Last week, Supreme Court Justice Anthony Kennedy announced his retirement, setting the stage for President Trump to appoint his replacement and establish a conservative majority. Then all hell broke loose.
On MSNBC, one commentator said that “If you are LGBT in America … right now, you are probably freaking out.” The left-wing site Vox took it a step further, with one article calling Kennedy’s retirement “devastating for LGBTQ rights.” A New York Times headline stopped short of the apocalyptic, yet read “Without Kennedy, the Future of Gay Rights Is Fragile.”
But you can ignore the Left’s meltdown — there’s no real cause for concern over the rights of gay people. Kennedy will be replaced by a conservative justice, and while that may endanger some precedents like Roe v. Wade, it won’t affect gays’ rights in the slightest.
[Also read: 6 rulings that could be overturned by a post-Kennedy Supreme Court]
Yet it is true that Kennedy leaves behind a long legacy of rulings that cheered gay-rights activists, in many of which he provided the swing vote. He wrote the majority’s opinion in a 2003 case that struck down a Texas law banning private sexual acts between members of the same sex. In U.S. v. Windsor, Kennedy sided with the court’s liberal justices to strike down a federal law defining marriage as exclusively between a man and a woman. And most famously, he provided the decisive vote in Obergefell v. Hodges, the 2015 case that introduced same-sex marriage nationwide. So with Kennedy on the way out and a conservative justice likely to replace him, don’t gay-rights activists have cause for concern?
Not really. It’s true that many of the court’s current conservative justices dissented in these landmark cases, but there’s evidence to suggest that some may have changed their tune, especially when it comes to gay marriage. In Kennedy’s absence, Chief Justice John Roberts will now likely become the court’s swing vote and may take a step leftward as a result. He did dissent from Obergefell, but he stood on legal grounds rather than on some deep opposition to same-sex marriage. In his dissent, he suggested that, from a legislative standpoint, gay marriage may be good policy. Throw in Robert’s great respect for stare decisis, the legal tradition of respecting past precedent, it’s hard to imagine him allowing the court to overturn Obergefell.
Conservative jurisprudence is starting to view gay marriage as a settled issue. Kennedy’s recent decision in Masterpiece Cakeshop narrowly protected a Christian baker’s right to decline to customize a cake for a gay wedding, but in doing so, the decision posited that a right to gay marriage does exist — and all of the court’s conservative justices signed on. They seem to be aware that times have changed.
The country doesn’t want to see a repeal of gay marriage. Nearly two-thirds of Americans favor “allowing gays and lesbians to marry legally,” according to a Pew survey, and that includes 40 percent of Republicans. Now some would say that public opinion doesn’t constrain the Supreme Court’s actions, but that’s a naive view of our legal system. Cases come before the court after years of activism, and usually only when there’s a groundswell of support behind a cause. There’s no serious appetite in conservative legal circles to overturn Lawrence or to try to invalidate the tens of thousands of same-sex marriages certified since Obergefell. Conservatives may have felt fired upon about gay marriage once, but other issues now occupy their attention.
But to be fair, gay marriage isn’t the only issue at stake here. It’s highly likely that over the next few years, the court will answer questions regarding how religious freedom and questions of anti-gay discrimination must be balanced. With a more conservative justice replacing Kennedy, it’s possible that those decisions won’t go as gay advocates hope. But that doesn’t mean that gay people won’t be afforded equal dignity under the law — it just means that no one will be allowed to force their ideas onto others, whether it’s a Christian baker who doesn’t want to participate in a gay wedding or a gay florist who doesn’t want to cater a religious ceremony he disagrees with. That doesn’t sound like a violation of anyone’s rights — it sounds like a free society.
So you can ignore the Left’s fear-mongering about how a more conservative Supreme Court will send gay rights back into the Dark Ages. If anything, Kennedy’s retirement may signal that the court is finally ready to move on.
Brad Polumbo is a writer for Young Voices. His work has appeared in the Boston Globe, the Daily Beast, Fox News, and National Review.
