As LGBT advocacy groups rush to block President Trump’s Supreme Court nominee during the build-up to September’s confirmation hearings, they face a dilemma: There is no single, flagrantly obvious LGBT-specific ruling in Kavanaugh’s history that they can point to as proof he would be a threat to the LGBT community—and yet the fact that the judge was approved by the Federalist Society suggests he almost certainly will be.
“Our big task ahead of us is to make sure we’re educating the American people about what his record is—and what we don’t know about his record that we need to find out,” David Stacy, Government Affairs Director for the Human Rights Campaign, told The Daily Beast.
A major priority for HRC, Lambda Legal, and other LGBT rights groups in D.C. is uncovering anything in Kavanaugh’s record that would more directly reveal his views on LGBT equality.
Their major focus so far is the three-year period from 2003 to 2006 that Trump’s nominee spent as President George W. Bush’s White House Staff Secretary—a period that Kavanaugh once said was “in many ways among the most instructive” for his subsequent judicial career.
That was a time period when LGBT issues—like same-sex marriage, non-discrimination protections, and Don’t Ask, Don’t Tell—were being hotly debated.
During Kavanaugh’s tenure as Staff Secretary, for example, the Bush White House supported the Federal Marriage Amendment, which would have made same-sex marriage illegal nationwide by defining marriage in the U.S. Constitution as “the union of a man and a woman.”
Directly prior to that window—when Kavanaugh was working in the White House Counsel’s office—the Supreme Court considered the case Lawrence v. Texas, which pertained to the legality of a Texas sodomy ban.
Although the Bush administration did not submit an amicus brief, later calling the issue a “state matter,” the landmark case was almost certainly on the White House’s radar.
Knowing more about Kavanaugh’s communications around LGBT issues during this time period could help fill in necessary gaps in public knowledge about his stance, advocates say.
“We have a big huge question mark about his time as Staff Secretary,” said Stacy. “It’s a very key role. It’s like the lowest-profile, most important role in the federal government in a way. They’re never out there in public—and yet every piece of paper that goes to the President’s desk goes through their desk.”
That’s why, as Windy City Times reported, LGBT legal advocacy group Lambda Legal filed several Freedom of Information Act requests in mid-August asking for all of Kavanaugh’s communications on a range of LGBT issues, including “any effort to amend the federal Constitution to define marriage” [PDF], the “Lawrence v. Texas Supreme Court proceedings” [PDF], federal hate crime legislation [PDF], and non-discrimination protections for federal employees [PDF].
Sharon McGowan, Legal Director for Lambda Legal, told The Daily Beast that the FOIA requests are “a tool that we’ve been forced to use,” but not necessarily one that will prove to be a game-changer in the Kavanaugh confirmation process.
“We may not see the documents,” she said. “They may come back in a highly redacted form. We’re concerned that we may not see the documents on a timeframe that allows us to actually use them as part of the public conversation.”
As The Hill reported, Republican Sen. Chuck Grassley, who serves as Judiciary Committee Chairman, scheduled Kavanaugh’s hearing to begin almost two months before the National Archives would be able to produce paperwork about Kavanaugh’s time in the White House Counsel’s office.
As for any documents about Kavanaugh’s time as Staff Secretary, The Hill noted, Grassley has refused to ask for them. That decision has angered Democrats—and prompted LGBT advocates to wonder what’s in the archive.
“We’re not arguing that every single document under the sun has to be made available,” Stacy said. “What we’re saying is that there are clearly a large number of issues that we absolutely know he was involved in, we have another tier of issues that people think he was involved in, and we know those documents exist. They raise LGBTQ issues.”
As it stands, question marks around Kavanaugh’s record have left room for disagreement about his stance on LGBT issues—even within the community.
In a recent Fox News opinion piece, Gregory T. Angelo, Executive Director of the conservative LGBT group Log Cabin Republicans, argued that although “serious questions remain regarding Kavanaugh’s perspective on LGBT legal issues currently percolating through the federal courts,” the LGBT community nonetheless “owes him an open mind.”
Angelo is unconvinced by assertions from the HRC that Kavanaugh’s other rulings on other issues necessarily suggest an anti-LGBT stance.
“What is astonishing is that in the dozen pages issued by the HRC painting Kavanaugh as an enemy of the LGBT community, there is not a single mention of anything he has done, said, or written that could be even remotely construed as anti-LGBT,” Angelo writes in the op-ed.
He’s referring to a report from the HRC entitled “Brett M. Kavanaugh: Wrong for LGBTQ People, Wrong for the Supreme Court,” in which the advocacy group notes that “much of Kavanaugh’s public record on LGBTQ issues remains needlessly cloaked from public review.”
However, the HRC argues that the judge’s other writings—on issues like reproductive rights, the Affordable Care Act, and discrimination—suggest that Trump’s nominee could “significantly and unnecessarily reshape constitutional doctrine and nondiscrimination protections as they apply to LGBTQ persons.”
Lambda Legal has also pointed to a 2016 tape unearthed by MSNBC host Rachel Maddow in which Kavanaugh seems speaks positively about late Justice Antonin Scalia’s position that the Court shouldn’t have created “new rights” in cases like Obergefell v. Hodges.
“New rights” language coming out of Kavanaugh’s mouth, McGowan says, should send chills up the spines of LGBT Americans, because “that has been the move that has been made against LGBT people every time we have sought access to the full guarantees of the Constitution.” (The pro-LGBT position in Obergefell, after all, wasn’t that same-sex marriage was not a fundamentally “new right”—but an expansion of access to a pre-existing right that had been unfairly denied to same-sex couples.)
Even then, Kavanaugh’s remarks about Scalia are not quite direct enough in order to definitively conclude that the nominee himself opposes Obergefell. Armed with more explicit comments, LGBT legal advocacy groups might be able to more effectively draw attention to what they believe would be the dangers of a Justice Kavanaugh.
But both the HRC and Lambda Legal say they are undeterred by the challenge.
“Well, yeah, if he had a bunch of bad cases, absolutely it would be easier,” Stacy told The Daily Beast. “On the other hand, lots of judges don’t have records, and people have been appointed to the Court who have not been judges. You still have to look at their philosophy, you have to look at their record, at policy positions they have taken.”
“Frankly, his jurisprudence on a number of things is so closely related to the legal questions that affect LGBT people that I don’t necessarily think that we would be differently positioned if we had a nominee with some sort of flamingly homophobic opinion out there,” said McGowan. “We know enough about Brett Kavanaugh’s approach to the law that I think that he gives us enough information to be able to really sound the alarm about what he would do to LGBT jurisprudence.”
LGBT advocates argue that Kavanaugh would take a strictly originalist approach to the Constitution—an approach that may lead him to rule unfavorably on a number of LGBT issues, many of which center on the question of whether or nor protections already baked into U.S. law—like the Equal Protection Clause of the Fourteenth Amendment or Title VII of the 1964 Civil Rights Act—apply to the LGBT community.
But without ant particular smoking gun, McGowan says that it’s up to groups like Lambda Legal to “help connect the dots” for Americans who may not be as well-versed in the judicial issues as, say, a group of LGBT attorneys.
Those dots include the fact that Kavanaugh is being supported by the socially conservative Heritage Foundation—and the fact that, as an appellate judge, he wrote a dissent in a contraception-related case with language about “religious liberty," which could be interpreted as a hint that he might be amenable to anti-LGBT “religious freedom” arguments.
This week, Kavanaugh has been taking meetings with Republican and Democratic Senators on Capitol Hill—sit-downs that, so far, have produced no new information on his LGBT views. When the nominee’s confirmation hearings begin on September 4, he is likely to face questions about his views on LGBT jurisprudence, among other issues.
But although Kavanaugh’s views on LGBT issues remain unclear, one thing is certain: He will play an enormous role in deciding the future of LGBT rights in the United States.
With Kavanaugh potentially replacing the late Justice Anthony Kennedy, who wrote the ruling in Obergefell and served as the deciding vote in other landmark LGBT equality cases, everything is at stake, from same-sex marriage to transgender protections. At 53, Kavanaugh will likely have the opportunity to rule on LGBT court cases for decades.
“We’re looking at 40 years of Trump values on the court, which should be frightening to all of us,” McGowan told The Daily Beast.
Stacy, for his part, hopes that, in the current breakneck pace of the daily news cycle, there can be attention paid to how a Supreme Court Justice feels about issues that directly impact some 11 million-plus American adults.
“There’s so much noise out there,” he said. “Lots of things going on. Lots of things to be outraged about. Lots of things to be concerned about. But few of those things, at the end of the day are going to be as consequential—and maybe none of those things are going to be as consequential—as this appointment.”