PLEASE COPY AND PASTE THIS LETTER AND SEND IT TO JUSTICE ANTHONY M. KENNEDY AT THE ADDRESS PROVIDED. (For context and an explanation as to why, please click here.) IN THE ALTERNATIVE, PLEASE COPY AND PASTE IT INTO AN EMAIL AND SEND TO THE SUPREME COURT’S PUBLIC AFFAIRS OFFICE BY USING THE FORM AT https://www.supremecourt.gov/contact/contact_pio.aspx
Associate Justice Anthony M. Kennedy
Supreme Court of the United States
1 First Street, NE
Washington, DC 20543
Dear Justice Kennedy,
You have been a champion of LGBT rights during your time on the Supreme Court. I thank you for that, and I write to express my concern that your legacy might be in jeopardy.
I note that you have often voted to strike down anti-LGBT laws on the basis that those laws fail the rational-basis test; they are invariably based on animus, which you have defined as “a bare desire to harm a politically unpopular group.” I understand the power of your reasoning: a law that cannot even survive rational-basis review is truly “not within our constitutional tradition.”
But now that Donald Trump has been elected president, you know as well as I do that he will appoint justices who think that there is a legitimate purpose for anti-LGBT discrimination, be it public morals, “religious freedom,” or, as Justice Scalia once suggested, the need to push back against a supposedly dangerous minority that wields “disproportionate political power.”
The only way to protect against a Court that will do violence to LGBT rights would be to hold, at long last, that LGBT Americans are a suspect class for Equal-Protection purposes. I fear that, if the state of law remains what it is, it will be too easy for a more ideological Court to say that LGBT Americans are just a non-suspect class; rational-basis review applies to anti-LGBT discrimination; and anti-LGBT laws easily meet the minimal standard that they rationally relate to legitimate purposes.
It is obvious that sexual orientation and identity are immutable characteristics; that gays and lesbians have suffered a savage history of discrimination (i.e. that they are a politically powerless minority); and that sexual orientation or identity have no bearing on a person’s ability to contribute to society in any meaningful way. As you know, those are the factors that determine whether a group or classification is “suspect.”
Please, before it’s too late, go that next step to hold that sexual orientation and identity are suspect classifications. As a citizen, I ask that you establish rules and precedents that might protect our LGBT neighbors when justices ascend to the Court who do not believe, as you do, that anti-LGBT discrimination fails the lowest level of judicial review possible. Please protect our LGBT neighbors by holding, once and for all, that they are a suspect class and and that laws that discriminate against them must survive strict scrutiny or survive not at all.
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