July 3, 2018 at 12:37 pm EDT | by Chris Johnson
Is marriage in danger with Kennedy gone from Supreme Court?
Anthony Kennedy, Supreme Court, gay news, Washington Blade

Is same-sex marriage in jeopardy now that Justice Kennedy has announced plans to step down from the Supreme Court? (Photo public domain)

After announcing his retirement following 30 years on the U.S. Supreme Court, U.S. Associate Justice Anthony Kennedy leaves a profound legacy in favor of gay rights — but questions linger over whether his legacy is in jeopardy and same-sex marriage rights are in danger now that he’s stepping down.

That legacy includes decisions guaranteeing the constitutional right of same-sex couples to marry. In 2013, Kennedy wrote the opinion in Windsor v. United States striking down the anti-gay Defense of Marriage Act, which barred federal recognition of same-sex marriages. Two years later in 2015, Kennedy wrote the decision in Obergefell v. Hodges, which struck down state laws against same-sex marriage and spread marriage equality nationwide.

But Kennedy’s legacy on gay rights extends beyond marriage and goes back decades. In 1996, Kennedy wrote the opinion in Romer v. Evans, striking down Colorado’s Amendment 2 on the basis that bare animus cannot justify anti-gay laws. In 2003, Kennedy was the author of the ruling in Lawrence v. Texas, which found state laws criminalizing same-sex relations are unconstitutional.

More recently, Kennedy wrote the decision in the Masterpiece Cakeshop case in favor of Colorado baker Jack Phillips, who refused to serve a custom-made wedding cake to a same-sex couple. But that opinion was a narrow ruling based on the facts of the case, only applied to Phillips and invoked strong language in favor of laws barring discrimination against LGBT people.

Now that Kennedy has announced he’ll step down, will the precedent those decisions established for gay rights and same-sex marriage in particular remain in place, or will Trump’s pick to replace him be enough for the Supreme Court to reverse course and roll back constitutional protections for gay people?

James Esseks, director of the LGBT & HIV project at the American Civil Liberties Union, once said in 2016 before Trump was elected the “chances are virtually nil” the marriage-equality decision would be reversed. With Trump in the White House and a second opportunity for him to name a Supreme Court justice, Esseks now has increased those odds ever so slightly, but still minimized them.

“I wouldn’t say they are virtually nil right now, but I also don’t think the chances are super great that Obergefell itself would be overruled,” Esseks said. “My sense at the moment is that, look, it’s absolutely part of our opponents’ objective to overturn Obergefell. They’re going to try, and depending on what it looks like, maybe they’ll have some chances there.”

Such a reversal would likely be the result of a state passing a law against same-sex marriage in defiance of Obergefell, or simply refusing to give marriage licenses to same-sex couples.

Both of these possibilities would be increasingly politically difficult with strong support for same-sex marriage throughout the country. A recent poll from the Public Religion Research Institute found a majority of voters in 44 states support same-sex marriage.

If nonetheless a state moved to ban same-sex marriage, it would be challenged in court, giving the Supreme Court an opportunity to review the precedent.

Jocelyn Samuels, executive director of the Williams Institute at the University of California, Los Angeles, said “it is, of course, a concern” Kennedy’s successor might bring a new perspective to the court on marriage, but remained optimistic.

“I am hopeful that in conjunction with stare decisis, which, of course, counsels against overruling precedent absent really compelling reasons to do so, the new court will maintain what has become an established right that is part of the fundamental constellations of protection that LGBT people need in order live full and equal lives,” Samuels said.

Trump considers his pick to replace Kennedy — a choice he said would come from a list of 25 predetermined options of conservative possibilities and would be announced Monday — about a year after he said during an interview on CBS News’ “60 Minutes” he’s “fine” with the ruling for same-sex marriage and considers the matter “settled.”

White House Press Secretary Sarah Huckabee Sanders has said Trump is “not going to talk to judges about specific cases” in deciding his pick, and another White House spokesperson dodged last week when asked if Kennedy’s successor would uphold the justice’s legacy on LGBT rights. The White House didn’t respond to the Washington Blade’s request for comment on whether Trump still thinks same-sex marriage is “settled” and if that view will inform his Supreme Court pick.

Samuels said “given this administration’s hostility to LGBT rights” any nominee Trump puts forward to replace Kennedy should come under intense scrutiny.

“There is, of course, a concern that any person nominated by this administration will pursue policy and legal analysis that advances and anti-LGBT agenda, and that’s why it’s so critical to evaluate the record of any nominee that the president puts forward to evaluate whether their history of either judicial decision-making or policy determinations, or arguments before courts, reflect a willingness or a desire to roll back existing protections or reject new ones,” Samuels said.

Legal experts who spoke to the Blade said that while the marriage ruling itself will likely remain intact after Kennedy leaves the Supreme Court, opponents of LGBT rights may try to chip away at same-sex couples marriage rights, such as spousal benefits or birth certificates, even though the Obergefell ruling assured them the “constellation of benefits.”

That has already taken place: Texas Gov. James Abbott pressured the Texas Supreme Court to consider whether Houston needs to provide spousal health benefits to city employees in same-sex marriages. Despite the Obergefell decision, the Texas Supreme Court last year determined the guarantee of those benefits remained an open question. The court remanded the case to a district judge, where it remains pending.

In 2016, the Arkansas Supreme Court ruled the state has no obligation to place the names of both lesbian parents on their children’s birth certificates. Last year, the U.S. Supreme Court reversed that ruling on appeal in a per curiam decision, which stated Obergefell “applies with equal force” to birth certificates.

As opposed to a decision overturning Obergefell outright, Esseks said opponents of same-sex marriage will likely pursue a case similar to those lawsuits to undermine the marriage equality decision.

“What we will need to be on guard for is efforts to chip away at what it means to be married,” Esseks said. “What they may say is the government will give you the marriage license, but they may allow businesses to treat our marriages differently than straight people’s marriages, they may allow the government to treat our marriages differently than straight people’s marriages, and that could create intense inequality in many different contexts all across the country.”

With Kennedy gone, supporters of LGBT rights may begin to look to U.S. Chief Justice John Roberts to uphold same-sex marriage when challenges come to the Supreme Court, even though he was among dissenters to the marriage equality decision.

There are signs Roberts may have changed his tune, or believes the issue of same-sex marriage has been settled and he’ll adhere to precedent on the issue.

When the Arkansas Supreme Court ruled the state could refuse to place both names of lesbian parents on the birth certificate of their child despite the Obergefell ruling, the U.S. Supreme Court reversed that decision in a per curiam decision. Joining the dissent written by U.S. Associate Justice Neil Gorsuch was U.S. Associate Justices Clarence Thomas and Samuel Alito, but Roberts wasn’t among them.

In the Masterpiece Cakeshop decision, Roberts was among the seven justices who joined the majority opinion narrowly in favor of the Colorado baker. The chief justice didn’t sign any of the concurring opinions, including one written by Thomas arguing for a more expansive decision finding that Colorado’s LGBT non-discrimination law infringed upon First Amendment rights.

Amid discussion in the media Roberts will become the new centrist on the court, Samuels said she hopes he’ll “pursue the institutional integrity of the court” when he feels justices are called upon to make political, rather than legal, decisions.

“My hope would be in the same way that he committed during his confirmation hearings to just call balls and strikes, that he will carry that forward to recognize the need to respect settled precedent and to really take into account the fundamental rights that are at stake when the LGBT community is subject to discrimination or ostracism,” Samuels said.

Aside from marriage, a host of other LGBT issues could come before the Supreme Court in cases where the outcome may be in question with Kennedy gone from the court.

Much like the Masterpiece Cakeshop decision, cases seeking religious exemptions to discriminate against LGBT people will likely reach the court because that decision didn’t explicitly spell out precedent on the issue. The U.S. Supreme Court recently sent back to the Washington Supreme Court a petition filed by Arlene’s Flowers in Washington State, a florist seeking to refuse service to same-sex weddings, with instructions to reconsider the case in light of the Masterpiece decision.

Esseks predicted “there will be more cases” raising questions on religious exemptions that reach the Supreme Court, but was optimistic about their outcome for LGBT people based on the Masterpiece Cakeshop decision.

“In Masterpiece, there’s a lot of very good language in the majority opinion that talks about the importance of civil rights laws, how harmful discrimination is and the stigma that it causes and talks about how unthinkable it would be for businesses to be able to put up a sign saying, ‘No Gay People Here,’ or ‘Cakes for Heterosexuals Only,’” Esseks said. “That’s not the holding of the case, but it’s strong language that six justices signed on to.”

Another potential issue for the Supreme Court is whether federal civil rights laws against sex discrimination, which include Title VII of the Civil Rights Acts of 1964 for the workplace and Title IX of the Education Amendments of 1972, apply to anti-LGBT discrimination.

Two petitions are already pending before the Supreme Court seeking an answer on whether anti-gay discrimination amounts to illegal sex discrimination under federal law. Alliance Defending Freedom, an anti-LGBT legal group, is expected in August to file a petition seeking review of a U.S. Sixth Circuit Court of Appeals decision affirming Title VII applies to transgender people and the Religious Freedom Restoration Act doesn’t enable employers to engage in anti-trans discrimination.

One more issue that could soon come before the Supreme Court is Trump’s transgender military ban. Although four district courts and two appellate courts have enjoined the administration from enforcing the policy as result of litigation filed by LGBT groups, those cases continue to percolate through the judiciary.

It’s hard to say when and if that issue would reach the Supreme Court because the U.S. Justice Department last year turned down an opportunity to ask justices to review preliminary injunctions against the ban. It may be years if the government waits for final decisions from these courts, very soon if the government reverses course and seeks to appeal or never if the administration abides by lower court rulings.

Any decision on the transgender military ban from the Supreme Court will come in light of its ruling in Trump v. Hawaii upholding Trump’s travel ban on Muslim majority countries. The Pentagon issued the ban after Trump announced on Twitter he’d ban transgender people from the military “in any capacity,” much like the administration enacted the travel ban — and the Supreme Court upheld it — after Trump on the campaign trail called for a “complete shutdown” on Muslims entering the United States.

Esseks said the outcome of the travel ban case is “troubling” for the prospects of the transgender military ban before the Supreme Court, but nonetheless he’s optimistic about the chances of litigation against the policy if it reached justices.

“As it stands now, it seems like the ban is so clearly based on animus toward transgender people, clearly stated by the president with no factual basis for any of the concerns he raises about trans people, in fact, a military record that goes the other way, says that there’s no problem,” Esseks said. “That’s the kind of record where I think it shouldn’t be for the court to say that that’s a problem.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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