Since President Trump nominated Judge Brett M. Kavanaugh to the Supreme Court, gay Americans have been among those most concerned about the implications of his confirmation.
This past summer, the Human Rights Campaign launched a “Stop Kavanaugh” video hoping to encourage Americans to express their disapproval of the judge. The organization released a statement saying that "his record is clear: Brett Kavanaugh poses a direct threat to LGBTQ equality, reproductive rights, affordable health care, immigrants’ rights, workers’ rights and so much more.”
But for some, Kavanaugh's record is not clear, as he had not commented on every ruling related to LGBT issues — and, perhaps more relevant, every decision coming out of the Trump administration impacting LGBT Americans.
Sen. Kamala D. Harris (D-Calif.), one of the more liberal members of Congress on gay rights issues, took up their baton on Thursday when she questioned Kavanaugh about his views on the court case that extended marriage rights to gay Americans, known as Obergefell v. Hodges.
HARRIS: My question is very specific. Can you comment on your personal opinion on whether Obergefell was correctly decided? It’s a yes or no. Please.
KAVANAUGH: In Masterpiece Cakeshop, and this is, I think, relevant to your question, Justice Kennedy wrote in the majority opinion joined by Chief Justice [John G.] Roberts [Jr.] and Justice [Samuel A.] Alito [Jr.] and Justice [Neil M.] Gorsuch and Justice [Stephen G.] Breyer and Justice [Elena] Kagan, the days of discriminating against gay and lesbian Americans, or treating gay and lesbian Americans as inferior in dignity and worth, are over. [Editor's note: Masterpiece Cakeshop v. Colorado Civil Rights Commission is a case in which the Supreme Court ruled for a Colorado baker who refused to create a wedding cake for a same-sex couple.]
HARRIS: Do you agree with that statement?
KAVANAUGH: That is the precedent of the Supreme Court agreed with by —
HARRIS: Sir, I’m asking your opinion. You’re the nominee right now, and so it is probative of your ability to serve on the highest court in our land. So I’m asking you a very specific question. Either you’re willing to answer it or not. And if you’re not willing to answer it, we can move on. But do you believe Obegefell was correctly decided?
KAVANAUGH: Each of the justices have declined as a matter of judicial independence — each of them — to answer questions in that line of cases.
HARRIS: So you will not answer them?
KAVANAUGH: Following the precedent set by those eight justices, they’ve all declined when asked to answer that question.
HARRIS: Thank you.
Kavanaugh has also been accused of giving non-answers — or at least indirect answers — to topics related to abortion, affirmative action and other subjects of high significance to liberal lawmakers. Even beyond the topics that matter most to those fighting culture wars, Kavanaugh generally gave non-answers to most questions about the opinions of specific cases.
To Harris, who built her career in communities with some of the country’s most visible LGBT populations, Kavanaugh’s non-answer was an answer itself. However, to be fair to the judge, the lawmaker initially cut him off more than once, perhaps preventing him from giving an answer that his defenders may have considered more direct.
After the hearing, Harris tweeted:
“Obergefell was one of the great moments in the history of the Supreme Court of the United States. Full stop.”
And other advocates for gay rights shared her sentiment.
In some ways, the 2016 presidential election pitted white evangelicals and gay-rights activists against one another, as both sides were hoping to have judges and justices nominated that interpreted the law in ways that protect the rights of their respective communities.
For many Americans, the right to marry seems like settled law. But to the gay community, fears that the ruling is anything but decided are very real, considering the number of people who voted for Trump with the hope that he would appoint judges who would overturn decisions popular with more liberal Americans.
Conservative Christians feared judicial power that interfered with their ability to express their religious convictions in areas related to LGBT issues. And many gay Americans feared that judges would allow for further discrimination against gay people under the guise of religious objections.
The future is not clear for gay citizens’ ability to share the marriage rights that straight Americans do. Kavanaugh’s non-answer likely reaffirmed the fears of gay Americans and encouraged the conservative Christians who backed Trump with the hope that he would deliver the courts to them.