On the first Monday in October, the U.S. Supreme Court commenced a new term. To mark the occasion, Marriage Equality USA sent each of the five Justices who voted in favor of nationwide marriage equality last term a beautiful Rainbow Flag upon which attendees at this summer's San Francisco Pride Celebration wrote personal messages thanking the Justices for upholding the Constitution.
Although the Court may likely decide important cases this term regarding issues such as women's reproductive health, voting rights, and affirmative action, we find ourselves contemplating not only the upcoming term, but also the first Monday in October 2017. When that Supreme Court term begins two years from now, a new president will reside in the Oval Office, and she or he could already have appointed at least one Supreme Court Justice. A single vote on the Court has decided many recent landmark decisions, and the next president will likely have a profound role in shaping future decisions that will have huge effects on the LGBT people and all Americans.
The Court's landmark marriage equality decisions, -- the 2013 Windsor decision, striking down DOMA, and the 2015 Obergefell decision, establishing nationwide marriage equality -- were both 5-4 decisions with Justice Anthony Kennedy writing the majority decision. In future years, the Court may well address other key issues facing LGBT people, including 1) whether the Constitution more broadly protects against discrimination based on sexual orientation or gender identity in the same way it guards against discrimination based on race or gender; 2) whether laws that authorize discrimination against LGBT people under the guise of a claim of religious belief are permissible; and 3) whether federal laws that prohibit gender discrimination in employment and public accommodations, such as Title VII, include protection against sexual orientation and gender identity discrimination.
We as voters and participants in the political process can profoundly affect these Court decision that greatly influence our lives by ensuring that the next President is someone who appoints Justices who will uphold the Constitution as the Court did in the Windsor and Obergefell marriage equality decisions. In 1987, a broad coalition of individuals and groups who valued civil rights and liberties organized tirelessly to successfully defeat President Ronald Reagan's appointment of Robert Bork, an extreme conservative deeply opposed to LGBT equality. The person who became a Justice instead was none other than Anthony Kennedy.
In the 2000 Presidential election, many people bought into the false message that Al Gore and George W. Bush essentially did not differ because among other things Bush was a "compassionate conservative." Of course, the two differed in many ways, none more clearly than their perspective on the Supreme Court. During the campaign, Bush declared his admiration for arch conservatives Clarence Thomas and Antonin Scalia, while Gore looked to former Justice Thurgood Marshall. Justice Marshall appreciated the Constitution's role in protecting individual liberty and equality perhaps more than any other Justice in history and argued Brown v. Board of Education when he was an attorney. As president, Bush appointed Chief Justice John Roberts and Justice Samuel Alito, both staunch conservatives, who voted against marriage equality. Roberts and Alito have also provided key votes in many harmful Supreme Court decisions over the last decade, such as Citizens United, that has opened the floodgates to unlimited money pouring into election campaigns.
The 2016 presidential candidates have expressed starkly different positions on the Supreme Court. Former Secretary of State Hillary Clinton in her September speech to the Human Rights Campaign warned:
The next president may get three Supreme Court justice appointments. We could lose the Supreme Court, and then there'd be a whole new litigation strategy coming from those who oppose marriage equality.
Senator Bernie Sanders has made a commitment to overturning Citizens United a "litmus test" for any person he nominated for the Court, noting that the decision was "undermining American democracy" and that "billionaires" should not "be allowed to buy politicians."
On the other hand, Louisiana Governor Bobby Jindal said that he would like to remove all of the Justices, except Thomas, Scalia, and Alito. Senator Marco Rubio declared, "We need more Scalias and less Sotomayors," referring to Justice Sonya Sotomayor, who among other things has voted in favor of marriage equality. Senator Ted Cruz stated at the last Republican debate that the appointment of even the conservative Roberts to the Court "was a mistake." Former Governor Jeb Bush implicitly criticized the appointments of his own father and brother, Souter and Roberts respectively, by saying, for example, that Roberts "did not did not have a proven, extensive record." Bush has also stated that he would appoint Justices who "won't use the bench to legislate," well-trodden code words for social conservative.
The ultra conservative statements that many Republican candidates have made about Supreme Court Justices comport consistently with their anti-gay rhetoric and their other outspokenly conservative views. Although some of the Republican candidates such as Bush try to speak somewhat more carefully and sometimes offer more nuanced statements about LGBT rights, one should make no mistake as to their approach to the Supreme Court. Their appointments would mirror those of the outspoken Jindal and Cruz. They would appoint very conservative Justices, who would reliably deliver consistent votes against LGBT rights at the Court.
We will face with a stark choice regarding the future of the Supreme Court regardless of whom the two major parties choose as their nominees. We must recognize the primacy of this issue to our lives as LGBT people. We must ensure that when the Supreme Court convenes on the first Monday of October 2017 and for years thereafter a majority of Justices will enforce the liberty and equality guarantees of the Constitution that protect us all. We want to send more Rainbow flags to more Justices, thanking them for upholding the legal rights of LGBT people.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. They are leaders in the nationwide grassroots organization Marriage Equality USA.