06 • JULY 06, 2018 • LOSANGELESBLADE.COM
LOCAL
Fear the federal courts — but don’t give up Kennedy’s retirement isn’t the only bad news for LGBTQ Americans By JON DAVIDSON While LGBTQ Californians rightfully feel more protected legally than our peers in many parts of the country, we by no means are immune from what is happening to the federal courts, including the momentous, impending change in the Supreme Court due to Justice Anthony Kennedy’s retirement. That’s because, under federalism principles, California’s laws are subject to federal judges’ interpretation of restrictions the U.S. Constitution and federal statutes place on states. That was painfully evident in numerous high court rulings this term. One decision enjoined a California law designed to ensure that pregnant women receive accurate information about their options that was challenged by antiabortion “crisis pregnancy centers” on First Amendment grounds. Another ruling prevents states—including California—from requiring government employees to pay union dues to support the benefits those unions provide them. Yet another decision held that, under the Federal Arbitration Act, employers—including in California—can not only force their workers to arbitrate their employment-related disputes (thereby relinquishing rights to a jury and a public trial), but also can prevent them from uniting with coworkers to seek class-wide relief. In addition, Californians—like all in the nation—are subject to federal courts’ interpretation of U.S. government authority, such as the Supreme Court’s decision upholding Trump’s Muslim travel ban. So, whether a nominee opposed to LGBTQ rights is selected to fill Justice Kennedy’s seat has to be of concern to us all. Vitally important sexual orientation and gender identity issues are likely to come before the Supreme Court in the years ahead. Notwithstanding the positive language in the Masterpiece Cakeshop ruling that business owners’ religious beliefs do not justify violation of anti-discrimination laws, opponents of LGBTQ equality continue to press for a constitutional right to discriminate. In addition, when the Supreme Court reconvenes this fall, it will consider several requests to
California’s progressiveness does not make its citizens immune from a conservative Supreme Court. Photo Courtesy PBS
hear appeals raising whether federal sex discrimination laws protect LGBTQ people. Anti-LGBTQ groups also have announced their intent to try to get a future case up to the Court that might permit narrowing or even reversal of the Court’s landmark marriage equality decisions. President Trump has said he will choose his nominee by July 9 from a list largely compiled by the anti-LGBTQ Heritage Foundation and the arch-conservative Federalist Society. The big question is whether confirmation hearings will conclude before the November mid-term elections determine who controls the Senate for the next two years. Senate Majority Leader Mitch McConnell has expressed his intent to have a confirmation vote in time for Justice Kennedy’s successor to be sworn in before the Supreme Court’s next term begins Oct. 1. Because the Senate eliminated the filibuster
of Supreme Court nominees when Justice Gorsuch’s nomination was being considered, it will be difficult to delay a confirmation vote. Nonetheless, some are urging tactics to slow down all Senate business between now and the November election in an effort to do so. Still angry about McConnell’s refusal to permit Senate consideration of Judge Merrick Garland to fill late Justice Scalia’s seat between President Obama’s nomination of Garland in March 2016 and the final day he could have been considered in January 2017—which made it possible for Gorsuch to take the seat instead—some are quoting back McConnell’s prior proclamation that “The American people should have a voice in the selection of their next Supreme Court justice.” The filibuster’s elimination also means it will only take 50 votes to confirm whomever Trump nominates, since Vice-President Pence would break a tie. There currently are 51 Republican Senators, 47 Democratic
Senators, and two independents who caucus with the Democrats. Three Democrats (Indiana’s Joe Donnelly, North Dakota’s Heidi Heitkamp, and West Virginia’s Joe Manchin) voted to confirm Gorsuch. Even if all three instead voted against Trump’s choice this time and no Democrats voted the other way, it would still take at least two Republican senators to reject the nomination of their party’s leader. While Maine’s Republican Sen. Susan Collins has stated she would not support a nominee hostile to Roe v. Wade, Alaska’s Republican Sen. Lisa Murkowski (who also supports reproductive choice) has been more circumspect, stating only that she intends to cast an “independent vote” when the nomination comes before the Senate. Whoever ultimately assumes Justice Kennedy’s seat may tip the balance on issues on which he was the “swing vote” for years to come. If his successor sides with the Court’s most conservative members