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'The First Gay Justice': How Anthony Kennedy Led the Liberal Fight for Gay Marriage and Abortion

06-28-2018
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Washington is abuzz over the retirement of Supreme Court Justice Anthony Kennedy. While some have called him a moderate voice on the bench, his record shows he's actually been a primary force for progressives, giving liberals numerous wins on the social issues that have discouraged many American Christians for decades.

Kennedy was actually not Ronald Reagan's first choice for the Supreme Court – he was his third. But Kennedy became a justice on the highest court in the land after the Senate rejected Judge Robert Bork – Reagan's first choice – and after his second choice, Judge Douglas Ginsburg, withdrew his name in the wake of criticism over his personal and ethical conduct.

But Reagan likely never anticipated the crucial tie-breaker role that Kennedy would come to fill on the court, or the way he would propel gay rights and abortion rights forward.

Anthony Kennedy: The First 'Gay Justice'

Kennedy, 81, spent his last decade on the court as the key swing vote on an idealogically split court after Sandra Day O'Connor retired in 2006.

He also went on to author the Supreme Court's most significant gay rights cases including the biggest – 2015's Obergefell v. Hodges – which decreed that same-sex couples can marry anywhere in the United States.

Kennedy wrote three other majority opinions favoring LGBT rights. In 1996, he overturned a Colorado amendment that 53 percent of the voters had approved. Amendment 2 prevented any local jurisdiction in the state from taking action to recognize gays as a protected class.

In 2003, he led the court in striking down state bans on gay sex; and in 2013, he wrote that legally married gay couples must receive the same federal benefits as other married couples.

Michael Dorf, a Cornell University law professor, declared in 2013, "Kennedy has now firmly secured his place in history as 'the first gay justice.'"

Kennedy's Pro-Abortion and Anti-Prayer Rulings

Kennedy also made a significant decision to uphold the country's landmark abortion ruling, Roe v. Wade. In 1992, he was part of a majority that upheld Roe which declares a constitutional right to abortion. He initially was part of a group of justices that wanted to effectively overrule Roe.

He also switched sides in 1992 to end up supporting a ban on prayer in public schools. He initially joined with his conservative colleagues who believed that there was no problem with a rabbi giving a prayer at a public school graduation, but then changed his mind to oppose it.

Kennedy's retirement paves the way for the president to choose his second Supreme Court justice and shape the court for years to come. It's a moment that both conservatives and liberals can agree upon with respect to its significance.

Replacing Kennedy, Protecting Religious Liberty

The Southern Baptists' public policy organization, the Ethics & Religious Liberty Commission, noted Wednesday that the open seat "could define the future of religious liberty, human dignity and other issues for generations."

Penny Nance, the president of Concerned Women for America, said Wednesday, "This is why 81 percent of evangelical women voted for President Trump. He was clear from the beginning on the credentials and judicial philosophy he would require of any of his appointees to both the high and lower courts."

The political fight over Kennedy's successor is already looming large in the Senate, which must confirm the president's nominee. Democrats say the Senate must wait til after the mid-term elections, citing a similar play that Republicans used during the presidential election of 2016.

But Republican Senate Majority Leader Mitch McConnell says senators will vote this fall.

If Republicans unite behind a Trump nominee, there's little that Democrats can do. New Senate rules forbid filibustering on Supreme Court nominees so only 51 votes will be required for confirmation.

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