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