Three Short Years: What Will a Post Justice Kennedy Era Be Like for Gay Americans?


On June 26, 2015, Supreme Court Associate Justice Anthony M. Kennedy wrote the 5-4 majority opinion in Obergefell v. Hodges recognizing that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guaranteed the fundamental right to marry to same-sex couples. After a long hard-fought battle, we could hold our heads up higher that day. We were no longer second-class citizens in America because the highest court in the land recognized our lives were just as valid as those of heterosexual citizens. We could no longer be denied all the rights and privileges that marriage provides. These rights are financial, social, legal and social, and are far-reaching, affecting everyday life. We held fast to the belief we would never go back to life before Obergefell v. Hodges. Most of the people in America believed we had the right to marry. They still do.

Younger Americans see it as a non-issue. We are safe. Right? 

That all changed on June 27, 2018, when Justice Kennedy announced his retirement as of July 31, 2018. This would be his last term. Kennedy was often the swing vote on the Court in many 5-4 decisions as he was in Obergefell v. Hodges. The day we feared is now upon us. President Donald J. Trump will exercise his right under the Constitution to nominate the next Supreme Court Associate Justice and Senate Majority Leader Mitch McConnell will move Trump’s nominee through the hearing process and then on to a confirmation vote in the full Senate swiftly.

President Donald J. Trump will exercise his right under the Constitution to nominate the next Supreme Court Associate Justice – abd what that could mean 

The speedy process will be necessary to ensure Trump’s nominee goes in front of a Republican Senate before the November midterm elections when that slight Republican majority in the Senate (51-49) could flip to favor the Democrats. A Democratic Senate would be very unlikely to confirm the conservative ideology Trump will need to nominate to please his base. This will be Trump’s second Supreme Court appointment due to the seat Mitch McConnell stole from President Obama when McConnell refused to schedule hearings for Judge Merrick B. Garland, denying Obama his right to nominate a Justice to fill Justice Antonin Scalia’s seat when Scalia died unexpectedly in 2016.

We don’t need to be told how Trump’s base feels about the gay community. They hate us with all their Bible-fueled fury.  We are to be scorned and denied services because of who we love. Second class citizens once again, with the benefits of marriage diminished or stripped away from us once the “right” case works its way up through the Federal court system to what will likely now be an ultra-conservative Court. Trump and his Republicans will make sure this Supreme Court nomination stays front and center to distract his supporters as the Mueller investigation continues. The investigation will reveal the obstruction of justice and collusion with the Russians in the 2016 presidential election, and it is a truth neither Trump nor his Republicans want to face. The Trump base will be reminded of how necessary Trump is to making America great again by denying Constitutional rights to minorities (including us) and they will believe it. The day we hoped would not come – that we day we feared – is here.

It is imperative that we make our voices heard, now more than ever 

In our Constitutional Republic made up of three equal branches with checks and balances, the founding fathers sought to protect the rights of the minority from the tyranny of the majority. Today we face the very grave danger of the tyranny of a minority endangering the rights of other minorities that help comprise the majority. Through voter suppression, gerrymandering and collusion with a hostile foreign power, the minority ultra-conservative wing of the Republican Party managed to take control of all three branches of government and LGBT people and the gay community are one of their targets.

It is imperative that we make our voices heard now. If we remain silent, we risk losing all we’ve gained for generations to come. Many of us will have no hope of equality ever again in our lifetimes. We must urge the Democrats in the Senate to fight any far right-wing appointment Trump makes and insist upon the nomination of a fair-handed jurist who will uphold the Constitution in the 21st century.

Moderate Republicans such as Susan Collins (Maine) and Lisa Murkowski (Alaska) must be urged to join the Democrats in stopping Trump from stacking the Court with a Justice who will serve the most abhorrent instincts of his base.  Lastly, and most importantly, we must vote in the November midterms to elect a Democratic Congress that will stand up for the rule of law and put our nation back on course.

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