Kennedy’s departure from the Supreme Court has, understandably, prompted widespread concern about Roe v. Wade and abortion rights. Equally at risk is the court’s progress on LGBTQ rights.
While he was on the court, Kennedy was the decisive vote for the court’s 5-4 pro-gay rights rulings. He wrote each of the court’s landmark gay rights decisions, outlawing bans on same-sex sexual conduct, LGBTQ political advocacy and same-sex marriage at the state and federal level. Kennedy is the voice of the court’s gay rights doctrine.
Having tracked judicial progress on gay rights over the last decade, I’d argue that Kennedy’s retirement puts this doctrine, and the movement, in jeopardy. Although his rulings on same-sex relationships have ushered in new freedoms for lesbian and gay couples, they rest on fragile constitutional arguments. With Kennedy’s retirement, there is greater opportunity for anti-gay activists to dismantle the court’s tenuous legal framework supporting gay rights.
An Unlikely Advocate
Prior to his ascent to the court, few could have predicted that Justice Kennedy would spearhead a judicial revolution for LGBTQ rights. Kennedy joined the court in 1988 as a Reagan appointee whose only decision on gay rights, written during his tenure on the 9th Circuit Court of Appeals, narrowly upheld military regulations prohibiting “homosexual conduct.”
In 1996, less than a decade after his appointment to the court, Kennedy would author his first of multiple Supreme Court decisions protecting the rights of lesbians and gay men.
The 1996 case, Romer v. Evans, involved a constitutional amendment enacted by Colorado voters in 1992. The amendment barred any state or local public official from including sexual orientation in local nondiscrimination laws. If upheld, the amendment would have rendered any discrimination against gays or lesbians in housing, employment and public accommodations both legal and untouchable. The state argued that they were…