Brett Kavanaugh’s Nomination Is a Queer and Present Danger to LGBTQ People

Even if you’re someone who loves drama, last Tuesday’s news cycle was overwhelming.

Within minutes, the jury in former Trump campaign manager Paul Manafort’s trial announced guilt on eight counts of fraud, while Michael D. Cohen, the president’s personal lawyer, pled guilty to eight criminal charges, including campaign finance violations, in New York Federal Court.

While Manafort’s convictions certainly have implications for the Trump administration, the Cohen plea deal is the bombshell most clearly ensnaring the Commander-in-Chief as a co-conspirator in criminal activity. According to the New York Times, Cohen stated on the record that “the payments to the women were made ‘in coordination with and at the direction of a candidate for federal office.’”

That statement, which alludes to a $130,000 payment to adult entertainer Stormy Daniels, appears to incriminate Trump in federal crimes.

And that is why the Supreme Court nomination process of Brett Kavanaugh must not happen. An illegitimate president who is an unindicted co-conspirator in federal criminal activity cannot be allowed to appoint another Supreme Court Justice whose “originalist” jurisprudence would negatively shift the court and the country for decades. Kavanaugh’s Senate confirmation hearings are scheduled to begin Tuesday, Sept. 4, and activists, advocacy organizations, and legislators must do everything in their power to prevent them from happening.

An intrinsic part of the ongoing moral and ethical dilemma of Brett Kavanaugh’s nomination is the lingering terror of what remains his biggest unknown: how he would rule in cases affecting the lives and rights of LGBTQ people living in the United States.  

What is known about Kavanaugh, however, is troubling enough. In 2014, Kavanaugh argued the president need not follow laws that regulate the executive branch if the POTUS deems them unconstitutional. Kavanaugh has also written publicly that sitting presidents should not be subject to civil or criminal investigation and should be able to “dismiss any counsel out to get him.”

These terrifying ideas fly in the face of cherished constitutional values preventing the rise of an untouchable executive leader and have frightening implications for Trump’s remaining years in office. If Brett Kavanaugh is allowed to join Trump’s first Supreme Court appointment, the overtly anti-LGBTQ Neil Gorsuch, on the already conservative leaning Court, there may truly be nothing to stop Trump from wreaking further havoc on the United States.

Beyond Kavanaugh’s disturbing support of unchecked presidential authority are hints at his views concerning so-called “religious freedom,” the latest buzzword used by those defending anti-LGBTQ discrimination. Kavanaugh, like many conservatives, finds the Affordable Care Act’s protections for contraceptive coverage to be a burden on “religious freedom.” He’s even gone so far as to say that it violates the “religious freedom” of organizations to require them to explain their objection to contraception coverage in writing. 

If in Brett Kavanaugh’s view it is a violation of “religious freedom” to require religious organizations to fill out a form, one can bet he would find it violates someone’s “religious freedom” to employ or serve LGBTQ people in private businesses.

Rounding out Kavanaugh’s parade of terrible views with a likely negative impact for LGBTQ people is his perspective as an “originalist,” or a judge who believes that the only rights available in the United States are those made explicitly clear in the “original” meaning of the Constitution. In Kavanaugh’s words, only rights rooted in “history and tradition” are worth defense and enforcement through the courts.

Phrases like “history and tradition” are familiar fear-inducing dog-whistles for queer people across the country, who have long had their lives and relationships described as “non-traditional and ahistorical.”

As the saying goes, better the devil you know than the devil you don’t. Tellingly, Kavanaugh’s explicit conversations and writings regarding LGBTQ Americans remain opaque to the public, as does nearly 98 percent of his total writings and record. A chilling example is Kavanaugh’s role as Staff Secretary in the George W. Bush administration, seeing and responding to every piece of paper to cross the president’s desk during his second term. Kavanaugh fulfilled this role as the Bush White House entered the Iraq War, reauthorized the PATRIOT Act, passed the federal partial-birth abortion ban, and backed a constitutional amendment outlawing marriage equality. While records from all presidencies remain under seal in the National Archives until properly requested, it’s notable that Republican Senator Grassley, Chairman of the Senate Judiciary Committee, has explicitly declined to request their release, leaving the public and the Senate in the dark about Kavanaugh’s positions on the moral issues of the day.

LGBTQ advocacy groups are doing their part to sound the alarm about the danger posed by the gaping holes in Kavanaugh’s record about LGBTQ people.

In late July, Lambda Legal and 63 partner organizations sent a letter to Chairman Grassley and Ranking Member Feinstein of the Senate Judiciary Committee formally opposing Kavanaugh’s nomination. The letter pieces together what little is known about Kavanaugh’s record and the likely implications for LGBTQ people and people living with HIV. Lambda Legal also filed several Freedom of Information Act requests for information about Kavanaugh’s writings or records related to “any effort to amend the federal Constitution to define marriage,” the “Lawrence v. Texas Supreme Court proceedings,” “federal hate crime legislation, and non-discrimination protections for federal employees.”

These are incredibly pressing questions, given the LGBTQ cases before the Supreme Court in the upcoming term. The court will shortly decide whether transgender people can serve openly in the U.S. military (Karnoski v. Trump, Doe v. Trump, Stone v. Trump, Stockman v. Trump); whether businesses may refuse to serve LGBTQ people on the basis of an owner’s “religious beliefs” (Arlene’s Flowers Inc. v. Washington); if transgender people can be fired from their jobs for transitioning (EEOC v. R.G. & G.R. Harris Funeral Homes), and whether the marriages of same-sex couples are entitled to the same benefits as the marriages of opposite-sex couples (Pidgeon v. Turner).

These cases are at the heart of what Lambda Legal and others requested from Kavanaugh’s record and demonstrate the scope of what is at state in Kavanaugh’s confirmation. It is well past time for Brett Kavanaugh’s record on LGBTQ people to come out of the closet and into the open, and when it does, he must not be confirmed.


Carl Charles

Carl Charles is a staff attorney at A Better Balance, advocating for inclusive family definitions in paid sick time laws. He has also worked at Lambda Legal, the New York City Commission on Human Rights and as a Skadden Fellow at the ACLU LGBT & HIV Project.

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