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Brett Kavanaugh: The Greatest Threat to LGBTQ Equality in a Generation

Five times. Senator Kamala Harris asked President Trump’s U.S. Supreme Court nominee Brett Kavanaugh five times last Thursday if he believed that the Obergefell v. Hodges case guaranteeing the freedom to marry was correctly decided. And every time, he declined to answer — undoubtedly pleasing the White House and Senate Republicans.

Even before the Kavanaugh hearings began, President Trump’s Senate allies demonstrated an unseemly desire to rush the traditionally thorough confirmation process. Their call for efficiency is ironic, too, given the fact that it occurs just two years after the same senators refused to hold hearings for President Obama’s nominee during an election year.

But their hypocrisy is neither surprising nor the primary reason to reject Brett Kavanaugh’s appointment to the nation’s highest court. While additional time to examine Kavanaugh’s record is critical to a thorough process, we already know that his confirmation represents the greatest threat to LGBTQ equality in decades.

Marriage equality may be the law of the land, but Kavanaugh’s refusal to answer Harris’s questions and his long record of support for “licenses to discriminate” — allowing the personal beliefs of some individuals to dictate the lives of others — suggests that a Kavanaugh Court would chip away at the rights of loving same-sex couples.

Could bakers, florists, restaurants, adoption agencies — or even government officials — refuse LGBTQ people service simply because they don’t approve of our sexual orientation or gender identity?

In the coming years, the Court will be asked to decide these critical questions. Marriage in name only would make a mockery of the Court’s landmark ruling in Obergefell v. Hodges, rendering it almost meaningless.

But marriage equality is not the sole litmus test for a nominee’s position on LGBTQ equality, nor should it be. Our community is diverse. We are members of immigrant communities and communities of color. We are Christians, Muslims, Jews and non-believers. We are women and men, nonbinary and everything in between. We are workers and servicemembers and veterans. And as long as semi-automatic weapons end up in the hands of those who shouldn’t have them, none of us are safe from gun violence.

Kavanaugh is a radical extremist, to the right of Neil Gorsuch, Antonin Scalia and even Clarence Thomas. His appointment would jeopardize the hard-fought civil rights of the LGBTQ community and the communities to which we belong.

How do we know? Because the president told us so.

Trump promised to nominate a justice who would “automatically” overturn Roe v. Wade and “punish” women who seek abortion care. He vowed that a Trump-appointed justice would help to gut the Affordable Care Act — which we know to be true about Kavanaugh, since he attacked the health care law while serving on the U.S. Court of Appeals for the D.C. Circuit. And in his time on the federal bench, Kavanaugh also sought to end the District of Columbia’s assault weapons ban, putting him at odds with every other appellate court to have addressed that issue.

On Trump’s signature priorities — from his transgender military ban to mass deportations and excluding Muslims from entering the country — Kavanaugh clearly values executive authority over individual civil rights. Indeed, his position that presidential power is virtually unbridled puts him outside even the conservative judicial mainstream.

Our community cannot wait for someone to save us. When a threat to our civil rights presents itself, it is on us to defend against it. Brett Kavanaugh’s confirmation to the U.S. Supreme Court would be the biggest threat to our community in a generation, a threat we must fight with everything we have.


Rick Zbur

Rick Zbur is the executive director of Equality California, the nation's largest statewide LGBTQ civil rights organization. He is a distinguished lawyer with a long history of advocacy for lesbian, gay, bisexual and transgender, and environmental causes. Prior to joining Equality California, Rick was a senior partner at Latham & Watkins, one of the world’s largest and most respected law firms, where he practiced law for 29 years.