Supreme Court Justice Anthony Kennedy has announced his retirement. There is no way to sugarcoat it: this terrible news for LGBTQ rights.
Kennedy has been the Court’s biggest proponent of protecting and expanding our rights, writing opinions that gave us marriage equality and struck down sodomy laws and “special rights” restrictions. Indeed, these rulings are perhaps the biggest legacy he leaves behind. That legacy will soon be dismantled.
Here are five reasons why Kennedy’s retirement is very bad news for LGBTQ rights.
Kennedy’s replacement will oppose LGBTQ rights. To say the least.
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Whomever Donald Trump picks to replace Kennedy is all but guaranteed to oppose LGBTQ rights. He will pick from a list of ideologues approved by the Federalist Society, a right-wing legal group. That’s the same group that gave us Neil Gorsuch, who is fulfilling the right’s wish of eroding our rights.
Opposition to our causes is a litmus test of how true the would-be nominees are to the conservative cause. You can bet that they all pass the test.
LGBTQ rights will be solely a liberal cause.
Kennedy was reliably conservative on most Court cases. (After all, in his final votes, he upheld the Muslim travel ban and struck a blow against unions.) But on this single issue Kennedy showed that supporting our rights was not a question of liberal vs. conservative. It was a matter of law.
Other justices, like Sonia Sotomeyer and Ruth Bader Ginsburg, will no doubt fight for us, but as the designated liberals on the Court, their support will be dismissed as much political as legal.
A conservative Court will start eroding Kennedy’s legacy.
There’s no question that, with Kennedy gone, the conservative majority will start looking for ways to limit our advances. That may not mean completely overturning marriage equality, but it does mean looking for other ways to ensure the right’s opposition bears fruit.
Religious liberty exemptions are the biggest victory within reach, and the Masterpiece Cakeshop ruling showed that the existing four conservatives are just itching to make a broad ruling allowing discrimination on religious grounds.
The Court will be anti-LGBTQ for years to come.
The Supreme Court is a lifetime appointment. Most of the conservative justices are relatively young and still have years–perhaps decades–of service ahead of them. Trump’s pick will be middle-aged as well, giving him or her 20 or 30 years to leave a mark.
Kennedy’s eloquence will not be replaced.
Kennedy’s decisions were remarkable for their strong, almost poetic language about the dignity of gay and lesbian people. The conclusion of his ruling on marriage equality is striking for its affirmation of our humanity.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Kennedy wrote. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
It will be a long time before we hear that language in a majority opinion again.
