Kennedy needs to stay on court

  • Wednesday July 12, 2017
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The U.S. Supreme Court's term ended a couple of weeks ago without any of the justices announcing their retirement. But anticipation that Justice Anthony Kennedy might retire after the court's 2017-18 term ends next June has been building since NPR's Nina Totenberg reported that he had told law clerks he was "considering retirement." A reporter from Above the Law later confirmed that the justice had informed at least one law clerk applicant that he might retire next summer. As Mark Joseph Stern wrote in a widely shared article on, "The consequences of Kennedy stepping down are difficult to overstate." That's because Kennedy has been the key vote in numerous LGBT rights decisions, including the landmark 2015 ruling that legalized same-sex marriage nationwide. It's not lost on us that should Kennedy step down, President Donald Trump likely would nominate another hardline right-winger in the mold of Justice Neil Gorsuch, who was confirmed this spring. That would be a disaster, not only for LGBT people, but also for women, minorities, and the environment.

Crucially, Kennedy's departure under a Republican president would leave Chief Justice John Roberts as a possible swing vote, and his dissent in Obergefell v. Hodges, the same-sex marriage case, is instructive. In his dissent, Roberts contended that the majority "relied on its own conception of liberty" and that its opinion was rooted in "social policy and considerations of fairness." Obviously, a majority of justices disagreed, and Kennedy, who authored the opinion, wrote, "the right to marry is a fundamental right inherent in the liberty of the person, and under the due process and equal protection clauses of the 14th Amendment couples of the same-sex may not be deprived of that right and that liberty."

"The court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them," his opinion stated.

Observers like Stern noted that in one of its last decisions of the term just concluded, the Supreme Court struck down an Arkansas law that sought to bar same-sex couples from listing both names on their children's birth certificates. Clearly, that state law violated Obergefell, though the Arkansas Supreme Court upheld it. The unsigned decision included a dissent from Gorsuch and Justices Clarence Thomas and Samuel Alito, but as Stern noted, that doesn't mean Roberts was in agreement with the majority. "His silence could mean that he accepts Obergefell – or it could mean nothing at all," Stern wrote.

Already in his brief tenure, Gorsuch has shown that he is not waiting to make his mark on the court. He has come out swinging, both in oral arguments and in written decisions. In his dissent in the Arkansas case, Gorsuch wrote that the state's high court "did not in any way seek to defy but rather earnestly engage Obergefell," which Stern called laughable "given the lower court's obvious desire to avoid compliance with that ruling." Two years later, a few states are still resisting the Obergefell decision, just as there are states fighting the court's 1973 abortion ruling. And the Supreme Court itself has chipped away at Roe v. Wade, the Voting Rights Act, and other laws. There is no guarantee that, should Kennedy retire, the court won't start to carve out exceptions for same-sex couples and their ability to legally wed.

This fall, the court will review a lower court ruling in Masterpiece Cake v. Colorado, a case involving a baker who refused to sell a wedding cake to a same-sex couple, claiming it violated his religious beliefs. Wedding cake baker Jack Phillips has lost at every level, with the Colorado Supreme Court declining to hear the matter. But Phillips is being represented by the anti-gay Alliance Defending Freedom, which took the case to the Supreme Court. The justices had previously declined to hear a similar case out of New Mexico in 2013 involving a photographer who said her religious objections to homosexuality should trump the state's interests in eradicating discrimination against LGBT people. She was also represented by ADF. Now, with Gorsuch, who's from Colorado, on the court, this wedding cake case could be the first to allow vendors to discriminate against people based on their religious beliefs. This has broad implications beyond same-sex couples, and could see all manner of businesses start to refuse services to Muslims, divorced persons, or unwed mothers, for example, or other religious or minority groups. There would be endless possibilities to discriminate using religion as a pretext.

Too many people need Kennedy to continue serving on the Supreme Court. The country must have at least one branch of government to serve as a check on any attempted assault on our rights by the president or Congress. LGBTs have finally achieved marriage equality – we need Kennedy on the court to make sure it stays that way.