Sharon McGowan

Tammye Nash  |  Managing Editor
nash@dallasvoice.com

For a community already reeling from a year-and-a-half of racist, misogynistic and anti-LGBT policies coming out of the Trump administration, a series of potentially damaging recent U.S. Supreme Court rulings, Wednesday’s announcement that Supreme Court Justice Anthony Kennedy is retiring from the bench could seem like a knock-out blow.

But Sharon McGowan, chief strategy officer for Lambda Legal, is urging the LGBT community and its allies to not just stand strong but to double down on efforts to take this country back to the days when non-whites were subservient and LGBT people had to hide in the darkest of closets.

“Yeah, we are absolutely in trouble,” McGowan acknowledged Wednesday afternoon, June 27, after Kennedy announced his retirement in the wake of trouble rulings on so-called “religious freedom” rulings and an anti-union decision from SCOTUS.

“Even though Judge Kennedy had clarity about LGBT issues to a certain point, he has been an inconsistent voice” on other issues, she continued.

As evidence of his contributions to equality, she pointed to the decisions he authored in Romer v. Evans, Lawrence v. Texas, Windsor v. United States and Obergefell v. Hodges. But then he also voted with the majority and authored decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of a baker who refused to make a wedding cake for a gay couple and with the majority in Arlene’s Flowers v. State of Washington to send the case of a florist who refused to provide flowers for a gay wedding back to district court to reconsider in light of the Masterpiece decision.

He also voted with the majority in an anti-union ruling in Janus v. AFSCME.

McGowan said it was “really disappointing” to see Kennedy “write a decision without clarity” in the Masterpiece Cakeshop case, allowing “a factually valid argument to somehow render the [commission’s] decision invalid because he doesn’t like the way someone worded it. There was more focus on the insult to the baker than on the impact this decision will have on hundreds of people’s lives.”

In that ruling and the Arlene’s Flowers ruling, she added, Kennedy allowed the court to “kick the harder questions down the road, knowing that he is handing over his seat on the court to someone who put Neil Gorsuch on the court. His entire legacy is now in jeopardy with his retirement announcement.”

In light of those and the Janus ruling which overturned a 40-year precedent, “I don’t think there’s any reason for anyone to think the 5-4 decisions of this court will be safe going forward,” McGowan said.

She also warned that while SCOTUS rulings in favor of LGBT equality — such as marriage equality and the overturn of sodomy laws — may not be danger of being overturned outright, opponents of equality will be doing their best to “hollow out” those rulings in the years to come.

“They will use so-called religious freedom laws to be able to claim exemptions, to say ‘I don’t have to serve you because you’re LGBT,’ or ‘I don’t have to treat your child because you are same-sex parents,’ or ‘I don’t have to treat you because you are transgender,’ or ‘I don’t have to acknowledge that trans people are real,’” she said.

“They are going to do their best to hollow out the dignity of all the decisions Kennedy wrote. And we all have reason to be concerned,” McGowan continued. “The center of the court will now radically shift to the right with another Trump nominee added to the bench. Some of the things that Trump is doing will end when his administration ends. But the right’s seizure of the Supreme Court is something we will have to live with for 30 to 40 years.”

There is hope, though. “All it will take is any two senators aligned with the president’s party to decide to put the Constitution first and demand a nominee from the legal mainstream,” McGowan said. “Just two who will put the Constitution ahead of party loyalty. But given the state of the Republican Party these days, that will be a big hurdle to overcome.”

There is also the possibility of forcing the Senate to wait until after midterm elections to appoint a new justice to the court, and using the elections to wrest control of Congress away from the Republicans in November.

“Can we hold them off til the midterms? It’s not beyond the realm of possibility,” McGowan said. “When you have even [conservative pundit] George Will calling for people to vote the GOP out of office, it is absolutely an option that is in play.”

But for that strategy to work, Democrats have to take control of Congress, and that will take everyone favoring equality to use “any tool they have — activism, donations, talking to family and friends. We all have to do everything we can.

“I don’t think any one of us wants to have to look back and say, ‘I wish I had done more,” McGowan concluded. “Now is the time to leave it all on the dance floor. ”