LGBT advocates fear Kavanaugh
WASHINGTON — Gay-rights supporters who thronged the Supreme Court plaza after justices declared samesex marriage a constitutional right expect to have little to celebrate if Brett Kavanaugh replaces Justice Anthony Kennedy, the author of all the court’s major gay-rights rulings.
None of Kavanaugh’s roughly 300 opinions as an appellate judge deals directly with LGBT issues, but his approach to judging leads some scholars to believe he is unlikely to echo Kennedy’s votes.
While LGBT advocates sound alarms about Kavanaugh, opponents of same-sex marriage are applauding his nomination.
The Family Research Council, a major Christian conservative advocacy group, lauded Kavanaugh’s rulings on religious freedom and “long and praiseworthy history of judging as an originalist,” a term that means interpreting the Constitution as it was understood when written. The council describes homosexuality as “unnatural” and “harmful.”
The high court is likely to confront a range of LGBT issues. These could include President Trump’s ban on transgender people in the military and whether federal civil rights laws banning discrimination in the workplace and education cover sexual orientation and gender identity. The justices also might be asked to decide whether businesses can invoke religious objections to refuse service to gay people.
At Kavanaugh’s 2006 confirmation hearing for his current post as an appellate judge, he was asked whether he had a view on the definition of marriage and whether courts or legislatures should establish it. Kavanaugh didn’t say, instead responding to a part of the question about judicial restraint.
“Throughout our history, we’ve seen that some of the worst moments in the Supreme Court history have been moments of judicial activism, where courts have imposed their own policy preferences” instead of interpreting the law, he said.
Kavanaugh’s opinions and writings also favor presidential authority, suggesting he could uphold Trump’s ban on transgender people in the military.