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Merrick Garland’s Nomination Could Take Us To Full LGBTQ Legal Equality

by matt baume March 16, 2016

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This is it — the moment we’ve been waiting for, when President Obama announced the nominee to replace antigay monster Antonin Scalia. That nominee: Merrick Garland.

If everything was going normally in this country, the nominee would now go to the Senate, and our elected representatives would make a bunch of political speeches and hold confirmation hearings. But there’s nothing ordinary about this election cycle, or about American politics in general lately, so instead we’re going to get an unpredictable explosive circus with Republicans refusing to even consider the nominee, regardless his convictions let alone qualifications. (He’s a highly regarded moderate but would surely move the court in a progressive direction by virtue of his predecessor’s voting record alone.)

We don’t know a lot about Garland’s LGBTQ legal views at this point but his qualifications for the high court have never been an issue. Appointed to the DC Circuit by President Clinton, the Senate confirmed Garland on a 76-to-23 vote, with 32 Republicans voting in favor. Best of all, he clerked for Supreme Court’s famous defender or liberty and homosexuality, Justice William Brennan. At the Justice Department, he led the prosecutions of Ted Kaczynski, the unibomber, and Timothy McVeigh, the Oklahoma City mass murderer.

Obama’s goal is to pull back the curtain on the civil war brewing right now in the Republican party. For a long time, there’s been a tension between the old-fashioned small-government Republicans, whose primary interest is in protecting the assets of the wealthy; and the crazy-eyed snake-handler Republicans, whose primary interest is Jesus and sticking their fingers in our eyes (and crotches).

That tension’s been waiting to explode for years, although the rise of the Tea Party let off some steam. Now that Donald Trump is ascending, that schism may finally explode, and internal GOP disagreement about how to handle Scalia’s replacement may drive the party even further apart. The Dems hope that Americans will like Garland, and feel sympathy for a guy who can’t even get a hearing for a job for which he’s clearly qualified.

No matter how the confirmation process goes, it’s hard to imagine the court ever having as antigay a figure as Scalia ever again, a dying breed in legal circles. And that’s important, because there could be several high-profile LGBT cases coming before the court over the next decade or two.

One of the biggest issues that could reach the Supreme Court is the passage of bizarre anti-anti-discrimination laws in various Republican-controlled states. These laws create obstacles to anti-discrimination protections, usually under the guise of “religious freedom,” and exist only to target LGBTs for unfavorable treatment.

These laws are probably not constitutional, thanks to Romer v. Evans. That’s the mid-90s Supreme Court decision that prohibited laws that single out gays & lesbians (trans was not in the equation yet) for mistreatment. The laws being passed by conservative state legislatures are similar, and it could require a Supreme Court majority to overturn them. If Garland is confirmed, we now have that majority.

Another issue that the court might rule on: banning “pray away the gay” camps. Various states have brought challenges to these abusive practices, and it’s possible that there could be a federal challenge from either side.

And of course there are still lingering issues relating to marriage equality. Just recently, the Supreme Court stepped in and issued a ruling that protected the rights of same-sex parents in a Georgia case. A court in Georgia ruled that a lesbian mother wasn’t entitled to see her own child because the courts declined to recognize her marriage license. That’s not acceptable, the Supreme Court ruled, since marriage equality is the law of the land.

That’s why Garland’s confirmation matters. Based on his record, Obama’s nominee is likely to be sympathetic to our causes. Whether Garland’s obstructionist opponents like it or not, this nation is well on its way toward full legal equality on all things LGBTQ.




matt baume
matt baume

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