In the next five years, all of that is probably going away, and there won’t be a path to reclaim that progress for at least a generation, if not two or three.
Late last month, something happened that escaped the notice of most of the progressive press. The conservative plan to end the LGBTQ rights movement as we know it snapped into clear focus. It’s not a short term plan, but one that will take place inexorably over the next five to ten years. The scary part is that it is not just feasible, but also highly likely to succeed, and there’s very little the movement can do to prevent its own demise.
Their long term strategy for the Supreme Court is to do two things. First is to interpret Obergefell v. Hodges as narrowly as possible, such that the decision only guarantees the right to get your name on a license and a death certificate. The second is to lay the groundwork for the Religious Freedom Restoration Act of 1993 (RFRA) to nullify almost all legislation, case law, policies, and regulations protecting LGBTQ people. Once this is accomplished, the protections for transgender people under the 1964 Civil Rights Act will almost inevitably fall, along with protections for women and other minorities.
To achieve both, all they have to do is keep planting the seeds in dissents to court opinions, and wait for Kennedy and/or Ginsburg to retire. Kennedy is already dropping big hints that he will retire after the next session of the Supreme Court. Once Kennedy retires, he is almost certain to be replaced by someone with a legal philosophy nearly identical to Justice Gorsuch, given The Heritage Foundation and The Federalist Society are the source of the list the Trump Administration is using to pick Supreme Court justices.
So what does the legal path to the LGBTQ civil rights armageddon look like? Here’s what’s probably in store for us.
The Gorsuch Era Begins
On June 26th, the Supreme Court issued a per curiam decision in the case of Pavan v. Smith, in which the state of Arkansas was argued that two sets of married lesbian parents could not be on the birth certificate of their children. In both cases, the children were conceived by anonymous sperm donations. A heterosexual married couple who conceived in the same way would legally be allowed to have both their names on the birth certificates, and thus differential treatment was clearly happening.
The Supreme Court of reversed and remanded the Arkansas state Supreme Court ruling, finding that, “Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.” Gorsuch, Alito, and Thomas dissented, arguing that Obergefell isn’t settled law, and only applies to the issuance of marriage certificates, and death certificates. While Justice Roberts did not join the dissent, it is unknown if he supported the decision either (since individual justices do not have to sign onto a per curiam decision).
What this tells us is that we have at least 3, if not 4, Supreme Court Justices ready to roll back marriage equality by allowing states to reduce the legal rights of same sex partners to a relatively worthless piece of paper that does not have to be honored for any legal purpose except death certificates. This exact same argument was successfully also used on June 29th in the case of Pidgeon v. Turner.
In this case, a conservative pastor in Houston argued that since Texas state law still forbids recognition of same sex marriage (it was never repealed, only overturned), it was illegal to for city government to offer city employees in same sex marriages the same benefits as heterosexual employees. The Texas Supreme Court instead accepted, 9 to 0, the argument that since Obergefell didn’t say anything specifically about employee benefits.
This tells us that we can expect Obergefell to be continually challenged until eventually they get one or two more votes at SCOTUS, whereupon they will issue an opinion that states can interpret Obergefell narrowly. If Chief Justice Roberts balks at such a blatant attack on stare decisis, all conservatives have to do is wait for Breyer or Ginsburg to also step down or die before the end of the first four years Trump Administration. Given Justice Ginsburg is 84 years old, and Breyer is 78, the odds that at least one of them leaves the bench before the end of 2020 is high.
Even more dangerous than this attempt to tear down Obergefell in the same piecemeal way they are tearing down Roe v. Wade, is how they are opening up the aperture to use RFRA as a legal justification to ignore civil rights laws. In previous years, the Supreme Court did not have the votes to take up cases (grant writ of certiorari, or cert) involving vendors refusing to serve LGBTQ people in states where LGBTQ people are legislatively protected from such discrimination. These cases usually involved a first amendment claim that the government was forcing them to express themselves in a way that violated their religious beliefs. For example, in 2014 the Supreme Court declined to hear the case of Elane Photography v. Willock, in which a New Mexico photographer for hire refused to take pictures at a same-sex wedding.
That all changed after the death of Justice Scalia, and the addition of Justice Gorsuch. This is why SCOTUS now took up the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which is basically the same as Elane Photography, but with cakes.
Civil rights experts are relatively confident that a first amendment claim can be beat back with the current composition of the court. Justices Alito, Thomas, and Gorsuch all seem primed to carve out a giant religious exemption to civil rights laws. Chief Justice Roberts hasn’t been supportive of overturning civil rights laws in the past (Elane) on the basis of first amendment claims in the past. Justice Kennedy voted with the majority in Obergefell, Hobby Lobby, and Little Sisters of the Poor. Even if Kennedy decides against Masterpiece Cake shop, however, you can be sure that a Trump appointee to the Supreme Court will treat the outcome as narrowly as possible (e.g. “Masterpiece Cakeshop was about freedom of speech. This new case involves a RFRA claim. Totally different.”)
Gorsuch has a history of interpreting RFRA extremely broadly, to the point that in Gorsuch’s opinion even signing a piece of paper opting out of the ACA’s provisions on birth control was an unconstitutional burden on the free exercise of religion. While Chief Justice Roberts hasn’t been supportive of first amendment claims, he did vote with the majority in Hobby Lobby and Little Sisters of the Poor Home for the Aged v. Burwell. He also dissented in Obergefell, and has expressed the view in that case that the LGBTQ lobby is so powerful that they do not need government protections from discrimination.
Some will argue “why does it matter if a bigot doesn’t want to serve LGBTQ people, you probably wouldn’t want their services anyway? You could end up with the caterer spitting in every third drink.” The problem with this argument is that a religious exemption to public accommodations means a religious exemption to every other facet of civil rights law. This includes housing, credit, employment, education, athletics, public services, etc.
Thus, the Masterpiece Cakeshop, or the RFRA test that will inevitably follow (see below), will probably form the basis for effectively nullifying much of the Civil Rights Act of 1964 and non-discrimination laws as they pertain to LGBTQ people. There is very little belief in the legal community that LGBTQ legal protections will survive a RFRA challenge in a post-Kennedy court. In fact, there is already impact litigation wending its way through the system right now designed.
In the 2016 case of Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., a district judge in the 6th Circuit decided that despite transgender people being protected by Title VII of the 1964 Civil Rights Act under the definition of sex discrimination (based on previous 6th Circuit case law), RFRA grants employers a right to discriminate on the basis of sex. This broad interpretation of RFRA by the district court relied on Hobby Lobby and Little Sisters.
An adverse SCOTUS ruling on this case would also effectively overturn the 7th Circuit’s ruling that Title VII also protects people based on sexual orientation. This would cut off the most promising avenue for protecting LGB people at a national level.
Going one step further, the conservative long term goal is to make it difficult or impossible for employers to enforce their own non-discrimination policies because they will be legally required to accommodate the religious beliefs of employees who wish to discriminate.
The odds of these outcomes coming to pass appear very high, because while it will take a number of steps to get there, at each step the adverse outcome appears nearly inevitable. The Trump Administration is likely to replace between one and three more justices during the first four years of his term. Given that the conservative organizations spoon feeding Trump nominees, like the Heritage Foundation and the Alliance Defending Freedom, know exactly what they’re doing and how to get there, replacements for Kennedy, Ginsburg, and Breyer will almost certainly be in ideological lockstep with Gorsuch, Alito, and Thomas.
Favorable rulings now offer little defense in the long run; these conservative justices have made it clear they will use extremely narrow and contorted readings of prior decisions to side-step stare decisis (the principle of honoring precedents). They will effectively get as many bites at the apple as they need to get the outcome they want. Afterwards, the precedents they set will last at least 20 years if Bowers v. Hardwick is any indication, and even longer if Trump gets a 2nd or 3rd nominee to the court. Remember, it took 75 years to overturn Plessy v. Ferguson.
The No-Win Scenario
There’s almost nothing that progressives can do to avoid this legal outcome. They cannot block Trump appointments to the Supreme Court in his first term, since Republicans in the Senate invoked the “nuclear option” with Gorsuch, it’s basically mathematically impossible for them to take back the Senate in 2018. There is no legal argument they can offer that will sway ideological stalwarts. Somehow, they have to convince Kennedy, Ginsburg, and Breyer all not to retire (or die) for the next four years. Given Kennedy’s recent announcements, this appears to be a wish in vain. Nor is there any pro-LGBTQ impact litigation likely to come up in the next SCOTUS term that would prevent these outcomes.
Democrats and LGBTQ organizations could also push to have RFRA amended to prevent these legal outcomes. However, it would take 60 votes in the Senate, and the idea that Republicans and social conservatives would forfeit their ultimate victory over the LGBTQ civil rights movement is laughable on its face.
Some legal analysts I spoke with stated in order for this to occur, social conservatives that will have to unlock the right legal doors in the right order, which they believe may not be easy to do. However, it is a near certainty that opponents know exactly what doors to open and in what order, and will do everything within their considerable power to maximize their odds of doing so within a judiciary friendly to their aims.
The result is that the LGBTQ movement and its goals, as we know it, are probably doomed. Marriage equality will be hollowed out, wherein LGBTQ people get a piece of paper that confers little if any legal rights in most states, and possibly at the federal level as long as conservatives are in power. Nearly every law and policy in the US protecting LGBTQ people will have an enormous exemption carved out for the people who wanted to discriminate against LGBTQ people in the first place.
At the federal level, it makes the equality act a moot point, since a religious exemption would be carved into it by SCOTUS decisions regardless of the language in the actual law. At a local level, schools will be forced to accommodate the religious beliefs of those who want to discriminate against LGBTQ youth. Enforcing non-discrimination policies within state and federal government will be next to impossible, for the same reasons.
Beyond that, legal protections for women based on the Civil Rights Act are likely to go away as well, so long as the employer claims a sincerely held religious belief. Further, it begs the question if religious beliefs allow individuals and corporations to ignore the Civil Rights Act as it applies to women, will that also overturn Newman v. Piggie Park Enterprises Inc., wherein the Supreme Court ruled that religious beliefs cannot be used to discriminate on the basis of race?
In short, we are likely on a course for the major policy, legislative, and legal priorities of every LGBTQ rights group in the US to become impossible in the next five years, and to give up most of the institutional progress of the last 30 years. There is almost nothing LGBTQ organizations can do to stop this, other than to try to keep Justices Kennedy, Ginsburg, and Breyer on the bench until 2021. Given their ages, and the rumors that Kennedy is considering leaving soon, this seems highly improbable.
It also begs the question; if LGBTQ civil rights organizations cannot achieve any meaningful legal or legislative goals for at least a generation, what is there left? Spend millions trying to convince the religious people that wish to discriminate not to? Because LGBTQ people all have intrinsic worth as human beings? This seems foolhardy, given what the election has revealed about the baser instincts of so much of this country.
The movement will change, or it will become irrelevant. However, if all legal and legislative remedies have been cut off for decades, direct action models, like ACT-UP, are likely to become some of the only tools left in the bin to achieve change.
Brynn Tannehill is a former Naval Aviator. She writes for various queer and feminist outlets, and lives in Virginia with her wife and their three children. Follow her @BrynnTannehill on Twitter.