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.

If you’ve been enjoying The Signorile Report, consider becoming a paid subscriber and supporting independent, ad-free opinion journalism. Thanks!

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.

Dan Canon @dancanon

In 2016, I grossly underestimated the effect of Trumpism on the lower courts and on red-state legislatures. Here, bathe in the shame of my 5-year-old hubris.

leoweekly.comTrump, LGBTQ rights — Your worst nightmares unlikely to come trueAs one of a team of civil rights lawyers who took the marriage equality case of Obergefell v. Hodges to the U.S. Supreme Court last year, I’m getting a lot of questions about what a Donald Trump presidency means for LGBTQ rights. People are worried. I get it. While it may seem like every principle ……

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.

The Lincoln Project @ProjectLincoln

Marriage equality is the law of the land — except in Texas, argues the state GOP. Legislative leaders in TX issued an opinion stating legalized gay marriage shouldn’t be permitted in the Lone Star State because they feel state law trumps the SCOTUS ruling in Obergefell v Hodges.

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.”

Dan Canon @dancanon

Hi, I was one of the lawyers who won Obergefell at SCOTUS and litigated the Kim Davis case in Kentucky. Back when Trump was elected, I said same-sex couples didn't have to be worried about their marriages. I was wrong. https://t.co/brU47bIkJN

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.

Mark Joseph Stern @mjs_DC

Marriage equality was on shaky ground before Justice Ginsburg's death. It is now all but certain to fall if Barrett is confirmed—unless Democrats expand the Supreme Court. slate.com/news-and-polit… @Slate

slate.comTwo Supreme Court Justices Just Put Marriage Equality on the Chopping BlockLGBTQ rights were already in jeopardy. If Amy Coney Barrett gets confirmed, they’re doomed.

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.

Thanks for reading and following The Signorile Report. Most of it is free to read, but if you’d like to support independent, ad-free opinion journalism (and connect in great discussion threads), please consider becoming a paid subscriber.