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Yep, the GOP is ready to bring back sodomy bans
Clarence Thomas laid out the invitation in his Roe concurrence. The Texas GOP is taking him up on it, aiming to pulverize LGBTQ rights. Others will follow.
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Back in 2017, when I was editor-at-large at HuffPost, I wrote a piece headlined, Why Neil Gorsuch Likely Believes It's Perfectly Fine To Ban Gay Sex. That was shortly after Gorsuch was nominated to the Supreme Court by Donald Trump.
Some people thought I was crazy. Gorsuch, after all, was so cuddly and mild-mannered.
I was, however, looking at his record, his writings, his adherence to the judicial philosophy of “originalism,” and his adoration of the devout homophobe Antonin Scalia — who, using originalism, wrote a blistering dissent in Lawrence v. Texas in 2003, in which the Supreme Court threw out sodomy bans.
A few days after my piece was published, the Trump White House and Gorsuch’s GOP backers, selling the nomination as best they could, used The New York Times to launder Gorsuch’s background, telling us about Gorsuch’s wonderful gay friends, who adored him and believed he’d never harm them. My piece was quoted in the article, which, for all practical purposes, served as a rebuttal to what I wrote. Republicans can always count on the Times to provide a gossipy piece focused on what “friends say,” as the headline promised.
I wrote a follow-up several days later, headlined, The Only Way To Know What Neil Gorsuch Really Thinks About Gay Sex Is To Ask Him About It. But, of course, no Democratic senator did ask Gorsuch about sodomy bans during his confirmation hearings. I’m sure the idea seemed preposterous to them, after all. Bringing back bans on sodomy?Really?
Well, yes, really. That’s where we are right now, five years later. Clarence Thomas, in his concurring opinion last week as the Supreme Court majority overturned Roe v. Wade in the Dobbs v Jackson Women's Health decision, invited challenges to Lawrence, as well as Obergefell, the 2015 marriage equality ruling, saying the decisions need to be “reconsidered.” And the Texas Attorney general, Ken Paxton, has now stated he is ready, taking up the call to defend sodomy bans in Texas.
…Paxton said he would defend the state’s defunct sodomy law if the Supreme Court were to follow Thomas’s remarks and eventually revisits Lawrence…
When asked whether the Texas legislature would pass a similar sodomy law and if Paxton would defend it and bring it to the Supreme Court, the Republican attorney general, who is running for reelection in November, suggested he would be comfortable supporting a law outlawing intimate same-sex relationships.
“Yeah, look, my job is to defend state law, and I’ll continue to do that,” Paxton said to Vittert. “That is my job under the Constitution, and I’m certainly willing and able to do that.”
And let’s not forget that the Texas GOP just days before the SCOTUS ruling, at their convention, produced a platform that stated that “homosexuality is an abnormal lifestyle choice,” adding in a whole new attack on LGBTQ people in addition to opposition to marriage equality and the smears of transgender people. The Texas GOP were getting ready to do what the three liberal justices predicted in their dissenting opinion: Use the Dobbs decision to strip LGBTQ rights.
But before we get further into that remarkable dissenting opinion by Justices Sotomayor, Breyer and Kagan, let me point out that Gorsuch, just months after joining the Supreme Court, wrote a dissent, joined by Thomas and Samuel Alito, in which he invited states to challenge Obergefell — his gay friends be damned. As Harvard legal scholar Noah Feldman wrote on Bloomberg View at the time:
What this means for conservatives is that Gorsuch ― with two more votes on his side ― wants more states to refuse to apply Obergefell according to its simple logic. Instead, Gorsuch is inviting state courts, some of them elected in states where gay marriage remains unpopular, to put up barriers to marriage equality...
It’s true that Gorsuch would go on to write the majority opinion in 2020, in Bostock v. Clayton County, ruling that gay and transgender people are protected against employment discrimination under Title VII of the Civil Rights Act. I explain a bit more about the method behind his action, in a piece I wrote here a few weeks ago, following the leaked draft of Alito’s ruling on Roe (all about how it’s hard to find five justices currently on the court who would uphold Obergefell).
While the employment ruling was certainly a win in the here and now for LGBTQ people, Gorsuch was very clear that he was leaving it wide open to religious exemptions in the future.
And it doesn’t change the fact that he invited challenges to Obergefell. And that he joined the majority in overturning Roe, upon which Obergefell rested. And that Thomas, inviting challenges to Obergefell and Lawrence, confirmed the opinion of the dissenting justices, who wrote that Obergefell and other rulings are now in danger.
Writing jointly, the three liberal justice note Thomas is saying the quiet part out loud — being honest while the rest of the court is lying, attempting to cover up the ramifications of its actions:
The majority (or most of it) is eager to tell us today that nothing it does “cast[s] doubt on precedents that do not concern abortion.'‘ But how could that be? The lone rationale for what the majority does today is that abortion “is not deeply rooted in history;” Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with.
The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].”
So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
In the dissent, Sotomayor, Breyer and Kagan, skewer the majority opinion and point out exactly where it is going:
The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma not to be sterilized without consent.
So if the majority is right in its legal analysis, all those decisions were wrong. … And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even “undermine”—any number of other constitutional rights.
In Michigan this year, every GOP nominee running in the primary race for attorney general believes contraception should be sent back to the states. So clearly there’s movement within the GOP on these issues the dissenting opinion references.
But the one that Christian nationalists are homing in on with brute force is LGBTQ rights. They’ve pushed horrific anti-trans laws all across the country. Florida’s horrendous “Don’t Say Gay” law is being exported to many other states. Obergefell and Lawrence are now in their cross hairs.
As I noted in that piece a few weeks ago, we already had a time when same-sex marriage was banned after many gay and lesbian couples had married: When the ballot initiative Proposition 8 passed in California in 2008, overturning the California Supreme Court’s decision legalizing same-sex marriage in that state.
The state court then ruled that Prop 8’s passage prevented any future same-sex marriages, but couldn’t be enforced retroactively, so those already gay-married stayed married. It’s not difficult to believe the Supreme Court would go the same route, banning marriage equality for the future, thus claiming it was minimizing damage to those already married. So those arguing that the court won’t overturn marriage equality because of the great disruption it would cause in society aren’t viewing this broadly, or are looking for reasons not to believe it would happen.
And the same goes for Lawrence. Back when that ruling came down in 2003 banning sodomy laws targeting gay people, Clarence Thomas said in his dissent that the Texas sodomy ban was “uncommonly silly” and claimed that if he were a member of the Texas legislature he would vote to repeal it, adding, “Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement.”
Nonetheless, Thomas dissented from the majority because he could find "no general right of privacy" in the Constitution.
Can’t you see the justices arguing that in a future majority opinion overturning Lawrence? That, yeah, this isn’t something we really support, but a state has the right because there is no privacy afforded individuals in the Constitution? That we hope states will use better common sense, but that it’s not up to us to make the decision?
I think they’d write that or something to the effect in a heartbeat. That’s why I thought in 2017 Gorsuch could one day support banning gay sex, even though some people thought it was a crazy notion. And it’s why I believe we should all be worried about it right now.