The sudden passing away of the notoriously anti-gay Supreme Court Justice Antonin Scalia has thrust the issue of the Supreme Court into the heart of the 2016 Presidential campaign. We have written before about how critical the Court’s composition is to LGBT people because, despite the recent landmark marriage equality decisions, the rights and freedoms of LGBT Americans are not yet fully secured under the Constitution and federal law. Looking at what each of the remaining candidates has said about the Court makes it crystal clear how stark the choice for LGBT people will be in November.
Both Hillary Clinton and Bernie Sanders are unabashed supporters of full LGBT equality, and we are confident their Court appointments would reflect that support. Speaking about the importance of the election to LGBT people, Clinton stated last fall that if a Republican wins the election, “[w]e could lose the Supreme Court, and then there’d be a whole new litigation strategy coming from those who oppose marriage equality.” More generally, she has declared, that Democrats “have a responsibility to make sure a Republican doesn’t win in November and rip away all the progress we’ve made together.” With Scalia’s departure, Clinton has also emphasized the importance of key cases now before the Court. One case pertains to President Obama’s executive actions helping undocumented parents of US citizen children and undocumented Americans who came here as children. Another case challenges Texas’ new highly restrictive regulations that eliminate access to safe and legal abortions for many women in the state. Other cases pertain to workers’ rights and voting rights. The Supreme Court is not scheduled to hear any LGBT rights cases this term.
Bernie Sanders has also stressed the importance of the Court, emphasizing his primary campaign themes of income inequality and the corrosive impact of money on elections. In the wake of the new Court vacancy, Sanders stated that when he is President: “I will do everything I can to turn over this disastrous Citizens United Supreme Court decision. In my view, democracy is ‘one person, one vote.’ Not billionaires buying elections…” Citizens United is the horrendous 5–4 decision that opened the floodgates to unprecedented amounts of money from very wealthy people pouring into elections. Previously, Sanders has said that a commitment to overturning Citizens United would serve as a “litmus test” for anyone he appointed to the Court. We are confident that any such nominee would also strongly support LGBT rights.
By contrast, Republican candidate Ted Cruz has called the Obergefell decision, the Supreme Court’s landmark marriage equality ruling, “nothing short of tragic.” He said: “I think that decision was fundamentally illegitimate. It was lawless. It was completely inconsistent with the Constitution. It will not stand.” He has proposed a Constitutional Amendment to overturn Obergefell. Cruz has vowed to filibuster any person President Obama nominates to replace Scalia, and has said that “the Second Amendment, life, marriage, religious liberty, every one of those hangs in the balance…” Cruz recently claimed that the country faced an “unprecedented” “assault on religious liberty” stemming from Obergefell. Even Chief Justice John Roberts, who last term voted with Scalia 90% of the time, is not conservative enough for Ted Cruz. Cruz says Roberts, whom George W. Bush appointed, was a “mistake,” who leads “an out-of-control” and “activist” Supreme Court.
Before Scalia died, Marco Rubio pronounced: “We need more Scalias and less Sotomayors,” referring to one of the Justices who voted in favor of marriage equality. After Scalia’s death, Rubio declared that the late Justice “will go down as one of the great Justices in the history of this republic.” He praised Scalia’s convoluted dissent in Obergefell as a “brilliant piece of jurist work.” Rubio has promised that if he becomes President, he would appoint Justices who would overturn Obergefell. When asked about the decision, he stated: “I don’t believe any case law is settled law. Any future Supreme Court can change it. And ultimately, I will appoint Supreme Court justices that will interpret the Constitution as originally constructed”—i.e., overturn decisions such as Obergefell and Roe v. Wade, the 1973 landmark decision guaranteeing women reproductive choice. Although perhaps we shouldn’t have been surprised, we were taken aback when Rubio actually said recently that we needed Justices who “understand that the Constitution is not a living and breathing document.”
Donald Trump has repeatedly praised Scalia as “truly a great judge” and stated that if he became President, he would like to see a “person tailored to be just like Justice Scalia” on the Court. On many occasions, Trump has made clear that he disagrees with the Supreme Court’s marriage equality decision, and recently stated that if he became President, he “would strongly consider” “try[ing] to appoint justices to overrule the decision,” and then reaffirmed that he would “prefer” justices who were against the decision. Trump, a proud NRA member, has committed to making support for the Supreme Court’s Heller decision, an opinion Scalia wrote that creates a Second Amendment right for individuals to own guns, his “litmus” test for Supreme Court nominees. He said if Scalia’s replacement is “the wrong person, they’ll take that Second Amendment away so fast your head will spin.”
Trump has suggested two federal appellate court judges as possible Supreme Court picks if he were President. One is the controversial William Pryor. In opposing Pryor’s confirmation to the appellate court, Senator Charles Schumer quoted how Pryor had characterized Roe v. Wade as creating “a constitutional right to murder an unborn child’’ and “the worst abomination in the history of constitutional law.” Schumer went on to explain that Pryor has stated his opposition to abortion even in cases of rape or incest. “On gay rights,” Schumer reported that Pryor “believes it is constitutional to lock up gays and lesbians for having intimate relations in the privacy of their own homes. And he has equated gay sex with prostitution, adultery, necrophilia, bestiality, possession of child pornography, incest and pedophilia.” Trump’s other suggestion was Diane Sykes, a close friend of the conservative Federalist Society, well known for her conservative views and her opposition to abortion rights.
John Kasich described Scalia as a “principled force for conservative thought” and “a model for others to follow.” Kasich has repeatedly argued that President Obama should not nominate someone to replace Scalia. He claims he wants the electorate to be able to vote indirectly on whom the next Supreme Court Justice should be, but he ignores the fact that the electorate has already elected President Obama to make such nominations and that plenty of time remains in his term for the Senate to confirm his pick. Despite Kasich’s sound bites claiming his desire to bring the country together, he has repeatedly stated he would nominate conservatives to the Court if he became President. Kasich recently said: “I would look for a conservative, [s]omebody who doesn’t make law but somebody who will interpret the law…” This type of language is often code for meaning people who oppose Constitutional protections for LGBT rights and women’s reproductive choice.
The choice for LGBT people and all those who care about LGBT rights, women’s rights, racial justice, and myriad other issues will be unambiguously clear in November.
John Lewis and Stuart Gaffney, 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 nationwide grassroots organization Marriage Equality USA contributed to making same-sex marriage legal nationwide in 2015.
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