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Trumps nominees to the federal bench are gunning for same-sex marriage
With so many weekly outrages from the Trump administration, its easy to overlook its long-term plans. Chief among them is reshaping the federal judiciary. As the first batch of nominees wends their way through the Senate confirmation process, the stakes for marriage equality are incredibly high.The nominees dont come out and say how much they hate Obergefell v. Hodges, the 10-year old Supreme Court decision that granted the right to marry to same-sex couples. But between their non-answers to direct questions about the ruling and their own anti-LGBTQ backgrounds, its pretty clear that they would like nothing more than to see the ruling overturned. Related Donald Trump could go after same-sex marriage rights. We talked to legal experts. Right now, there are 47 vacancies in the federal judiciary, and Trump has put fourth 11 nominees. The results has been, in the words of JP Collins, an associate professor at The George Washington University Law School, a horror show. Collins, writing for the legal site Balls and Strikes, analyzed the nominees and found that they havent been hiding their animus toward LGBTQ+ rights.Eric Tung, a nominee to the Ninth Circuit Court, responded no when he was recently asked if, from an originalist perspective, theres a constitutional right to abortion, same-sex marriage, or sodomy. Joshua Dunlap, a nominee to the First Circuit Appeals Court, interned at the anti-gay Christian Nationalist legal group Alliance Defending Freedom and graduated from Pensacola Christian College, which once canceled a performance by the Grammy-winning a cappella group The Kings Singers because one of the singers is gay. Dive deeper every day Join our newsletter for thought-provoking commentary that goes beyond the surface of LGBTQ+ issues Subscribe to our Newsletter today Among those already approved by the Senate are Joshua Divine, a 35-year-old who once compared homosexuality to bestiality and, as Missouris deputy solicitor general, defended the states ban on gender-affirming health care for minors. Also approved for a federal judgeship was Whitney Hermandorfer, who worked in the Tennessee attorney generals office. She was instrumental in arguingU.S. v. Skrmetti, the Supreme Court case that banned gender-affirming health care for trans youth.That the nominees are a collection of anti-LGBTQ extremists isnt surprising. But what is alarming is how cagey they are when asked about marriage equality. As Collins notes, when asked point blank about Obergefell as precedent, they issue a string of weasel words. Strikingly, several had no problem saying that Supreme Court rulings striking down school segregation (Brown v. Board of Education) and bans on interracial marriages (Loving v. Virginia) were correctly decided, but punted when asked about Obergefell. For example, in response to written questions from Democratic Sen. Dick Durbin (IL), Christian Stevens, a nominee to be U.S. District Judge for the Eastern District of Missouri, said he would faithfully follow Brown v. Board of Education and Loving v. Virginia, and other applicable Supreme Court precedents. However, he said that sharing his opinions on other rulings, including Obergefell, would be inappropriate. Other nominees have used the same inappropriate dodge. Tung wouldnt even go that far, stating blandly that the Supreme Court granted such a right.If any of this sounds familiar, thats because these non-answers are the same strategy that Trumps Supreme Court nominees used when asked about Roe v. Wade, the landmark decision granting people abortion access. Neil Gorsuch acknowledged the ruling granting women the right to an abortion was precedent, but he served up word salad when asked if it was decided correctly. When asked the same question, Brett Kavanaugh said he understood about the importance of the precedence set forth in Roe v. Wade.Kavanaugh was even more opaque about Obergefell. When then-Sen. Kamala Harris (D-CA) pressed Brett Kavanaugh during his confirmation hearings on the same question, Kavanaugh simply said that Obergefell was precedent and refused to answer her question. Of course, precedence meant nothing to the ideologues on the court. The far-right majority has invented legal reasoning to justify their political wish list, including giving Donald Trump free rein. They have overturned multiple rulings that have stood for decades.So to hear Trumps nominees for the judiciary pay lip service to precedent means nothing. If anything, they are even more likely to fabricate legal justifications to challenge Obergefell, in the hopes that they will be the judge who gets it to the Supreme Court to deal the fatal blow. Ending marriage equality would make the judge who started that challenge a hero on the right.Trumps nominees are only interested in the law insofar as it advances the rights political interests. They are, in Collins words, foaming at the mouth to undermine and eventually overturnObergefelland relegate same-sex couples to second class status. As judges, they could decide that county clerks dont have to issue marriage licenses to same-sex couples on religious liberty grounds, creating marriage deserts. Or they could come up with some excuse to reinstate one of the zombie anti-marriage laws still on the books in more than 30 states. These arent jurists who are trying to apply the law. These are extremists who will shape the law to do what they want to see became reality. And repealing marriage equality is what they want. All the eyes may be on the Supreme Court and its ongoing battle to turn back the clock and smooth the road to authoritarianism, but the nominees for the rest of the federal judiciary are the shock troops who will force the issue, which is what the right is counting on. Subscribe to theLGBTQ Nation newsletterand be the first to know about the latest headlines shaping LGBTQ+ communities worldwide.
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