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The Future of LGBT Cases Before the Supreme Court Depends on This Election

Supreme Court

When you vote in November, you’re choosing more than a president; you’re choosing how the court will respond to the significant LGBT civil rights cases of our time.

Eight months have passed since the death of Justice Antonin Scalia, and the country's been limping along with eight-ninths of a Supreme Court ever since. This is nowhere near the record for a vacancy (that would be the two-and-a-half year gap following Henry Baldwin's death in 1844), but it's certainly cause for concern.

The court's vacancy has become a serious campaign issue during the presidential election. The final presidential debate Wednesday in Las Vegas includes the Supreme Court as an entire separate topic, on par with economic and foreign policy. The choice between Donald Trump and Hillary Clinton in November is also a choice of how the Supreme Court will respond to key civil rights cases for LGBTs.

Take Gavin Grimm, for example. He's a Virginia teenager who would just like to be excused to use the bathroom. But because his birth certificate says he's female, his school insists that he use the women's room. That touched off a lawsuit, and now as he enters his senior year, Gavin's school board has petitioned the Supreme Court to rule against him. The court suspended a lower court ruling that allowed Gavin to use the men's restroom, and so far, the justices have not decided in recent conferences to take up his case.

This is just one of many cases affecting the lives of LGBTs that the Supreme Court may consider over the next few years. Whether the court gives the cases full hearings, issues injunctions, or sends cases back to lower courts, the lives of millions of queer people rest in the hands of an institution that the Republican party has chosen to slowly erode.

Aside from granting transgender people permission to use the bathroom, over the next few years the Supreme Court may hear cases that provide an opportunity to end the practice of denying people jobs or housing on the basis of sexual orientation and gender identity. They may weigh in on abusive ex-gay "therapy," or on religious freedom laws that permit businesses to exempt themselves from nondiscrimination laws.

And who knows? They might even revisit some prior rulings, such as those that legalized marriage, decriminalized sex, and made it possible to send gay magazines through the mail.

There is no end to the possible ways in which the Supreme Court might improve, or harm, the lives of queer people, which is what makes Republican obstructionism so infuriating. Like Merrick Garland, whom President Obama nominated to the Supreme Court back in March, we must linger in a holding pattern with no end in sight and potentially-major cases on the horizon.

Of course, Hillary's victory is looking more secure these days, and she's likely to have a few short-listed nominees of her own. She might push for Garland's confirmation, or she might name Sri Srinivasan, who argued that DOMA should be overturned. Another justice rumored to be on her shortlist is Goodwin Liu, who helped legalize marriage equality in California. She's also said to be considering Sen. Amy Klobuchar, who sponsored the Employment Nondiscrimination Act.

Donald Trump's potential nominees have a history with LGBTs as well.

One wild rumor suggests that he might nominate Peter Thiel, who sued an entire publication out of existence nearly a decade after it outed him. Trump has also said he'd consider Sen. Mike Lee, who opposed open service for LGBT people in the military. He also said he's considering Diane Sykes, a judge who ruled that a student group should be exempted from nondiscrimination rules.

Obviously, one of these candidates has more to offer LGBT people than the other. But even if Hillary wins, we might not be able to breathe a sigh of relief for a queer-friendly court.

"I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up," said John McCain this week. "We can make sure there is not three places on the United States Supreme Court that will change this country for decades."

Sen. Mike Lee echoed that sentiment after a debate, saying, "I don't believe there would be a real substantive distinction, a real noticeable difference between the voting pattern of a justice who would be appointed by a President Hillary Clinton ... and Merrick Garland."

A spokesman later walked back McCain's statement, saying that he would consider a nominee's individual qualifications. But after President Barack Obama was elected, Republicans seemed to delight in bringing Congress to a standstill by rejecting any legislation the president supported, regardless of merit. They've already shown their willingness to paralyze one branch of government; why not bring down the Supreme Court too?

Hillary Clinton could nominate the most qualified justices in American history. The Supreme Court could be presented with slam-dunk cases to end discrimination. But none of that will matter if the court is slowly whittled down to nothing by Sen. Ann Coulter and Rep. Pepe T. Frog.

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Matt Baume