Silence of the Liberals: When Supreme Court Justices Fail to Speak Up for LGBT Rights

Abstract

In 1985, Justice Brennan did something that had never been done before and has, surprisingly, never been done again - penned a separate opinion from the Court’s left vigorously arguing for the protection of gay rights under the Constitution. Since then, even though the Court has repeatedly protected gay rights, none of the Court’s liberal Justices has said a word on the topic. Rather, the liberal Justices have ceded the territory on the issue of the Constitution and gay rights almost entirely to Justice Kennedy’s notoriously flowery but somewhat-vacuous statements about the issue as well as the pointed and often homophobic critiques of the Court’s more conservative Justices.

This liberal silence has been costly. Court developments around gay rights have certainly been one of many factors that have contributed to the drastic change in this country with respect to accepting gay people and treating them more equally. Concurring opinions could have been a part of this judicial influence, both in society and in lower court doctrine, but the liberal Justices have opted to remain silent. By doing so, they have lost an opportunity to use separate opinions to influence the trajectory of the law on gay rights, counter the stereotypes and bigotry of the dissenting opinions, clarify Justice Kennedy’s vague analysis, and possibly solidify the societal and legal gains that might be threatened with Justice Kennedy having left the Court.

Keywords: LGBT rights, Supreme Court, Justice Kennedy, marriage equality, Obergefell, Romer, Lawrence, Windsor