Stop for a moment. Imagine how bad it will be with a conservative Supreme Court ruling on a host of issues related to LGBT people in America.
The reality is that what’s coming is way worse than anything you just imagined. In fact, the moment Brett Kavanaugh is confirmed, we pass through an event horizon, which is a physics term for a point of no return where not even light can escape the gravity well of a black hole. Once he’s seated, there is literally nothing we can legally do to stop the torrent of decisions that will relegate LGBT people to permanent, codified, second class status. It will be even worse for transgender people, who may not even be able to function in public after these decisions.
There’s three things that people need to realize about what will make this court different from previous courts.
The first is that anti-LGBT religious groups like the Alliance Defending Freedom and the Liberty Counsel are already pushing through numerous cases designed to do all of the horrible things enumerate below. They will be taking these cases to a SCOTUS that wants to take their cases, and wants to find for them.
And they will find for them, even if their arguments are incoherent or seemingly irreconcilable with other decisions made by SCOTUS. The death of the need for intellectual consistency by the court was demonstrated in the 2018 rulings in Masterpiece Cakeshop and Trump v. Hawaii. In these, the court essentially simultaneously found that even a whiff of religious bias by governmental officials was completely impermissible, unless it’s the President and he does it before he gets elected.
Finally, readers need to understand that the court will not care what the effects of their rulings are. This was clearly demonstrated in the Hobby Lobby oral arguments. When the lawyer for Hobby Lobby was confronted with the absolute chaos that would surely follow (and did) if corporations could ignore laws based on the religious beliefs of the owners, he replied, “Look, you’ve got to trust the courts; just because free exercise claims are being brought doesn’t mean that the courts can’t separate the sheep from the goats.”
The Roberts Court accepted this argument that it was acceptable for rulings to cause massive problems down the road. This means that even if a SCOTUS ruling were to make it impossible for transgender people to hold a job, or function in society at all, as a downstream effect of their decision, it is not their problem. They would leave it to other courts to sort out what to do. Those courts would in turn shrug their shoulders and say, it doesn’t matter how awful this ruling is for transgender people, we have to follow it.
You know how I told you the consequences were worse than you could imagine? They get even worse than that if Trump gets to nominate another justice to replace Ginsburg or Breyer. It gets even worse than that if he gets a second term, and has the opportunity to issue a bunch of anti-LGBT executive orders that SCOTUS will uphold as constitutional.
You also have to remember that while it will take 5-10 years for all of these rulings to happen, reversing them will take another 20 to 75 years based on how long it took to reverse horrible cases such as Plessy v. Ferguson (75 years), Lochner v. New York (32 years), Korematsu v. United States (74 years), and Bowers v. Hardwick (18 years). The odds are, if you’re reading this, you will not live to see all the damage that’s coming in the courts undone. Most of these things will happen regardless of how the 2018 or 2020 elections go, because that 5-4 conservative majority will be in place for years.
All the legal and legislative progress made since Stonewall will be rendered moot in the next 10 years, there’s probably nothing we can do to stop it, and it will take decades, at a minimum, to get it back.
Here’s what we’re in for, specifically.
We’re (probably) Already Past the Event Horizon when Kavanaugh is confirmed
- Title VII protections for LGBT people are toast
There are several cases wending their way towards SCOTUS that ask the question of whether LGBT people are protected from employment discrimination on the basis of sex stereotypes under the 1964 Civil Rights Act. This includes EEOC v. Harris Funeral Homes, Zarda v. Altitude Express, and Evans v. Georgia Regional Hospital. SCOTUS is widely expected to grant cert to at least one of these cases this upcoming session, and the ruling to apply all of them.
No legal observer I know expects a positive result with Kavanaugh on the court.
Most states do not have laws protecting LGB people from employment discrimination, and even fewer have laws protecting transgender people. This ruling is going to strip any legal remedy to employment discrimination from millions of LGBT people.
- A religious right to discriminate and ignore non-discrimination laws will be found, with profound impact
Both EEOC v. Harris Funeral Homes and Masterpiece Cakeshop v. Colorado Civil Rights Commission revolve around whether the religious beliefs of a business or business owner allow them to ignore civil rights laws. Alito, Thomas, and Gorsuch have already indicated that they are ready to grant a sweeping exemption to civil rights laws, as long as the people targeted are LGBT. Roberts hedged his bets in Masterpiece, and Kavanaugh’s past rulings make it nearly a foregone conclusion that he will side with the other conservatives on the court.
There are more cases coming up through the courts asking this question, including Harris Funeral Homes, Arlene’s Flowers v. State of Washington, Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals, Country Mill Farms v. City of East Lansing, and Cervelli v. Aloha Bed & Breakfast.
The upshot is that 40 years’ worth of efforts to pass laws to protect LGBT people from discrimination in the market and in the workplace are about to be rendered moot. Between losing Title VII protections, and losing protections to a constitutionally enshrined religious right to discriminate, there will functionally be no legal protections left for LGBT people. Indeed, when the courts try to balance the 14th Amendment Equal Protections Clause constitutional protections for LGBT people, and 1st Amendment religious rights for conservatives, there is little doubt where the courts will land going forward either.
- Title IX protections for transgender students will be lost
When SCOTUS rules that “sex discrimination” does not include LGBT people in 2019, it also means that Title IX of the Education Amendments of 1972 (which bans sex discrimination in education) also does not protect transgender students either. Without any sort of explicit protections, school administrators will be free to put restrictions on transgender students that effectively force them out of the public education system (e.g. you can only use the bathroom on the other side of campus, and we’ll suspend you if you’re late for any classes).
- Reparative therapy bans will be struck down
Perhaps nothing exemplifies the court’s willingness to ignore logical and intellectual consistency in order to reach conservative decisions than their recent rulings on abortion. On one hand SCOTUS ruled in National Institute of Family and Life Advocates (NIFLA) v. Becerra that fake women’s clinics called “crisis pregnancy centers” cannot be required by the government to tell the truth about the services they provide. At the same time, the court has refused to hear challenges to laws like the one in Mississippi that force abortion providers to lie to their clients and tell them that abortion increases the risk of breast cancer (it doesn’t).
While the court has denied cert in the recent past to bans on reparative therapy, the NIFLA ruling and the retirement of Justice Kennedy changes the equation. So too does California’s new ban on reparative therapy on adults as a commercial practice. Religious conservatives are already promising legal challenges to it, and the NIFLA ruling plus Kavanaugh almost certainly mean that the bans on reparative therapy nation-wide will be found unconstitutional.
- The trans military ban will be upheld in 2020
Right now, the ban on transgender military service will be going to court in the spring and summer of 2019 in at least four separate cases. This sets up a SCOTUS decision in summer 2020 where the court will almost certainly rule against the plaintiffs. SCOTUS has already granted wide authority to the executive branch to discriminate against classes of people already protected by strict scrutiny in the name of national security in the case of Trump v. Hawaii.
By 2020, after decisions on Title VII and Title IX, transgender people will probably be sitting only rational basis scrutiny, and no better than heightened. Most legal observers with intimate knowledge of the situation have little hope of winning at SCOTUS, and are simply praying for a Trump loss in 2020 and that the next administration will quickly reverse the executive order. However, this ruling will guarantee that transgender service members will always be at the mercy of the conservatives when they hold the executive branch, and make targeting of transgender people by the federal government much easier going forward.
- There will be a nationwide ban on transgender people in bathrooms
Conservative Christian legal groups, namely the Alliance Defending freedom, have been making the argument in the ongoing cases of Doe v. Boyertown Area School District, Maday v. Township High School District 211, and Students and Parents for Privacy v. United States Department of Education that students have an inherent right not to even potentially share (knowingly or unknowingly) a bathroom or locker room with a transgender person.
Some legal experts point out that Justice Roberts and other conservatives on the court have always been very hostile to the notion of a right to privacy implied by Griswold v. Connecticut and Roe v. Wade. This would theoretically predispose them against ADF’s arguments. However, as can be seen in Trump v. Hawaii and NIFLAA, intellectual consistency is not a hallmark of a conservative court. There are innumerable ways for the court to logically contort itself to get to the ruling that it wants banning transgender people, with some form of “separate but equal alternate accommodations” being chief among them.
When the court does find that cisgender students have a right to not even potentially share a facility with transgender people, it will have much wider consequences. A “human right” is not limited to just students. It applies to everyone, which means that all people will be found to have a right not to potentially, knowingly or unknowingly, share a bathroom with a transgender person.
The result is a nationwide ban on transgender people in bathrooms, and the end of the community as full, functional members of society (seriously, as a social experiment, try using only single stall facilities for a week. It severely limits the number of place you can go). You might also argue that surely the courts wouldn’t issue a ruling with such far flung consequences for a group of people, but we already know that conservatives firmly believe on ruling on the issue at hand, and trusting future courts to separate the sheep from the goats later.
- Marriage equality will be whittled away.
It’s no secret that religiously motivated, powerful, anti-LGBT groups have promised to whittle marriage equality down to being a right that exists only on paper the same way that have made abortion almost unobtainable via Targeted Regulation of Abortion Providers laws.
Currently, the most serious threat to marriage equality in the court system is the case of Pidgeon v. Turner in Texas. An anti-LGBT pastor in Texas filed a lawsuit against the City of Houston for granting married same-sex city employees the same benefits as opposite-sex employees. He argued that it violated his religious rights to be paying taxes into a system that provided for same sex marriages, and that Obergefell only guaranteed the right to a marriage license, not any of the benefits that come with it. The Texas Supreme Court agreed 9-0 in 2017, and accepted the argument that the Obergefell decision didn’t actually decide whether same-sex couples are entitled to equal benefits.
On December 4, 2017, SCOTUS denied cert. This sets the stage for similar state level lawsuits in conservative states that will succeed given how state justices are selected or appointed. As long as the court continues to deny cert, more and more state will reduce marriages for LGBT people to a worthless scrap of paper that means little to nothing legally.
- State level bills targeting transgender people will be numerous… and found constitutional
The 2018 Texas Republican Party Platform included 24 separate anti-LGBT planks, most of which targeted transgender people. After SCOTUS has effectively reduce transgender people to rational basis scrutiny via their rulings on Title VII and IX, states like Texas will be essentially free to pass laws targeting transgender people. Texas has already indicated it will ban transgender people from bathrooms, athletics, access to affirming medical care, and from obtaining correct gender markers on state issued identification. With just a fig leaf, these will all be found constitutional.
For transgender people in somewhere between a third and half of all US states, life as a transgender person will become effectively impossible.
Additional things that will happen with a 6-3 Conservative Majority
There’s an old joke that scientists at the National Institute for Health are replacing their test-subject rodents with lawyers, because there are things that even rats won’t do. In that vein, there are in fact things that the religious right desperately wants, but are probably a bridge too far even for Justice Roberts. However, if Ginsburg or Breyer were replaced with another Gorsuch, Alito, or Thomas, it would make Robert’s voice a moot point.
Here’s the additional carnage to expect if Trump gets another pick for SCOTUS, giving conservatives a 6-3 majority.
- Employers will not be allowed to prohibit religious based discrimination against LGBT people by their employees
For years, anti-LGBT legal and political groups have been hinting that they want to make it illegal for employers to enforce their equal opportunity policies which protect LGBT people in the workplace. Finally, in 2018 the Foundation for Moral Law filed an amicus brief with the Supreme Court in the EEOC v. Harris Funeral Homes case arguing that, “If the Sixth Circuit’s decision is allowed to stand, then employers will probably make everyone in their workplace respect the pronoun and bathroom preferences of the transgender employees. Religious employees who have objections will then be forced to choose between their jobs and their faith. They should not be placed in such a dilemma.”
Currently, employers have wide latitude to enforce behaviors in support of corporate equal opportunity policies. Justice Roberts has also created the most business-friendly court since the 1905 Lochner decision. However, it is becoming increasingly clear that organizations like the ADF are seeking out plaintiffs (employees) who are punished by their employers for anti-LGBT discrimination, harassment, or who work somewhere that allows transgender employees to use bathrooms in accordance with their gender identity.
A ruling allowing religious employees to ignore corporate EO policy, and issue ridiculous demands that have to be accommodated based on religious protections in the 1964 Civil Rights Act (e.g. “I can’t work in a building with queers in it”, or “It violates my religious beliefs to pay into insurance plans that cover same sex couples,”) would cause absolute chaos for corporate America. They would strenuously oppose such a ruling, and convincing Roberts to do something that took power away from Corporate America would be hard.
Conversely, Alito, Thomas, Gorsuch, and Kavanaugh would all likely side with “religious freedom” and let the courts “separate the sheep from the goats,” later. Given a fifth conservative vote, odds are that it will become nearly impossible to stay employed as an out LGBT person outside of small, very queer friendly businesses where no religious nutters are employed. All it will take is one in any business to start making demands that have to be accommodated.
- Sodomy laws are coming back
In Justice Scalia’s dissent in the case of Lawrence v. Texas (which struck down the sodomy laws) Scalia lamented that, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
In other words, Scalia was arguing that “moral opprobrium” is an appropriate basis for law, and was angry at the court for deviating from that standard. He also argued that these laws should only be struck down by legislatures. Today, 14 years later, despite being ruled unconstitutional, 12 states still have sodomy laws on the books.
Fast forward to 2018, where Attorney General Jeff Sessions was speaking at the Department of Justice Religious Liberty Summit. He deliberately echoed Scalia’s complaint in Lawrence, stating, “We have gotten to the point where courts have held that morality cannot be a basis for law; where ministers are fearful to affirm, as they understand it, holy writ from the pulpit; and where one group can actively target religious groups by labeling them a “hate group” on the basis of their sincerely held religious beliefs.”
This was not an accident. This was a message delivered to the religious right; he will do everything in his power to make morality a basis for law. He still wants sodomy laws on the books, and will work with the ADF and other organizations to overturn Lawrence. This is not nearly as implausible as it sounds. In fact, with a 6-3 majority, it’s highly probable.
Keep in mind that Lawrence is based on the concept that there is a right to privacy, which was found in Griswold v. Connecticut and Roe v. Wade. Court conservatives, including Roberts, loathe the concept of a right to privacy. After years of a 5-4 majority, this right is likely to be substantially weakened, along with the rights of LGBT people. At the same time, the Roberts court will likely have strengthened states’ rights. All of these will make getting to an effective reversal of Lawrence that much easier.
Let it also not be forgotten that Jay Sekulow is the chief counsel for the Center for American law and Justice, and on President Trump’s legal team. He submitted an amicus brief in support of sodomy laws in Lawrence v. Texas. One of his signature quotes is, “If anyone tells you that you cannot legislate morality, remember that legislation IS morality.” I have no doubt that the ADF, the Attorney General, the White House, and the conservative members of SCOTUS would all like to find a way to effectively overturn Lawrence.
Given that all the people involved getting to this outcome want the same thing, assuming that it will not happen is what Alan Greenspan referred to as “irrational exuberance.”
- Limits will be placed on LGBT information available minors under obscenity laws
Prominent religious conservatives, like Franklin Graham, really love Russia and Vladimir Putin. In particular, they have had high praise for his law “for the Purpose of Protecting Children from Information Advocating for a Denial of Traditional Family Values,” better known as the “gay propaganda law” in English.
States like Texas would gladly pass bans on making materials available to minors that “encourage unhealthy behaviors, criminal conduct, or indecent behavior,” or similar. If Lawrence were to be struck down, or nullified, this sort of law would clearly be applicable to LGBT people, including LGBT parents with children.
The goal, of course, would be to make any sort of pro-LGBT materials illegal, to grant law enforcement the legal means to harass LGBT people back into the closet, and prevent them from having families. They could also start pursuing obscenity charges against anyone who provides LGBT related materials to minors, which would effectively shut down GSAs and LGBT centers.
Considering that in August 2018 sixteen states submitted an amicus brief to the Supreme Court arguing that LGBT people should have no legal protections out of sheer spite and opprobrium for LGBT people, and that most of these same states have gerrymandered in permanent evangelical republican control of their legislatures, a 6-3 Supreme Court majority will likely turn a third of the United States into a no-go zone for LGBT people.
Stuff that only happens if Trump (or Pence) gets a second term
- We will go back to the days before “Don’t Ask, Don’t Tell.”
Once the transgender military ban has been upheld, an executive order bringing back DADT would likely be constitutional. But would a Trump White House do it?
Of course they would. Tony Perkins has been dropping big, public hints he wants the administration to do this. In a recent letter, Tony Perkins, President of the anti-LGBT hate group Family Research Council declared that, “There were groups like FRC who recognized “Don’t Ask, Don’t Tell” for what it was: the first major crack in the foundation of marriage and human sexuality.” Perkins went on to lambaste the Lawrence v. Texas decision as well.
Perkins has had tremendous access to the White House. He is widely credited with being the impetus behind the transgender military ban. He’s been one of Trump’s most steadfast evangelical Christian supporters. If he gets a second term, lesbians and gays in the military will almost certainly be banned the same way transgender people were: with a fake study, an excuse to get past rational basis scrutiny. We will go back to the days before DADT when lesbians and gays could be investigated, and tortured, by the DoD into confessing their sexuality, and then separated with dishonorable discharges.
If this sounds far-fetched, stop for a moment. Two years ago, would you have said that the American public was willing to accept keeping screaming, orphaned toddlers in cages while their guards rape them as something we, as a country, were willing to morally accept? Do you think for a moment that the religious right would miss an opportunity to hurt LGBT people, even if the rest of the country found their actions odious?
If Trump gets a second term, they will have an opportunity to kick lesbians and gays out of the military. Betting on their compassion and wisdom winning out is a sucker’s game.
Pence and Perkins get what they want on social issues, and a second Trump term would be carte blanche to do whatever they want to the LGBT community on behalf of the religious right.
- Whatever else the religious right can dream up as an executive order will happen
Literally, the courts aren’t going to say no to anything the states or the administration dreams up, as long as they can offer some sort of rationale. Revoking clearances of LGBT people? Sure. Blocking same sex spousal benefits for federal employees. That’s a given. With the White House, a 6-3 majority on the court, and permanent control of 2/3rds of state legislatures, anything short of internment camps is probably on the table (and if we’re in the middle of a hot war in 2022 it might be).
So, What Now?
People keep asking me what we should do. The simplistic answer is to do whatever it takes to ensure conservatives never claim Kennedy’s seat. But once Kavanaugh is confirmed, we’ve passed the event horizon for LGBT rights in America.
I can’t give you hope there. I can’t give you what the plan is, because that’s not in my wheelhouse. It is in the wheelhouse of LGBT rights organizations, who unfortunately never seem to have a plan for what to do when the sum of all fears comes to pass. They had little idea what to do about transgender rights after the Obergefell decision. They had no idea what to do when Trump won the election, so certain were they that Clinton would win.
They have no idea what to do, when all their works over the past 40 years are burned to ash. They have spent so long fighting in suits and ties that they no longer remember what mud feels like between their toes. They aren’t prepared to fight dirty, or to admit that legal and legislative remedies are about to be effectively closed for a generation.
Of course, the plan on trying to stop Kavanaugh. Of course, they plan on fighting all the horrors coming out of SCOTUS. But the odds of stopping either are exceedingly low. But what will we, as a movement , do when the entirely expected comes to pass?
This is why I keep telling people; the movement needs to be thinking outside the box about what the next phase looks like. With gerrymandering and voter suppression ok’d by SCOTUS, we’re not going to win in the legislatures in 2/3rds of the states. We’re not going to win in the courts. We are likely going to see most of the work of the past 50 years erased. We might even struggle to get information out to community members if the court rules that most LGBT content is subject to obscenity laws.
Stop thinking like lawyers and politicians.
Start thinking like insurgents. Because when Kavanaugh is confirmed, as he almost inevitably will be, we will slip past the event horizon for the LGBT rights movement.