Kavanaugh refuses to say Obergefell was “correctly decided” or that firing someone because they are gay is “morally wrong”
On July 31st, the LGBT Bar Association of New York, LeGaL, joined Lambda Legal and 60 other LGBTQ organizations in submitting a letter to the Senate Judiciary Committee to oppose the nomination of Judge Brett Kavanaugh to the US Supreme Court.
Before entering this week’s confirmation hearings, Judge Kavanaugh’s record showed no indication that would decide cases involving discrimination against LGBTQ people fairly, nor that he will uphold our constitutional right to equal dignity.
Unfortunately, nothing during the confirmation hearing did anything to alleviate our serious concerns. The letter LeGaL joined, which was authored by Lambda Legal, highlighted our five biggest issues with Judge Kavanaugh’s extreme record.
1. “Judge Kavanaugh believes that unenumerated fundamental rights must be tethered narrowly to “tradition,” an approach that inherently favors those who historically have enjoyed power and privilege and that would erode or eliminate significant protections for LGBTQ people.”
During his hearing, Judge Kavanaugh would not acknowledge that landmark cases like Roe v.Wade, Planned Parenthood v. Casey, Romer v. Evans, Lawrence v. Texas, U.S. v Windsor, and Obergefell v. Hodges were correctly decided or that he would uphold them. Specifically, when Senator Kamala Harris asked if Kavanaugh if he considered Obergefell to be correctly decided, he chose to quote from the majority in Masterpiece Cakeshop to affirm the Supreme Court precedent of how to weigh the rights of LGBT people. Further, he refused to say that the marriage equality ruling, like the Supreme Court decision in Brown v. Board, was among the “great moments in Supreme Court history.” He also admitted that he played a role in the Bush Administration’s effort to ban marriage equality, but declined to elaborate.
Senator Kamala Harris noted that Kavanaugh had given a speech in 2017 praising former Chief Justice Rehnquist for “stemming the tide of the freewheeling creation of unenumerated rights” — those rights that do not explicitly appear in the constitution. She listed these unenumerated rights as the “right to vote, to have children, to control the upbringing of your children, to refuse medical care, to love the partner of your choice, to marry and to have an abortion.” Judge Kavanugh refused to say which of these he was was praising Rehnquist for rolling rock.
Finally, Kavanaugh admitted to Senator Cory Booker that it would be “morally wrong” to fire someone because of the color of their skin, or because of their gender. He refused to say it would be “morally wrong” to fire someone because they were gay or lesbian.
This places the fundamental rights of LGBT people, women and all vulnerable minorities at risk. Kavanaugh will gut the right to liberty, privacy, and autonomy, which protects LGBTQ people under the U.S. Constitution. Further, “textual originalism” and “constitutional originalism” are judicial philosophies that will gut the right to liberty, privacy, and autonomy, which protects LGBTQ people under the U.S. Constitution.
2. “We have serious concerns that Judge Kavanaugh would support a novel and radical approach to religious freedom, discarding the longstanding doctrinal framework that has rejected attempts to invoke religious liberty to justify violations of anti-discrimination laws.”
Kavanaugh holds a view that business and individuals should have a broad license to discriminate. As I highlighted in a piece for Rewire News, “When a three-judge panel in the D.C. circuit ruled in Priests for Life v. Burwell that the “opt-out form” option of the Affordable Care Act (ACA) — which was provided to religious nonprofits in order to get around the contraception coverage requirement — did not violate the Religious Freedom Restoration Act, Kavanaugh dissented from the denial by the full court to review the case.” Judge Kavanaugh said nothing in his hearing that would give LGBTQ people confidence that would uphold the longstanding principle that businesses that are open to the public, must be open to all.
4. “We are deeply concerned that Judge Kavanaugh will gut critical health care protections, which would gravely threaten the health of people living with HIV and transgender people, among other vulnerable groups.”
During the hearing, when Senator Sheldon Whitehouse asked Kavanaugh directly, about whether he would uphold protections for people with pre-existing conditions, Kavanaugh refused to answer. In fact, Judge Kavanaugh dissented from rulings upholding the Affordable Care Act, which supplies health-care coverage for millions of the most vulnerable people and provides unprecedented federal protections for LGBTQ people.
Despite Kavanaugh’s assurances, during his hearing that “No one is above the law in our constitutional system,” he did little to walk back from his views and writings that articulate a broad vision of executive power, which includes the view that a president need not follow a law if he thinks the law is unconstitutional. This could be strip away protections for LGBTQ people, including access to affordable healthcare.
5. “We are deeply concerned that Judge Kavanaugh’s propensity for supporting the interests of the rich and powerful will harm the economic well-being of our and other economically vulnerable communities.”
In particular, protections against employment discrimination affecting LGBTQ people are likely to come before the Supreme Court very soon, given that several requests for review on the issue are currently pending.
Senator Richard Blumenthal pressed Kavanaugh on Trump’s tweets and statements attacking the character and ethnic background of judges. Kavanaugh refused to condemn these dangerous remarks as a threat to judicial independence.
It is clear that Judge Kavanaugh’s views pose a real threat to our nation’s core principles of equality and freedom for all. We oppose his confirmation and urge our members and supporters to demand that Senators vote “no” on his confirmation.