With the nomination of Amy Coney Barrett to the Supreme Court, the LGBTQ community is about to move from an era of expanded rights to one of expanded restrictions on those rights.
The judiciary was often willing to push the boundaries at a time when public support was far less accepting than it is today. It’s fair to say that the courts often preceded public opinion in accepting the rights of LGBTQ citizens.
For decades, the courts were the vehicle for recognizing and protecting the rights of LGBTQ people. Thanks to the hard work of groups like Lambda Legal, the National Center for Lesbian Rights, GLBTQ Legal Advocates and Defenders, the ACLU and others, the courts came to see discrimination against LGBTQ people was wrong.
The clearest example of that was marriage equality. Federal courts were willing to strike down bans on same-sex marriages at a time when a majority of the country was clearly opposed to the idea. The Supreme Court’s first ruling on marriage equality was intentionally narrow out of a concern about getting too far ahead of public opinion. (Ruth Bader Ginsburg cited that issue as the reason why abortion rights also remain contentious.)
Today, two-thirds of Americans are perfectly fine with marriage equality. But beyond that, the battle to erode the other rights LGBTQ people need lies ahead.
Barrett and the conservative justices already on the Court see religious people — and more specifically, conservative Christians — as the new marginalized Americans. They believe that conservative Christians are having their rights violated as society turns increasingly secular.
Christians are the group that the Court seeks to protect now. That will come at the expense of LGBTQ rights.
The conservative wing of the Court pretty clearly believes that making people follow the law against their conscience is unconstitutional, at least when it comes to non-discrimination laws. Businesses should be able to pick and choose what laws they follow, if those laws go against a particular set of religious tenets.
The Court already established this precedent in the case of Hobby Lobby, a craft store chain owned by religious conservatives. They objected to having to provide contraceptive care to employees under Obamacare, and the Supreme Court agreed.
In what will likely be the last big victory for LGBTQ rights for a while, the Supreme Court unexpectedly ruled that federal nondiscrimination protections extended to LGBTQ people. However, the majority ruling, by conservative Neil Gorsuch, also signaled that the Court may allow for some large exceptions.
From one perspective, the Court’s willingness to carve out major exceptions to laws for a small group of Americans is a major step backwards. But, if you’re of the point of view that this small group is now being singled out for discrimination, it makes perfect sense.
The problem is that it’s not just individuals being asked to adhere to the law. It’s the businesses that they run — as bakers, florists and landlords. Granting those businesses an exception, based on their owner’s personal faith, reveals a far different idea of what American society should look like for conservatives.
It’s not about protecting groups from discrimination. It’s about making the country more religious.
Attorney General Bill Barr has been explicit about this belief. He has said that liberalism is in direct conflict with faith. He’s a culture warrior who wants to return the country to something more like the Eisenhower era.
Like Barr, Barrett is a Catholic — but of a very particular kind. She’s a conservative Catholic, and would join Chief Justice John Roberts and Justices Brett Kavanaugh, Samuel Alito and Clarence Thomas as devout Conservative Catholics on the bench. Justice Gorsuch was raised Catholic, and Justice Sonia Sotomayer is also Catholic on the liberal side.
But Barr and Barrett stand out in that they represent an outlook not shared by the majority of Catholics. They are staunchly against even the basic recognition of marriage equality, even when Catholics were actually more likely to support marriage equality. At least one poll found Catholics more likely to require homophobic wedding vendors to serve same-sex couples.
Not that the feelings of the majority will sway a conservative Court. They may think that the majority’s opinion can be shifted – after all, it did in favor of LGBTQ rights. Why shouldn’t it swing the other way? That’s the battle ahead.