Trump, Brett Kavanaugh and the Effort to Destroy LGBTQ Rights

With the nomination of Brett Kavanaugh to the U.S. Supreme Court, the sense of dread and impending doom that has lingered over me and many others since the disastrous results of the 2016 presidential election has again intensified.  I suspect even straight LGBT allies do not fully appreciate the corrosive effect living in fear that one's rights will be curtailed or abolished at the whim of a malignant narcissist and a hate-filled minority empowered by a flawed U.S. Constitution which has concentrated too much power in rural, reactionary states. As a history nerd, if you will, who has read much about the rise of Hitler in Germany, I cannot help but wonder whether some of Hitler's future victims had similar fears as they saw Germany slowly embrace insanity and barbarism.  A piece in Huffington Post looks at the threat that Brett Kavanaugh may pose to LGBT Americans in particular and American democracy in general.  Here are highlights:

There was some attention ― and perhaps even a bit of hope ― this week after the anti-LGBTQ American Family Association came out immediately in opposition to Judge Brett Kavanaugh (urging members to call their senators), President Donald Trump’s nominee to the Supreme Court to replace retiring Justice Anthony Kennedy.

The AFA was rattled by Kavanaugh’s previous statements that precedent actually matters. Like National Review’s David French and other social conservatives, the AFA’s first choice for a nominee on Trump’short list was Judge Amy Coney Barrett, who has been very clear about how religious faith should guide a judge’s decisions.

But after a couple of days, the AFA walked that back . . . . Maybe the AFA realized something we all should be enormously concerned about: Kavanaugh’s beliefs on marriage equality and Obergefell v. Hodges might matter far less than his breathtaking views on expansive presidential power when it comes to the rights of LGBTQ people.

When the president is an authoritarian, after all, allowing him expansive powers will be far more efficient at curtailing the rights of minorities than waiting for the Supreme Court to weigh in on every case, which might take years to reach it.That, of course, is not to say that Kavanaugh isn’t on board with the anti-LGBTQ agenda. As I’ve been writing about for the past few years, the goal of anti-LGBTQ leaders is to turn gay marriage into second-class marriage. This was the plan well before the Obergefell ruling, as I sat in on a panel in 2014 at the Values Voter Summit where prominent anti-LGBTQ leaders discussed how they would do to marriage equality what they have done to abortion rights: chip away at it over years to diminish it dramatically. 

That assault on marriage equality has only just begun, with the “religious liberty” crusade lookingto carve out exemptions for those who oppose LGBTQ rights. Whether it is bakers and florists or adoption agencies, the idea is to allow religious objectors to discriminate.Thus with Kavanaugh, the question isn’t whether he believes in precedent or would overturn Obergefell outright. It’s about where he stands on carving out these exemptions.

Neil Gorsuch (for whom Collins voted) in his confirmation hearings called marriage equality “absolutely settled law.” . . . . But Gorsuch has gone on to assault LGBTQ rights, most notably in a dissent that was seen as an open invitation to the state of Texas to challenge or carve out exceptions to Obergefell.

We can expect the same of Kavanaugh. An analysis by political scientist Lee Epstein puts Kavanaugh to the right of Gorsuch and Justice Samuel Alito and just slightly to the left of the farthest-right justice, Clarence Thomas. It’s hard to imagine any scenario in which a justice in that position would rule in favor of LGBTQ rights. Cases will be coming to the Supreme Court regarding adoption laws and gay couples, the rights of transgender students and transgender people serving in the military and businesses denying service to LGBTQ people based on the business owners’ religious beliefs. . . . There’s no question another case regarding a business owner who wants a religious exemption to serving queer people will reach the court. 

But even more threatening is Kavanaugh’s view of expansive presidential power ― an issue Democrats are now focusing on,as it seems directly related to why Trump might have chosen him. Kavanaugh has written that Congress should pass a law that protects presidents from lawsuits,indictments and investigations like the Russia probe. And his decisions have shown he backs a concentration of power in the executive branch on international and domestic issues. He supports the unitary executive notion of presidential power. 

That could have dire consequences regarding Trump’s decisions to ban transgender people from the military and sign other draconian executive orders. A far-reaching religious liberty executive order ― which would have allowed for broad-based discrimination against LGBTQ people, women and other groups ― was slowed down by the administration last year and replaced with a series of less expansive ones, in part, it appears, because of fears the order would face a legal challenge.

But with Kavanaugh on the Supreme Court, such far-reaching orders could be deemed as passing constitutional muster, giving Trump further power to assault LGBTQ rights ― and the rights of many other minorities ― on his own, with the stroke of a pen. And that would bring Trump much closer to what seems to be his clear aim, establishing a dictatorship.

Be very, very afraid.