The campaign to end marriage equality is a true threat
For too long, LGBTQ advocates have dismissed the idea. Now one civil rights attorney admits he was wrong about that.
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Dan Canon is an attorney who represented several couples who challenged Kentucky’s ban on same-sex marriage in the case Bourke v. Beshear, which was ultimately combined with several other cases into the landmark Obergefell v. Hodges, in which the Supreme Court ruled for marriage equality in 2015.
Canon also litigated the case against Kim Davis, the Rowen County, Kentucky clerk who refused to issue marriage licenses to same-sex couples (and eventually lost her re-election bid).
After Donald Trump’s election Cannon was among those LGBTQ civil rights attorneys who sought to calm those of us who warned of dire implications for the courts and for marriage equality. Some vocally argued the warnings were overblown and that the Supreme Court decision was solid, while others stayed mostly silent, clearly not alarmed.
Canon wrote after Trump’s election, in a piece headlined, “Trump and LGBTQ rights: Your worst nightmares unlikely to come true”:
Rest easy, friends. An executive cannot wave a magic wand to make a Supreme Court decision, and its attendant rights, vanish into thin air. For a President Trump to undo the progress made by Obergefell and its predecessors, a number of improbable things would have to happen.
One of those “improbable” things, he explained, was that “Trump would have to appoint at least two Supreme Court justices to make any real difference.”
Well, as we all know, Trump appointed three justices to the Supreme Court, all of them hard-line right-wing extremists.
Over the weekend, after seeing Texas Republican leaders issue a statement claiming Texas state law supersedes Obergefell — the same legislators who got the Supreme Court to allow Texas to be exempt from Roe v. Wade — Canon announced he’d changed his mind. What anti-LGBTQ extremists are trying to do is send marriage to the states, so that one state could ban it — or not recognize it — even as other states allow it. Chaos would ensue, of course, but these people care little about that.
Canon tweeted out a thread explaining his change after seeing the Texas statement, and it was laudable for him to admit he’d been wrong.
Canon noted the the Supreme Court’s willingness to allow the Texas anti-abortion law to stand “sent a clear signal to red-state legislatures: 'do whatever you want, the courts won't stop you.' TX GOP heard that message loud and clear. Look for this in all other red states too, certainly by next session if not before.”
I’d discussed just a few weeks ago how the architect of the Texas anti-abortion law, former Texas Solicitor General Jonathan Mitchell, filed an amicus brief in the case the Supreme Court is hearing in December, a challenge to Mississippi’s anti-abortion law, which many believe will have the religious extremist court majority overturning Roe. In that brief Mitchell lashes out at the “court-invented rights to homosexual behavior and same-sex marriage” and urges the court to overturn both Obergefell and Lawrence v. Texas, the 2003 ruling which threw out sodomy in the states. He wrote:
These “rights,” like the right to abortion from Roe, are judicial concoctions…
…This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.
The point in my piece was that, whether the court would do anything like this right now or not, the larger issue here is that conservatives feel emboldened, drunk on power, calling for the stripping of rights and believing they have a court that will do their bidding in time. They aren’t misreading that, and they certainly have a slew of lower court Trump-appointed judges guiding them.
I’d warned about this in 2015 upon the publication of my book It’s Not Over, well before Trump, urging people to guard against “victory blindness.” It was easy to see how tenuous things were, with Justice Anthony Kennedy as the only force providing balance on this issue. I’ve written over and over since then about how conservatives, emboldened by Trump’s Supreme Court justice picks, were planning to chip away at marriage equality, as they have done with abortion rights.
Mark Joseph Stern at Slate has been among the few legal experts reporting on this serious threat — certainly each time Trump put a conservative justice on the high court but also as Trump packed the lower courts with ideologues and partisans.
And Elie Mystal at the Nation has been sounding the alarm on how the court is a political arm of the Republican Party. It appeared that a lot of LGBTQ legal advocates believed in the law and the courts, and the soundness of court decisions, more than they saw how Trump and the GOP were radically transforming the courts.
I’m glad that at least one civil rights attorney who was in the thick of fighting for marriage equality, Dan Canon, has now admitted he was wrong to think marriage equality wouldn’t be threatened. Now we need to work hard to counter that threat.
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I often quote your book to stress that equality is not guaranteed. I have feared this with every new judge Trump appointed. It is sickening and breaks my heart. My 23 year old son and his friends have known equality as young people and then adults. They don't really know a time without it. It makes me so sad to tell them that they have to protest and be vocal to ensure this basic human right continues to be held for all people. It took so long to come and with this court and the right wing hate, it can easily disappear. My son will be fine here in CA, but I fear for people in TX and all across parts of the country that will ban marriage. Honestly its hard to even find the words for how upsetting, cruel and tragic this all is. Thank you for always shedding light on this issue and making people aware that it really isn't over.
I feel like we're moving from the Age of Aquarius to the Dark Ages. We've made progress since the 60's and now we're reversing civil rights for women, LGBT, immigrants, and other minorities. We need to fight and get people registered to vote. Our lives as Americans depend upon it.