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LGBTQ+ rights are at stake in the Supreme Court

With cases that concern the government’s right to discriminate against LGBTQ foster parents and our right to affordable health care access set to go before the Supreme Court this year, we cannot afford to confirm someone for a lifetime appointment who is intent on setting back our civil rights.

U.S. Supreme Court building
The U.S. Supreme Court building in Washington, D.C.
REUTERS/Leah Millis

To see what’s at stake with Amy Coney Barrett’s potential confirmation to the Supreme Court, look no further than this week’s decision where the court declined to review a legal issue in the lawsuit against Kim Davis. You may remember Davis as the county clerk from Kentucky who refused to issue marriage licenses to LGBTQ couples based on her religious beliefs.

This week, the Supreme Court started its new term — the first time it has convened since Justice Ruth Bader Ginsburg’s death. Kim Davis, who is being sued by gay couples for refusing to sign their marriage licenses, asked the Supreme Court to review a lower court’s decision denying her qualified immunity in that lawsuit. The Supreme Court declined to hear the issue. While Kim Davis might not get her day at the Supreme Court, religious objections to LGBTQ rights just might.

Megan Peterson
Megan Peterson
Justice Clarence Thomas and Justice Samuel Alito agreed with the court’s decision not to hear the case, but nevertheless issued a written statement challenging the validity of Obergefell v. Hodges, the Supreme Court decision that made marriage equality the law of the land. The Justices state that Obergefell was incorrectly decided because the court read the right to same sex marriage into the 14th amendment of the Constitution when, in their opinion, that right does not exist. The justices were not concerned that a government official used her power to deprive gay couples of their constitutional right to marriage. Instead, in their statement, Justices Thomas and Alito expressed concern that Davis might be viewed by some as a bigot for this abuse of power, a characterization they believe to be unfair.

This is the judicial philosophy we can expect to dominate the court if  Barrett is confirmed. She previously clerked for Justice Antonin Scalia, who dissented in Obergefell v. Hodges, stating that when the 14th Amendment was ratified in 1868, the law defined marriage as “one man and one woman.” Even though the 14th Amendment guarantees all people equal protection of the laws, it doesn’t specifically discuss a definition of marriage, so the promise of equal protection does not apply to LGBTQ+ people or marriage. In other words, he believed that the constitutional promise of equal protection for all does not guarantee any civil rights that were not available or expressly contemplated in the 1800s.

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Scalia was an originalist, and so is Barrett — someone who applies and interprets the Constitution according to its original meaning. Originalists believe that Roe v. Wade, the case where the Supreme Court first ruled that access to abortion is protected by the Constitution, was wrongly decided. Despite Roe being the law of the land, Justice Scalia regularly ruled, or joined in rulings, stating that reproductive rights are not protected by the Constitution because the Constitution does not explicitly mention abortion or other reproductive rights, and the government has historically controlled women’s rights to decide if and when to grow their families.

This is the legacy that Barrett would pursue on the Supreme Court. She restated at her nomination event just last week regarding Justice Scalia’s judicial philosophy, “his judicial philosophy is mine too.” With cases that concern the government’s right to discriminate against LGBTQ foster parents and our right to affordable health care access set to go before the Supreme Court this year, we cannot afford to confirm someone for a lifetime appointment who is intent on setting back our civil rights. As Justice Ginsburg said, “a prime part of the history of our Constitution is the story of the extension of Constitutional rights and protections to people once ignored or excluded.” We must fight to continue her legacy.

Megan Peterson is the executive director of Gender Justice.

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