Reprinted with permission from AlterNet.
Make no mistake: the departure of Justice Anthony Kennedy could be a huge game-changer for the U.S. Supreme Court—especially when it comes to sex and social issues. Nominated by President Ronald Reagan in 1987, Kennedy is a right-wing economic conservative who often sided with large corporations over workers, unions and consumers. Yet when it came to abortion, same-sex marriage, gay rights and other social issues, Kennedy was not afraid to butt heads with Clarence Thomas, the late Antonin Scalia and other socially conservative justices. And if President Trump is able to stack the High Court with severe social conservatives in the Scalia/Thomas vein—which is exactly what he has said he would like to do—everything from gay rights to abortion and contraception to First Amendment rights could be imperiled.
Here are some landmark Supreme Court decisions that advanced sexual freedom in the U.S. and could be in danger if Trump has his way.
1. Lawrence v. Texas (2003)
Kennedy, arguably, is the closest thing the Supreme Court has had to a libertarian, and he infuriated the Christian Right when, in 2003, he wrote the majority opinion in the Supreme Court’s Lawrence v. Texas ruling—which struck down a Texas sodomy law and in effect, invalidated sodomy laws in 13 other states. The ruling was applauded by gay rights activists but detested by Pennsylvania’s notoriously anti-gay Republican Sen. Rick Santorum. Scalia and Thomas were among the dissenters in Lawrence v. Texas, and their dissent was vehement. If social conservatives dominate a post-Kennedy Supreme Court, it’s quite possible that Lawrence v. Texas could be reevaluated at some point and that Scalia-ish justices could decide that Kennedy’s opinion was a violation of states’ rights.
2. Roth v. the United States (1957)
Ironically, the most liberal chief justice in the history of the U.S. Supreme Court was a Republican: Earl Warren, appointed by President Dwight D. Eisenhower. The late anti-feminist and Christian Right zealot Phyllis Schlafly blamed the Warren court for the growth of the porn industry in the U.S.—and to be sure, the Warren court’s 1957 ruling in Roth v. the United States made it much less risky for Americans to publish sexually explicit material. Before the Roth decision, the U.S.’ standard was determining obscenity was the old Regina v. Hicklin ruling from 19th century England; by that standard, even a small, isolated part of a book or film could render it obscene. But the Roth decision threw out that standard, declaring that the intent of an entire work had to be considered. And the Christian Right would like nothing better than to return to a pre-1957 standard for weighing obscenity.
3. Miller v. California (1973)
In 1973, a post-Warren edition of the Supreme Court tweaked Roth with its ruling in Miller v. California, which declared that sexually explicit material is legal as long as it isn’t obscene and established the three-prong Miller test for obscenity. Under the Miller test, a film, book or magazine is obscene—and therefore, illegal—if it (1) appeals to a prurient interest when contemporary community standards are applied; (2) is patently offensive, and (3) lacks serious literary, artistic, political or scientific value when taken as a whole (the so-called SLAPS test). So, when porn filmmakers faced obscenity prosecutions after 1973, their attorneys typically argued that their material was protected by the First Amendment because it didn’t fit the Miller test for obscenity. The Christian Right believes that the Miller test gives sexually explicit material way too much leeway, and if the Miller v. California test were to be overturned or altered in some fashion, it’s possible that a lot more obscenity prosecutions could come about.
4. Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972)
As Planned Parenthood has been stressing, the Christian Right not only opposes abortion—it also opposes contraception with a passion. And one Supreme Court decision that helped make it easier to obtain contraception was Griswold v. Connecticut, which in 1965, struck down an 1879 Connecticut law that forbade the use of contraception by married couples (the late feminist Estelle Griswold was the executive director of Planned Parenthood’s Connecticut’s branch). And in 1972, the Griswold v. Connecticut decision was expanded to unmarried couples with the Supreme Court’s ruling in Eisenstadt v. Baird. To the Christian Right, those rulings were a violation of religious freedom and states’ rights and should be overturned—and fundamentalists would love to see a post-Kennedy Supreme Court agree with them.
5. Stanley v. Georgia (1969)
Shortly before Earl Warren’s retirement in 1969, the Warren Court handed down a ruling that social conservatives still deplore almost half a century later: in Stanley v. Georgia, the High Court ruled that simple possession of adult porn is not illegal even if the material itself is obscene. In 2018, this means that a porn director or company could be prosecuted for obscenity if a prosecutor believes an adult film fits the Miller test for obscenity, but a consumer downloading it online could not be prosecuted for simple possession. And if Stanley v. Georgia were to be overturned by the High Court’s social conservatives and the U.S. reverted to a pre-Stanley standard, merely downloading an adult porn film could be grounds for prosecution.
6. Roe v. Wade (1973)
President Trump has made it clear to the far-right Christian fundamentalists he panders to that a willingness to overturn the Roe v. Wade decision of 1973should be a litmus test for Supreme Court appointments. If Roe v. Wade were overturned—which is entirely possible with a socially conservative majority—that wouldn’t automatically mean a nationwide ban on legal abortion. But the legality or illegality of abortion could be determined on a state-by-state basis, which would mean a lot more dangerous back-alley abortions in Republican-dominated states. And if the Supreme Court were to overturn Griswold v. Connecticut and Eisenstadt v. Baird in addition to Roe v. Wade, women who have the misfortune of living in Bible Belt states could lose their access to contraception along with their right to safe and legal abortions.
7. United States v. Windsor (2013) and Obergefell v. Hodges (2015)
Anthony Kennedy’s libertarian streak asserted itself in a major way when, in 2013, he wrote the majority opinion in United States v. Windsor, which was followed by Obergefell v. Hodges two years later. Thanks in part to Kennedy, same-sex marriage was, in effect, legalized in all 50 states in 2015—and prohibitions of same-sex marriage at the state level were invalidated. Had a more socially conservative majority been on the Supreme Court in 2013 and 2015 instead of Kennedy, it’s entirely possible that different decisions would have been reached—and if Trump is allowed to stack the Court with far-right socially conservative ideologues, it’s also entirely possible that those decisions will be reevaluated and Scalia-ish justices will decide that they were wrongly decided.
8. Jack Thompson v. 2 Live Crew (1992)
Rock & roll used to be the music that social conservatives hated the most, but these days, it’s hip-hop. In 1990, Florida-based Christian Right activist Jack Thompson felt that if U.S. obscenity law could be used to prosecute films, books and magazines, why not music as well? And the target of Thompson’s wrath became the 2 Live Crew and their sexually explicit 1989 album, As Nasty as They Wanna Be. Thompson’s campaign led to Jose Gonzalez (a district judge in Florida) ruling that the album was obscene and illegal to sell. Some retailers who sold it were arrested for distributing obscene material. But after a court of appeals in Georgia overturned Gonzalez’ ruling and declared that the album didn’t meet the Miller test for obscenity, the Supreme Court upheld that ruling—which was a major blow for Thompson and a major victory for not only the 2 Live Crew, but sexually explicit music in general. However, that ruling (which social conservatives disagreed with vehemently) came at a time when the Court wasn’t as far to the right as it is now. And if the Court moves even further to the right socially and reevaluates decisions like Miller v. California and Stanley v. Georgia along with Jack Thompson v. 2 Live Crew, it isn’t inconceivable that music could be targeted for obscenity prosecution at some point.