Oct 17, 2008  |  By: PAUL M. SMITH  | COMMENTS     

IF YOU CARE about the rights of LGBT citizens, the two most important things you can do in the next few weeks are to vote for Barack Obama and to persuade friends and family to join you. Without for a moment diminishing the importance of the ongoing California initiative fight (which is itself huge), the ground zero for the movement pursuing LGBT equality right now is the presidential election. Either we will go backward, losing key rights we now have and leaving the country in the hands of those who offer at best their grudging “tolerance” (the term Sarah Palin used in the debate), or we go forward with real equality within our grasp.

One reason, of course, is that John McCain opposes every single legislative proposal for greater LGBT rights, whether it is the hate crimes bill, or protection from employment discrimination, or repeal of “Don’t Ask, Don’t Tell.” This is a guy who says we shouldn’t even be able to adopt children! Barack Obama, by contrast, is supportive every time.

But another, even more important reason for electing Barack Obama is the Supreme Court, which now hangs in the balance. And that is particularly true with regard to LGBT issues. In 2003, I was fortunate enough to have the opportunity to argue Lawrence v. Texas, the path-breaking Supreme Court case holding all sodomy laws unconstitutional. Lawrence not only eliminated the odious laws that had been used for many years to keep LGBT persons in a second-class status, it also laid the foundation for future progress in LGBT rights. Without it, our community’s future would look much different.

BUT WHERE ARE we now? We won Lawrence 6-3, but one of those who supported us, Justice O’Connor, has been replaced by the strictly conservative Samuel Alito. So the Lawrence majority is very likely reduced to 5-4 already. And one or more of those in the majority are likely to leave the court in the next four years. 

If those departing justices are replaced by John McCain appointees, he has made it perfectly clear where they will stand. When asked in August at pastor Rick Warren’s Saddleback Forum which of the current justices he would not have appointed, McCain named four of the five remaining members of the Lawrence majority — Justices Stevens, Souter, Ginsburg and Breyer. He favors instead justices like the court’s current very conservative bloc — Chief Justice Roberts and Justices Scalia, Thomas and Alito. 

President Obama, by contrast, would be likely to appoint justices like the four whom McCain rejected. When asked at Saddleback which justices he would not have appointed, he mentioned Justices Thomas and Scalia.

It is not just progressives who see this election as the turning point for the Supreme Court for the rest of our lives. Last February, noted conservative legal scholars Stephen Calabresi and John McGinnis endorsed John McCain for president, writing in the Wall Street Journal that his nomination was the “best option” to preserve what they called the “ongoing restoration of constitutional government.”
Translation: If John McCain wins, we can expect new justices who will work with the current conservative bloc to turn back the clock on a whole series of important constitutional precedents protecting individual rights.

Would a McCain court really overrule Lawrence? It’s hardly a long shot. The case as written by Justice Kennedy is closely tied analytically to the constitutional right to choose to have an abortion. If the latter goes (as it almost surely would if McCain wins) the Lawrence case would be left hanging by a thread. 

BUT THE RELEVANCE of the Supreme Court in this election goes far beyond Lawrence. The court could very well be faced in the next few years with constitutional challenges to state decisions not to recognize other states’ marriages or the military ban or state laws that prohibit employers and landlords from discriminating based on sexual orientation. How those questions are answered will have a profound impact on the lives of LGBT Americans.

And even outside the context of LGBT issues, future court terms will address a whole variety of other critical issues, ranging from the power of the president to engage in detention and surveillance, to the First Amendment, affirmative action and who knows what else. The court plays a unique role in our society.  And its appointees have life tenure. 

Many of you have probably heard arguments about the Supreme Court in prior presidential election years, only to see things not change too much. But I’m here to tell you this election matters exponentially. ...