There’s no denying it: efforts to protect LGBT+ persons through the federal courts suffered a substantial—perhaps devastating—setback when Justice Anthony M. Kennedy retired on June 27, 2018. The author of Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015), Kennedy had long played a key role in the U.S. Supreme Court’s invalidation of laws that discriminate against gay men and lesbians. His most recent decisions in that vein (Windsor and Obergefell) were written for a five-justice majority, with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito in dissent. Kennedy’s retirement augured the emergence of a solid conservative majority, now including Justices Neil Gorsuch and Brett Kavanaugh, whose members are very likely opposed to meaningful constitutional protection for LGBT+ persons as a class. As we assess the implications of that development, here are some key questions to consider.
Will the Court Accept Obergefell as Settled Law?
A defining feature of the recently concluded Supreme Court term was a startling assault on the law of stare decisis. The conservative majority overturned several precedents, indicated its eagerness to overturn several more, and challenged the importance of adhering to decisions that they think are wrong (which would reduce stare decisis to a gossamer shield). Although the majority opinions in Gamble v. United States (2019) and Kisor v. Wilkie (2019) broke from this trend, cases including Franchise Tax Board of California v. Hyatt (2019) and Knick v. Township of Scott (2019)—as well as the dissent in Gundy v. United States (2019)—signaled a revolution in the Court’s precedent about precedent. This is particularly true in the realm of constitutional law. Writing for a five-justice conservative majority in Franchise Tax Board, Thomas pointedly remarked that “stare decisis . . . is at its weakest when we interpret the Constitution.”
Not coincidently, while concurring in Gamble (which upheld the dual-sovereignty doctrine under the Double Jeopardy Clause), Thomas quoted from the chief’s dissent in Obergefell to explain when a decision is unworthy of precedential status. This brings into sharp focus a deeply unnerving question: Will the post-Kennedy Court accept Obergefell as settled law?
For Thomas, Alito, and Gorsuch, the answer appears to be no—as most clearly evidenced by their dissent from the Court’s per curiam summary reversal in Pavan v. Smith (2016). Pavan involved an exceedingly direct application of Obergefell to invalidate an Arkansas law that treated same-sex couples differently than opposite-sex couples with respect to the names that appear on a child’s birth certificate. Nonetheless, Gorsuch dissented, joined by Thomas and Alito. Although framed as a procedural complaint about the Court’s decision to issue a summary reversal, Gorsuch’s dissent was widely (and correctly) seen as a signal of his inclination to give Obergefell the narrowest conceivable interpretation. With Kennedy gone, Gorsuch, Thomas, and Alito might not extend Obergefell even that minimal kindness.
It is unclear whether the chief joined the Pavan majority; at the very least, he did not publicly dissent from the decision. The chief has generally displayed more respect for stare decisis than his conservative brethren, though inconsistently so and in ways that suggest concern for institutional legitimacy more than a coherent legal theory. When states decide to test Obergefell’s limits, the chief—who wrote an impassioned dissent in Obergefell and then read that dissent from the bench—may well hold the decision in the palm of his hands. That is, unless Kavanaugh displays a strong commitment to Obergefell, whether on the merits (which seems unlikely) or based on stare decisis (which seems increasingly doubtful following his votes this past year).
In the realm of reason, it is hard to imagine that the Court would actually overrule Obergefell; to say that the decision has engendered reliance interests would be like saying that the sun is hot. For all his snarky asides, Thomas has never seriously addressed the legal and social pandemonium that obliterating Obergefell would cause. For now, at least, the greater threat is that the Court will backtrack on Pavan, crediting bogus justifications for treating same-sex couples worse than their opposite-sex peers. Contrary to Obergefell and Pavan—and Christian Legal Society v. Martinez (2010)—we might also see renewed assertions that a refusal to render goods and services to same-sex weddings isn’t really discrimination based on sexual orientation. If you see such arguments, recognize them for what they are: efforts to undermine core premises of Kennedy’s gay rights jurisprudence and vanguard actions and thus sap Obergefell’s vitality.
Will the Court Recognize Statutory Protections Against LGBT Discrimination?
After rescheduling the relevant certiorari petitions for almost a year, the Court voted in April to grant review of three cases that address the application of Title VII to discrimination based on transgender status and sexual orientation. The basic question is whether Title VII’s ban on discrimination “because of such individual’s . . . sex” encompasses discrimination against LGBT persons. These cases are profoundly important in their own right. Depending on how they are decided, they may also carry significant implications for other federal laws and regulations that outlaw discrimination based on “sex” (not to mention existing doctrines of sex discrimination). Moreover, these cases afford the Court its very first opportunity to address—in a merits opinion, following full briefing and oral argument—fundamental questions about transgender rights.
In the lower courts, these Title VII cases defied the usual liberal/conservative schism. Several conservative judges wrote or joined opinions ruling in favor of LGBT rights, and one highly regarded left-leaning judge dissented from such an opinion. This reflects the wide range of beliefs about statutory interpretation that judges have brought to bear on these questions. Notably, some of the strongest arguments in favor of protecting LGBT rights under Title VII rest on frankly textualist premises. (That analysis of the plain text is complemented by arguments grounded in sex-stereotyping doctrine.) The Court’s conservative majority loves nothing more than to pound the drum for textualism, so it will be interesting to see how those justices grapple with these questions. Given the diversity of arguments and interpretive theories in play, we can reasonably hope that the Court will not break down along familiar tribal lines.
Will the Court Undermine Antidiscrimination Laws in the Name of the First Amendment?
A holding that Title VII prohibits discrimination against LGBT people would mean a lot less if the Court subsequently held that the First Amendment immunizes anybody who describes acts of discrimination as expression or religious practice. However, in recent years, the right-leaning justices have taken worrisome steps toward imposing novel constitutional limits on antidiscrimination law.
The leading case on point is Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). There, a baker named Jack C. Phillips argued that the Free Speech Clause and Free Exercise Clause shielded him from liability under state antidiscrimination laws for refusing to serve a same-sex couple holding a wedding celebration. Phillips’s free speech claim supposedly hinged on the unique expressive nature of cake making; his free exercise claim supposedly hinged on a pattern of selective enforcement in Colorado. These limits were illusory, though, and would not have meaningfully cabined a holding in his favor. What Phillips really sought was a decision rendering civil rights statutes unconstitutional in many settings, particularly as applied to persons of faith who sincerely object to serving same-sex couples (and perhaps other protected groups).
Fortunately, the Court avoided Phillips’s most radical claims. Writing for a majority, Kennedy instead based his holding on the highly unusual facts of this case—which, he asserted, involved statements by the Colorado Civil Rights Commission evincing hostility to religion.
Masterpiece was obviously a compromise; the majority consisted of the chief, Kennedy, Breyer, Alito, Kagan, and Gorsuch. Looking ahead, there can be little doubt that the Court’s newly constituted conservative majority will incline toward limiting antidiscrimination law on free speech and free exercise grounds. Indeed, in a statement respecting the denial of certiorari in Kennedy v. Bremerton School District—issued January 22, 2019—Thomas, Alito, Gorsuch, and Kavanaugh strongly implied that they would drastically expand the scope of religious exemptions by overturning Employment Division v. Smith (1990) and Trans World Airlines, Inc. v. Hardison (1977). In this respect, the post-Kennedy Court may not only fail to protect LGBT+ rights but also gut efforts by any other branch or level of government to protect such rights.
There are three especially painful ironies here. First, the Court that stands poised to wield free exercise principles against civil rights law also upheld President Trump’s notoriously anti-Muslim travel ban in Trump v. Hawaii (2018). Then, in Dunn v. Ray (2019), it permitted the execution of a Muslim man at a facility that allowed Christian but not Muslim ministers in the execution chamber. Religious freedom is a paramount value to the Court . . . except when it isn’t.
Second, the religious freedom claims on their way to the Court imperil not only LGBT+ rights but also religious freedom itself. One day after Alito issued his statement in Bremerton, the Trump administration allowed a federally funded foster care agency in South Carolina to deny service on religious grounds to both same-sex couples and non-Christians. A world in which religious objectors are largely exempt from antidiscrimination law is a world in which we might see signs declaring “Jews need not apply” displayed alongside “We don’t serve gays.”
Finally, a standard move in conservative objections to civil rights laws is to describe those laws as motivated by antireligious animus, even when there is no evidence of anything but a secular commitment to equality. Here, but nowhere else, conservative justices suffer no hesitation in making broad claims about governmental motives and statutory purpose. And, often, those claims amount to an assertion that support for LGBT equality can be readily equated with invidious hostility to religion. The premise of such analysis is that refusing service to LGBT individuals is so inherently a part of religious identity that anybody who seeks to prevent such discrimination must hate religious people. In this respect, as in others, calls to immunize discrimination against LGBT people have led the Court toward a jurisprudence of “religious freedom” that isn’t worthy of the name—and that is, in fact, quite offensive toward religious adherents.
Will the Court Recognize the Constitutional Rights of Transgender Persons?
Constitutional challenges to President Trump’s de facto ban on military service by transgender persons are currently percolating through the federal courts. In January 2019, by a 5-4 vote along predictable lines, the Court lifted multiple injunctions that had been entered against the ban. It is possible that the Court’s unreasoned order says more about its views on deference to the military than its outlook on constitutional protection for transgender persons. But as an early sign of how the Court may approach transgender rights, this order is not promising.
Of course, this does not mean that the federal courts are closed for business. Many lower federal courts have properly emphasized the importance of protecting transgender persons in a wide range of settings. Indeed, in Karnoski v. Trump (one of the still-pending challenges to President Trump’s “trans ban”), an ideologically diverse panel of the Ninth Circuit Court of Appeals held that discrimination based on transgender status triggers heightened judicial scrutiny. And even if the Court comes to look skeptically on equal protection–based claims, advocates for transgender rights will still be able to draw upon the safeguards of the First, Fourth, Fifth, and Eighth Amendments to seek progress in the courts. The future of transgender rights may not be bright at the post-Kennedy Court, but given the strength and diversity of the constitutional arguments that can be invoked against various forms of antitrans discrimination, it is not as bleak as some might fear.
Can the LGBT+ Community Look Beyond the Federal Judiciary for Protection?
As the U.S. Supreme Court becomes an increasingly unfriendly forum in a post-Kennedy world, progressive state courts and legislatures may come to the fore in articulating a more robust conception of LGBT+ rights. There are limits to this strategy, especially if federal courts interpret the First Amendment as conferring a right to discriminate, but it is now more important than ever for LGBT+ advocates to press their cause at the state and local level. This may help to avoid the creation of bad precedent in federal courts. It may make life better for people who desperately need it. And it will help to ensure the growth, development, and credibility of a distinctly progressive vision of how constitutional law should protect the LGBT+ community.
Joshua Matz is a counsel at Kaplan Hecker & Fink LLP in Washington, D.C.
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