As LGBT legal advocacy groups previously told The Daily Beast, virtually everything will be on the line if Kennedy is replaced with an arch-conservative: transgender rights, employment protections, religious justifications for discrimination, and even marriage equality itself.
While it’s impossible to predict the specific cases that will end up before the high court, there are major court battles currently unfolding in each of these areas that could prove monumental. Here are five such cases that demonstrate just how deeply the LGBT community will be in jeopardy.
If these cases—or cases like them—are decided against LGBT people, the next Supreme Court could systematically dismantle what few rights the embattled community was on its way to securing.
Pidgeon v. Turner
Even if Obergefell v. Hodges, the 2015 Supreme Court decision that legalized same-sex marriage nationwide, remains intact in the coming years, same-sex marriage will still be in play.
LGBT opponents have already been trying to dismantle marriage equality by arguing that same-sex married couples shouldn’t be entitled to the same benefits as people in opposite-sex marriages.
If that sounds like a ridiculous argument that won’t stand a chance in court, it’s apparently not. Two Texans have made it with relative success: In 2013, as the Dallas Morning News reported, two Houstonians—pastor Jack Pidgeon and accountant Larry Hicks—sued then-mayor Annise Parker over the provision of benefits to same-sex city employees, arguing that taxpayers shouldn’t have to pay for them.
Post-Obergefell, the Texas Supreme Court nonetheless decided that the landmark 2015 same-sex marriage ruling “did not address and resolve” the issue of benefits for same-sex couples—and then, in December 2017, SCOTUS declined to hear the city of Houston’s challenge to the Texas Supreme Court’s decision.
As the Morning News reported in April, the case is now headed to state court after being remanded out of federal court. Should this case—or one like it—make it back to the U.S. Supreme Court, we could see a ruling that allows states to limit or eliminate benefits for same-sex couples while still technically allowing same-sex marriage to remain legal. It would be overturning Obergefell in everything but name only.
Doe v. Trump, Karnoski v. Trump, Stockman v. Trump, and the other transgender troop ban cases
If you want to know how extreme a SCOTUS sans Kennedy will be on LGBT issues, watch the transgender troop ban cases.
The president’s tweets about transgender military service were so flagrantly discriminatory—and so completely unfounded by evidence—that a defeat for LGBT groups would be a very bad sign indeed.
The administration’s attempts to implement the transgender troop ban have already been blocked by multiple federal courts, but if Trump keeps on fighting, the Supreme Court could eventually have to decide between what the administration claims is necessary for “military readiness” and the research showing that such a position is unfounded.
Given Trump v. Hawaii, the Supreme Court’s June ruling upholding the “Muslim ban,” we can’t necessarily expect the Supreme Court—especially one without Kennedy—to decide that obvious discrimination against transgender people takes precedence over what the president falsely claims is necessary for national security.
What makes the field even more challenging for LGBT advocates is the fact that, to date, no case directly involving transgender rights has made it to the Supreme Court. (The closest a case has come was transgender teenager Gavin Grimm’s case against his school board, which the Supreme Court remanded back to the Fourth Circuit last March.)
In ruling against the troop ban in April, one district judge has already deemed transgender people a “protected class,” but persuading the Supreme Court to agree with that designation will be tough.
Arlene’s Flowers Inc. v. Washington
The Supreme Court issued its ruling in Masterpiece Cakeshop but the “religious freedom” issue will almost certainly make it before the Supreme Court again soon.
That’s because, as The Daily Beast’s Jay Michaelson noted, the case of the Colorado baker who denied a cake to a same-sex couple on religious grounds was decided “on narrow, and unusual grounds” without “reach[ing] the deeper issues underneath.”
In other words, even though the justices asked all sorts of profound philosophical questions about art, religion, and the First Amendment during oral arguments, they ultimately decided 7-2 that the Colorado Civil Rights Commission had overstepped by calling the baker’s beliefs “irrational.”
Effectively, that means anti-LGBT groups now have an even greener light to pursue cases arguing that it is legal to discriminate against LGBT people based on religious beliefs.
(We already know where the Trump administration stands on this issue: During Masterpiece arguments, press secretary Sarah Huckabee Sanders was asked whether the president’s support of “religious liberty” would include allowing businesses to hang signs in their windows saying “we don’t bake cakes for gay weddings” and she responded, “I believe that would include that.”)
Perhaps chief among these cases is Arlene’s Flowers, the case of a Washington state florist who was sued by the state for refusing to make a flower arrangement for a same-sex wedding.
On June 25, the Supreme Court cited the Masterpiece Cakeshop decision to vacate the Washington Supreme Court’s earlier ruling against the baker, sending it back down to the state level for reconsideration.
In the wake of that decision, Rachel B. Tiven, chief executive of the advocacy group Lambda Legal, told The Daily Beast’s Tim Teeman how the whittling away of LGBT rights may come to be poisonously incremental.
If “Arlene’s Flowers” comes back to the Supreme Court, the justices will probably have to grapple more seriously with some of the questions they dodged with Masterpiece—and if Kennedy’s seat is filled by an anti-LGBT ideologue, the answers they come up with may not be pretty.
EEOC v. R.G. & G.R. Harris Funeral Homes
When it comes to being protected from employment discrimination, LGBT Americans are in a precarious spot: The United States Congress has not added the categories of “sexual orientation” or “gender identity” to federal civil rights legislation—and fewer than half of the states have added those terms to their own anti-discrimination laws.
In the absence of those more explicit protections, LGBT legal advocates have had to argue that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 applies to LGBT people.
The underlying argument here is that firing an employee because they are LGBT is a form of gender stereotyping, punishing them for failing to live up to expectations of dress and behavior based on their birth-assigned sex.
Multiple federal courts have been persuaded by that argument—and even more importantly, the Equal Employment Opportunity Commission currently “interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation,” according to its website.
But one Supreme Court ruling could wipe that all away.
That ruling could come in one of several cases that get appealed up from the circuit level, including EEOC v. R.G. & G.R. Harris Funeral Homes, the case of a transgender woman named Aimee Stephens who was fired from her Michigan funeral home job after coming out.
It is inevitable that this case, or one like it, will end up before SCOTUS soon. Without Kennedy, the Supreme Court is that much likelier to knock down all the previous Title VII rulings like so many dominoes. Then, LGBT people would only have state laws to rely on in employment discrimination cases.
Doe v. Boyertown Area School District
The Supreme Court didn’t hear oral arguments in the Gavin Grimm case last year, excusing itself based on the fact that the Trump administration had just withdrawn Obama-era guidance protecting transgender students.
But it may not be able to avoid the question of transgender student restroom use forever. Litigation from both the anti-transgender side and transgender rights groups is rapidly bringing the issue to a head.
Last year, an anonymous cisgender, or non-transgender, student sued the Boyertown Area School District in Pennsylvania over its transgender-inclusive restroom policy, claiming that seeing a transgender student in the locker room was a privacy violation.
In May, a three-judge panel from the Third Circuit not only sided with the school district, they issued their ruling, as Slate’s Mark Joseph Stern noted, mere minutes after oral arguments had concluded.
That kind of conclusive decision might give LGBT advocates hope—especially because, as Stern notes, other federal courts have found in favor of transgender students in such cases—but as with the favorable rulings on employment discrimination, all of those decisions could be overridden by the Supreme Court.
As the Reading Eagle reported, Boyertown students are appealing the May decision, asking for a full review from the Third Circuit.
There’s a chance that the circuit courts could get the last word on the issue, and that the Supreme Court would simply defer to them. But if the high court picks this one up—or a case brought by a transgender student like Grimm, who sued over his school’s anti-transgender restroom policy and whose case is still pending after being sent back down to the Fourth Circuit—that could spell trouble.
As mentioned above, the Supreme Court has never heard a transgender rights case before—and it’s that much harder for a judicial body to recognize the rights of a group of people that it first has to recognize as a group of people.