By Joseph Mello
The Courts, the Ballot Box, and Gay Rights (recently released in paperback) explores how religious liberty and parental rights talk were used to oppose marriage equality. Now may seem a strange time to be thinking about issues of LGBT rights. The US Supreme Court’s landmark same-sex marriage decision, Obergefell v. Hodges (2015) is nearly a decade old and feels like settled law to many. LGBT rights do not rank as one of the top issues on voters’ minds heading into the 2024 election, and the issue was never seriously discussed during the entire ninety-minute presidential debate. And yet, the outcome of this election will have monumental consequences for the Supreme Court and the future of gay rights in this country.
The Potential for Conservative Majority in the Court
The ideological balance of the US Supreme Court hangs on the results of this year’s presidential election. If history holds, the winner of this year’s election is likely to nominate 2–4 justices to the Court during their time in office. If Donald Trump were to win, he would be able to replace the two oldest justices on the court, Clarence Thomas (seventy-six years old) and Samuel Alito (seventy-four years old), with younger jurists. Chief Justice John Roberts (sixty-nine years old) is nearing retirement age as well. The trend in Supreme Court nominees is moving towards younger jurists—Amy Coney Barrett was just forty-eight years old when she was nominated to the court—so that could mean locking in a conservative majority on the Court for the next thirty years or more. The stakes could not be higher.
If Kamala Harris wins the election, she could have the opportunity to replace Sonia Sotomayor (seventy years old) with a younger jurist. The conservative justices would most likely forgo retirement, in hopes that a Republican may soon win control of the presidency. This strategy could work—many jurists have remained on the bench well into their eighties. Others however (Antonin Scalia and Ruth Bader-Ginsburg) have died in office, creating a mad scramble to appoint a new nominee. If Harris did somehow get a chance to replace two of the septuagenarian conservative jurists, she would shift the balance of the court to a 5–4 liberal majority. This election could be Democrats’ last chance to change the ideology of the Court for a very long time.
The Stakes for LGBT Rights in the 2024 Election
Locking in a conservative majority on the Court would be catastrophic for LGBT rights. The Court had no problem tossing aside long-established precedent when it overturned Roe v. Wade (1973) in Dobbs v. Jackson (2022). There is nothing to stop them from doing the same thing to Obergefell along with other landmark gay rights decisions. Indeed, Clarence Thomas took direct aim at Lawrence v. Texas (2003), Obergefell, and the entire concept of substantive due process in his concurrence in Dobbs.
It is easy to forget just how narrow the hard-won gay rights decisions of the early 2000s actually were. Anthony Kennedy, a pragmatic “swing” jurist who is no longer on the court, wrote the majority opinion in almost every important gay rights case of that era, including: Romer v. Evans (1996), Lawerence, U.S. v. Windsor (2013), and Obergefell. Kennedy’s absence can be felt in cases like 303 Creative v. Elenis (2023). That case involved a Colorado law barring discrimination based on sexual orientation in public accommodations. The court had been asked to evaluate this law before.
In Masterpiece Cake Shop v. Colorado Civil Rights Commissions (2018), Anthony Kennedy wrote for the majority in a case involving whether a Christian baker could be compelled to provide a cake for a same-sex couple’s wedding. Kennedy dismissed the case because he believed members of the commission had shown religious bias, but he also indicated that he would have been inclined to uphold the law, had the commission behaved differently. By the time 303 Creative came before the court, Kennedy had been replaced by Justice Brett Kavanaugh. Kavanaugh joined Justice Neil Gorsuch’s decision, ruling that the law unconstitutionally violated the religious liberty of those who opposed same-sex marriage.
The “Parental Rights” Argument Against LGBT Rights
Public support for same-sex marriage remains high today, but other issues of gay and transgender rights are controversial. State level political debates show the continued prominence of this issue. Florida passed its “Parental Rights in Education,” aka “Don’t Say Gay” law, in 2022. Supporters of the bill made the same “parental rights” arguments that featured so prominently in the original same-sex marriage debate. Similar arguments about the need to protect the rights of parents and the safety of children have motivated recent book banning campaigns (often targeting books which feature positive depictions of families with same-sex parents), bathroom bills, laws banning gender-affirming care, and the transgender athlete hysteria.
The Courts, the Ballot Box, and Gay Rights examines the historic use of anti-gay rights talk and explains the potency of this framing. I argue that these parental rights arguments proved effective for opponents of same-sex marriage because they play on subconscious fears of gay people as sexual rapacious individuals who prey on children without saying so explicitly. By framing their opposition instead as a desire to protect “parental rights” or “religious liberty” they effectively launder these arguments through the far more legitimate language of fundamental rights, making them acceptable to a popular audience.
Looking to the Future for LGBT Rights
In the past the Court has acted as a check against these types of arguments. In The Courts, the Ballot Box, and Gay Rights, I observed that this rights talk worked well in ballot measure campaigns. The courts, however, mostly acted as arenas of reason, dismissing arguments based purely on anti-gay animus and demanding concrete evidence that children would be harmed by gay marriage, in cases like Hollingsworth v. Perry (2013). But those cases were heard by an ideologically balanced Supreme Court, with a moderate swing jurist, inclined to protect gay rights. With those safeguards no longer in place, and with the example of Dobbs fresh in our mind, the stakes of this election have never felt higher for LGBT rights.