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    Reflecting on Justice Kennedy’s Retirement: Can History Somehow Repeat Itself?

    By John Lewis and Stuart Gaffney–

    We and many others had long feared the day might come. It did on June 27, 2018, when Justice Anthony Kennedy announced he was retiring from the U.S. Supreme Court, opening the door for solidly right conservatives to hold an iron grip on a 5-member majority on the Court for years.

    Adam Liptak, The New York Times Supreme Court correspondent, recently opined on NPR’s Fresh Air, “I really can’t overemphasize how different Justice Kennedy’s retirement is from just about anybody else’s. It’s the end of the world as we know it. It’s a transformative moment in American life. He has been so important, so central to the work of the Court and to the meaning of the Constitution. And whoever succeeds him will cause the Court to be a completely different place.”

    Everyone knows how important Kennedy has been to LGBTIQ rights, having written all landmark Supreme Court opinions upholding LGBTIQ equality and freedom, including Obergefell, the 2015 nationwide marriage equality decision. It is well known that Kennedy was also the key swing vote in favor of a woman’s right to reproductive freedom and to affirmative action, and that he moderated the Court’s opinions on conservative issues in which he still sided with the Court’s very conservative wing.

    When we heard the news of Kennedy’s retirement from the Court, it took a while for it to sink in. We really couldn’t quite believe it, especially in light of the fact that some respected court watchers perceived Kennedy’s opinions this past term to suggest he was staying on. And one of the first things that came to mind was the importance of taking care of ourselves, personally and as a community, in the face of an event that leaves LGBTIQ people more vulnerable and uncertain in many critical aspects of our lives.

    If Trump succeeds in getting his chosen nominee confirmed by the U.S. Senate, we can anticipate any number of Supreme Court decisions that could be averse to LGBTIQ equality. Possibilities include decisions allowing businesses to discriminate against LGBTIQ people in the name of religion, permitting religious non-profits receiving government money to refuse to provide services to LGBTIQ people, holding that federal anti-discrimination laws such as Titles VII and IX do not cover sexual orientation and gender identity, and limiting the extent to which the government must treat married LGBTIQ couples on equal terms to straight married couples, even if the Court does not overturn Obergefell itself.

    Kennedy’s departure caused us to reflect on the scope of ethical responsibility that leaders, such as Supreme Court justices, assume when they take positions in which they exert enormous power over the lives of others, especially those who are vulnerable. As Franklin Delano Roosevelt put it, “Great power involves great responsibility.”

    In an official statement, Kennedy stated that he was leaving the Court because of a “deep desire to spend more time with” his family. But significantly, he also acknowledged that “his family was willing for him to continue to serve.” We can understand Kennedy’s personal desire to retire at age 81; however, we are concerned by the possibility that he departed because he wanted Trump to name his replacement while a Republican-controlled Senate was likely to confirm the nominee. Adam Liptak reported in The New York Times on the White House’s “quiet campaign” to encourage Kennedy to resign.

    Whatever the reason, Kennedy’s decision to spend time enjoying his own family, despite their willingness for him to remain on the Court, adds enormous uncertainty to the lives of millions of LGBTIQ individuals and families, women and minorities.

    What responsibility did Kennedy have for all of us when he found himself in a position of such tremendous influence? We think of the many LGBTIQ heroes and others in history—both famous and not—who have put the needs of others above their own, when they have sought and gained powerful leadership positions or have found themselves in a position where they could make the world a safer and better place for others. In a sense, LGBTIQ people do this every time they take the risk of coming out in difficult situations instead of taking the easier path. All of us are called upon once again to extend ourselves in the face of Trump’s nominating Kennedy’s replacement.

    As Trump made his nomination earlier this week to replace Kennedy, the Senate confirmation battle begins. We are reminded that in 1987, a broad coalition of people who valued civil rights and liberties organized successfully to prevent Ronald Reagan’s ultra conservative Supreme Court nominee Robert Bork from joining the Court. Anthony Kennedy won the job instead. Let us together enable history to repeat itself.

    Stuart Gaffney and John Lewis, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.