Brett Kavanaugh Doesn't Have To Reverse Obergefell To Destroy LGBTQ Rights

Judge Brett Kavanaugh after the announcement of his nomination to the Supreme Court, July 9, with President Donald Trump&nbsp
Judge Brett Kavanaugh after the announcement of his nomination to the Supreme Court, July 9, with President Donald Trump at the White House. 

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, putting a statement on its website that it is “willing to let this process play out” and has “no plans to fight President Trump on this nomination.”

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.

The question isn’t whether he believes in precedent or would overturn Obergefell outright.

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 looking to 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. Settling for a statement that Obergefell is precedent or settled law would be a complete dodge by supposedly pro-LGBTQ Republicans like Sen. Susan Collins of Maine, who is continually endorsed by the Human Rights Campaign despite voting for judges who would strip LGBTQ rights.

Neil Gorsuch (for whom Collins voted) in his confirmation hearings called marriage equality “absolutely settled law.” It was actually the most emphatic statement he made about precedent ― even more emphatic than his statements on Roe and other major rulings ― and it almost seemed that he blurted it out in a rare moment in which the very cool Gorsuch became flustered, under very sharp questioning by then-Sen. Al Franken

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.

The Masterpiece Cakeshop ruling punted, putting off a decision until another day and inviting further discrimination. 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. 

“Such an enormous concentration of power is dangerous,” Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, told USA Today. “It enables one person to dictate how all kinds of things are regulated and controlled.”

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.

Michelangelo Signorile is an editor-at-large for HuffPost. Follow him on Twitter at @msignorile.