Building a Court Hostile to GLBT Rights

When he sought the presidency in the 2000 election, George W. Bush indicated that the kind of judge he would nominate to the Supreme Court was someone like Justice Antonin Scalia, an opponent of gay, lesbian, bisexual and transgender rights who later authored the acidly anti-gay dissent in Lawrence v. Texas (2003). After extremely narrow victories in the 2000 and 2004 elections, President Bush chose two judges with questionable records on equal rights for GLBT Americans.

John Roberts, now Chief Justice Roberts, derides what he calls the “so-called right to privacy” under the Constitution. He has also indicated a narrow view of equal protection under the Constitution, and has taken a deferential position toward legislative action that concerns those of us who care about the role of the courts in striking down legislation infringing on equal rights for GLBT Americans. The Roberts nomination won unstinting praise from opponents of GLBT rights including James Dobson; Sen. Bill Frist, R-Tenn.; the Family Research Council; and Concerned Women for America.

Supporters of equal rights do not see a friend in Justice Samuel Alito, President Bush’s second appointee to the Supreme Court. Then-Judge Alito struck down a policy protecting gay, lesbian, bisexual and transgender students from harassment, and wrote opinions indicating a very narrow view of the Commerce Clause and Section 5 of the 14th Amendment (provisions that, among other things, allow Congress to address and remedy discrimination). As they did with Roberts, opponents of GLBT rights, including Dobson, Frist and Pat Robertson praised the nomination.