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SOUND THE ALARMS Supreme Court pick could dismantle LGBTQ rights
by Camilla B. Taylor, Special Guest Essay
2018-07-18

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The nomination of Brett Kavanaugh for the Supreme Court should alarm every member of the LGBT community. His record demonstrates that if he is confirmed to the seat recently vacated by Justice Kennedy, who often played the role of swing justice and authored the most significant landmark rulings over the past 20 years vindicating the rights and equal dignity of lesbian, bisexual and gay people, Judge Kavanaugh will threaten every advance this community has made, and set back our progress by decades.

Lambda Legal's Fair Courts Project ( www.lambdalegal.org/blog/20180709_brett-kavanaugh-record ) has comprehensively reviewed his record and identified many ways in which Judge Kavanaugh's extremist views endanger LGBT people. First, he believes presidents should enjoy almost unfettered authority, which is particularly worrying at a time when the Trump administration ( www.lambdalegal.org/in-court/cases/karnoski-v-trump ) has targeted LGBT people in its cross-hairs. Our community relies upon courts to provide a check on presidential power. To name just one example, President Trump last summer tweeted out a ban on transgender military service members. In multiple lawsuits challenging this ban, the Trump administration now argues that courts must defer broadly to the president and his discretion on military matters. The administration further claims that the service members challenging the policy have no right even to seek access to documents likely to show that the ban was tweeted out on impulse, reflecting little to no deliberation or rational decision-making whatsoever. Judge Kavanaugh's views on presidential power suggest that he may agree that courts may not meaningfully review such executive actions, regardless of how animus-driven and discriminatory they may be.

Second, Judge Kavanaugh sided ( caselaw.findlaw.com/us-dc-circuit/1714435.html ) with religious employers objecting to the federal government providing their employees with contraceptive coverage pursuant to the Affordable Care Act ( "ACA" ). Judge Kavanaugh's view that the ACA burdened these employers' religious beliefs simply by requiring them to notify the government of their objection to contraception suggests that Judge Kavanaugh also may: 1 ) side with religious health care providers that take federal taxpayer funds but refuse to treat LGBT people; 2 ) rule in favor of discriminatory child welfare providers that take taxpayer funds but refuse to respect the sexual orientation and gender identity of foster youth in their care, or that refuse ( www.lambdalegal.org/in-court/cases/marouf-v-azar ) to license LGBT people as foster parents, citing religious objections; and 3 ) favor discriminatory businesses ( www.lambdalegal.org/blog/20180625_arlenes-flowers-decision ) that justify withholding service to serve LGBT people in the marketplace on religious grounds. Cases concerning these questions are likely to reach the Court in the not-too-distant future.

But what should be most worrying for members of the LGBT community is Judge Kavanaugh's views on abortion. He dissented ( www.cadc.uscourts.gov/internet/opinions.nsf/C81A5EDEADAE82F2852581C30068AF6E/$file/17-5236-1701167.pdf ) from a decision of the full D.C. Circuit Court of Appeals allowing an undocumented 17-year-old girl in detention to obtain an abortion, and in various writings has expressed hostility to Roe v. Wade, the foundational abortion-rights decision. If courts retreat from protecting women's equality and autonomy in making reproductive choices free of governmental interference, including with respect to abortion, then the rights of all LGBT people, which are deeply intertwined and share a common body of law, are necessarily diminished.

Indeed, the landmark victories that guard the LGBT community's right to marry and that decriminalized LGBT peoples' very existence, depend explicitly on precedents shielding reproductive autonomy. Thus, Lawrence v. Texas, which struck down laws criminalizing intimacy between people of the same sex, and Obergefell v. Hodges, which upheld the fundamental right to marry for same-sex couples, expressly relied upon prior due process cases protecting women's access to contraception, such as Griswold v. Connecticut and Eisenstadt v. Baird. The Supreme Court recognized that, just like procreative decision-making, the right to choose whom to love and to marry and how to structure one's family can be self-defining, and central to a person's dignity and identity. Recently, lower courts have recognized that the due process guarantee, built as it is upon a body of law protecting reproductive autonomy and bodily integrity, similarly protects a transgender person's right to live consistently with their gender identity ( www.lambdalegal.org/in-court/legal-docs/pr_arroyo_20180420_opinion-and-order ), requiring issuance of accurate identity documents to transgender applicants, and respect for transgender service members' right to serve ( www.lambdalegal.org/sites/default/files/legal-docs/downloads/karnoski_pi_order.pdf ) in the military as the men and women they are. To chip away at the body of law protecting women's reproductive autonomy would be to chip away at the precedents protecting LGBT peoples' equal dignity, moral agency, and ability to participate in public life.

Additionally, reproductive autonomy matters to LGBT people for more practical reasons. Many members of the community need access to such health care for themselves. Women often take contraceptives for medical reasons unrelated to preventing pregnancy, such as to treat endometriosis or reduce the risk for ovarian and uterine cancers. Indeed, at least one study suggests that more than 50 percent of lesbian women have used oral contraceptives at some point in their lives. Of course, lesbians and bisexual women may seek contraceptives or abortion care after having consensual sex with men as well. Transgender men need abortion care and contraceptives, too. Abortion and contraceptives are simply vital health care needs regardless of sexual orientation or gender identity. Lesbians, bisexuals, and transgender men already face unique barriers ( www.lambdalegal.org/publications/when-health-care-isnt-caring ) to care that would be compounded by the imposition of additional restrictions on reproductive healthcare.

These aspects of Judge Kavanaugh's record have direct relevance to LGBT people, but it bears noting www.democracyinitiative.org/latest-news/di-statement-re-kavanaugh-nomination that a vast range of civil liberties organizations have voiced opposition ( civilrights.org/trump-supreme-court-pick-unfit-to-serve/ ) to his nomination for additional reasons—because his record also betrays hostility to voting rights ( www.nytimes.com/2018/07/13/opinion/sunday/voting-rights-voter-id-kavanaugh.html ), affirmative action ( www.politico.com/story/2018/07/09/brett-kavanaugh-track-record-675294 ), workers' rightsm (cases.justia.com/federal/appellate-courts/cadc/15-1312/15-1312-2017-08-18.pdf ), immigrants' rights, consumer protections ( www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/$file/15-1177.pdf ) , and other protections for vulnerable communities. The LGBT community in all of its proud diversity has a stake in all of these issues, too.

In short, Judge Kavanaugh's record suggests disdain for anyone who requires court intervention for protection against governmental discrimination and excess, and that should worry all of us. Now is the time to speak up against Judge Kavanaugh's nomination. Decades of progress for the LGBT community are in danger of being rolled back. Please call your senators and ask them to vote against this nomination ( www.lambdalegal.org/call-your-senator ).

Camilla B. Taylor is the Director of Constitutional Litigation for Lambda Legal, the oldest and largest national legal organization committed to achieving full recognition of the civil rights of all lesbians, gay men, bisexuals, transgender people and people with HIV. She spearheads Lambda Legal's litigation challenging the Trump/Pence administration's assault on LGBT rights.

Most recently, Taylor has worked on Karnoski v. Trump ( www.lambdalegal.org/in-court/cases/karnoski-v-trump ), challenging the constitutionality of the Trump administration's ban on military service by transgender people; and Marouf v. Azar ( www.lambdalegal.org/in-court/cases/marouf-v-azar ), a lawsuit against the U.S. Department of Health and Human Services ( HHS ) on behalf of a lesbian couple denied an opportunity to apply to foster a refugee child in a federal program exclusively funded by HHS and administered by a faith-based agency on the ground that the couple does "not mirror the Holy Family."


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