal to LGBT rights in a number of
cases expected to reach the Supreme Court in the near
future. Many court watchers feel a case involving the
military's "don't ask, don't
tell" policy, which allows gay and lesbian
soldiers to serve as long as they don't reveal
or discuss their sexuality while on duty, is likely to make
its way to the Supreme Court in the next four years.
A case arguing
the use of religious justification to treat people -- LGBT
or otherwise -- differently may also be in the
court's future, says Esseks. For example, a
doctor may refuse certain reproductive services to a
lesbian on the grounds that he or she has a personal
"religious objection to homosexuality,"
thereby allowing the doctor to refuse equal treatment
under the law due to religious conviction. If the court
rules that behavior permissible, he says, it would
"make a humongous difference to the LGBT
Freedom of speech
on public school campuses has already begun making a
legal stir. Most recently, the high court ruled 5-4
in Morse v. Frederick (otherwise known as the
"Bong Hits For Jesus" case) that schools
can limit the free speech of students if it can be
seen as promoting illegal drug use.
As with the
court's decision in Lawrence, the
question still remains whether the ruling can be applied to
a broader spectrum of political or controversial
speech -- like pro-gay slogans on T-shirts -- that
administrators deem offensive or inappropriate in
Esseks said some
cultural groups may try to use the ruling as a way to
not only limit speech but also stifle LGBT
"visibility" on school campuses. Esseks
adds that "very conservative groups"
understand the significance of the Supreme Court
better than anyone -- and this mobilizes them.
"They want Supreme Court appointments because they
have an agenda to keep us invisible and in the
closet," he says. "They clearly see the
relevance: Appointments to the court make a
One issue LGBT
legal activists hope they won't see get to the
Supreme Court is gay marriage. Instead of rushing a
gay marriage case up through the federal court system,
they're carefully looking to build a bounty of
favorable rulings at the state level before bringing the
right case before the Supreme Court.
And while equal
marriage advocates scored an impressive and important
victory when the California supreme court ruled the state
can no longer exclude same-sex couples from civil
marriage, legal scholars say it's not a
candidate to become the first gay marriage case to be argued
before the federal Supreme Court.
marriage litigation that took place in California over the
last four years -- and led to the historic decision this May
-- has "no chance of going to the U.S. Supreme
Court because it rests entirely on state law,"
says Keck. He adds that lawyers involved in that case were
careful to base their arguments regarding the legality of
same-sex marriage on California's state
constitution only. The Supreme Court will only hear
cases that involve or challenge federal law or the U.S.
Constitution. Keck says it was an intentional strategy on
the part of equal marriage advocates who don't
think the time is right for gay marriage to reach the
nation's highest court.
happens if California voters approve a ballot initiative
this November to amend the state constitution restricting
marriage to a man and a woman, thereby contradicting
the ruling of the state supreme court? "There
are a lot of unknowns about that," says Jon Davidson,
legal director for Lambda Legal. "If
we're unable to defeat it -- and we are hoping
that won't happen -- we'll follow the smartest
activists are staying mum about what that course might be
for fear of tipping off the opposition, Davidson is
quick to note that bumping the case up may not be
wise. "The Supreme Court has a history of not
going too far ahead of what the people are thinking,"
he says. "So it's probably not a great
idea right now."
lawsuit can sometimes be worse than no lawsuit at
all," says Keck. "If the court rules
against you, that's a significant setback."