LGBT+ Issues in a Post-Kennedy World

By: 
Kaplan Hecker & Fink LLP
Published on:
August 30th, 2019

Joshua Matz, Counsel at Kaplan Hecker & Fink and a former law clerk to Justice Anthony M. Kennedy, has published an article in the ABA Appellate Practice Journal entitled “LGBT+ Issues in a Post-Kennedy World.” As he explains, efforts to protect LGBT+ persons through the federal courts suffered a substantial—perhaps devastating—setback when Justice 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.

To assess the implications of that development, Joshua explores several key questions: (1) Will the Court accept Obergefell as settled law?; (2) Will the Court recognize statutory protections against LGBT discrimination?; (3) Will the Court undermine antidiscrimination laws in the name of the First Amendment?; (4) Will the Court recognize the constitutional rights of transgender persons?; and (5) Can the LGBT+ community look beyond the federal judiciary for protection?

Read the article here.