How Justice Kennedy’s Retirement Could Impact Our Rights

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Emperor Kennedy’s retirement from the Supreme Court has many in this country running worst case scenarios through their heads.  When I first heard he was retiring I was seething with anger, so much anger that I cried.  A day later, I became very concerned and I am still so concerned that I have contemplated creating an escape plan.  Logic and reason tells me that the eroding of rights of the LGBT+ community and women and the progress America has made will not happen overnight, but with a 5-4 solid conservative voting block it most likely, eventually happen. 

I refer to Kennedy as Emperor Kennedy because he was the deciding vote on so many cases that his power was extraordinary.  Remember, Kennedy is a conservative, appointed by President Ronald Reagan.  His retirement has been rumored for years and I am not surprised that he waited to retire with a Republican president in office.  From Obergefell to Citizens United, he used his vote to change our country and laws, sometimes for the better, sometimes not. 

What does his departure mean for the recent landmark cases on LGBT+ rights, the right to privacy, and abortion rights?  The beauty of the Supreme Court is that they cannot just change prior rulings.  In order to overturn prior decisions, a case has to make its way to them through the court system.  Thankfully, this is a long, expensive, complicated process.  So which rights and cases are we likely to see erased or eroded:

Abortion

  • Roe v. Wade
  • Planned Parenthood v. Casey

Birth Control Access and The Right to Privacy

  • Griswold v. Connecticut
  • Eisenstadt v. Baird
  • Carey v. Population Services International

LGBT+ Rights

  • Romer v. Evans
  • Lawrence v. Texas
  • United States v. Windsor
  • Obergefell v. Hodges

Abortion is likely the first right to be challenged and erased.  Growing up in an evangelical family and going to a conservative law school, I know that eliminating a woman’s right to an abortion has been agenda item #1 since Roe became law.  Kennedy joined the plurality opinion in Casey that established that the government cannot place an undue burden on abortion in the first trimester or before viability.  Since some states are constantly legislating restrictions on abortions this matter will quickly reach the Supreme Court.  My guess is that we will soon see Roe and Casey be overturned and abortion laws will differ from state to state, with it being completely illegal in many states. 

Birth control access allows for a woman’s self-determination and the cases that expanded birth control access established the Constitutional right to privacy.  In Griswold, married couples were given the right to privacy and overturned Connecticut’s ban on contraception for married couples. Griswold was the first case to establish the right to “privacy” in cases relating to intimate practices.  This case has given rise to Roe, Casey, Lawrence, and Obergefell.  The right to privacy is the right to be free from governmental intrusion in regard to personal decisions, including intimate relations. 

In 1972, the right to contraception and privacy was extended to unmarried couples in Eisenstadt.  The argument that it was a violation of Equal Protection under the 14th Amendment to allow married couples access to contraception but not unmarried couples and it was “irrational discrimination” to not extend the right to unmarried couples.  Then in 1977, Carey allowed non-prescription contraceptives to be sold over the counter to anyone over 16 years old.  Carey also held that the right to privacy extended to individuals, not just married and unmarried couples.   

Recently, the Court struck down the Health and Human Services birth control mandate for privately held organizations with religious objections to contraception in Burwell v. Hobby Lobby.  By holding that the birth control mandate was a substantial burden on the free exercise of religion, they likely set up precedent to allow for the erosion of birth control access and the right to privacy.  Importantly, Kennedy voted with the majority.  This was the first case that allowed a religious exemption to access to birth control.

The right to privacy used in each of the birth control access cases is what led to all the landmark LGBT+ right cases.  Justice Kennedy was the deciding vote in many cases and authored the decisions on Romer, Lawrence, Windsor, and Obergefell.  Each of these cases depends on the right to privacy found in the birth control cases and can be eroded through an erosion of the birth control cases.

In Romer, the Court took its first step in protecting LGBT+ rights by overturning a Colorado Constitutional Amendment that prevented any locality in the state from recognizing homosexuals as a protected class because it did not meet the standard for the Equal Protection Clause.  They held that Colorado targeted homosexuals based on animosity and that the Amendment had no rational relationship to a legitimate state interest or purpose.  By invalidating the amendment because of the animosity it was based on and having no legitimate state interest, Romer set the Court up for the Lawrence case.

Before the Lawrence decision, some states criminalized sodomy and same-sex sexual activity, but the laws were rarely enforced.  The Lawrence decision invalidated anti-sodomy laws in 14 states and made same-sex sexual activity legal nationwide.  In Lawrence, the Court gave consensual sexual conduct protection under substantive due process in the 14th Amendment.  This ruling decriminalized sodomy between consenting adults, regardless of gender.  Private sexual conduct cannot be used to demean existence and control destinies through criminalization.  By stating that moral disapproval can no longer provide a justification for criminalizing sodomy and that moral and sexual choices are entitled to constitutional protection, the Court took a massive leap forward toward equal treatment of homosexuals under the law. 

Windsor was a game changer in the fight for marriage.  Edie Windsor challenged DOMA which only allowed the federal government to recognize opposite-sex marriages.  When her wife, Thea, died Edie was hit with a large federal estate tax since the federal government did not recognize their legally valid marriage.  In Windsor, the Court stated that the federal government could not treat state sanctioned heterosexual marriages differently from state sanctioned same-sex marriages.  Like in Lawrence, Kennedy reiterated that the Constitution protects moral and sexual choices.  By writing inequality into the entire US Code, DOMA frustrated states from seeking to eliminate inequality.  Section 3 of DOMA deprived same-sex married couples of liberty that is protected under the Fifth Amendment and the federal government was forced to recognize state sanctioned same-sex marriages in the same manner as heterosexual marriages.

Obergefell established the fundamental right to marry for same-sex couples under the Due Process and Equal Protection Clauses of the 14th Amendment.  Most importantly, it requires all states to extend the same rights and responsibilities of marriage to same-sex marriages.  The Court cited Griswold and the privacy of personal choices, including intimate choices that define personal identity and beliefs.  Kennedy closed the opinion with this:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

After Obergefell, many states decided to “fight back”. Arkansas did not allow same-sex couples to both be on birth certificates of children born of the marriage.  The Court, in Pavan v. Smith reaffirmed Obergefell and reiterated that states could not treat same-sex married couples differently than opposite-sex married couples when issuing birth certificates.  Birth Certificates are part of the governmental rights, benefits, and responsibilities and same-sex married couples are entitled to the same benefits as opposite-sex married couples.

The fundamental right to marry can be erased by the erosion of privacy rights.  It will not happen overnight and it may not ever happen given the complexity of a case getting to the Supreme Court.  Unfortunately, the possibility is there.

Upcoming Issues:

Iowa, Louisiana, and Mississippi have recently enacted strict abortion limits which could quickly move any challenges to the Supreme Court.

  • Iowa – heartbeat bill prohibits doctors from performing abortions when a fetal heartbeat can be heard, around six weeks.  The ACLU and Planned Parenthood are challenging the law in Iowa state court
  • Louisiana and Mississippi prohibit abortions after 15 weeks with limited exceptions.  The Center for Reproductive Rights has sued Mississippi in federal court and the law is currently on hold.  Louisiana’s law is on hold pending the outcome of the Mississippi case.
  • Arkansas is trying to effectively ban abortion pills and is currently be litigated in federal court

Title VII of the Civil Rights Act of 1964: The 2nd and 7th Circuits have conflicting decisions with the 11th Circuit regarding if Title VII prohibits discrimination based on sexual orientation. 

Similar to the Masterpiece Bakeshop case, a florist in Washington State denied a gay couple flowers for their wedding.  The Supreme Court sent this case back down to the Washington State Supreme Court for “further consideration in light of” the Colorado case.  I fully expect this case to very quickly make its way back to the Supreme Court.

A miniscule ray of hope may exist in the Senate.  The nuclear option which the Senate used to approve Gorsuch to the Court, Republicans only need 51 votes to approve whoever is nominated.  Susan Collins and Lindsey Graham have stated that they want the next Justice to respect the precedent of the Court regarding Roe and other cases.  Gorsuch was confirmed with the voted of three Democrats who are all up for election this year in states that Trump won.  Joe Manchin, Joe Donnelly, and Heidi Heitkamp could all vote with the Republicans making confirmation all but a done deal. 

I know that Kennedy’s retirement is concerning and conservative legislatures are going to push the issues of abortion, marriage, and privacy in order to create the world they want and believe is mandated by their morals and religion.  So what needs to be done?  Vote in all elections, be vocal, and show up!  This is our country.  The government works for us and we have the power to hire and fire our elected officials through our votes.  I refuse to be silent and compliant with what I see as wrong.  I will not allow America to turn into Gilead! Will you?

About Rachel Anderson

Rachel Anderson, Esq. is an Attorney at Chesapeake Legal Group, PLLC who also specializes in estate planning and administration, business law, and contracts.  Miss Anderson represents clients throughout Hampton Roads and can be reached at Rachel@chesapeakelegalgroup.com or 757-410-7943.