The nomination of Judge Brett Kavanaugh to a lifetime seat on the U.S. Supreme Court has Maine Sen. Susan Collins in the national spotlight. Many advocates for reproductive health care and LGBT rights across the country are alarmed. Why? Two words: settled law.
Sen. Collins has said that these two words will greatly influence her vote to confirm this nomination or not. But evidence shows Judge Kavanaugh does not consider privacy or the equal rights of LGBT people to be firmly grounded. If the Senate approves his appointment, he could put the rights and relationships of LGBT Mainers and millions of other Americans in peril.
When pressed by Sen. Collins last month, Judge Kavanaugh told her that Roe v. Wade, the landmark ruling on privacy by the high court, was settled law. But during Senate hearings last week, he would not acknowledge that the court’s ruling on marriage equality, which has its roots partly in Roe, was properly decided. In addition, a 2003 memo from Judge Kavanaugh came to light showing him questioning just how precarious the ruling in Roe might be.
Judge Kavanaugh’s refusal to affirm either Roe or marriage equality under oath sends a dangerous signal about his nomination to lesbian, gay, bisexual and transgender people.
Contrary to popular opinion, federal recognition of the dignity and equality under law of LGBT people is not etched in statute. There is not yet any section of the federal code that anchors coverage of basic freedoms and fairness. Instead, such legal protection for our lives and relationships relies very heavily on court rulings.
Judge Kavanaugh would replace Justice Anthony Kennedy, who authored not one, not two, but all three major LGBT-rights decisions from the court since 1996. Those rulings stopped some forms of discriminatory ballot measures, overturned dehumanizing sodomy laws and extended the freedom to marry to same-sex couples in states that did not yet honor it.
The two most crucial rulings, both authored by Justice Kennedy, are Lawrence v. Texas, from 2003, striking down all sodomy laws, and Obergefell v. Hodges, from 2015, striking down denials of marriage. They were decided by just one vote, Kennedy’s, in 5-4 rulings by the Supreme Court. These rulings in turn have their strongest anchors in prior rulings on privacy, namely Griswold v. Connecticut (1965), Roe (1973) and Planned Parenthood v. Casey (1992). The court’s opinions in Obergefell mention Griswold 10 times, Roe twice and Casey once. The court’s opinions in Lawrence mention Griswold nine times, Roe 22 times and Casey 23 times.
In addition to his 2003 memo about the tenuous status of Roe, Judge Kavanaugh has poked at the precedent in a ruling just last year. In 2017, he sought to block an undocumented immigrant detainee in Texas from terminating an unwanted pregnancy. His intervention ended up failing to deny her access to the procedure. But his readiness to reject the precedent is apparent.
For LGBT Mainers, winning legal protection from discrimination and the freedom to marry under state law took six bruising statewide battles over ballot measures between 1995 and 2012. Yet even these hard-won rights could be undermined if Judge Kavanaugh’s rhetoric makes its way into a Supreme Court ruling.
In June 2016, Judge Kavanaugh spoke glowingly of rulings by the late Justice Antonin Scalia, a strident foe of LGBT rights and vocal fan of broad exemptions from anti-bias laws for people who claim a religious basis for discriminating. Judge Kavanaugh used the occasion to denounce the creation of so-called “new rights.”
The signals are loud and clear that Judge Kavanaugh as member of the Supreme Court will be hostile to privacy and equal rights. By taking the ninth seat on the court, he could scar the legacy of his predecessor, Justice Kennedy, and upend the lives of LGBT Americans and our families.
The decision of Sen. Collins, who covets her role as a protector of choice, health care access and equality for all, is momentous and could be pivotal. We urge her in the most fervent terms to reject Judge Kavanaugh.
— Special to the Press Herald
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