Historic Supreme Court Confirmation Comes at a Time When Some in the GOP are Trying to Reverse LGBTQ Rights

Analysis by Brandon Tensley, CNN

It’s a curious time for equality in the US.

On the one hand, Ketanji Brown Jackson was confirmed as the first Black woman US Supreme Court justice on Thursday. On the other hand, there are legitimate concerns about what the future might hold for the members of certain marginalized groups, including LGBTQ Americans.

Take a striking point of contention during Jackson’s confirmation hearings last month. Many Republican senators spent part of their questioning time complaining about marriage equality. “The Constitution doesn’t mention the word ‘abortion,'” said Republican Sen. John Cornyn of Texas, “just like it doesn’t mention the word ‘marriage.'”

As Slate’s Mark Joseph Stern described the situation, Republican senators “used the Jackson hearings to test the waters with Obergefell (v. Hodges), revealing a newly invigorated push for its reversal. And why not? The crusade against Roe seemed hopeless for decades until, suddenly, it didn’t.”

Even if the court doesn’t overrule the landmark 2015 marriage equality case, such an outcome feels more possible now than it has at any other post-Obergefell time.

Crucially, LGBTQ equality is being challenged in other ways, too.

Consider the complex role that religion can play in scaling back LGBTQ rights. Last year, in Fulton v. City of Philadelphia, the Supreme Court held that Philadelphia can’t refuse to contract with Catholic Social Services, an adoption agency that discriminates against same-sex couples. On narrow grounds, the court held that for the city to refuse to work with the agency would violate the free exercise of religion.

Further, GOP-led state legislatures across the country are passing bills designed to discriminate against LGBTQ Americans, especially transgender children. Last week, Republican Gov. Doug Ducey of Arizona signed into law two bills that target transgender youth. So far this year, GOP governors in Oklahoma, Iowa and South Dakota have approved similar bills.

In other words, it’s very probable that the GOP, in company with the conservative legal movement, will continue to chip away at LGBTQ rights.

Here’s a closer look at the LGBTQ rights landscape:

What’s the agenda?

Despite some Republican lawmakers’ criticism of Obergefell — “Are justices interpreting the Constitution, or are they just deciding a right when they get five votes?” Republican Sen. John Kennedy of Louisiana groused during Jackson’s confirmation hearings — it doesn’t seem likely that marriage equality will be overturned. Much more likely: The Supreme Court, which has been experiencing a rightward shift, will create wider and wider religious allowances.

“There are up to around a million same-sex couples legally married, many of them raising children within their marriages,” the Yale Law School professor William Eskridge, whose work focuses on, among other things, sexuality and gender in the law, told CNN. “You’re going to undo all of that? I’d be surprised if most conservative faith groups would support that.”

Eskridge said that conservatives’ real objective is probably a little bit more complicated.

“What’s going on is an attempt to carve out from Obergefell as many religious allowances as possible,” Eskridge said. “In Fulton, the Supreme Court overruled the part of Obergefell that said that same-sex marriages must be treated the same by the state — not necessarily by private people — as different-sex marriages. The court said, You’ve got to allow this government delegatee to discriminate against same-sex marriages in a government program.”

In short, the deeper agenda is to create religious allowances to discriminate against same-sex marriages via the Religious Freedom Restoration Act, the Free Exercise Clause and the Free Speech Clause, Eskridge said.

Kevin Tobia, a Georgetown University Law Center professor, echoed some of Eskridge’s sentiments, and also pointed to 303 Creative LLC v. Elenis, a pending Supreme Court case, as an example of the kind of dispute that challenges LGBTQ equality through appeals to freedom of speech.

The case involves a Colorado-based designer of wedding announcement websites who’s a practicing Christian and refuses to create websites for same-sex couples. She wanted to post a note on her website essentially explaining her discriminatory choice, but doing so would’ve been prohibited by the state’s anti-discrimination law.

“The question is going to be a constitutional one: whether Colorado’s anti-discrimination law violates the First Amendment’s Free Speech Clause,” Tobia told CNN. “We’re already seeing some cases like this, but I imagine that we’ll see more along these lines, cases seeking religion- or speech-based allowances to discriminate against LGBTQ Americans.”

How is the movement against LGBTQ Americans growing?

Marriage equality is far from the only axis of tension.

Another issue is the ongoing movement to enact anti-transgender sports bans. Last week, Arizona and Oklahoma joined several other Republican-controlled states that have established bans preventing transgender women and girls at certain schools from competing on sports teams consistent with their gender.

LGBTQ rights advocates have swiftly condemned some Republican legislators’ insistence on not leaving transgender children alone.

“Ultimately, SB 2 (Oklahoma’s bill) violates the United States Constitution and federal civil rights law, puts Oklahoma at risk of losing federal funding and harms transgender youth, all to solve a problem that does not exist,” Tamya Cox-Touré, the executive director of the American Civil Liberties Union of Oklahoma, said in a statement last week.

Yet another issue for many is some GOP lawmakers’ embrace of anti-gay curriculum laws. These are laws that, as the University of Utah law professor Clifford Rosky put it the 2017 Columbia Law Review article in which he introduced the label, not only limit the discussion of sexual identity in public schools but “expose LGBT students to stigmatization and bullying.”

Last week, Florida Gov. Ron DeSantis, a Republican, approved what LGBTQ rights advocates have dubbed the state’s “Don’t Say Gay” law, which will ban certain instruction about sexual orientation and gender identity in the classroom when it goes into effect in July. Copycat legislation has cropped up in other Republican-dominated states.

In saying that the law is necessary to protect children, DeSantis and his team are tapping into a very long and vicious history of weaponizing think-of-the-children rhetoric against LGBTQ Americans and portraying them as security risks to be controlled.

“I can’t believe that it’s 2022, and we’re still seeing LGBTQ families be framed as predatory,” the writer and activist Charlotte Clymer said on CNN’s Reliable Sources earlier this week. “That seems to be the message to millions of LGBTQ families.”

She added, “It’s heartbreaking to watch because these are families who already struggle to get by day to day in the public square and now have their own government going after them just for existing.”

None of the above is to suggest that there haven’t been meaningful gains on the LGBTQ rights front in recent years. In 2020’s Bostock v. Clayton County, the Supreme Court interpreted Title VII of the 1964 Civil Rights Act to prohibit employment discrimination on the basis of sexual orientation or gender identity.

The decision was a huge step forward for gay and transgender Americans, and the win was all the more notable because Justice Neil Gorsuch, a conservative and a textualist, delivered the majority’s opinion.

And yet, it’s worth asking: What will happen to Bostock?

“Bostock is no longer a 6-3 majority,” explained Eskridge, the Yale Law professor. “As Justice Samuel Alito’s dissent feared, Bostock’s logic would apply to dozens of other federal statutes — including Title IX — that prohibit discrimination because of sex. After Bostock, why should they, too, not be read to protect also sexual and gender minorities?”

He continued, “So, what’s going to become of Bostock in its reasoning? That’s big — big, big, big — and remains to be seen. Because it depends on Justice John Roberts and Gorsuch, because Roberts is now the fifth vote instead of the sixth vote.”

Put another way, maybe the only thing certain about the present-day LGBTQ rights landscape is the fact that parts of it aren’t as certain as they might seem at first glance.

“There’s a particular story you could tell that’s about recent linear progress, say from 2003, when the Supreme Court struck down anti-sodomy statutes, to today,” said Tobia, the Georgetown Law professor. “But we’re still far from adequately protecting the rights of all LGBTQ Americans, and some recent events suggest renewed threats to pieces of the landscape that felt secure.”

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