Brett Kavanaugh – Photo: C-SPAN.
President Trump’s Supreme Court nominee Brett Kavanaugh refused to answer questions about LGBTQ rights during his confirmation hearings this week.
Cornered by Sens. Kamala Harris and Cory Booker on Thursday evening, Kavanaugh refused to say whether the Obergefell v. Hodges case that legalized marriage equality nationwide was correctly decided, and whether an employer would be justified in firing a gay employee.
Harris repeatedly asked Kavanaugh about the Obergefell case being rightly decided while he tried to filibuster by detailing the history of cases dealing with LGBTQ rights — Romer v. Evans, Lawrence v. Texas, U.S. v. Windsor, Obergefell, and the recent Masterpiece Cakeshop case.
“My question is very specific,” Harris interjected, cutting Kavanaugh off. “Can you comment, on your personal opinion, on whether Obergefell was correctly decided? It’s a yes or no. Please.”
Kennedy responded: “In Masterpiece Cakeshop, and this is, I think, relevant to your question, Justice Kennedy wrote, in the majority opinion joined by Chief Justice Roberts, and Justice Alito, and Justice Gorsuch, and Justice Breyer, and Justice Kagan, ‘The days of discriminating against gay and lesbian Americans, or treating gay and lesbian Americans as inferior in dignity and worth, are over,’ to paraphrase him.”
“Do you agree with that statement?” Harris asked.
But Kavanaugh refused to answer the question, simply saying that it was the precedent of the Supreme Court, and refusing to give his own opinion on the matter, alluding to the fact that the issue of LGBTQ equality may come before the court in a future session.
Pressed by Booker, Kavanaugh also refused to answer whether it should be legal to fire someone because of their sexual orientation, saying: “In my workplace, I hire people based on their talents or abilities.” But Booker continued to needle him.
“The question of the scope of employment discrimination law is being litigated right now. And therefore — well, I’d like to talk to you about this more — but because that issue is in a variety of cases right now, it would be inconsistent,” Kavanaugh responded, referring to the historical precedent in which a Supreme Court nominee refuses to answer questions about cases that may come before them as a justice.
Asked about Booker about whether he “morally” believes that it’s right to fire someone because they are LGBTQ, Kavanaugh refused again, acknowledging that the issue may come before the court in the future.
LGBTQ groups pounced on Kavanaugh’s refusal to answer direct questions as a sign that he would pursue a right-wing ideological agenda that would entail overturning precedent in cases involving LGBTQ rights.
“Judge Kavanaugh refuses to answer simple questions on the dignity of LGBTQ Americans and is unfit to serve on the Supreme Court,” GLAAD President and CEO Sarah Kate Ellis said in a statement. “With the world watching, Kavanaugh refused to tell LGBTQ Americans that we deserve equal protections under the law and Congress should take action before appointing him to a lifetime position where he will no doubt work to undermine our basic rights to liberty and justice.”
Shannon Minter, the legal director for the National Center for Lesbian Rights — and a member of the team of attorneys on the Obergefell case — called Kavanaugh’s refusal to confirm that the case was correctly decided was “chilling” and signaled that Kavanaugh’s confirmation poses a threat to the LGBTQ community.
“He is willing to throw into question not only Obergefell and the right of same-sex couples to marry, but the Court’s commitment that it will respect prior decisions as settled law unless there are compelling reasons to reverse course,” Minter said. “Obergefell held that sexual orientation is not a legitimate basis for governmental discrimination and that fundamental freedoms belong to all people. Three decades of Supreme Court precedents have now affirmed these basic principles. No nominee who refuses to acknowledge them should sit on our nation’s highest court.”
Speaking with Metro Weekly, Minter said that NCLR is “particularly concerned” about Kavanaugh’s approach to analyzing fundamental rights, should he be confirmed to the court.
“He has publicly, in speeches, endorsed the view that the only fundamental rights that should be recognized under the Constitution are those rooted in tradition,” Minter said. “He agrees on that issue with [former] Justice Rehnquist, who publicly opposed the court recognizing a right to reproductive autonomy. But if that were the test, if only rights rooted in tradition were recognized by the court, that would be devastating for women and gay people. That means that Lawrence, and possibly even Obergefell, would be imperiled.
“Basically, if you freeze the Constitution to only recognize rights that were traditionally recognized, you’re freezing in place power structures. The Constitution could never be applied to protect groups that were previously excluded — people of color, women, LGBTQ people,” Minter added.
That concern over Kavanaugh’s “traditionalist” views is perhaps what has motivated protesters to interrupt Kavanaugh’s confirmation hearings. From the very first minutes, activists have interrupted senators, yelled out statements, and been forcibly carted away by police for protesting Republicans’ attempts to ram through Kavanaugh’s nomination as quickly as possible.
For their part, Democrats have argued that much of Kavanaugh’s record — most notably his writings, emails, and other correspondence from his time as an advisor to President George W. Bush — is being kept under wraps in order to ensure an easy confirmation process. They have also questioned why Republicans seem so intent in confirming Kavanaugh, their suspicions aroused by the release of nearly 42,000 pages of documents relating to Kavanaugh’s past writings, speeches, and other statements that was dropped in their laps the night before the first day of confirmation hearings.
Minter told Metro Weekly that, already, conservative groups are signaling that they intend to bring challenges seeking to undermine marriage equality or laws that provide legal protections for LGBTQ individuals. They eventually hope to appeal decisions from lower courts up to the Supreme Court, with the hope that Kavanaugh, now moving the court in a rightward direction, will overturn some of those laws.
“With Kavanaugh on the court, it will be a hyper-partisan, extremely conservative court that’s been pushed to the far right,” he said. “The only thing that gives me a little bit of comfort is they’re going to have their own priorities. And I’m hopeful that rolling back LGBTQ equality is not going to be one of the court’s top priorities. I think they really want to roll back business and environmental regulations. They want to roll back further, any remaining limits on campaign contributions. They want to dismantle the New Deal. … But in terms of how turning back the clock on LGBTQ people, I’m hopeful that it’s not high on their list.”
Prior to Kavanaugh’s exchanges with Harris and Booker, many of the documents that had been made public — including some “confidential” ones that were posted online by Booker to the consternation of Republicans on the Judiciary Committee — dealt with Kavanaugh’s views on Roe v. Wade, the landmark case that legalized abortion.
“Obviously, Roe is part of the underpinning, legally, for many LGBTQ rights cases, including Lawrence v. Texas, which decriminalized consensual sexual relations between people of the same sex,” notes Sarah Warbelow, the legal director of the Human Rights Campaign.
But Warbelow also says that there are many other documents from Kavanaugh’s stint in the Bush White House that have not been released, meaning there may be more information providing insight into Kavanaugh’s beliefs that hasn’t been made public yet.
“He was at the White House for many years, during some of the most consequential events for LGBTQ people,” she says, “including what would have been the White House response to Lawrence v. Texas, over pushing for a federal constitutional amendment, over pushing for state constitutional amendments to ban same-sex couples from marrying, fees that were given to anti-LGBTQ individuals for purposes of promoting their anti-LGBTQ views. So there was a lot going on, that Kavanaugh seems to have been at the center of, but we just don’t have access to those records.”
Earlier this month, Lambda Legal filed eight FOIA requests demanding access to documents from various federal agencies for exactly the kind of information referenced by Warbelow. The organization followed that up with a lawsuit, filed against the Office and Management and Budget, demanding that OMB produce records from Kavanaugh’s time in the Bush White House.
Sasha Buchert, a staff attorney with Lambda Legal, notes that Kavanaugh’s nomination is particularly important, given that he’ll be replacing Justice Anthony Kennedy, who was the deciding vote in several cases expanding LGBTQ protections under law.
“You might not think it matters now, but once a court rule we don’t enjoy those protections that we’ve enjoyed for many years, that means an employer can fire you because you’re gay or trans,” Buchert says.
Buchert says it’s crucial at this moment for LGBTQ people to remain engaged, and — above all — to express their concerns to their U.S. senators who will vote on his nomination. She also rejects the premise that Kavanaugh’s confirmation is a foregone conclusion.
“There have been multiple polls that show he’s the most unpopular judicial nominee since Robert Bork,” she says. “In this 24-hour news cycle, in this administration, with an un-indicted co-conspirator in the White House, and the fact that they have not released so many of the documents [relating to Kavanaugh’s record], it would be irresponsible for the Senate to take a vote on that nominee. So I don’t think it’s a given at all that he’s going to be confirmed.
“There’s still a whole lot of fight left, and what’s going to turn the dial is people getting involved, making a call to their senator, telling them they should oppose him,” says Buchert.
Warbelow also isn’t ready to concede defeat on HRC’s various efforts to block Kavanaugh’s confirmation, which has ranged from lobbying politicians on Capitol Hill to mobilizing its more than 3 million members across the nation to voice their opposition to key senators.
“There is still time for people to make a difference,” she notes. “If they have not reached contacted their senators yet, they should do so. I’m also a big fan of reaching out to who you know. Call your friends and family members who live in swing states or swing districts whose senators need shoring up, and have one call on your behalf. Our friends and families care about us, and they want to see us succeed in the world. So put those calls in. There’s still a chance, there’s still a real opportunity here.”