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The Anti-Gay Litmus Test?

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In opposing Supreme Court nominee Elena Kagan, some members of the United States Senate are reaching back to the anti-gay political playbook of 2004. After months of investigation, testimony, and questions, they have failed to identify any legitimate reason she would be unfit for the high court. So now, a number of senators instead are trying to paint her as a dangerous radical based on her history of treating lesbian, gay, bisexual and transgender (LGBT) people with respect. This sort of pandering rhetoric threatens the ideals of justice. It is premised on the disturbing notion that LGBT people are undeserving of equal rights in this country.

In the Senate Judiciary Committee, Senators Jeff Sessions, Orrin Hatch, Chuck Grassley, Jon Kyl, and John Cornyn voted against Kagan's confirmation. Explaining their votes, they all cited the fact that Kagan, as Dean of Harvard Law School, sought a compromise position on military recruiting that respected the school's longstanding nondiscrimination policy protecting LGBT students. Several of these committee members objected to Kagan's expressly stated view that the "Don't Ask, Don't Tell" law, which requires the military to discriminate against openly lesbian, gay, and bisexual service members, is bad policy. Senators Grassley and Kyl lamented the fact that Kagan would not announce clear opposition to marriage equality for same-sex couples.

In other words, to gain their votes, these Senators insist that a nominee explicitly support discrimination against LGBT people.

With a vote of the full Senate expected this week, we are seeing even more sputtering incredulity from certain senators that a Supreme Court nominee dares to consider LGBT people deserving of fair treatment.

At Lambda Legal, we believe that judges should make decisions based on the Constitution and the law, not based on personal biases or political considerations. A fair and impartial judiciary is essential for protecting us all from abuses by the political branches of government, a lesson that has been especially clear to LGBT Americans.

We know that it sometimes falls on the courts to uphold the rights of a minority against the will of the majority, to overturn discriminatory laws, and to require that the other branches of government treat all people fairly. In a 1996 Lambda Legal case, Romer v. Evans, it was the Supreme Court that reaffirmed the constitutional principle that neither the legislature nor the people at the ballot may pass a law out of a bare desire to harm a politically unpopular group. We frequently look to the courts to protect LGBT youth from harassment in schools when local officials refuse to act, such as Lambda Legal's Nabozny v. Podlesny case, which finally brought justice for a student who was brutally harassed by classmates and then blamed for his own harassment by school officials. Such landmark rulings would not be possible if the most outspoken criticisms of Elena Kagan become the standard by which we rate judicial nominees.

The litmus test for confirmation that some Kagan opponents are applying -- that the courts must always defer to the anti-gay hostility of the majority that still prevails in parts of the country -- belies our nation's Pledge of Allegiance to "liberty and justice for all." In other words, it's an attack on the fundamental principles of our government. Simply put, it's un-American. Everyone in this country is entitled to the Constitution's protections, regardless of who they are or how much some people would like to deny them equal rights. A commitment to these principles should be a requirement for service on the Supreme Court, and those who would treat it as a disqualifying factor don't belong in the Senate.

To learn more about how you can help protect the judiciary from political attacks, please visit Lambda Legal's Fair Courts Project.

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