On the Court, Justice Anthony Kennedy was a champion for LGBT rights across the US. He was by no means perfect — but as the legal recognition of my marriage can attest to, he was a key figure. And his announcement on Wednesday, June 27 that he’s retiring could move a court that has been closely divided but largely favorable to LGBT rights to one that is outright hostile to equality once President Donald Trump and a Republican-dominated Senate vote on Kennedy’s replacement. That could, in effect, start to undermine much of Kennedy’s LGBT legacy.
For much of his tenure, Justice Kennedy has been the median justice, falling in the court’s ideological center, according to a measure based on voting patterns. He was nominated by President Ronald Reagan, a Republican, in 1988. And while Justice Kennedy has been considered a member of the court’s more conservative bloc, he became slightly more liberal in recent terms.
“Because Kennedy drifted right this term, he and Roberts shared the median spot,” said Lee Epstein, a political scientist at Washington University in St. Louis. “For this reason, the 2017 term provides a good indication of what a post-Kennedy Court might look like. Many 5–4 decisions with the four Democratic appointees losing in the vast majority.”
Kennedy was typically the swing vote or one of the swing votes in the Court’s 5–4 or 6–3 decisions for LGBT rights. Though he was in many ways a conservative justice, he not only acted as a swing vote but wrote the majority opinions that established the laws of the land to protect LGBT people.
It was Kennedy who wrote the majority opinion in Obergefell v. Hodges (5–4) in 2015, which gave same-sex couples the right to marry nationwide. “The nature of injustice is that may not always see it in our own times,” he wrote then. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy and spirituality. This is true for all persons, whatever their sexual orientation.”
There have been some disappointing moments for LGBT advocates as well. This month Kennedy ruled in favor of Masterpiece Cakeshop in a case about whether the Colorado bakery could refuse service to a same-sex couple on religious grounds.
However the ruling doesn’t create a license for anti-LGBT discrimination but instead asks the Colorado Civil Rights Commission to take care to respect people’s religious views in its decisions.
And by and large, this is just one of few dark spots in an otherwise exemplary record for LGBT equality.
His retirement means that, for the LGBT people and any marginalized group organizing for civil rights, the Supreme Court’s decisions will likely create uphill battles for decades to come. “Justice Kennedy’s retirement will allow President Trump to fill his vacancy with yet another anti-LGBT justice with a lifetime appointment,” said Sarah Kate Ellis, President and CEO of GLAAD, in a statement. “If we cannot trust our nation’s top Court, then now it is time for our community to prioritize the permanence and saftey of an amendment to the U.S. Constitution that protects against discrimination.”
Anti-LGBT advocates are already gearing up to weaken LGBT rights in the US now that Kennedy is leaving the Court. The anti-LGBT Alliance Defending Freedom quickly sent out a statement saying it “looks forward to the president’s nomination of a person to replace Justice Kennedy on the Supreme Court who will uphold the First Amendment and the original meaning of the Constitution.” And Republicans hostile to LGBT rights now have a chance to implement their anti-LGBT agenda.
The Kennedy exit is coming at a big moment for LGBT rights. There are some major issues that likely to arrive before the Court in the next few years: Do religious rights allow people to skip laws that prohibit anti-LGBT discrimination in the workplace, housing, and public accommodations? Does federal law prohibit anti-LGBT discrimination in some settings?
Kennedy was a reliable swing vote toward LGBT rights. With his retirement, the future of that movement — at least when it comes to Supreme Court decisions — looks much less certain.