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Kennedy Is Retiring. Welcome To 'Gilead'

Supreme Court Justice Anthony Kennedy administers the judicial oath to Justice Neil Gorsuch during a re-enactment in the Rose Garden of the White House on April 10, 2017. Holding the bible is Gorsuch's wife Marie Louise Gorsuch. (Carolyn Kaster/AP)MoreCloseclosemore
Supreme Court Justice Anthony Kennedy administers the judicial oath to Justice Neil Gorsuch during a re-enactment in the Rose Garden of the White House on April 10, 2017. Holding the bible is Gorsuch's wife Marie Louise Gorsuch. (Carolyn Kaster/AP)

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If future historians are ever free to write the history of this moment, they will note that it began with two of the worst assaults on the rule of law in the annals of American politics. I’m speaking, of course, of Sen. Mitch McConnell’s theft of the Supreme Court seat that was President Obama’s to fill, and the subsequent theft of the American presidency by the GOP's successful voter suppression efforts, and by foreign operatives, with the possible collaboration of the very man they installed in the post.

These heists of democracy have already undermined American jurisprudence. Just in the last few weeks of this term, the Supreme Court’s decisions have gutted labor rights, upheld Trump’s religious discrimination against Muslim immigrants, codified into law the right to trick and lie to women seeking abortions, protected bigots who want to discriminate against LGBT customers, and given the green light to states seeking to disenfranchise black and brown voters.

But now Justice Anthony Kennedy is retiring, and with it our hope that the federal government might care about anyone but the rich, straight, white, male and powerful.

... all of us must fight the transformation of our American democracy into a conservative Christian theocracy that in many ways is already underway.

Kennedy was never a social justice warrior, but he was willing to form occasional critical majorities that upheld the rights of the vulnerable and marginalized.

Without him, we would have had no Obergefell, the decision that legalized same-sex marriage. There would be no Whole Women’s Health, which freed women’s reproductive health clinics from intrusive, unnecessary state regulations explicitly designed to put them out of business. Without Kennedy, it would already be legal to buy judges more favorable to corporate interestsand for landlords to racially discriminate.

It is not a guess to say that Trump’s nominee to replace Kennedy will not be social justice-minded, and it’s hard to overstate the catastrophic changes to our national fabric that may be coming.

It is all but certain that we will lose federal protections for abortion rights, whether inch by inch through cases that whittle it down to meaninglessness, or all at once through the direct overturning of Roe v. Wade. Those of us who are unmarried may even lose the right to access to birth control. And let me be clear: When I say we will lose our rights to access safe and legal abortions, I mean that many women will die.

Chief Justice John Roberts, from left, (L) and Supreme Court Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan arrive for President Donald Trump's first address to a joint session of Congress in February 2017. (Jim Lo Scalzo/AP)
Chief Justice John Roberts, from left, (L) and Supreme Court Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan arrive for President Donald Trump's first address to a joint session of Congress in February 2017. (Jim Lo Scalzo/AP)

Christians claiming “religious liberty” may soon be free to discriminate as they please, against LGBT people, women who have sex outside of marriage, interracial couples and whomever else they decide their God disapproves of.

States will likely soon have more latitude in putting their citizens to death — for a wider range of crimes, using a wider range of methods of execution. Given that the federal government is already stealing children from their parents on our southern border and placing many with new guardians through an evangelical Christian foster agency, comparisons to Margaret Atwood’s fictional dystopian state, Gilead, are barely hyperbolic.

Everyone who believes in Martin Luther King Jr.’s dream, everyone who believes in the radical notion that women are people, everyone who believes in the dignity of the American worker, everyone who believes that no human is illegal, everyone who believes that love is love is love is love is love — all of us must fight the transformation of our American democracy into a conservative Christian theocracy that in many ways is already underway.

We must fight for the soul of our country at the ballot box and in the courts and in the streets. But until we win at the ballot box (and in the courts, which now may not be for many years) we also have to find other ways to defend our rights and the rights of our friends and neighbors.

It’s never been more urgent to insist that your state government steps in where the federal government fails.

When I say we will lose our rights to access safe and legal abortions, I mean that many women will die.

Here in Massachusetts, we have a lot going for us: an attorney general in Maura Healey who has sued the Trump administration 26 times and counting, laws long on the books protecting our access to health insurance and same-sex marriage, and a Supreme Judicial Court ruling upholding the right to abortion.

State lawmakers have several opportunities to protect civil rights and democracy in the commonwealth right now: bills that would make it easier to register to vote and ban anti-gay conversion therapy (a kind of psychological abuse supported by Vice President Pence) have just passed the House and are awaiting approval by the state Senate.

The Massachusetts House still has time before the end of this legislative session to join the state Senate in rolling back arcane pre-Roe abortion laws and passing the Healthy Youth Act, which would ensure that any sex education taught in Massachusetts public schools is free of right-wing Christian propaganda, and full of facts and science, lessons about consent and communication, and LGBT-affirming language.

This may seem like small ball at a time like this, but the Democrats' failure to thoroughly engage in state and local politics is exactly how the GOP managed to claim a death grip on all three branches of the federal government, even while losing the popular vote in seven of the last eight presidential elections.

So while we’re marching in the streets, let’s also pour real energy into ensuring that our state laws protect us against the encroaching depravity of Gilead, and that our state and local representatives are really representing us.

Even if your state isn’t as blue as Massachusetts, there’s never been a better time to think nationally, but act locally.

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Jaclyn Friedman Twitter Cognoscenti contributor
Jaclyn Friedman is a writer, educator and activist. Her latest book is "Unscrewed: Women, Sex, Power and How to Stop Letting the System Screw Us All."

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