The Human Rights Campaign released a report in August on President Trump’s pick to replace Anthony Kennedy on the Supreme Court. It’s titled, “Brett M. Kavanaugh: Wrong for LGBTQ People. Wrong for the Supreme Court.”
HRC Legal Director Sarah Warbelow declared in a press release, “Kavanaugh has a troublingly lengthy, far-right pedigree, and he was hand-picked by anti-LGBTQ, anti-choice groups in an explicit effort to undermine equality.” Kavanaugh would allow a “license to discriminate” that would affect the everyday lives of LGBT Americans, she claimed. “If confirmed, Kavanaugh will undoubtedly bring a dangerous brand of ideological partisanship that has no place on the Court.”
Sounds serious. But a closer look at the report reveals a far less tangible threat than its emotional assertions suggest. Let’s take it from the top.
The report says Kavanaugh has a “thin record” on LGBT-related cases, and has not “substantially addressed” any LGBT Supreme Court cases in the 12 years he was a DC Circuit judge. Kavanaugh is also judged guilty by association because of his vocal support of Justice Antonin Scalia and Chief Justice William Rehnquist, whom the report says have the worst anti-LGBT records in modern history.
Rehnquist joined in a majority opinion in the 1986 case of Bowers v. Hardwick, in which a gay man in Georgia had been charged with violating the state’s sodomy law while in his home. While the district attorney did not bring charges to the grand jury, Hardwick brought a suit to challenge the constitutionality of the Georgia law, which applied to both homosexual and heterosexual individuals.
In the majority opinion, the judges state that the issue at hand was not whether sodomy laws were just or whether states could determine private sexual behavior between consenting adults. The issue was whether the Constitution specifically recognized a right to homosexual sex and held authority to override the laws of all states related to homosexual acts. The court could not determine this to be the case.
Scalia dissented in Obergefell based on his objection to the Supreme Court holding authority over state legislatures in the matter of marriage, but said he did not oppose states instituting same-sex marriage. The report charges Kavanaugh with failing to “distance himself from the extreme and outmoded comments and beliefs advanced by Scalia and Rehnquist.”
The secondary issue at hand is that Kavanaugh views the Constitution from an “originalist” perspective, which the HRC says “could result in an implementation of the Constitution that is essentially frozen in the 1700s.”
In this same vein, the report notes Kavanaugh praised Rehnquist in his dissent in Roe v. Wade, arguing that helped “stem the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” The report adds: “Kavanaugh went on to praise other ‘important precedents limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.'”
The report cites Kavanaugh’s vocal opposition to abortion on demand and his open praise for the court decision that permitted Hobby Lobby to remain exempt on religious grounds from the contraception mandate in the Affordable Care Act. The report connects this to LGBT issues by asserting that Roe v. Wade is confirms a constitutional right to privacy. So by opposing Roe, Kavanaugh is opposing broader privacy rights that could affect LGBT Americans, the report says.
Additionally, his open support of the right to religious freedom confirmed in Hobby Lobby is determined to indicate a support for companies to deny employees medical treatment related to HIV, fertility treatment for same-sex couples, or hormone therapy for transgender individuals. The report states,
The unfortunate reality is that religious beliefs have long been used as a basis to deny LGBTQ people access to basic civil rights. However, exactly what Hobby Lobby will mean for LGBTQ rights hinges on the future composition of the Supreme Court. If a justice like Kavanaugh is confirmed, then the logic of Hobby Lobby could be further extended to allow discrimination against LGBTQ people at work, school, and beyond under the guise of religious expression.
In addition to repeatedly claiming Kavanaugh is pushing “license to discriminate,” the HRC finds reason for concern in Kavanaugh’s views on the ACA. “Kavanaugh has launched several broader attacks on the constitutionality and structure of the Affordable Care Act, a statute which has made health care coverage a reality for many LGBTQ individuals and their families for the first time,” the report states.
While this statement has a strange assumption, (LGBT individuals and families certainly had health care coverage long before the ACA), the report connects the issue to contraception. “The bottom line of Kavanaugh’s approach to contraceptives and federal health care laws is to threaten the access to reproductive and health care services which have proven to be so essential for LGBTQ people,” the report states. Based on his opposition to the ACA, and somehow supposedly to contraception, the report argues Kavanaugh puts laws providing LGBT education and health-care services in “jeopardy.”
Early in the report, the HRC contends that Kavanaugh’s confirmation would put into question whether LGBT individuals and their families could be turned away from businesses, be discriminated against in employment, housing, and health care, and whether transgender individuals would be denied access to military service. It seems the basis of these concerns is speculation that Kavanaugh’s otherwise uncontroversial conservative positions are a direct threat to LGBT American citizens. The report simply asserts without any direct evidence that anyone holding conservative views of the separation of powers and the validity of the Constitution is somehow also an anti-LGBT advocate.
The report also makes several assumptions about the purpose of the court and the universal agreement of highly controversial cases such as Roe and Hobby Lobby. Without intellectual curiosity or consideration, it implies that holding a position liberals find objectionable is in itself an extreme and frightening revelation. In truth, it is more likely that these views are widespread and even shared by a majority of the population.
Interestingly, when looking more closely at the cornerstone examples of anti-LGBT bias in the court, we find only a firm and principled view of the purpose of the court itself. While the language and views of homosexuality are often dated, and by today’s standards objectionable, the core of the decisions rely on a faulty view of the Supreme Court. The court’s role should be to determine whether a law is constitutional — its role is not, as the report implies, to declare truth, justice, or morality.
In this way the HRC report reveals a fundamental truth about Kavanaugh that many conservatives see as a winning argument; the man does not view himself as a lawmaker or a ruler. His consistency throughout the years comes down to a firm belief in the purpose of separation of powers and a preference for judicial restraint in making decisions that go beyond interpreting the Constitution as it is, rather than how liberals would like it to be.
From a conservative perspective, his personal views become irrelevant as we recognize his dedication to neutral, originalist, and objective judicial restraint. From a progressive perspective, this is a threat to the “social progress” they have unwisely placed in the hands of a court that never should have held such power in the first place. What we see in this report is a fear of a truth being revealed: That all of their victories are hollow in the face of a Supreme Court that functions the way it was meant to.
As a gay man, am I worried that confirming Kavanaugh will bring about an end to my marriage and reinstitute the criminality of my private sex life? No. The reason is simple. Despite the fear, exaggeration and emotional manipulation presented by the LGBT media, I see Kavanaugh as a neutral and principled judge willing to set his personal views aside and defend the Constitution and the purpose of the court.
He has not expressed a desire to undermine my rights, and, contrary to the assertions of the HRC report, I don’t believe any of my civil rights are in jeopardy. The worst that could happen is the power to determine law would be returned to the states where I, as a citizen, have direct influence.
Liberals must recognize that simply holding conservative views is not the same as plotting anti-liberal authoritarian pursuits. All they seem to have is fear, speculation, and a certainty that we will do to them what they freely do to the American people. Regardless, Kavanaugh does not appear to be interested in fulfilling the hysterical worries liberals accuse him of planning.