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The Supreme Court's campaign to destroy LGBTQ rights
Whether the court, in its zealous quest, will also harm civil rights for all other groups is an open question.
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The Respect for Marriage Act has now passed Congress and heads to President Joe Biden’s desk.
It’s an achievement, and will protect many same-sex marriages and interracial marriages, as I’ve written. But make no mistake: It was only necessary because the Supreme Court, in overturning Roe v. Wade in the Dobbs decision, sent a clear threat that the Obergefell marriage equality decision and many other decisions considered settled law could also be overturned.
Justice Clarence Thomas explicitly stated in his concurring opinion that Obergefell, as well as Lawrence v. Texas (which threw out sodomy bans in the states) and Griswold v. Connecticut, (which protects contraception for married couples from state bans) should be revisited.
And that brings us to the arguments heard by the Supreme Court this week, in which a Colorado web page designer wants the right to turn away same-sex couples creating sites for their wedding, even though her business is open to the public and her proposed action violates Colorado law protecting LGBTQ people and other groups against discrimination in public accommodations.
The conservative justices, from their questions, were clearly salivating at the idea of giving her a religious exemption to a state civil rights law, to allow her to be able to tell gay couples that a template she sells to straight couples cannot be purchased by them. I’m sure many of you have been following the coverage, which suggests the court’s conservtives are ready to rule in the web designers favor. The hearing was punctuated by some cocky banter by the emboldened conservative justices, including an ugly joke by Justice Samuel Alito about a Black kid in a KKK costume.
Nevermind that no same-sex couple has asked Lorie Smith or her company, 303 Creative, for a wedding site — nor that she hasn’t ever actually sold a wedding site to anyone. As legal analyst Mark Joseph Stern at Slate underscores, this case had no faces of victims — only a villain — as Smith filed suit preemptively, based only on hypotheticals. No court, and certainly not the Supreme Court, should even be taking up this issue until there is a case of alleged discrimination. But this is where we are, as the court’s zealots are in charge.
Smith was groomed by a radical Christian nationalist legal firm, the Alliance Defending Freedom, whose founder, Alan Sears, co-wrote a 2003 book, The Homosexual Agenda, which claimed that same-sex marriage would eventually lead to sanctioning marriages of “two men, one woman and a dog and a chimpanzee.” So much for the legal group being unbiased here.
As Stern explained:
The true origin story of 303 Creative is much less sympathetic than the lawyer-crafted narrative. Before this litigation, Lorie Smith appeared to be a normal website designer who advertised her services to all potential customers. In 2016, after ADF took her on as a client, she rebranded as a conservative Christian who channeled her faith in God through her work. Indeed, her revamped website included language seemingly finessed to transform her into a First Amendment test case, explaining that her “expressive content … communicate[s] ideas or messages.”
I have written article after article since Donald Trump’s election in 2016 about how, with him in office and appointing justices, the Supreme Court would harm LGBTQ rights, including marriage equality. Many in the media blew this off, and had even couched Trump as pro-gay during the 2016 campaign.
I covered it all based on Trump’s courting of the Christian right and his promises to them during the election, which, as president, he fulfilled one by one. And I wrote about it each time he nominated a Supreme Court justice whose background showed they were dangerous to queer rights, from Neal Gorsuch, to Bret Kavanaugh, to Amy Coney Barrett. In fact, you’ll see on the upper right of this site that one of the most read pieces on The Signorile Post, is “Amy Coney Barrett will destroy marriage equality.”
I’d hoped all of this would be wrong. But as time has gone on — and I’ve covered the various moves by the Trump-appointed justices who joined Clarence Thomas, Alito and John Roberts, beginning with Gorsuch — it’s proven to frighteningly true.
The question now seems to be: Will they dramatically harm similar civil rights protections for women as well as racial, religious and other minorities too?
The case heard this week presented the justices with a conundrum they’ve faced before, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, in which a Colorado baker had turned away a gay couple who wanted a wedding cake. And the same homophobic Christian nationalist legal group defended the baker.
The court punted on that one, ruling narrowly on a technicality, in a way that affected no other case. And it was clear that that was because the justices would have to craft a ruling that somehow made LGBTQ people the only group for which religious exemptions apply, or exemptions would have to be applied across the board, affecting other groups.
But that was a very different court. Swing-vote Anthony Kennedy was still on the court, as was Ruth Bader Ginsberg. It only takes four justices to take up a case, so it’s easy to see how it got there. But the court definitely wasn’t ready for a broad ruling.
Now, with Kavanaugh and Barrett solidifying the seven-seat extremist majority, the court is radicalized and ready. And Stern told me on my SiriusXM show that he believes from the justices comments during oral arguments that it’s likely the court will rule in a way that also would allow for exemptions to civil rights for other groups, since it would be very difficult to carve out a ruling that only applied to LGBTQ people. Other legal scholars — and clearly the liberal justices on the court as well — seem to agree.
This would be a devastating blow to civil rights law in this country, but this court has shown no compunction to hold back, as we saw with the overturning of Roe v. Wade.
Nor has the court shown it has limits. I had really hoped that my own warnings that they will destroy marriage equality were overblown. But with each case they take, the evidence seems to make it more of a real possibility.
That’s why the Respect for Marriage Act is so important. It ensures that if Obergefell is overturned, sending marriage equality back to the states, those in states with marriage equality will still have the federal benefits of marriage, since the Defense of Marriage Act will be stricken.
And more importantly it ensures via the full faith and credit clause of the Constitution that states that would ban marriage equality would have to honor out-of-state marriages. So couples from Texas could go to California and get married, and Texas would have to honor those marriages.
Of course, who’s to say the Supreme Court won’t then strip this protection from the full faith and credit clause at some point? These justices can really do anything they want. And nothing, it seems, will stop the court’s erosion of anti-discrimination laws. First it will be public accommodations, then employment, housing, other areas.
It doesn’t matter all that much that the court in 2017 actually ruled that gay and transgender people are protected federally under Title VII of the Civil Rights Act from employment discrimination, not if broad religious exemptions are put in place. And the same is true for racial and religious minorities. No one is safe.
We saw this erosion before Trump put three hard-right extremists on the court, in the case of Hobby Lobby, in which the court ruled that companies could claim a religious exemption and deny covering contraception for women in employee health care, as was mandated by the Affordable Care Act.
So now, with the Christian nationalist majority on the court, the speed, the breadth and the reach of religious exemptions will likely be enormous. This will weaken protections and rights for everyone, and give corporations and churches — Christian nationalists — much more power.
There isn’t a way to stop it without re-making the court. And, short of waiting it out for decades, that brings us back to expanding the court, no matter how long that might take.