This Is How The LGBTQ Civil Rights Movement Stalls For A Generation
Last week two important events happened: the Texas Supreme Court ruled that married LGBTQ couples do not enjoy a right to any of the benefits traditionally associated with the institution of marriage; and U.S. Supreme Court Justice Anthony Kennedy – contrary to rumors – did not announce his retirement. One of these two events is cause for concern while the other may have caused premature celebration.
With the appointment of Justice Neil Gorsuch, the high court has returned to a near balance of four left-leaning, four right-leaning, and one center-right justice. That balance could still be in danger given stories coming out of Washington. And – if Kennedy does decide to retire anytime within the next three to four years – that delicate balance could shift the balance of power and stall the LGBTQ civil rights movement for a generation or more.
Mark Joseph Stern wrote an excellent article at Slate breaking down the possibilities. He argued:
At the very least, Kennedy is likely mulling retirement under Donald Trump and a Republican-controlled Senate. The consequences of Kennedy stepping down are difficult to overstate: Trump would likely replace him with a conservative hardliner like Justice Neil Gorsuch, creating a five-member bloc that could potentially demolish reproductive rights, voting rights, environmental protections, gun restrictions, and redistricting reform. No progressive victory enabled by Kennedy’s vote would be safe.
Marriage equality, and gay rights in general, will not be any different. Before Obergefell, some commentators (myself included) speculated that Chief Justice John Roberts might recognize the malice inherent in same-sex marriage bans and strike them down. We were wrong: Roberts’ Obergefell dissent was noxious and cruel, instructing same-sex couples not to “celebrate the Constitution” because it “had nothing to do with” the ruling. Roberts insisted that states may make same-sex partners legal strangers, prevent them from adopting their own children, and keep them off each other’s death certificates.
If Kennedy retires, Roberts will become the swing vote on marriage equality. It is difficult to imagine the chief justice supporting Obergefell in light of his previous dissent. An optimist might speculate that the chief justice, who cares deeply about the court’s institutional legitimacy, would uphold the decision as a matter of stare decisis. Roberts might reason that while he initially opposed Obergefell, he now has an obligation to follow it as a precedent of this court. Overturning the decision, after all, would throw same-sex couples into legal limbo. The ensuing chaos would not be a good look for the Roberts court.
But as the assault on Roe v. Wade has taught us, not all challenges to precedent must confront the original ruling head-on. Through sideways attacks, opponents can chip away at a decision until its foundation has been fatally undermined. Already, conservative states have launched two such attacks on Obergefell.
One of those two attacks we’ve already mentioned: the Texas ruling taking aim at Obergefell‘s “constellation of benefits.”
The other case we mentioned in our write-up of the Texas case: the Pavan v. Smith decision. That case involved an Arkansas law that treated same-sex couples differently than opposite-sex couples in having both names on their children’s birth certificates if both parents were not the biological parent(s).
Arkansas law essentially argued that despite an existing state law allowing opposite-sex couples to place both parental names on a child’s birth certificate by virtue of their marriage – even if only one of the parents was actually a biological parent to the child – same-sex couples did not have the same right despite Obergefell’s language extending the full “constellation of benefits” associated with the legal institution of marriage.
Under the current court, Kennedy inevitably represented the needed swing vote ruling that law unconstitutional because of its disparate treatment of same-sex couples using Obergefell as pertinent legal precedent. (No one can be certain of this 100% as the decision was issued per curiam.)
Though Roberts issued no dissent, Gorsuch did and it was riddled with errors. Slate noted in their analysis of Gorsuch’s dissent:
In his dissent, Gorsuch made two counterarguments, neither of which is even remotely plausible.
First, he wrote that the court should have dismissed the appeal because “in this particular case and all others of its kind, the state agrees, the female spouse of the birth mother must be listed on birth certificates too.” What? That issue lay at the heart of this case—but Gorsuch has it exactly backward: Arkansas explicitly refused to list “the female spouse of the birth mother” on birth certificates. That’s how the case wound up at the Supreme Court in the first place.
I asked Shannon Minter, legal director of the National Center for Lesbian Rights—which represented the Arkansas plaintiffs—what he made of Gorsuch’s assertion.
“That’s just completely wrong,” he told me. “It is patently untrue. Arkansas refused to put the female spouse of a birth mother on the birth certificate. The Arkansas Supreme Court upheld the policy, and the state would not issue birth certificates that listed both same-sex parents.” Minter should know; he represented two couples who were denied the right to “legally accurate” birth certificates.
Second, Gorsuch wrote that the plaintiffs’ challenge was incorrect: He insisted they should have challenged the “artificial insemination statute,” not the state policy refusing to list same-sex parents on birth certificates. This reasoning makes no sense. The plaintiffs cited the artificial insemination statute only to prove that Arkansas already listed non-biological parents on birth certificates. They had no desire to overturn it; they merely used it as evidence that Arkansas was not extending a key marital benefit to same-sex couples. Did Gorsuch simply not understand this extremely basic aspect of the case?
“I think he’s deliberately trying to muddy the waters,” Minter told me. “The plaintiffs in this case brought their challenge in under a statute that very plainly provides that when a child is born to a married woman, her husband must be named on the child’s birth certificate. We went to court to challenge the gendered limitation of that statute, arguing that, under Obergefell, the law has to be applied equally to married same-sex couples. We had absolutely no reason to challenge the artificial insemination statute.”
That entire article is worth a read as it breaks down reasoning why Gorsuch would write such an obviously inaccurate dissent knowing it would be picked apart by legal experts.
Following up on that article, Stern wrote in his most recent article:
Was Gorsuch genuinely baffled by the case? Was he intentionally muddying the waters? Who knows? Either way, his broader willingness to play along with Arkansas’ game sent a clear signal to other conservative states: If you want to defy Obergefell, my conservative colleagues and I are OK with that.
That dissent made the Texas Supreme Court decision a few days later all the more chilling.
The Texas Supreme Court just ruled that married same-sex couples do not enjoy the right to the same government-related benefits married opposite-sex couples have access to. The decision comes mere days after the United States Supreme Court struck down an Arkansas law that treated same-sex couples differently in having both names on their children’s birth certificates.
Though the Texas Supreme Court contends the 2015 Obergefell decision has nothing to say about the legal benefits that naturally emerge from marriage, the truth is the federal precedent explicitly protects those rights. The high court reaffirmed as much this week in the aforementioned Pavan v. Smith decision.
Alone the Texas decision wouldn’t raise any red flags as conservative red states are known for issuing decisions they know the U.S. Supreme Court will eventually strike down. This decision was different, though. It came mere days after a nearly identical set of issues was decided by the high court, and in an environment where the newest sitting justice wrote an explicit dissent signalling he is willing to place culture war politics above constitutional jurisprudence.
So long as Kennedy remains on the court, LGBTQ people can expect similar decisions where the divided court cites Obergefell as case law in protecting the rights of LGBTQ individuals and couples. Should he retire, however, the legal landscape would dramatically change.
Kennedy is Key
Stern noted this explicitly saying:
It’s easy to imagine many other ways that governments can purport to comply with Obergefell while quietly killing it with exceptions. So long as Kennedy stays on the court, these attempts to undermine the decision will fail. In Obergefelland its predecessor, United States v. Windsor, Kennedy wrote that the government may not “degrade” or “demean” same-sex couples by imposing “a separate status” or “stigma” upon them. This sweeping language should protect gay Americans so long as its author sits on the bench.
But what happens if Kennedy is replaced by a Gorsuch-style conservative? At that point, Roberts would be free to rewrite Windsor and Obergefell however he wants. Roberts could remain faithful to the original text of both decisions. He could also reverse them. But the likeliest possibility is that Roberts first cuts them down to a single guarantee—the right for same-sex couples to receive a marriage license with no attendant privileges. In case after case, Roberts could vote to allow discrimination against same-sex couples but affirm their right to the license itself. He could, for instance, permit the denial of spousal benefits to same-sex couples, contending that so long as gay people can marry, their rights have not been abridged. One by one, he could pluck the stars out of Obergefell’s “constellation of benefits,” while insisting that he respected the decision’s bottom line. And then, once Obergefell has been mostly gutted, Roberts could drop this pretense and deliver the final death blow, asserting that the decision had already been lethally eroded. It’s a classic Roberts trick.
Though he s not likely to retire this year, Kennedy turns 81 this year and has at least discussed retirement with several trusted sources.
Newsweek noted on Monday that “Kennedy, who turns 81 in July, is expected to return to the bench following the summer recess. However, NPR reports that he has not yet hired any clerks for the next term and has let those desiring positions in his office know that he is considering retirement.”
Writing for ThinkProgress, Ian Millhiser explained what will happen in a court without Kennedy:
Kennedy authored nearly every single one of the Supreme Court’s major decisions advancing gay rights, including Lawrence v. Texas, which held that states may not criminalize consensual sex acts between adults, and Obergefell v. Hodges, the landmark marriage equality decision. With Kennedy gone, there is no longer a majority that agrees with the outcome in either case.
Similarly, in Christian Legal Society v. Martinez, Kennedy joined the Court’s liberals to hold that an anti-LGBTQ religious group does not have a special right to discriminate and still receive government subsidies. Although Martinez was primarily a free speech case, it concerns the same cultural battle as a more recent series of lawsuits claiming that anti-LGBTQ businesses can ignore anti-discrimination laws so long as they claim a religious justification for doing so — a battle the Court recently announced that it would wade into.
If Kennedy leaves, the Court is likely to rule that religion is a license to discriminate.
And yet, a president who lost by nearly 3 million votes could fill a second seat on the Supreme Court with a hardliner similar to Neil Gorsuch. If Kennedy retires, moreover, Trump’s second nominee is likely to be confirmed by a bloc of senators who, due to Senate malapportionment, represent less than half of the nation.
If that happens, we will have the most conservative Supreme Court since the early days of the Roosevelt administration. The Court will run roughshod over rights that millions of Americans take for granted. It will grow even more political. Women, people of color, gender and sexual minorities will wait each June to discover how the Court will push them deeper into the margins of society.
And liberals will increasingly come to think that the federal judiciary is exclusively a source of sorrow.
The last time a majority political faction decided that the judiciary had become so captured by their ideological opponents that they no longer had a stake in it, President Franklin Roosevelt threatened to pack the Court with 6 new justices in order to neutralize it.
Should Kennedy retire, the Court’s new majority risks a similar showdown if they use the power they owe to an accidental president to entrench a partisan agenda.
This is the worst case scenario progressives warned moderates and undecided voters about throughout last year’s election cycle. While a presidency only lasts 4 to 8 years, a Supreme Court appointment can affect the high court for a generation. And multiple appointments – as it appears Trump might be able to achieve – may stall the entire LGBTQ civil rights movement (as well as every other social justice movement from equality for persons of color to women’s reproductive rights) for the foreseeable future.