Supreme Dilemma: LGBT rights in question
By: Tara Martin
Tags: Supreme Court, LGBTQ, LGBT, Transgender

It was a day we knew would come, with President Trump forcing his third supreme court nominee on the court at the last minute, cementing his lasting legacy for a generation to come. The high court, at least on paper, sits at a 6–3 conservative majority. Issues like abortion and marriage equality come into question. Past rulings such as Roe v Wade could be brought back into discussion.

In 1958 the court decided One Inc v Olsen. Los Angeles Postal Authorities removed issues of One: The Homosexual Magazine arguing it was published obscenity. The magazine published articles, editorials, short stories and more. Ultimately the high court cited freedom of speech and ruled that materials marketed to a gay audience were not obscene. In 1972 the court ruled to dismiss Baker v Nelson, the first real marriage equality battle, for “want of a substantial federal question”, and essentially putting the issue back to state rights. Another blow came in 1996 When Justice Byron White authored an opinion in a 5–4 ruling that the 14th amendment’s promise of due process did not prevent states from criminalizing private consensual sex between 2 people of the same gender.

1996 became a turning point within the LGBT community as the court issued a 6–3 ruling in Romer v Evans that laws could not single out the LGBT community for discrimination and taking away rights. in 2003 Lawrence v Texas essentially abolished sodomy laws. Of Course US v Windsor and Obergefell v Hodges brought us marriage quality. On June fifteenth, 2020 Justice Neil Gorsuch authored the majority opinion on Bostock v Clayton County that Title 7 protected all LGBT including gender identity, preventing employers from terminating based upon LGBT status. So why is the history lesson relevant to this article? Read on.

Losing Ruth Bader Ginsberg was a major blow to our cause. The appointment of Amy Coney Barrett certainly doesn’t help matters. While Chief Justice John Roberts has proven to lean more moderate and progressive, you can almost count on Justices Kavanaugh, Thomas and Alito to vote hard to the political right. Thomas and Alito in fact vote together on 87% of decided cases, one of the highest percentages in recent memory. Justices Thomas and Alito recently made a statement that the Obergefell decision is something “the court needs to fix.” Neil Gorsuch seems to be following Robert’s lead despite being a Trump appointee. This leaves us one wild card, Justice Coney Barrett. Unfortunately we don’t have much of a Barrett voting record to base an assumption upon, But Lambda Legal did sign a letter along with 26 other LGBTQ organizations opposing her 2017 nomination to the 7th circuit court of appeals. The confirmation hearings made her a favorite among religious conservatives. In 1998 She co-wrote an article stating that catholic judges should recuse themselves from certain death penalty cases due to religious and moral objections. On a brighter note, some notable quotes include “My personal church affiliation or my religious beliefs would not bear on the discharge of my duties as a judge” and that it is “never appropriate for a judge to impose that judges personal convictions.” While she does oppose marriage equality and abortion, she has also stated that she would hold previous cases as “binding precedence”, hence making the history lesson so important.

Just a few weeks ago the high court, including Coney Barrett, began consideration of arguments in Fulton v City of Philadelphia. Catholic social services wishes to deny same sex adoptive parents based upon religious objection, setting the stage for the next showdown, an organization’s right to discriminate based upon religious belief. This hypocritical ideal, if upheld, could begin chipping away at every past victory we have won so far. Should she follow past precedent then this could look more like a 4–4 vote with the more moderate Roberts casting a more moderate and decisive vote. Should she instead decide to legislate her religious views from the bench, Every fight we have won could be in danger. A decision is expected by this coming June. This is 2020 people, Equality on any level shouldn’t even be a question anymore.