The Human Rights Campaign, the country’s largest LGBT advocacy group, has concluded that Judge Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, is “a direct threat to the constitutional rights of everyday Americans and for the LGBTQ community in particular.”
In his dozen years as a federal appeals court judge, however, Kavanaugh has not heard any significant cases addressing LGBT issues and has said hardly anything about LGBT people. As a result, HRC’s opposition to his nomination — detailed in a new report to be released Tuesday, a copy of which was reviewed by BuzzFeed News — drew primarily on Kavanaugh’s opinions regarding reproductive rights and religious liberties, as well as the dearth of information about his work in the George W. Bush White House, to back up its conclusions about the threat the group says his confirmation would pose to LGBT Americans.
The fact that Kavanaugh would replace Justice Anthony Kennedy — the author of all of the Supreme Court’s key decisions advancing LGBT rights over the past 25 years — also appeared to figure into HRC’s stance.
“We must insist that any Supreme Court justice maintain due respect for the dignity and equality of LGBTQ people, which was a proud hallmark of Justice Kennedy’s tenure on the bench,” the group stated. “This is not a high bar, but Kavanaugh does not meet it.”
The HRC report also expressed concerns about Kavanaugh’s views on the Affordable Care Act, voter ID laws, and federal agency power, as well as his rulings in employment discrimination cases.
“During his 12 years on the D.C. Circuit, [Kavanaugh] did not substantively address any of the Supreme Court’s seminal LGBTQ decisions in Lawrence v. Texas, Romer v. Evans, United States v. Windsor, or Obergefell v. Hodges, nor its discredited ruling in Bowers v. Hardwick,” the report stated. Kennedy wrote the majority opinion in all four of the pro-LGBT decisions cited — declaring sodomy laws unconstitutional, protecting local nondiscrimination laws, and striking down the Defense of Marriage Act and same-sex marriage bans nationwide. Lawrence itself overruled Bowers, an earlier decision upholding Georgia’s sodomy ban.
In the absence of opinions on LGBT-related cases, HRC pointed to speeches Kavanaugh gave “extensively praising” former chief justice William Rehnquist and Justice Antonin Scalia — whom the group claimed “have some of the most pronounced anti-LGBTQ records of modern jurists.”
However, the Kavanaugh speeches HRC referenced weren’t focused on LGBT issues, or even on anti-discrimination laws more broadly. Kavanaugh’s speech referencing Scalia was about ambiguities in the way courts interpret laws and the “amorphous tests” used in constitutional interpretation. The speech in which he praised Rehnquist was about the former chief justice’s contributions to the court, focusing on his decisions regarding criminal law, religion, federalism, unenumerated rights, and administrative law. And while all of those subjects could be relevant to LGBT rights, the speech did not address nondiscrimination principles or cases at all.
In fact, somewhat oddly, HRC stated that Kavanaugh’s “only reference to nondiscrimination principles” in the speeches was a mention of affirmative action law, but dropped Kavanaugh’s discussion in the Rehnquist speech of slavery as the “greatest flaw” in the Constitution to a footnote in its report.
With no direct record of LGBT rulings to point to, HRC looked elsewhere.
“Judge Kavanaugh’s record on reproductive rights, the right to privacy, and religious liberty indicates a potent combination of ideological views that could significantly and unnecessarily reshape constitutional doctrine and nondiscrimination protections as they apply to LGBTQ persons,” the group concluded.
The next five sections of the HRC report laid out the legal areas where the group argued that Kavanaugh’s opinions and other statements suggest he will be opposed to LGBT people’s interests.
- Right to Privacy: HRC argued that Kavanaugh’s dissenting opinions in two reproductive rights cases — one involving an undocumented minor seeking an abortion and the other involving the Affordable Care Act’s contraception coverage opt-out procedures — signal a “critical and constrained perspective” on Roe v. Wade. His record, the report concluded, “suggests that he does not accept the enduring precept that the Constitution protects the right to privacy,” adding that this relates to LGBT issues as “the Court’s 2015 momentous marriage equality decision built upon this logic further.”
- Religious Liberty: The group pointed to Kavanaugh’s dissenting opinion in the ACA case, which the majority of the DC Circuit judges called “a potentially sweeping” interpretation of the Supreme Court’s Hobby Lobby decision, and concluded that Kavanaugh “seems all-too-ready to carve out any number of other religious exemptions into statutory and constitutional law.”
- Access to Health Care: In addition to availability of contraceptive and reproductive health services, HRC also expressed concerns about the future of the ACA more broadly, noting Kavanaugh’s repeated “readiness to consider arguments as to why the landmark health care law was unconstitutional.”
- Nondiscrimination Protections: Calling Kavanaugh’s opinion upholding South Carolina’s voter ID law “troubling,” HRC also noted that the judge repeatedly dissented in discrimination-related cases where his colleagues “upheld a claim or finding of discrimination.”
- Separation of Powers: Citing his criticism of “independent agencies [as] … a headless fourth branch of the US government” in a case challenging the structure of the Consumer Financial Protection Bureau, the HRC report expressed concern that Kavanaugh’s reasoning “could regularly disempower federal agencies and narrow federal laws, which often serve as crucial bulwarks against LGBTQ discrimination.”
Finally, HRC echoed concerns expressed by Senate Democrats about records from Kavanaugh’s time in the White House — first as a lawyer in the counsel’s office and then as Bush’s staff secretary. Specifically, the group noted that records from Kavanaugh’s work in the Bush administration may include information regarding his views on LGBT issues.
“The years of 2001 to 2006 (when he served in the Bush White House), was an especially consequential period for the LGBTQ rights and marriage equality movement,” the report said. “This era included the Lawrence v. Texas decision, multiple pronouncements by President Bush about the institution of marriage and marriage-related amendments to the federal Constitution, and civil rights litigation and referenda at the state and circuit levels.”