Historic Supreme Court nominee comes at a time when some GOP members are trying to reverse LGBTQ rights

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It is a curious time for equality in the United States.

For one thing, Ketanji Brown Jackson is expected to be confirmed as the first black female justice on the United States Supreme Court this week. On the other hand, there are legitimate concerns about what the future may hold for members of certain marginalized groups, including LGBTQ Americans.

Even if the court does not overturn the landmark 2015 marriage equality case, such an outcome seems more possible now than it has at any time after the Obergefell.

Crucially, LGBTQ equality is being challenged in other ways as well.

Consider the complex role that religion can play in curtailing LGBTQ rights. Last year, in Fulton vs. City of Philadelphia, the Supreme Court ruled that Philadelphia could not refuse to contract with Catholic Social Services, an adoption agency that discriminates against same-sex couples. On narrow grounds, the court found that the city’s refusal to work with the agency would violate the free exercise of religion.
Additionally, GOP-led state legislatures across the country are passing bills aimed at discriminating against LGBTQ Americans, especially transgender children. Last week, Republican Gov. Doug Ducey of Arizona signed into law two bills targeting transgender youth. So far this year, GOP governors in Oklahoma, Iowa and South Dakota have approved similar bills.

In other words, it’s very likely that the GOP, along with the conservative legal movement, will continue to chip away at LGBTQ rights.

Here is a more in-depth look at the LGBTQ rights landscape:

What is the agenda?

Despite some Republican lawmakers’ criticism of Obergefell – “Are the judges interpreting the Constitution or just deciding a right when they get five votes?” Republican Sen. John Kennedy of Louisiana complained during Jackson’s confirmation hearings – it doesn’t seem likely that marriage equality will be overturned. Much more likely: the Supreme Court, which has seen a shift to the right, will create increasingly broad religious allowances.

“There are about a million legally married same-sex couples, many of whom are raising children within their marriages,” said Yale Law School professor William Eskridge, whose work focuses on sexuality, among other things. and gender in law. CNN. “Are you going to cancel all of this? I would be surprised if most conservative religious groups supported this.”

Eskridge said the Conservatives’ real goal is likely a bit more complicated.

“What’s happening is an attempt to take as many religious allowances out of Obergefell as possible,” Eskridge said. “In Fulton, the Supreme Court struck down the part of Obergefell that said same-sex marriages should be treated the same by the state – not necessarily by private persons – as heterosexual marriages. The court said, you have to allow this government delegate 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 through the Religious Freedom Restoration Act, the Free Exercise Clause and the Free Speech Clause, Eskridge said.

Kevin Tobia, a professor at Georgetown University Law Center, echoed some of Eskridge’s sentiments and also pointed out 303 Creative LLC v. Elenisa case pending before the Supreme Court, as an example of the type of dispute that challenges LGBTQ equality by appealing to free speech.

The case involves a Colorado-based wedding announcement website designer who is 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 that would have been prohibited by state anti-discrimination law.

“The question is going to be constitutional: Does Colorado’s anti-discrimination law violate the First Amendment’s free speech clause,” Tobia told CNN. “We’re already seeing cases like this, but I imagine we’ll see more along these lines, cases seeking allowances based on religion or speech to discriminate against LGBTQ Americans.”

How is the movement against American LGBTQ developing?

Marriage equality is far from the only axis of tension.

Another issue is the ongoing movement to enact anti-transgender sports bans. Last week, Arizona and Oklahoma joined several other Republican-controlled states that instituted bans preventing transgender women and girls in certain schools from competing on gender-conforming sports teams.

LGBTQ rights advocates were quick to condemn some Republican lawmakers’ insistence on not leaving transgender children alone.

“Ultimately, SB 2 (Oklahoma’s bill) violates the United States Constitution and federal civil rights law, puts Oklahoma at risk of losing federal funding, and harms transgender youth. , all to solve a problem that does not exist,” Tamya Cox-Touré, executive director of the American Civil Liberties Union of Oklahoma, said in a statement last week.
Yet another issue for many is the passing of anti-gay agenda laws by some GOP lawmakers. These are laws that, as University of Utah law professor Clifford Rosky has said, 2017 Columbia Law Review article in which he introduces the labelnot only limit discussion of sexual identity in public schools, but “expose LGBT students to stigma and bullying.”
News from Florida and Texas illustrate a broader conservative trend
Last week, Florida Governor Ron DeSantis, a Republican, approved what LGBTQ rights advocates have dubbed the state’s “Don’t Say Gay” law, which will ban certain instructions about sexual orientation and gender identity in the classroom when it comes into force in July. Copycat legislation has popped up in other Republican-dominated states.

By saying that the law is necessary to protect children, DeSantis and his team are tapping into a very long and vicious history of weaponizing the rhetoric of children’s thinking against LGBTQ Americans and portraying them as safety risks to be controlled.

“I can’t believe it’s 2022, and we’re still seeing LGBTQ families being branded predatory,” writer and activist Charlotte Clymer told CNN’s Reliable Sources earlier this week. “That seems to be the message to millions of LGBTQ families.”

She added: “It’s heartbreaking to watch because these are families who are already struggling day to day in the public square and now have their own government chasing them just for existing.”

None of the above means that there haven’t been significant gains on the LGBTQ rights front in recent years. In the 2020s Bostock v. County of Claytonthe Supreme Court interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination in employment based on sexual orientation or gender identity.

The ruling was a huge step forward for gay and transgender Americans, and the victory was made all the more notable because Judge Neil Gorsuch, a conservative and textualist, spoke the majority opinion.

And yet, it is worth asking: what will become of Bostock?

“Bostock is no longer a 6-3 majority,” explained Eskridge, the Yale law professor. “As dissenting Judge Samuel Alito feared, Bostock’s logic would apply to dozens of other federal statutes – including Title IX – that prohibit discrimination on the basis of sex. After Bostock, why shouldn’t they nor be read to also protect sexuality and gender?minorities?”

He continued: “So what’s going to become of Bostock in his reasoning? It’s big – big, big, big – and remains to be seen. Because it’s up to Judge John Roberts and Gorsuch, because Roberts is now the fifth vote instead of the sixth vote.”

In other words, perhaps the only thing certain about the current LGBTQ rights landscape is the fact that some parts of it are not as certain as they might first appear.

“There’s a particular story you could tell that relates to recent linear progress, say from 2003, when the Supreme Court struck down anti-sodomy lawssee you today,” said Tobia, a law professor at Georgetown. “But we are still a long way from adequately protecting the rights of all LGBTQ Americans, and some recent events suggest new threats to parts of the landscape that once felt safe.
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