As tends to be my pattern, now that the hysteria has subsided a bit on Justice Kennedy, here is my post about it. For those of you who skipped the news or perhaps slept through yesterday, you may have missed that U.S. Supreme Court Justice Anthony Kennedy is stepping down from his role at 81 years old. Since then, everyone has been freaking out. Why?
Bear with me, as I explain perhaps to younger or international followers why the Supreme Court is so important in the United States. The U.S. government has three branches: executive (the President), legislative (Congress), and judicial (the Supreme Court). U.S. citizens vote for the President and for representatives in their local and federal government, and those representatives act on their behalf to vote on issues and create laws. Those are the executive and legislative branches. Of course, the President, Congress, and the people that elected them don’t always agree. That’s where the Supreme Court comes in. The Supreme Court has 9 justices that are appointed by the presidents and confirmed by Congress. These justices can serve for life. Their job is to decide the most important legal issues in the country. What they rule becomes the final law on any given issue – this gives them essentially more power than Congress and the President, keeping those two in check (thank God).
The problem is, since Supreme Court justices can serve for life, when a President has the ability to appoint a new justice (because one dies or retires), the decisions of the Court can be significantly impacted. It all depends on if the President chooses a liberal or conservative justice. Republican presidents obviously choose people they align with, and Democrats do the same. Currently, Democratic presidents have appointed 4 justices – 2 from Bill Clinton and 2 from Barack Obama. That leaves 5 Republican-appointed justices. While many Supreme Court cases are not 5-4 decisions (Republicans vs. Democrats), some very important ones have been.
Justice Kennedy was appointed by a Republican, and will now be replaced by a Republican. So why are people freaking out? Well, Justice Kennedy had an interesting record with the Supreme Court. Many Republicans felt betrayed by his pro-LGBT and pro-abortion decisions, which are typically Democratic leanings. Since he was the “fifth Republican,” he was considered a very important swing vote. That meant for the many cases on issues that typically divide along party lines, he was the tiebreaker. This was great for the LGBT community, especially, since he did ultimately side with us several times, changing our history. Based on the things Donald Trump says and does, we should all be a quite freaked out that he will be choosing a very conservative Republican that may be against the LGBT community (although that is not guaranteed NOR am I implying that all Republicans are anti-LGBTQ+).
So, what can I say? First, I think it is OK to freak out and be disheartened by this. A lot has been going on politically this week, and it’s not helpful to think that Trump could have even more influence over the Court. That said, Barack Obama was able to appoint two justices. Trump has already appointed one (Justice Gorsuch when Justice Scalia died.) So now Trump will be on par with Obama. Let’s cross our fingers and hope that all of the remaining Democratic justices last two more years through his presidency. We’re looking at you Ruth Bader Ginsburg (who is 85, but I hear lifts weights).
You may also be worried about LGBTQ+ rights or the status of the same-sex marriage Supreme Court ruling. As I detailed in my video here when Trump was newly elected, the odds of gay marriage being overturned are pretty low. While the Supreme Court does overrule itself on occasion, it is usually to give more rights or protections, not strip them away. Here is a list of all of the times the Supreme Court has overruled itself.
As you can see under 14th Amendment, the Supreme Court actually overruled its own 1972 decision saying states can limit marriages to heterosexual in order to legalize same-sex marriage in 2015. To turn around again, and in 2018, 19, or 20, come up with some reason for same-sex marriage to be illegal again would basically be unheard of. This is not to mention that a majority of the U.S. public (according to recent polls) support same-sex marriage. It would be rare to fight over an issue that a majority of the U.S. now supports. This is kind of like how fewer and fewer people think legalizing marijuana is a bad thing.
That said, a conservative Supreme Court justice can definitely rule in favor of religious exemption laws, if they reach the Court. These types of laws basically try to chip away, particularly at LGBTQ+ rights, by using religion as an excuse. For example, laws allowing private adoption agencies to turn away gay couples because it is “against their religion” (aka they are anti-LGBTQ+). Since any heterosexual couple can adopt a child, turning away gay couples undermines the same-sex marriage ruling, which promised that gay married people would have all of the same rights as others. Religious exemption rulings are one way the next justice can technically be working against gay marriage without actually overturning it. Noteworthy was Justice Kennedy’s last decision impacting LGBTQ+ rights, Masterpiece Cakeshop, which neither advanced nor set back rights through its narrow ruling on an issue springing from same-sex marriage.
One positive spin to this whole thing is that Supreme Court justices, conservative or liberal, are very smart and generally respected members of the legal profession. They are not the same as the random jackasses Trump appoints in his campaign that we hear about getting indicted left and right. Supreme Court justices abide by a standard of ethics and respect for the law in order to be accomplished and respected enough to be confirmed by Congress. Believe me, politicians are digging up the dirt on all of Trump’s potential picks as we speak so no stone will go unturned.
Even the most conservative justices are never going to outright come for the LGBTQ+, they may just follow the laws very strictly to try to hold back our rights. I’m not saying that’s any better – but to me, it’s helpful to know that the person will at least be smart and somewhat ethical, and also constantly dragged by the remaining liberal justices on the Court. They may also be a surprise – like Kennedy – and be an overall fair person.
Let me wrap this up with some final positive notes and calls to action. First, do not let a bad week make you feel down about the tremendous progress LGBTQ+ people have made in this country. I personally thank Justice Kennedy for the many times he supported us (striking down anti-sodomy laws nationwide, ruling the Defense of Marriage Act unconstitutional, and then supporting the legalization of same-sex marriage). Some feel that he could have done more recently in Masterpiece Cakeshop, but he also could have made things much worse – so no shade to him. Also, the guy gave 30 years of his life to the Supreme Court – he deserves a damn retirement.
Please also remember that decades of progress do not unravel overnight. Momentum does not shift because of one incident. My unrelated analogy here is this – Trump made it a point to cut down environmental regulations for emissions, but automakers did not just say “wow f*ck the decade of investment we made in hybrids and electric, let’s build gas guzzlers again!” That would be a waste of money and momentum, especially in a worldwide economy. I think that LGBTQ+ rights, while different in each country, are also part of a worldwide momentum and benefit from increasing public (not to mention corporate) support. When most of the people and biggest corporations in our country support us (Apple, Amazon, Microsoft, Google), we’re in a good place.
To that end, I encourage more people to come out (if at all possible and safe). The more people who come out, the more your immediate spheres who love you will come around to support LGBTQ+ people. I firmly believe that if every bigoted, anti-LGBT politician had a gay nephew that they helped raise, maybe they would see the light. I need all of those gay nephews to do their part and come out of the closet. Finally – GET INVOLVED. This is a major call to action! No LGBTQ+ adult or ally should not be voting at this point. And if you’re not out, the least you can do is vote for pro-LGBTQ+ reps and initiatives. Get involved in your community organizations, follow LGBTQ+ organizations online – we cannot ignore what is happening. Our fight just got a lot harder, but we have been through much worse, so we got this if we stick together.