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