There’s no denying it: efforts to protect LGBT+ persons through the federal courts suffered a substantial—perhaps devastating—setback when Justice Anthony M. Kennedy retired on June 27, 2018. The author of Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015), Kennedy had long played a key role in the U.S. Supreme Court’s invalidation of laws that discriminate against gay men and lesbians. His most recent decisions in that vein (Windsor and Obergefell) were written for a five-justice majority, with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito in dissent. Kennedy’s retirement augured the emergence of a solid conservative majority, now including Justices Neil Gorsuch and Brett Kavanaugh, whose members are very likely opposed to meaningful constitutional protection for LGBT+ persons as a class. As we assess the implications of that development, here are some key questions to consider.
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