Filling the Supreme Court Void Is More Crucial Than You Thought

When Justice Antonin Scalia died, many liberal court-watchers noted cheerfully that the proudly reactionary justice was unable to block the Supreme Court's chief civil rights achievement of the century so far: Obergefell v. Hodges, the vindication of marriage rights for same-sex couples.

This fact was often observed with a sigh of relief, as if marriage equality were the climactic legal battle for LGBT Americans and every other right would now surely fall into place. That, however, is hardly the case. The post-Scalia court will likely confront a host of legal questions important to the LGBT community, from antigay "religious liberty" and employment discrimination to trans rights and bathroom access. It is not at all clear that the champion of marriage equality, Justice Anthony Kennedy, will again side with the liberals on these knotty issues. And it therefore seems quite likely that Scalia's successor will hold the key to LGBT equality on a divided court.

Given Kennedy's famously sentimental marriage-equality opinion, the justice is often presumed to be a reliable vote in favor of gay rights against discrimination. But Kennedy has several competing passions -- one of which is a near-absolute belief in a constitutional right to free association. In one especially regrettable 2000 decision, Boy Scouts of America v. Dale, Kennedy joined an opinion holding that the Boy Scouts have a First Amendment right to exclude gays from their group. Allowing gays to join, a slim majority of the court held, would "force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior." Thus, the group was constitutionally exempt from LGBT nondiscrimination laws.

Kennedy's willingness to join the Boy Scouts opinion has deeply troubling implications for the series of antigay "religious liberty" cases making their way toward the court's docket. These cases typically involve businesses (such as photographers and florists) who refuse to serve same-sex couples on account of their religion, often couching their refusals in the language of free-speech and free-association claims. The antigay business owners who turn away gays insist that the First Amendment protects their right not to associate with gay couples; doing so, they assert, would express a message that they approve of same-sex relationships.

This argument is cleverly crafted to capture Kennedy's heart. The key difference between the Boy Scouts case and the "religious liberty" cases is the distinction between a private organization and a business. But the constitutional importance of this distinction can easily be waved away if one buys into the idea that merely associating with a gay person sends a message of tolerance -- as Kennedy clearly does. Moreover, Kennedy provided the fifth vote for Hobby Lobby, a decision that vastly expanded private, for-profit corporations' right to discriminate on religious grounds. With Scalia gone, the Hobby Lobby majority is now a man down; the justice's replacement could reverse that case's license to discriminate -- or extend it to antigay businesses.

Gay and trans Americans have another Supreme Court showdown on the horizon. Title VII of the Civil Rights Act of 1964 bans employment discrimination "because of sex." Initially, this clause was interpreted to prohibit sexual harassment and sexist hiring practices. But courts have steadily expanded its scope; most notably, in 1992, the Supreme Court found that it also banned "sex stereotyping" against masculine female employees.

Building on this logic, the Equal Employment Opportunity Commission has ruled that Title VII also proscribes anti-trans discrimination and antigay discrimination. Anti-trans discrimination, the agency held, is inherently based in sex stereotyping about women's femininity and men's masculinity; distaste for an individual's gender identity is, by definition, a sex-based judgment call. Homophobia is similarly sexist, according to the EEOC: When an antigay employer discriminates against a gay man, he is doing so because he believes real men, masculine men, should love only women, and women should love only men. Revulsion toward gay people is rooted in a perception of how an individual of their sex should act.

But EEOC is just a federal agency, with no actual power over federal judges. Some federal courts have accepted these EEOC rulings; some have rejected them; none are bound by them -- until the Supreme Court signs off, which it has not yet done. LGBT advocates have long been nervous that Kennedy will reject the EEOC's comprehensive definition of sex discrimination and sex stereotyping. He is the man, after all, who once wrote that the government can ban some abortions to ensure that women discover their "ultimate" role of motherhood. Kennedy's views on gender are indisputably retrograde; there is no guarantee that he will grasp the sexist roots of anti-trans and antigay discrimination. Presuming the liberal justices do get it -- a pretty safe presumption -- the court is one vote short of ratifying the EEOC's new rules. Once again, Scalia's replacement may tip the balance one way or the other.

The broader question of trans rights in general looms large on the post-Scalia court. Incredibly, the justices have never explored what constitutional protections -- if any -- the 14th Amendment affords to trans people.

That could change very soon. Anti-LGBT groups, frustrated by their inability to thwart marriage equality and startled by the swift countrywide acceptance of trans people, are peddling a new strategy: Target trans people at their most vulnerable -- when they have to use the bathroom. One bill, in Florida, aimed to forbid private businesses from letting trans people use the restroom that aligned with their gender identity; another, in South Dakota, attempted to prevent trans public-school students from using the correct bathroom. Both bills failed -- though the latter one made it to the governor's desk, where it received a last-minute veto. There have, of course, been no confirmed reports of trans people assaulting anybody in the bathroom. But conservatives have successfully used this utterly fantastical transphobic bugaboo to whip up a legislative frenzy in red states.

Could any of these so-called bathroom bills actually pass constitutional muster? As usual, it depends entirely on the makeup of the court. Here, Kennedy's vote is harder to predict, because he penned Romer v. Evans, the 1996 decision whose logic can easily be stretched out just a bit to protect trans people. Romer involved a constitutional challenge to a Colorado measure that nullified municipal gay nondiscrimination laws. (If this sounds familiar, it's because the recent spate of "religious freedom" and "First Amendment defense" laws aim to do the same thing, with slightly more subtlety.)

Kennedy wrote that such a measure violates the 14th Amendment's Equal Protection Clause because it "singles out a certain class of citizens" and "imposes a special disability upon those persons alone." This kind of a law, he explained, "seems inexplicable by anything but animus toward the class it affects" -- and "animosity" toward a
disfavored minority is not a "proper legislative end" under the 14th Amendment. The measure must be struck down.

It is extraordinarily easy to transplant these principles into the context of trans discrimination. In fact, gay rights groups already have. A constitutional challenge to North Carolina's vicious new anti-LGBT law, which nullifies local LGBT rights ordinances and bars trans people from using many public bathrooms, centers its analysis on Romer. As well it should: Romer's basic rule -- that laws motivated by animus toward a single group are constitutionally invalid -- would seem to obviously implicate bathroom bills. With no evidence that trans people pose a threat in bathrooms, the anti-trans animus driving these bills is essentially undeniable. Legislatures simply want to disadvantage trans people because they don't like them. And if Romer means anything at all, it means the government doesn't get to do that.

Which side of Kennedy will trans activists face? The compassionate author of Romer or the sexist traditionalist? With any luck, trans people's rights won't hinge on this question: A Democratic appointee to the high court is almost certain to side with equality over intolerance. Indeed, that justice may well hold the critical vote in the next round of
LGBT cases.

Let's hope he or she makes it onto the bench in time to ensure that Obergefell was just the beginning of a new era of LGBT constitutional equality.