In both exchanges, Kavanaugh invoked the Ginsburg rule — the idea that judicial nominees shouldn’t answer questions about Supreme Court decisions, or potential future cases, lest they be forced to recuse themselves if they are required to adjudicate the underlying issues on the court — but made statements against anti-gay discrimination.
When Harris queried Kavanaugh about whether the Supreme Court’s 2015 decision in Obergefell v. Hodges was correctly decided, the nominee referenced five rulings on LGBT rights written by former Associate Justice Anthony Kennedy, whose seat he’d occupy on the high court.
Kavanaugh referenced the Masterpiece Cakeshop case, decided narrowly in favor of Jack Phillips, a Colorado baker who asserted a First Amendment right to refuse to make a custom-made wedding cake for a same-sex couple. The Supreme Court ruled for Phillips on the facts of the case on the basis of perceived anti-religion bias in the Colorado Civil Rights Commission.
“In Masterpiece Cakeshop, and this is, I think, relevant to your question, Justice Kennedy wrote in the majority opinion joined by Chief Justice [John] Roberts and Justice [Samuel] Alito and Justice [Neil] Gorsuch and Justice [Stephen] Breyer, the days of discriminating against gay and lesbian Americans as inferior in dignity and worth are over,” Kavanaugh said.
Asked by Harris if he agrees with that statement, Kavanaugh replied, “That is the precedent of the Supreme Court.”
When Harris followed up by asking Kavanaugh again if he agrees with Obergefell, Kavanaugh dodged.
“Each of the justices have declined as a matter of judicial independence, each of them, to answer in that line of questions,” Kavanaugh said.
Dale Carpenter, senior legal policy adviser for the pro-LGBT American Unity Fund, said observers can’t learn much about Kavanaugh on LGBT issues from his response.
“This is part of the tea-leaf reading of these hearings,” Carpenter said. “I don’t myself attach any special significance to statements of that kind, and the reason I don’t is that the way that something like that is phrased is entirely consistent with a view that you should not discriminate against gay people, but I’m not necessarily going to extend civil rights protections to gay people to forbid it.”
Carpenter said judicial nominees in confirmation hearings will “speak in cryptic ways.” As an example, Carpenter referenced U.S. Associate Justice Elena Kagan’s confirmation hearing in 2009, when she was up to become U.S. solicitor general. Kagan bluntly replied in a written questionnaire same-sex couples had no constitutional right to marry. Six years later, Kagan would go on to be part of the majority ruling in favor of marriage equality in the 2015 Obergefell decision.
“You can read it as a present tense statement to say that the court has not recognized a right to gay marriage, so that sort of strategic ambiguity is employed by nominees on both sides to try and pacify potential opposition,” Carpenter said.
Jillian Weiss, a transgender civil rights lawyer who represents LGBT employees, said Kavanaugh’s statement against anti-gay discrimination was “not significant.”
“It was a quote from Justice Kennedy, not his own opinion,” Weiss said. “My concern is he’s more pragmatist rather than principled. If he sticks to conservative judicial principles, he’ll focus on the meaning of the text today, as Justice Scalia did when he ruled sex discrimination includes same-sex harassment. We in the modern world understand ‘sex’ to include gender, and all that implies. Or will he revert conveniently to what a congressman thought in 1964?”
Booker’s question for Kavanaugh was on discrimination against gay people in the workplace. Citing the lack of explicit protections under federal law for LGBT workers, Booker said in many states a gay person could be married one day and summarily fired from work the next day for posting wedding photos.
In response to Booker’s question on whether that would be morally wrong, Kavanaugh declined to answer directly and made a vague reference to be willing to hire “all Americans” because of their talents and abilities.
“I’m a judge and therefore with the cases that I know you’re well aware of pending about the scope of the civil rights laws, the employment discrimination laws,” Kavanaugh said. “Of course, Congress could always make those clearer.”
Kavanugh was apparently referencing cases percolating through the federal judiciary on whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workforce, applies to cases of discrimination based on sexual orientation or gender identity. Petitions calling for resolution of that issue are pending before the Supreme Court.
Booker also asked Kavanaugh about his time as staff secretary in the Bush White House and whether he was involved with former President George W. Bush’s push for a Federal Marriage Amendment. The Trump administration has refused to make public Kavanaugh’s correspondence from the time he served as staff secretary to Bush.
In response, Kavanaugh without directly answering the question recalled the Federal Marriage Amendment in the Bush administration was “part of something he talked about,” a possible reference to the State of the Union addresses in which Bush called on Congress to pass the amendment.
Pressed further by Booker, Kavanaugh said, “As staff secretary, things related to that speech he gave would have crossed my desk.”
As Kavanaugh continued, Booker cut off the nominee and asked him if he expressed an opinion about the Federal Marriage Amendment. Kavanaugh said he didn’t recall and made a vague reference to individuals evolving on the issue of same-sex marriage.
“There’s been a sea change in attitudes in the United States of America, even since 2004, as you’re well aware,” Kavanaugh said.
Katherine Franke, a professor of law, gender and sexuality studies at Columbia University, said Kavanaugh was tight-lipped in responses to Booker’s questions, but revealed more than what he stated.
“The nominee adamantly refused to answer either question, on the grounds that the issue of protections for LGBT discrimination was being litigated in lower courts and Obergefell was the ‘law of the land,’” Franke said. “He also refused to disclose whether he expressed any views on same-sex marriage when he was part of policy debates on the issue when he served in the Bush White House. While his non-answers to these questions tell us very little about how we would rule on these issues if and when they might come before the Supreme Court, his body language and sharp tone in response to Sen. Booker’s questions told a different story.”
On the other side, Kavanaugh was queried by Republican members of the Senate Judiciary Committee on the issue of religious freedom, which has been code within conservative circles to mean anti-LGBT discrimination.
Questioned by Sen. Ted Cruz (R-Texas) about the importance of religious liberty, Kavanaugh emphasized the importance of the ability for individuals to practice their faith in the “public square.”
“The Framers understood the importance of protecting conscience,” Kavanaugh said. “It’s akin to the free speech protection in many ways. No matter what God you worship, or if you worship no God at all, you are equally American…If you have religious beliefs, religious people, religious speech, you have just as much right to be in the public square and to participate in public programs as others do. You can’t be denied just because of religious status.”
Given the emphasis Kavanaugh placed on the exercise of religion in the “public square,” Franke said Kavanaugh’s remarks “could” have implications for upcoming cases similar to the Masterpiece Cakeshop lawsuit in which plaintiffs assert a religious freedom right to discriminate against LGBT people.
“It’s such a broad generalization,” Franke said. “It’s hard to know exactly how he might rule, for instance, in a case like Masterpiece Cakeshop where you have a public business — whether that counts as the public square, I’m not sure — but you have a public business where the owner of that business wants to use religion as a reason not to comply with anti-discrimination. Certainly, one could interpret the quote you just gave me as saying he would protect Jack Phillips’ right as the owner of a public business to refuse service to somebody based on his beliefs, but it’s not entirely obvious based on that quote that’s what he would say.”
The committee vote on Kavanaugh was scheduled on Thursday. Republicans have said they intend to hold a floor vote to confirm Kavanaugh before Election Day.