LGBTQ activists fear for their freedoms with Kennedy’s retirement

Some worry about the rollback of protections, while others are more optimistic.

How are LGBTQ activists reacting to Supreme Court Justice Anthony Kennedy's retirement given the role he's played in their lives?

Some fear it will mean the rollback of protections he helped bring about while others are more optimistic about expanding those new freedoms.

Kennedy, an ideological conservative who was often the swing vote in cases affecting the LGBTQ community, announced his upcoming retirement from the nation’s highest court Wednesday, raising their concerns about the likely nomination of a more conservative justice.

“While often conservative-leaning in his three decades on the court, Justice Anthony Kennedy was also a key vote in several landmark cases that greatly impacted the rights of LGBTQ people in the nation,” said Sarah Kate Ellis, president and CEO of GLAAD, an organization dedicated to promoting acceptance of LGBTQ individuals in the media.

Log Cabin Republicans, a conservative LGBTQ advocacy organization, agreed.

“No Supreme Court Justice in history has done more to advance gay rights than Justice Kennedy…[he] did not simply author the most pro-gay decisions of a Supreme Court Justice — he authored all of them,” Gregory Angelo, the group’s president, said in a press release.

Meanwhile, Russell Robinson, a law professor and LGBT equity chair at the University of California, Berkeley School of Law, said that while he is critical of some of Kennedy’s opinions, the California-born-and-raised justice was a “pioneer of LGBTQ rights” and a “fairly reliable ally” since Romer v. Evans in 1996.

“Through his decisions, he paved the way for Obergefell v. Hodges,” Robinson said, referring to the landmark 2015 case in which Kennedy penned the majority opinion upholding the legality of gay marriage in all 50 states.

But earlier this month, Kennedy disappointed some LGBTQ rights groups by ruling in favor of a baker who refused to design a wedding cake for a same-sex couple.

“We are disappointed in Justice Kennedy’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission with respect to this particular baker,” Sarah Warbelow, legal director of the Human Rights Campaign, said.

According to Warbelow, Kennedy’s decision “gave the baker a free pass because of a perception of bias” against the baker’s religion.

But Paula Greisen, the attorney who represented Charlie Craig and David Mullins – the couple in the Masterpiece Cakeshop case – offered a more optimistic view of the decision and its implications.

“It should be seen as a victory for the LGBTQ community. It was a clear announcement that their rights will be protected, and should give the community hope that it is entitled to dignity and respect,” Greisen, who maintains regular correspondence with Craig and Mullins, said.

While she noted that the decision initially appeared to be a “reversal” of LGBTQ protections, Greisen said became more hopeful as she discussed its implications with Craig and Mullins.

“The more we talked about it, the more I think Charlie and David understand that this case may bring about more victories in the long run,” she said. “Not one of the justices said the [Colorado nondiscrimination] law should be struck down because it violates free speech.”

Meanwhile, Log Cabin Republicans said there is “more nuance to this decision than meets the eye” given that it had the support of Justices Stephen Breyer and Elena Kagan, both Democratic appointees.

But with the prospect of a nominee more conservative than Kennedy, some activists fear a rollback of LGBTQ rights and protections.

“As a candidate, now-President Trump has already gone on record as disagreeing with the Supreme Court decision that affirmed marriage equality for LGBTQ people,” Ellis said, noting that Kennedy’s retirement will “allow President Trump to fill his vacancy with yet another anti-LGBTQ justice.”

Meanwhile, the National LGBTQ Task Force wrote in a press release that it believes Kennedy’s decision to retire “all but ensures a right-wing nominee will be installed” and that his replacement “could allow religion to be further used to discriminate.”

Warbelow hopes that Trump will nominate a “fair-minded constitutionalist who supports full equality under the law” – including the equality of people of faith.

“HRC supports nondiscrimination protections for people of faith on the same level as it supports nondiscrimination protections for LGBTQ people,” she said.

But while Greisen said that one justice’s opinion “standing alone” would be “unable to erode” protections offered to the LGBTQ community, she believes the Court may collectively “try to do whatever it can to limit equal protections.”

Robinson agreed, referring to “ongoing disputes between religious liberty and LGBTQ protections” and the transgender military ban, which he said is likely to come before the Court in the “next year or so.”

Both Greisen and Robinson also pointed to the ambiguity of the Arlene’s Flowers v. Washington case, which the Supreme Court sent back to the lower court Monday to review in light of the Masterpiece Cakeshop decision.

“Kennedy recognized a broad construction of religious liberty cutting into the swath of LGBTQ protections and relegating LGBTQ individuals to second-class citizens. Now, states are looking at expanding religious liberty laws,” Robinson said.

Robinson, who is currently writing a paper on the court’s long-standing imbalance between religious liberty and LGBTQ protections, fears that the new justice will be “less ambivalent” than Kennedy and will “side with religious liberty at the expense of LGBTQ rights.”

While he believes it's unlikely previous rulings will be overturned, Robinson is concerned that there will no longer be an "application of the full principles” of landmark cases affecting LGBTQ individuals, providing the hypothetical example of the Supreme Court upholding county clerks’ decisions to refuse to issue marriage licenses to gay couples.

“I would encourage [LGBTQ rights advocates] to highlight the records of prospective Court nominees and homophobic comments they’ve made in the past,” Robinson said, but believes there will be a “strong pressure” among Senate Republicans to approve Trump’s nominee.

Greisen added that while she also believes it’s unlikely that recent Court decisions would be overturned following the appointment of a more conservative justice, she fears that the “Trump administration’s agenda will continue to undermine civil rights.”

Going forward, Log Cabin Republicans believes that federal nondiscrimination legislation is an effective solution to protect LGBTQ individuals.

“Log Cabin Republicans remains committed to passing such protections while also honoring the religious liberty upon which our nation was founded,” it said in a press release.

Meanwhile, GLAAD is pushing for a constitutional amendment that “protects against discrimination based on sex, sexual orientation, or gender identity.”

And Robinson mentioned the necessity of creating a “stable rule of law” to settle future clashes between religious liberty and LGBTQ rights.

“The law for a few decades now has been that if a law is neutral to religion, you can’t claim a religious exemption,” he said. “As a black, gay, Christian man, I recognize that faith shouldn’t dictate the content of laws. The Court needs to explain the rationale behind its decisions on religious liberty and nondiscrimination going forward.”

But Greisen offered a fourth solution: dialogue.

“When Charlie and David walked into Masterpiece Cakeshop, had they sat down and engaged [the baker] in a dialogue discussing their differences, I believe that this case wouldn’t have happened,” she said of Masterpiece Cakeshop.

Greisen pointed to the “polarizing” nature of today’s dialogue in preventing Craig and Mullins from having a civil conversation with Jack Phillips, the baker in the case.

“Had they had a conversation with one another, I don’t think Charlie and David would’ve felt humiliated and degraded and treated as second-class citizens. And they would’ve found someplace else. Charlie and David are sincerely sorry if Jack felt disrespected,” she said.

Going forward, Greisen anticipates that Craig and Mullins will advocate for LGBTQ rights regardless of how the nomination process unfolds.

“I anticipate that in the future, they want to be spokespeople for civil rights,” she said. “And what I would say to them and others is ‘vote.’”