Historic Supreme Court confirmation comes at a time when some in the GOP are trying to reverse LGBTQ rights

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

For one thing, Ketanji Brown Jackson was confirmed Thursday as the first black female justice on the US Supreme Court. On the other hand, there are legitimate concerns about what the future might hold for members of certain marginalized groups, including LGBTQ Americans.

Even if the court doesn’t overturn the landmark 2015 marriage equality case, that outcome feels more possible now than at any time post-Obergefell.

Crucially, LGBTQ equality is also being challenged in other ways.

Consider the complex role that religion can play in curtailing LGBTQ rights. Last year, in Fulton v. City of Philadelphia Supreme Court held that Philadelphia cannot refuse to contract with Catholic Social Services, an adoption agency that discriminates against same-sex couples. On limited grounds, the court held 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 designed to discriminate against LGBTQ Americans, especially transgender children. Last week, Republican Governor Doug Ducey of Arizona signed into law two bills targeting transgender youth. So far this year, the Republican governors of Oklahoma, Iowa and South Dakota have passed similar bills.

In other words, the Republican Party, in company with the legal conservative movement, is very likely to continue to undermine LGBTQ rights.

Here’s a closer look at the LGBTQ rights landscape:

What is the agenda?

Despite some Republican lawmakers’ criticism of Obergefell: “Are the justices interpreting the Constitution, or are they 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of Louisiana complained during Jackson’s confirmation hearings: It doesn’t seem likely that same-sex marriage will be repealed. Much more likely: The Supreme Court, which has been undergoing a swing to the right, will create ever-wider religious concessions.

“There are as many as a million or so legally married same-sex couples, many of them raising children within their marriages,” said William Eskridge, a professor at Yale Law School whose work focuses, among other things, on the sexuality and gender in law. CNN. “Are you going to undo all that? I’d be surprised if most conservative religious groups supported it.”

Eskridge said the real goal of the Conservatives is probably a bit more complicated.

“What’s going on is an attempt to get as many religious concessions as possible from Obergefell,” Eskridge said. “In Fulton, the Supreme Court struck down the part of Obergefell that said same-sex marriages should be treated the same way by the state, not necessarily by private persons, as different-sex 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 the Georgetown University Law Center, echoed some of Eskridge’s sentiments, also noting 303 Creative LLC v. Elenis, a case pending in the Supreme Court, as an example of the type of dispute that challenges LGBTQ equality through appeals to free speech.

The case involves a Colorado-based wedding listing website designer who is a practicing Christian and refuses to create websites for same-sex couples. He wanted to post a note on his website essentially explaining his discriminatory choice, but the state’s anti-discrimination law would have prohibited it.

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

How is the movement against LGBTQ Americans growing?

Same-sex marriage is far from the only axis of tension.

Another problem is the ongoing movement to enact anti-transgender sports bans. Last week, Arizona and Oklahoma joined several other Republican-controlled states that have put in place bans that prevent transgender women and girls in certain schools from competing on gender-appropriate sports teams.

LGBTQ rights advocates have been quick to condemn the insistence of some Republican lawmakers on not leaving transgender children alone.

“Ultimately, SB 2 (the Oklahoma 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 resolve a problem that doesn’t exist,” Tamya Cox-Touré, the executive director of the American Civil Liberties Union of Oklahoma, said in a statement last week.
Yet another problem for many is the adoption of anti-gay curricular laws by some Republican lawmakers. These are laws that, as University of Utah law professor Clifford Rosky said in the 2017 Columbia Law Review article introducing the label, not only limit discussion of sexual identity in public schools, instead, they “expose LGBT students to stigmatization and harassment.” “
News from Florida and Texas exemplify a larger conservative trend
Last week, Florida Governor Ron DeSantis, a Republican, signed into law what LGBTQ rights advocates called the state’s “Don’t Say Gay” law, which will ban certain instruction on sexual orientation and gender identity in the classroom when effective in July. Copycat legislation has sprung 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 framing the rhetoric of thinking of children against LGBTQ Americans and presenting them as security risks that must be controlled.

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

He added: “It is heartbreaking to see because these are families that already struggle to get ahead day by day in the public square and now have their own government persecuting them just for existing.”

None of the above suggests that there hasn’t been significant progress on the LGBTQ rights front in recent years. In Bostock v. Clayton County Act of 2020, the Supreme Court interpreted Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination on the basis of sexual orientation or gender identity.

The decision was a huge step forward for gay and transgender Americans, and the victory was all the more remarkable because Justice Neil Gorsuch, a conservative and textualist, expressed the majority opinion.

And yet, it is worth asking: What will happen to Bostock?

“Bostock is no longer a 6-3 majority,” explained Eskridge, a Yale law professor. “As Judge Samuel Alito’s dissent feared, Bostock’s logic would apply to dozens of other federal statutes, including Title IX, that prohibit discrimination on the basis of sex. minorities?”

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

Put another way, perhaps the only sure thing about the current landscape of LGBTQ rights is the fact that some parts of it aren’t as safe as they might first appear.

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

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