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This Is How Trump’s Supreme Court Nominee Could Impact LGBTQ Rights

Civil rights advocates have a message for Senators after President Trump tapped Brett Kavanaugh for the Supreme Court: This is the vote of your career.

National organizations like the Human Rights Campaign, Alliance for Justice, and the NAACP held a call with reporters on Tuesday in which representatives warned that the District of Columbia Circuit Court judge’s pick represents the “nomination of a generation.”

Leslie Proll, a civil rights lawyer and advisor to the NAACP, called Kavanaugh a “strong and consistent voice for the wealthy and the powerful.”

“Over and over again, he’s ruled against civil rights, workers' rights, consumer rights, and women’s rights,” Proll told members of the media. “We view him as a dangerous ideologue whose extreme views on civil rights will lurch the court to the far right. Coming after Gorsuch, a Kavanaugh confirmation would allow Trump to remake the court in his own image.”

Trump announced on Monday he would be selecting Kavanaugh to fill the spot vacated by Anthony Kennedy in June. He was considered the frontrunner on a shortlist that included the Third Circuit’s Thomas Hardiman and the Seventh Circuit’s Amy Coney Barrett.

Barrett was the favorite of religious conservatives due to her view that a judge’s duty to the Constitution should supersede Supreme Court precedent, which calls into question how she would weigh challenges to LGBTQ rights landmarks like Obergefell v. Hodges (which legalized marriage equality) or Lawrence v. Texas (which decriminalized sodomy).

Kennedy, a moderate who often acted as a critical swing vote, wrote the majority opinion in both cases.

In contrast, Kavanaugh had little chance to weigh in on LGBTQ rights during his 12 years on the D.C. bench, and it’s difficult to know if he would erode his predecessor’s most pivotal rulings.

But advocates warned that Kavanaugh’s staunchly conservative record should give the LGBTQ community pause. Eric Lesh, executive director of the LGBT Bar Association and Foundation of Greater New York, called Kavanaugh a “real threat to our nation’s core principles of equality and freedom for all.”

He noted that Kavanaugh was vetted and approved by right-wing organizations like the Heritage Foundation and the Family Research Council.

The former, a right-wing think tank believed to have advised on Trump’s failed trans military ban, called Kavanaugh a “stellar” judge. Meanwhile, the Family Research Council—which believes homosexuality should be criminalized—backed Kavanaugh’s district court nomination in 2005.

These are groups that use hatred and fear-mongering to target the rights of the LGBTQ community,” Lesh said.

“As we know, they are handpicking our federal judges,” he added. “According to Lambda Legal, one in 10 sitting appeals court judges have been picked by Trump. And these groups are helping behind the scenes.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said that independent legal analyses show that his rulings on cases of voting rights and reproductive justice “would place him well to the right of every single current justice except for Clarence Thomas.”

“The gravity of this nomination both for LGBTQ people and this country as a whole cannot be overstated,” Minter claimed. “If confirmed, Judge Kavanaugh would tilt an already conservative court to the far hard right.”

“For LGBTQ people, in particular, this poses a very real threat,” he added.

While advocacy groups don’t expect that a Supreme Court with Kavanaugh on the bench would directly overturn Obergefell or Lawrence, they question how he will rule on cases coming down the pipeline. These include challenges to state laws allowing adoption and foster care agencies to discriminate against same-sex couples and cases on whether trans students should have the right to have their gender identity affirmed in schools.

“Right now the lower federal courts have overwhelmingly held the federal education law protects these students,” Minter said. “The contrary decision by the U.S. Supreme Court would be devastating for these young people and their families.”

That’s why Human Rights Campaign National Field Director Marty Rouse said the organization will focusing on Republican Senators like Maine’s Susan Collins and Alaska’s Lisa Murkowski to “hold them accountable” for their votes. Because the GOP holds a slim majority in the Senate, a handful of swing votes could block Kavanaugh’s confirmation to the Senate. He needs 51 votes.

The conservatives are two of the most likely candidates to flip. Collins supports same-sex marriage, while Murkowski came out against Anchorage’s anti-trans bathroom ordinance earlier this year.

“The HRC is mobilizing its more than three million members and supporters to tell them that Brett Kavanaugh is a threat to women’s reproductive rights, affordable health care, and LGBTQ equality,” Rouse said. “[...] This is a White House that made rolling back LGBTQ rights a top priority, and having another seat on the Supreme Court is a perfect vehicle to further push that hateful agenda.”

But the nation’s largest LGBTQ group is also urging its members to vote in the 2018 midterms to halt future Trump picks. Putting more Democrats in the Senate will prevent the president from continuing to stack the Supreme Court with far-right conservatives.

“As bad as Kavanaugh is, Trump will continue his record of nominating anti-equality candidates to the Supreme Court as time goes on,” he claimed. “The stakes this November could not be higher for all Americans—but particularly for vulnerable communities whose rights are already under attack by this White House.”

Photo By Tom Williams/CQ Roll Call


Nico Lang

Nico Lang is a staff writer for INTO, covering news, politics, and global LGBTQ issues.

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