“Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.
And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).
To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.
Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.
The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.
The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).
Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.”
“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.
Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.
The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”
“Florida’s education law is couched in the language of parental rights and uses vague language to implicitly threaten LGBTQ teachers and allies with lawsuits. Though supporters had said the law bans inappropriate conversations about sexual activity with young students, the text never explicitly references discussions of sex — only explicitly forbidding conversations about “sexual orientation or gender identity.” The ban applies from kindergarten through third grade but leaves an opening for “age-appropriate” restrictions beyond those grades, while also not defining what “age-appropriate” means.
The legislation never uses the words “gay” or “trans,” but advocates argue that queer and trans Americans would be the primary targets of lawsuits by parents and officials behind the restrictions. Echoing the model of Texas’s abortion ban, Florida’s law deputizes parents as watchdogs, providing a path through the courts to punish schools and staff that violate the statute.
Legislatures in Alabama, Ohio, and Louisiana have since advanced similar proposals; Texas’s lieutenant governor is looking at introducing a bill when its next legislative session starts, and lawmakers in six other states, mostly in the South, have supported iterations of restrictions on LGBTQ identity in schools.
Some of these proposals are more explicit than Florida’s — Tennessee’s proposal seeks to ban books or material that support or promote LGBTQ “issues or lifestyle” altogether — but all offer a window into how social conservatives see opportunities to roll back protections for queer and trans people: score victories in the courts and make the cultural fight more extreme.”
“Radical right-wing activists and commentators in recent weeks have been making literal accusations of pedophilia (in a callback to a trope from the 1970s and earlier) and grooming (which in its true sense means to “gain access to a potential victim, coerce them to agree to the abuse, and reduce the risk of being caught,” according to the Rape, Abuse, and Incest National Network). But they’ve also been increasingly using “grooming” as a casual insult to try to create a vague link between all LGBTQ people and cases of child abuse.
What started on the fringes, with conservative activists riding the coattails of last year’s anti-critical race theory moral panic, crossed over into mainstream media during the Supreme Court confirmation hearings for Judge Ketanji Brown Jackson last month. Sens. Josh Hawley (R-MO), Ted Cruz (R-TX), and Marsha Blackburn (R-TN) questioned the future justice’s thinking on gender, child abuse, and race. As Georgetown professor Don Moynihan wrote about Hawley’s line of attack, the point was “to create an association between Jackson and this broader trope” of child predators running rampant in public institutions. That spawned a universe of outrage in conservative media, further buoying the legislative action underway in Republican states.”
““It’s very frustrating to see that we are having the same fight over and over again … but I believe that these folks are desperate. They have lost every fight they have picked on LGBT issues. They lost on trying to criminalize sodomy, they lost on marriage equality, they lost on bathroom bills, they lost on wedding services refusal — and we’re at 75 to 80 percent support for nondiscrimination laws,” she said.
Some of the loudest supporters of this effort have admitted this: “The alternative to the culture war is a culture surrender. There is no neutral option,” one reads. “The right needs to go scorched earth with ‘groomer,’” says another. “We are building a new model of conservative activism” with the grooming messaging, argues Christopher Rufo, a leading anti-critical race theory activist.
The rhetoric complements the institutional work that conservative think tanks are doing in pushing these bills. Lawmakers in these states have consulted organizations like the Alliance Defending Freedom, the Heritage Foundation, and American Principles Project in crafting proposals, Vice reported. (The Alliance Defending Freedom confirmed its involvement in a statement to Vox.) The progressive advocates I spoke with told me they see this feedback loop among radical activists, lawmakers, and think tanks as part of a more desperate ploy to use transgender people as a wedge issue to open the door to more mainstream attacks on trans and queer people in public life.”
“”They pick on trans kids in the first place, because there are lots of well-meaning people who don’t totally understand what it means to be trans.””
“The new Hungarian regulations on LGBTQ expression are broad. Among other things, they prohibit sex educators from instructing students about LGBTQ sexuality and ban television stations from airing content “popularizing” LGBTQ identity outside the hours of 10 pm to 5 am. The regulations also prohibit films or advertisements from representing same-sex physical acts or gender-affirmation surgery in materials targeted at individuals under 18.
But what counts as “popularizing” LGBTQ identity, and what sorts of art count as being targeted at kids? According to local media and human rights groups, the bill isn’t especially clear on these points — raising fears about censorship. RTL Klub, the country’s largest television channel, warned that “series like Modern Family would be banned, as would some episodes of Friends.”
No less troubling: By declaring LGBTQ programming harmful for children, the law dehumanizes queer couples and individuals, legally codifying the notion that their very existence threatens Hungarian society.”
“This bill is not a one-off. Since coming to power in 2010, Orbán has systematically undermined LGBTQ rights in Hungary. The most significant early move was a constitutional provision banning same-sex marriage enacted in 2012.”
“In December 2020, the government approved a constitutional reform package that strengthened the anti-LGBTQ constitutional provisions: It stated that the family is defined as being “based on marriage and the parent-child relation. The mother is a woman, the father a man.” The December legislative package also banned adoption by same-sex couples and abolished the Equal Treatment Authority, Hungary’s most important nondiscrimination agency covering LGBTQ rights.”
“Fulton v. City of Philadelphia, a case involving a Catholic group that objects to placing foster children with same-sex couples, was widely expected to be a sweeping victory for the religious right, and a correspondingly significant defeat for LGBTQ rights. Instead, the Court’s opinion dodges nearly all of the important issues raised by the case.
It’s still a small win for religious conservatives and a similarly small loss for the LGBTQ community in Philadelphia. But the Court’s decision is unlikely to have many implications outside of that city. And it hits pause on a fight to overrule a landmark Supreme Court decision from over three decades ago — most likely because, as Justice Amy Coney Barrett notes in a concurring opinion, several of the justices aren’t sure what to do next if that decision is overruled.”
“The plaintiffs in Fulton, moreover, also asked the Supreme Court to overrule its seminal decision in Employment Division v. Smith (1990), which held that religious objectors must follow “neutral law[s] of general applicability.” Under Smith, a religious objector typically is bound by a state or local law so long as it applies with equal force to non-religious actors — so, if secular organizations are forbidden from discriminating, the same rule will generally apply to religious organizations.
But neither of these important questions was resolved in Fulton. While Justice Samuel Alito penned a lengthy opinion calling for Smith to be overruled, that opinion was joined by only Justices Clarence Thomas and Neil Gorsuch.
The remainder of the Court joined a much narrower majority opinion by Chief Justice John Roberts, which rules in favor of CSS, but on grounds that are unlikely to have many implications for future cases.”
“this argument relies solely on the text of Philadelphia’s particular ordinance.”
“Only 1.8 percent of Gen Xers identify as bisexual. A full 11.5 percent of Gen Z adults identify the same way. And there’s a much greater number of millennial and Gen Z adults identifying as transgender than previous generations, though it’s still a fairly small percentage.”
“for a significant amount of American history, especially the late 20th century, our culture has treated LGBT people as dangerous or deviant and therefore individuals were encouraged to suppress or just not act on non-heterosexual attractions. There’s been an absolutely dramatic shift in acceptance of LGBT people over the past 20 years and so it should not be surprising to see a greater percentage of young adults willing to identify as LGBT.
The increase in the number of LGBT self-identification is a positive result of allowing people to define themselves and their sexual identities absent government pressures forcing them to conform to majority preferences in order to enjoy the same rights granted to everyone else.”
“Bostock is, undoubtedly, a major victory for LGBTQ rights — before Bostock, it was still legal for employers to discriminate on the basis of sexual orientation or gender identity in most states.
But it is unclear whether Bostock will entirely ban workplace discrimination on the basis of sexual orientation or gender identity. That’s because the Court is also considering whether to grant employers with religious objections to LGBTQ people an exemption from anti-discrimination laws.”
“Gorsuch is a vocal proponent of “textualism,” the belief that the meaning of a law turns on its words alone, not on the intentions of the law’s drafters.”
“In Bostock, the Court considered Title VII of the Civil Rights Act of 1964, which forbids employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” Though there is little doubt that the people who drafted this law in 1964 did not believe they were enacting a ban on LGBTQ discrimination, the thrust of Gorsuch’s opinion is that the expectations of lawmakers in 1964 simply do not matter.
Only the text of Title VII matters. And, as Bostock explains at length, that text clearly prohibits employment discrimination on the basis of sexual orientation or gender identity. Gorsuch lays out why in just five crisp sentences on the first page of his majority opinion:
” In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.””
“a 6-3 opinion. Both Gorsuch, a Trump appointee, and Chief Justice John Roberts, a conservative appointed by President George W. Bush, joined the majority. Roberts joined Gorsuch’s opinion in full and did not write a separate opinion. Neither man has shown much sympathy for LGBTQ rights plaintiffs in the past.”
“the sheer force of the plaintiffs’ textual arguments in Bostock appears to have weighed heavily on both men. At the very least, Bostock suggests that this conservative Supreme Court can follow the clear text of a law, even when that reading points in a liberal direction.”
“”Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.””
“”Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.””
“The text of the law is the only thing that matters in Bostock. As Gorsuch concludes his opinion, “ours is a society of written laws,” and that means that “judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” Because Congress “adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” the Court must hold that anti-LGBTQ discrimination in the workplace is illegal.”