Most of the news about the Supreme Court of the United States (SCOTUS) has focused on the nomination and appointment of Amy Coney Barrett to fill the vacancy left by the death of Ruth Bader Ginsburg. However, it was a recently issued dissent by Justice Clarence Thomas, joined by Justice Samuel Alito, that should be a much greater concern for LGBTQ Americans.
But first, a brief history lesson:
The (Sort of) Return of Kim Davis
On October 5, 2020, Thomas authored a dissent on a denial of judicial review for the case of Kim Davis v. David Ermold. Davis’ name may sound familiar. She was the county clerk responsible for issuing marriage licenses in Rowan County, Kentucky. When marriage equality was rendered a constitutional right in the 2015 Obergefell v. Hodges case, Davis, who describes herself as a “devout Christian” with “sincerely held religious beliefs that marriage exists between one man and one woman,” subsequently refused to issue marriage licenses to same-sex couples. She was immediately sued. The core question of the lawsuit was whether an elected official’s religious beliefs should allow them to refuse to perform their duties, potentially in violation of the constitutional rights of their constituents.
Thomas, in his dissent, said he agreed with the Court’s decision not to hear Davis’ case because he felt that the case did not “cleanly present” the case for striking down marriage equality. This statement sent a clear message that if Thomas is going to rule in favor of a defendant like Davis, he needs a better case—or perhaps a better court. With the appointment of Barrett, Thomas and Alito may be getting their wish.
Nothing Is Forever
Supreme Court rulings are not permanent. They can be invalidated by subsequent SCOTUS rulings, or by legislation that clarifies issues that were not previously addressed. If Obergefell were to be overturned by the Supreme Court, marriages in states like Texas, where marriage is still not codified into law, could be invalidated. Marriages in states like Massachusetts, where marriage equality was codified into state law in 2005, would remain legal.
However, in reading Thomas’ dissent, I am not convinced that he is interested in overturning marriage equality. To some extent, Thomas surely realizes that this horse is already out of the barn and that overturning Obergefell could create a great deal of administrative chaos throughout the county. There is a principle in law called stare decisis, which encourages future courts to leave in place prior rulings unless the circumstances are extraordinary. Even with a dominating conservative majority, the Supreme Court may not yet be inclined to do that.
What Thomas and Alito are indicating in their dissent is that they agree with Davis that her religious beliefs should grant her the right to violate the constitutional rights of her constituents. If a case with facts that were “cleanly presented” made its way before the entire SCOTUS, that ruling could undermine the holdings of both Obergefell and many other rulings by granting elected officials the right to do (or not do) their job based on the whims of their religious beliefs.
The effects of this would be chaotic, and its ramifications extensive. It would erode the entire concept of the separation between church and state. It could transform our constitutional democracy into a theocratic democracy, where the ruling party’s religious beliefs determine which laws they will enforce and which laws they will object to. (As we all know, when religion takes over the government, things usually don’t go smoothly.)
How Bad Is It, Really?
Thomas and Alito are clearly trying to send a message that will frighten the LGBTQ community. However, we don’t know how this seed he has planted in his short dissent will germinate. There are a lot of variables here.
First, Thomas and Alito are on a bit of an island. They are not joined by their other conservative colleagues, Justices John Roberts, Neil Gorsuch, and Brett Kavanaugh. This could be seen as a positive sign, considering the alarming tone of the dissent. The caveat here is that when or if Barrett joins the Court and if she were to align with these two, the chances are much greater that a “cleanly presented” case will make its way to the full panel for review and a decision.
Second, in recent months Roberts has taken on a more centrist position within the Court. This gave him a lot of power while Ginsburg was alive, as oftentimes he would be the tie breaker between the four conservatives and the four progressives. This was formerly the role of Justice Anthony Kennedy, who was replaced by Brett Kavanaugh. In fact, for the last two decades it was Kennedy who sided with the progressive wing and authored all of the SCOTUS decisions that have advanced LGBTQ equality throughout the land.
Roberts hasn’t quite demonstrated that he would rule in a similar fashion to Kennedy. He dissented in the case of Obergefell, but he has also shown that he is much more of a centrist than his colleagues, and he seems to understand his role in a historical context that seems more future-focused than regressive.
Third, Gorsuch hasn’t demonstrated any particular animus toward LGBTQ people, either. In July of this year, Gorsuch authored the opinion in Bostock v. Clayton County, which solidified workplace protections for LGBTQ Americans. This particular case was of concern because it revolved around the interpretation of the word “sex” under Title IX, the federal civil-rights legislation that addresses workplace discrimination. Gorsuch also revealed that his interpretation of the Constitution may be a bit more fluid than his conservative colleagues, who generally look at the plain language of the text and the original intent of lawmakers and previous courts. From their perspective, the word “sex,” as originally written, did not contemplate LGBTQ protections when it was passed in the 1960s, and therefore it shouldn’t be enforced as such.
If You Seek Amy
How does Amy Coney Barrett play into all of this? Well, we have an idea, but we can’t know for certain. Barrett has only been a federal judge for three years, so she is relatively inexperienced in that regard. It is fair to say that her appointment is certainly not good news for LGBTQ people, as she is considered to be on the opposite end of the spectrum from where Ginsburg was, philosophically speaking. She has said that she aligns with the jurisprudence of the late Justice Antonin Scalia, for whom she clerked. Scalia was a strict constructionist, like Thomas and Alito, and he likely would have agreed with their dissent.
Barrett has indicated that she would have disagreed with how Gorsuch interpreted the law in Bostock. Years prior to that ruling, Barrett said that it would be “a strain on the text” to say that Title IX protections extended to transgender Americans. She voiced her preference for the legislature to change Title IX rather than the courts. She then indicated that she felt the same way about same-sex marriage—that it should be decided in the legislature and not in the courts.
The concern with Barrett is not so much that she is personally anti-LGBTQ (although she does seem to hold beliefs aligned with “traditional” marriage), but that her interpretation of the law will delay the arrival of actual equality for LGBTQ Americans for years, and perhaps even for decades.
Now It’s Up to the Voters
LGBTQ Americans can no longer reliably look to the Supreme Court or other lower courts to advance their rights under the law. This is a consequence of politics. Every single worst-case SCOTUS scenario that could have happened under Trump has come to pass. The safeguards are gone, which means that the main fight will have to be moved to the ballot box. LGBTQ Americans need to vote in every single election. Even if we are only electing a new dog catcher, the LGBTQ vote needs to be heard. If Americans are left with a SCOTUS that abdicates its role in government to the legislative branch, then it is up to us to change the legislative branch on every level. And we do that by voting.
Early voting for the November 3 election takes place October 13 through October 30 in Texas. For a list of Harris County voting locations and hours, visit harrisvotes.com/PollLocations.