June 1, 2022 Queer Forty.com
As we enter Pride month this year, we have to reevaluate the purpose of this celebration with our community’s rights on the line.
Pride Day 2015 was historic. On June 26, 2015 the U.S. Supreme Court released the ruling in the case of Obergefell v. Hodges. In a 5-4 decision, the SCOTUS held that the 14th Amendment to the Constitution required that all the states license marriages between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.
Thus 11 years after Massachusetts became the first state to legalize same-sex marriage, all states, plus the District of Columbia were now required to both recognize and sanction marriages of same-sex couples.
The Obergefell case, considered a landmark in civil rights law comparable to Brown v. Topeka Board of Education, changed the lives of millions of gay and lesbian couples in the U.S.
On that day in 2015, the Supreme Court was a friend to queer Americans. But now, as the seventh anniversary of that decision approaches during a fraught Pride 2022, is the High Court still a friend to LGBTQ people? Or has the conservative shift in the Court’s make up put that civil rights law at risk? Could gay marriage be overturned?
On May 2, a draft of a decision in a Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, was leaked to the Politico news site. That 98-page draft, authored by the most conservative member of the Court, Justice Samuel Alito, not only upheld the Mississippi law banning abortions after 15 weeks of pregnancy, it overturned the 1973 Roe v. Wade ruling that legalized abortion nationwide as a matter of personal privacy protected by the 14th Amendment.
Alito noted, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe…enflamed debate and deepened division.”
The draft reads: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey [the landmark 1992 Pennsylvania case of Planned Parenthood v. Casey] now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
In the draft, Justice Clarence Thomas, plus Trump appointees Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, had sided with Alito, making for a majority decision. The three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, were said to be working on dissents and Chief Justice John Roberts, an occasional swing voter, was as yet undecided, though his vote would not change the outcome in this instance.
Feminists and reproductive rights activists have long called abortion healthcare for people with uteruses, while evangelicals and other religious groups have deemed it murder. The conservative members of the Court are staunchly anti-abortion. Thomas and Alito, the most outspoken and most conservative members of the Court, have both said overturning Roe was a goal. Additionally, both are outspoken on their disapproval of Obergefell, which both voted against and in which both wrote dissents.
Sarah Warbelow, Legal Director for the Human Rights Campaign, said in a statement, “This leaked ruling is outrageous and it is dangerous for women and all LGBTQ+ people — including queer people, many non-binary people, and transgender men, who need access to reproductive health care. And we know that all of our rights are now on the line.”Warbelow added that while Obergefell v. Hodges was not under immediate threat, the SCOTUS opinion “encourages state lawmakers pandering to the base to test the limits of court recognized LGBTQ+ equality,” but said, “We will fight back.”
As Warbelow’s statement augurs, it didn’t take long for legal scholars and SCOTUS watchers to connect the dots from overturning Roe to overturning Obergefell v. Hodges, which legalized same-sex marriage in 2015 and even Lawrence v. Texas, the 2003 ruling that banned laws against consensual sex between same-sex adults. As SCOTUS scholar Mark Joseph Stern explained on Twitter, “The meat of Alito’s opinion is a lengthy repudiation of ‘unenumerated rights’ that are not laid out in the Constitution. The Supreme Court may only protect these rights, Alito says, if they are ‘deeply rooted’ in history. Abortion is not. Neither is same-sex marriage.”
Within hours President Biden himself had joined in that discussion, noting the right to marry would be at risk next. Speaking to a press gaggle outside the White House the morning after the leak, Biden said, “If this decision holds, it’s really quite a radical decision.”
Pivoting off the recent Don’t Say Gay law in Florida, Biden queried, “Does this mean that in Florida they’re going to pass a law saying that same-sex marriage is not permissible — it’s against the law in Florida? It’s a fundamental shift in American jurisprudence.”
Jonathan Mitchell, a former clerk to Justice Antonin Scalia, had raised this issue in an amicus brief in the Mississippi abortion case that is the pivot for Alito’s opinion. Mitchell, who is also former Solicitor General of Texas, argued that Roe v. Wade is unconstitutional and that cases underscoring LGBTQ rights are “as lawless as Roe” and as such must be overturned.
In October 2020, at the beginning of the new Supreme Court term, both Alito and Thomas railed against Obergefell, as the Court refused to hear a case brought by Kim Davis, a Kentucky clerk who in 2015 had declined to issue same-sex marriage licenses, citing her religious beliefs.
Writing for himself and Alito, Thomas said that the court’s decision “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.”
Thomas and Alito wrote, “Davis may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision.”
The justices said that Obergefell was being embraced as “a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix. Until then, Obergefell will continue to have ruinous consequences for religious liberty.”
“Ruinous consequences” sounds particularly dire, which was, clearly, the point. The tone and language from the two justices were disturbing then, but are far more concerning now in the wake of Alito’s leaked draft. Obergefell, like Roe, hinges on those same 14th Amendment protections, as does the legality of birth control.
Concomitant with this, in recent years the Court has already been more and more lenient with religious freedom laws and religious objections to LGBTQ civil rights, even in cases of clear discrimination. Last June, the SCOTUS ruled against gay parents in a foster care case, Fulton v. City of Philadelphia. The Court has also been lenient in several cases in which queer couples were denied wedding services, including the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a gay couple was denied a wedding cake and the Court ruled on religious freedom.
During the confirmation hearings for Brett Kavanaugh, then-Sen. Kamala Harris asked Kavanaugh whether he believed that Obergefell v. Hodges, was correctly decided. He declined to answer, but referenced statements in Masterpiece.
In a speech last year to the conservative Federalist Society, Alito took aim at Obergefell again, noting, “You can’t say that marriage is a union between one man and one woman. Until recently, that’s what the vast majority of Americans thought. Now, it’s considered bigotry.”
Alito said in his speech, “That this would happen after our decision in Obergefell should not have come as a surprise.”
Jim Obergefell, the plaintiff in the landmark ruling, is concerned about the status of that case. In an interview with CNN’s Bianna Golodryga on “At This Hour,” Obergefell said of the Alito draft, “This decision, and what Alito has to say about marriage equality, is a clear call to anyone who opposes marriage equality, who opposes LGBTQ+ equality, that they have a friend on the court. More than one friend. And that they should be happy or they should be willing to come after marriage equality.”
Obergefell pointed to the confirmation hearings of Kavanaugh, Gorsuch and Barrett, noting, “If you look back at the confirmation hearings for a minute, many of these justices for the highest court in the land, they all said that they considered Roe v. Wade, a woman’s right to abortion, settled law. And yet, here we are.”
He added, of Alito’s suggestion that he was referring solely to Roe and abortion rights, “So those assurances, unfortunately, they fall on deaf ears…It doesn’t make me feel comfortable. It doesn’t make me feel safe. In fact, it terrifies me.”
In an interview with Axios, Obergefell spoke about what would happen if Obergefell v. Hodges were overturned. He said, “We’d once again be in a world where the most significant relationship of a person’s life—and the protections, the dignity, the rights, everything that come comes with that relationship—can disappear just by crossing a border within our nation.”
This is a dark time in America. Some young men, radicalized by right-wing extremism and fueled by toxic masculinity, have taken to mass shootings as an answer to their personal grievances. Payton Grendon, the 18-year-old mass shooter in the Buffalo, New York racist hate crime massacre that killed 10 and wounded 13 mostly elderly Black people, wrote a long manifesto in which he targeted Black people, Jews and LGBTQ people.
In the Uvalde, Texas elementary school massacre, unsubstantiated claims that alleged shooter Salvador Ramos was transgender began circulating online. Those social media claims were even shared by a GOP member of Congress, Rep. Paul Gosar (R-AZ), who tweeted, in part, “It’s a transsexual leftist illegal alien named Salvatore Ramos.”
The day after the school massacre that killed 19 children and two teachers and wounded 14 other children and three other adults, Black conservative and Trump supporter Candace Owens added to the rumor. Owens wrote on Twitter, “What’s drives an 18 year old to murder innocent children? I don’t know. But judging by the photos of him cross-dressing, we can assume there were plenty of signs that he was mentally disturbed and abused by adults in his life.”
Photos of a young trans woman named Sam had been mislabeled with Ramos’s name, as she explained in an interview with NBC News. The misuse and misrepresentation of her image created concerns for her safety, Sam wrote on Reddit. “I just want to live without being attacked when I leave my house.”
The specter of the June 12, 2016 Pulse nightclub massacre, the second worst mass shooting in U.S. history, also casts its shadow over recent events. That shooting killed 49 LGBTQ people and wounded 53. The rationale of the shooter, Omar Mateen, was never adequately explained.
As we celebrate Pride 2022, we do know that LGBTQ people are not safe. The GOP–and now, perhaps, the very Court that granted us the freedom to marry seven Prides ago–has LGBTQ people and their rights in its sights, particularly as midterms move into high gear. As Obergefell said succinctly to Axios, “My job is to help people understand just how afraid they should be.”