Justice Kennedy Retires, Putting Rights in Jeopardy

Justice Anthony Kennedy

Supreme Court Justice Anthony Kennedy is retiring, likely to be replaced with a more conservative justice, with repercussions for LGBT rights and other progressive causes for years to come.

Kennedy, the author of key rulings for LGBT rights, including marriage equality, announced his retirement this morning. The justice, who turns 82 next month, was nominated by President Ronald Reagan in 1987 and confirmed by the Senate in 1988.

Kennedy wrote the rulings striking down Colorado’s antigay Amendment 2 in 1996, antisodomy laws in 2003, the main part of the Defense of Marriage Act in 2013, and all remaining anti-marriage equality laws in 2015. Most recently, he delivered a mixed message in the Masterpiece Cakeshop case, asserting that government had to uphold gay rights but undoing the work of the Colorado Civil Rights Commission, finding it had shown insufficient respect for the religious beliefs of a baker who refused to create a cake for a same-sex couple’s wedding.

Kennedy has been considered the court’s crucially important swing vote, but now Donald Trump is likely to nominate a much more conservative jurist to replace him, with consequences for LGBT rights, abortion rights, and much more  “A Trump-nominated successor to Kennedy would likely become the court's fifth reliable conservative, joining Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and [Neil] Gorsuch,” NBC News reports. “Because only Thomas has declared opposition to Roe v Wade, it's uncertain whether opponents of abortion would have the five votes needed to overturn it.”

Progressive groups greeted the news of Kennedy’s retirement with alarm. “Justice Kennedy played an historic role in vindicating the constitutional right of same-sex couples to be treated the same as anyone else," said a statement issued by People for the American Way president Michael Keegan. “And while he wasn’t a reliable voice for women’s reproductive rights or civil rights, he was willing to stand against some of the far-right’s worst excesses when it came to attacking choice and issued or joined some important civil rights rulings. Most of these were narrow 5-4 rulings that could be reversed by a single vote on the Court. His retirement means both marriage equality and the right to abortion in the United States, as well as key civil rights rulings, are in grave danger. Donald Trump has made clear that, left unchecked, he’ll appoint a Supreme Court Justice who wouldn’t hesitate to toss aside precedent to enact a dangerous and extreme agenda.

“Whoever is confirmed to the seat will serve for life, and the values they bring to the job will shape our country for a generation. Americans need a fair-minded constitutionalist on the bench, someone who understands the real world and how the law impacts all Americans. We can’t afford another narrow-minded elitist who will protect corporations and the wealthy instead of all Americans, and who will roll the clock back on women, LGBTQ people, workers, and people of color. The stakes for this nomination couldn’t be higher, and senators should make clear that they’ll oppose any nomination that isn’t the result of meaningful bipartisan consultation.”

Mara Keisling, executive director of the National Center for Transgender Equality, issued this statement: “It is impossible to overstate how much is at stake for transgender people and anyone concerned with basic fairness in this country. We hope every Senator knows the American people do not want 40 years of Trump’s values on the Supreme Court.

“In just the first year of his tenure, Justice Gorsuch has waged war on voting rights, labor rights, and equality under the law. Yet another Trump appointee would make this situation far worse. The next justice could cast pivotal votes on whether it is legal to fire a transgender employee, target transgender students at school, or refuse health care to transgender patients. Unfortunately, every member of President Trump’s ‘shortlist’ has been vetted to ensure they will not uphold these basic rights.”

Rick Zbur, executive director of Equality California, called for delaying a vote on Kennedy's successor until after this November's midterm election: "The stakes for the next nomination are too high for our community to sit back and let the White House ram through another anti-LGBTQ extremist. It is incumbent upon all of us to ensure Justice Kennedy's replacement is willing to stand up to the Trump-Pence Administration and protect our civil rights. We urge every member of the United States Senate who supports equality and social justice for the LGBTQ community, for women, for immigrants and for communities of color to refuse to confirm any nominee until after the November midterm elections.

"As Senator McConnell said in 2016, 'The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide.'" McConnell, the Senate majority leader, had refused to put President Barack Obama's nominee Merrick Garland to a vote after Justice Antonin Scalia died, waiting until after Obama was out of office and letting Trump put forth a nominee.

Kennedy’s string of LGBT rights rulings began in 1996 with Romer v. Evans, in which the court struck down Colorado’s Amendment 2, a voter-approved measure that would have prevented the state or any of its cities or counties from banning antigay discrimination. “We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else,” Kennedy wrote for the court majority. “This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”

In 2003, he wrote the majority opinion in Lawrence v. Texas, which invalidated all remaining antisodomy laws in the U.S. “Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention,” Kennedy wrote, adding, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life.”

In 2013, he authored the U.S. v. Windsor opinion striking down section 3 of the Defense of Marriage Act, which kept the federal government from recognizing same-sex marriages. “DOMA’s principal effect is to identify a subset of state- sanctioned marriages and make them unequal,” he wrote. “The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.”

And in the 2015 Obergefell v. Hodges decision, which took marriage equality nationwide, he wrote, “In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

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