With Judge Brett Kavanaugh’s Supreme Court confirmation hearings coming up, it’s important to underscore that some anti-LGBTQ leaders appear to be going for the brass ring, far beyond just dismantling marriage equality. They’re signaling they want to see the Supreme Court allow states to once again ban sodomy.
The reality of that may sound crazy and horrifying, but just a year and a half ago, many things sounded crazy and horrifying. The U.S. is separating children from their parents at the border (and dragging its feet on reuniting them, even under court order) and the president of the United States publicly sided with a longtime adversary over American intelligence, which he continues to attack. And it appears Roe v. Wade will be overturned.
So anything can happen.
Banning gay sex is something he likely believes is constitutional. Unlike Justice Anthony Kennedy, the leader on gay rights on the court, Gorsuch is, as the respected NPR Supreme Court reporter Nina Totenberg and her colleague Lauren Russell described him, a “self-proclaimed disciple of [the late Justice] Antonin Scalia’s crusade” of originalism: taking the Constitution literally as those who wrote it in its time presumably intended.
Gorsuch revered Scalia, who, drawing upon originalism, wrote a blistering dissent from the Supreme Court’s ruling in Lawrence v. Texas in 2003, which threw out sodomy bans ― for which Kennedy wrote the majority opinion.
Kavanaugh, who sits on the Court of Appeals for the District of Columbia Circuit, is an originalist too, and he’s someone the Christian right is counting on to halt in its tracks a Supreme Court that, as Bryan Fisher of the American Family Association wrote after Kavanaugh’s nomination two weeks ago, “just in the last two decades alone … has dramatically reversed its own precedents on the criminalization of homosexuality [and] the legality of same-sex marriage.” Fisher wrote another column this week solely focused on sodomy, claiming that “it has become obsessively important to gay activists to pretend that God actually approves of their behavior.”