July 3, 2018 at 1:15 pm PST | by Jon Davidson
Fear the federal courts — but don’t give up

California’s progressiveness does not make its citizens immune from a conservative Supreme Court. (Photo PBS)

While LGBTQ Californians rightfully feel more protected legally than our peers in many parts of the country, we by no means are immune from what is happening to the federal courts, including the momentous, impending change in the Supreme Court due to Justice Anthony Kennedy’s retirement. 

That’s because, under federalism principles, California’s laws are subject to federal judges’ interpretation of restrictions the U.S. Constitution and federal statutes place on states. That was painfully evident in numerous high court rulings this term.

One decision enjoined a California law designed to ensure that pregnant women receive accurate information about their options that was challenged by anti-abortion “crisis pregnancy centers” on First Amendment grounds. Another ruling prevents states—including California—from requiring government employees to pay union dues to support the benefits those unions provide them. Yet another decision held that, under the Federal Arbitration Act, employers—including in California—can not only force their workers to arbitrate their employment-related disputes (thereby relinquishing rights to a jury and a public trial), but also can prevent them from uniting with coworkers to seek class-wide relief. 

In addition, Californians—like all in the nation—are subject to federal courts’ interpretation of U.S. government authority, such as the Supreme Court’s decision upholding Trump’s Muslim travel ban.

So, whether a nominee opposed to LGBTQ rights is selected to fill Justice Kennedy’s seat has to be of concern to us all.

Vitally important sexual orientation and gender identity issues are likely to come before the Supreme Court in the years ahead. Notwithstanding the positive language in the Masterpiece Cakeshop ruling that business owners’ religious beliefs do not justify violation of anti-discrimination laws, opponents of LGBTQ equality continue to press for a constitutional right to discriminate. In addition, when the Supreme Court reconvenes this fall, it will consider several requests to hear appeals raising whether federal sex discrimination laws protect LGBTQ people. Anti-LGBTQ groups also have announced their intent to try to get a future case up to the Court that might permit narrowing or even reversal of the Court’s landmark marriage equality decisions.

President Trump has said he will choose his nominee by July 9 from a list largely compiled by the anti-LGBTQ Heritage Foundation and the arch-conservative Federalist Society. The big question is whether confirmation hearings will conclude before the November mid-term elections determine who controls the Senate for the next two years. Senate Majority Leader Mitch McConnell has expressed his intent to have a confirmation vote in time for Justice Kennedy’s successor to be sworn in before the Supreme Court’s next term begins Oct. 1.

Because the Senate eliminated the filibuster of Supreme Court nominees when Justice Gorsuch’s nomination was being considered, it will be difficult to delay a confirmation vote.  Nonetheless, some are urging tactics to slow down all Senate business between now and the November election in an effort to do so. Still angry about McConnell’s refusal to permit Senate consideration of Judge Merrick Garland to fill late Justice Scalia’s seat between President Obama’s nomination of Garland in March 2016 and the final day he could have been considered in January 2017—which made it possible for Gorsuch to take the seat instead—some are quoting back McConnell’s prior proclamation that “The American people should have a voice in the selection of their next Supreme Court justice.”

The filibuster’s elimination also means it will only take 50 votes to confirm whomever Trump nominates, since Vice-President Pence would break a tie. There currently are 51 Republican Senators, 47 Democratic Senators, and two independents who caucus with the Democrats. Three Democrats (Indiana’s Joe Donnelly, North Dakota’s Heidi Heitkamp, and West Virginia’s Joe Manchin) voted to confirm Gorsuch. Even if all three instead voted against Trump’s choice this time and no Democrats voted the other way, it would still take at least two Republican senators to reject the nomination of their party’s leader. While Maine’s Republican Sen. Susan Collins has stated she would not support a nominee hostile to Roe v. Wade, Alaska’s Republican Sen. Lisa Murkowski (who also supports reproductive choice) has been more circumspect, stating only that she intends to cast an “independent vote” when the nomination comes before the Senate.

Whoever ultimately assumes Justice Kennedy’s seat may tip the balance on issues on which he was the “swing vote” for years to come. If his successor sides with the Court’s most conservative members (Justices Thomas, Alito, and Gorsuch), Chief Justice Roberts would be the Court’s new “center” vote. The Chief Justice frequently has expressed concerns that the Court’s legitimacy not be undermined by perceptions of political partisanship or casual disregard of existing precedent. Those concerns have sometimes led him to vote with the more liberal justices, as when he voted to uphold the Affordable Care Act.

But, while the public increasingly has accepted same-sex couples’ freedom to marry and seen it as a settled question, it’s hard to read Roberts’ dissenting opinion in Obergefell—in which he called the majority decision upholding marriage equality “disheartening,” “an act of will, not legal judgment,” “unprincipled,” “pretentious,” and constitutionally “indefensible”—and feel sanguine.

As bad as all this is, who will replace Justice Kennedy is not the only threat to LGBTQ equality looming in the federal courts. An analysis of President Trump’s judicial nominees Lambda Legal released in December showed that nearly one-third had demonstrably anti-LGBT records.

Kyle Duncan, appointed to the 5th Circuit, previously was counsel for those fighting against marriage equality in Louisiana, challenging Gavin Grimm’s ability to use the boy’s room at school, and seeking to uphold North Carolina’s infamous HB 2. Greg Katas, now on the D.C. Circuit, advised President Trump on his effort to ban transgender people from military service and Education Secretary DeVos on her rescission of guidance protecting transgender students. Stephen Grasz, who Trump appointed to the 8th Circuit, previously was the Board chair of the anti-LGBTQ Nebraska Family Alliance. Prior to Ralph Erickson also being appointed to that circuit, as a U.S. district court judge he ordered the federal government not to enforce health care nondiscrimination protections for transgender people. As one final example out of many, John K. Bush, appointed to the 6th Circuit, previously gave a speech using the slur “faggot” and authored a blog condemning as an “outrage” the State Department’s change in passports applications that allow designation of “parent 1” and “parent 2” rather than “mother” and father.”

Most nominees who do not have clear anti-LGBTQ records were selected—again, after the process was largely subcontracted to the Heritage Foundation and the Federalist Society—because of their commitment to “originalism.” That controversial legal philosophy claims that the Constitution’s provisions should be considered stable from the time of enactment and that subsequent social changes and scientific advances should be ignored. The doctrine frequently has been invoked in efforts to limit the Constitution’s broad guarantees of equal protection and due process in ways fundamentally at odds with LGBTQ rights.

President Trump has already had 42 of his judicial nominations approved by the Senate.  More than three-quarters are male and more than 88% are white. None are African-American and only one is Latino. None are openly LGBTQ.

Ninety additional federal judicial nominations are pending in Congress. McConnell has cancelled the Senate’s traditional August recess to try to jam those nominations through.  This cohort too is remarkably non-diverse: nearly three-quarters male and more than 85% white. It does include one open lesbian, however—current Illinois federal magistrate judge Mary Rowland, nominated to be a district court judge. One has to wonder, though, what another pending nominee for the district court, Howard Nielson, thinks she should be able to rule on. He previously argued that former Judge Vaughn Walker’s ruling holding Prop. 8 unconstitutional should be thrown out because Walker is gay.

Seventy other vacancies currently exist on the federal bench. By the time Trump’s term ends, he will have refashioned most federal courts to be hostile to LGBT rights claims.

While the packing of the federal courts is going to make our work much harder, we must keep resisting and fighting for progress. We have to keep demanding justice, equality, and dignity in carefully-chosen federal cases. We need to make our voices heard by Congress, by state courts and government officials, and in the court of public opinion. There is no other choice.

As we continue to fight and sometimes lose, we need to remember that we’ve been there before. Previous anti-LGBT federal rulings, like Bowers v. Hardwick, ultimately did not last. As Justice Ginsburg has said, the real symbol for the United States should not be the bald eagle, but the pendulum.

California Lieutenant Gov. Gavin Newsom reminded those attending LA’s recent Families Belong Together rally that it was only 24 years ago that Californians passed the anti-immigrant Prop. 187. Pete Wilson, who vetoed a bill barring sexual orientation employment discrimination, was governor. Look at California now—the pendulum swung.

In Newsom’s words, California is America’s coming attraction. We must keep the faith and make it happen.    

Jon W. Davidson has been a leading LGBT legal rights advocate and constitutional scholar for more than 30 years. He recently was appointed Chief Counsel for Freedom for All Americans, a non-profit that seeks to secure federal statutory protections for LGBTQ Americans, working at the federal, state, and local level to advance measures and laws protecting from discrimination on the basis of sexual orientation and gender identity and expression.

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