Prizm News / August 1, 2018 / By J. Bennett Guess

Donald Trump introduces Supreme Court nominee Brett Kavanaugh. (White House photo)

Don’t be lulled into believing otherwise: Kennedy’s Supreme Court retirement puts LGBTQ lives in serious jeopardy.


By J. Bennett Guess

If you’ve been experiencing sleepless nights or feeling constant nausea or downing a lot more hard cider since Justice Anthony Kennedy decided to retire from the U.S. Supreme Court and ideologue-in-chief Donald Trump named his potential successor, this column is not recommended reading.

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You probably won’t feel any better afterward.

Kennedy’s departure is a mighty blow to those who care about LGBTQ, affirmative action and reproductive rights issues, and the court’s emerging far-right majority is likely to spell outright disaster for actual LGBTQ people, people of color and women seeking to have control over their own lives and bodies. It’s people—not just issues—that are at stake.

So if you’re feeling completely heartsick right now, congratulations. You get it, and your reaction, as painful as it is, qualifies you as a really decent human being.

The culture wars are leaving behind real war casualties, not just winning and losing ideologies. And it’s almost always people living on the margins in disenfranchised communities who become the victims when civil liberties are under attack.

I’m a gay Ohioan, and I’ve been married to the same wonderful man for 17 years, or 10 years, or three years, depending on which anniversary or court decision you start the count. Kennedy’s retirement is personally gut-wrenching to us, because we seriously worry about what will become of our legal marriage and, moreso, our rights and dignity as LGBTQ people, especially in a state where we have been granted virtually no legal protections.

That said, I am not a one-dimensional, single-issue person, and neither are you. We care deeply about many things, and if equality and fairness for all people matter to you, if the Constitution matters, and if the values that this nation purportedly espouses still mean something, then everyone, no matter your sexual orientation or gender identity, should be at full attention.

Now is the time for all good people to come to the aid of their country.

Kennedy, while a centrist, largely will be remembered for advancing LGBTQ constitutional liberties and safeguarding reproductive rights during his 30 years on the court. But make no mistake, he was no reliable vote. He sided often with conservatives, most recently in upholding Trump’s despicable Muslim ban. He also threw precedent out the window and sided with those heart-set on busting up public-sector unions.

Yet at least we all knew Kennedy could be swayed, and those appealing to his swing vote could believe that rational arguments could move him. Sometimes it actually worked—and for LGBTQ people, powerfully so.

Don’t forget that as recently as 1986, the court held that being queer was essentially illegal and intimacy between consenting adults of the same gender could be criminalized. That dreadful decision stuck around for 17 long years, until 2003 when Kennedy finally paved the way for the court to invalidate so-called sodomy laws.

Kennedy was emerging as an LGBTQ civil rights champion, just as he was in 1996 when he wrote that laws showing “animus” toward gay and lesbian people were unconstitutional.

Now, frighteningly, animus toward the LGBTQ community soon will be the majority mindset on Trump’s Supreme Court.

Justice Clarence Thomas, once largely seen as a glaring ideological outlier, will be at the Supreme Court’s philosophical center. Chief Justice John Roberts will be the new swing vote, if that claim can be made without laughing or crying. That’s the same Justice Roberts who wrote of marriage equality, in his Obergefell v. Hodges dissent: “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution.”

The Court’s eventual lack of any moveable middle is unsettling. But perhaps most troubling is the radical curtailment of an ideal. Gone will be the fundamental belief that people whose rights have been trampled upon by an angry, scapegoating majority can plead their cases before the nation’s highest court and hold out some reasonable assurance that they will be heard.

Courts were designed for that very purpose and have been—with rare exception—the one branch of government that can be trusted to do the right thing when pushed.

Don’t let anyone convince you otherwise. If Roe v. Wade, a 1973 case, is now considered ripe for overturning even with decades of case law layered on top of it, then the 2015 Obergefell decision is surely at great risk.

Some already are predicting that federal marriage equality will be rescinded in two or three years. At a minimum, we can expect a serious chipping away at our equality.

Last summer, in a pro-LGBTQ ruling impacting parental rights, the court cited the  “constellation of benefits” that is equally afforded to every married couple. It ruled that states could not refuse to include the names of same-sex parents on a child’s birth certificate.

Justice Neil Gorsuch, Trump’s first Supreme Court pick, dissented. He said states should be able to decide which rights different couples enjoy. You can expect Trump’s second pick to believe and adjudicate in like fashion, now as part of the court’s majority.

Together, along with Thomas, Roberts and JusticeSamuel Alito, they can water down marriage rights for LGBTQ people or upend them altogether. It might be too soon for such harsh prognosticating, but it’s not soon to start voting, organizing and advocating in massive numbers to protect hard-fought marriage rights and to prevent federal, state and local legislation that seeks to harm us without an accessible Supreme Court to overrule hatred and injustice.

We, the People is one of the most powerful affirmations of our democracy. Ultimately, it will be the people’s perseverance and determination that will decide our democracy’s future, whether it survives and thrives to the benefit of all and the exclusion of none.

Don’t ever allow any nine justices, or 535 members of Congress, or one President dissuade you of that.

J. Bennett Guess is executive director of the ACLU of Ohio and a board member of the National LGBTQ Task Force.


• LGBT rights are a big focus of the ACLU of Ohio. In March, ACLU lawyers filed a lawsuit challenging a state policy that forbids transgender Ohioans from changing the gender marker on their birth certificates. Visit to find out more or follow @acluohio on Twitter.

• The Human Rights Campaign opposes President Donald Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court as Justice Anthony Kennedy’s successor. They’re reporting on his record here.

• The U.S. Senate will have final say on Kavanaugh. Make your opinions known to Ohio’s U.S. senators: You can reach Sherrod Brown at 202-224-2315 and Rob Portman at 202-224-3353.