A Supreme Fight: How Will the Future of Gay Equality Be Affected by Bush Appointees to the U.S. Supreme Court? Battle Lines Are Now Being Drawn

By Heil, Emily | The Advocate (The national gay & lesbian newsmagazine), July 19, 2005 | Go to article overview

A Supreme Fight: How Will the Future of Gay Equality Be Affected by Bush Appointees to the U.S. Supreme Court? Battle Lines Are Now Being Drawn


Heil, Emily, The Advocate (The national gay & lesbian newsmagazine)


This summer Washington, D.C., is turning more and more of its attention toward one topic: how many justices the Bush White House will be able to appoint to the U.S. Supreme Court. The White House already has a short list of candidates to replace Chief Justice William Rehnquist, 80, who is battling thyroid cancer, which most court watchers expect will force him to retire any day.

Rehnquist is one of the court's three most conservative justices, and a conservative replacement would not change the political balance of the court. But Bush, eager to establish a judicial legacy, is likely to pick a fairly young nominee whose rulings will shape the court for years to come, and some gay court watchers fear Bush will appoint a justice who is even more ideologically conservative than Rehnquist.

If he chooses judges who interpret the law as justices Antonin Scalia and Clarence Thomas do, the fight for gay equality could be set back for decades. How will we be affected, specifically? Cases challenging the military's sodomy law and its "don't ask, don't tell" policy, for example, are making their way up from lower courts, as are several lawsuits questioning how antidiscrimination laws should apply to gay, lesbian, bisexual, and transgender people.

In one case--Cook v. Rumsfeld, now pending in a federal court in Boston--gay service members maintain that "don't ask" violates the U.S. Constitution. If the government loses and seeks an appeal, it could be heard by the Supreme Court. And a federal court's decision in May overturning Nebraska's strict state constitutional limitations on same-sex couples' rights, a ruling now under appeal, also could wind up before the Supremes, legal experts say.

The ramifications of those cases could go way beyond the military or states with marriage bans, says Jon Davidson, legal director for Lambda Legal. "These cases raise basic issues, like 'Can the government treat gay people differently [from] nongay people?'" he says. "Although the Supreme Court doesn't take many cases, the ones they do are important and set all kinds of precedents."

Another fight likely will erupt over the next replacement on the Supreme Court.

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