Over the last decade and more, Supreme Court decisions have produced important progress for LGBTQ+ rights, including on marriage equality and employment opportunity. Significant dangers lie ahead, however, thanks to the recent addition of three Trump justices. There's one troubling LGBTQ+ case that the Court has already agreed to consider next term. With hearings upcoming on her Supreme Court nomination, Judge Ketanji Brown Jackson may well play a crucial role on this issue.
What Dangers Does the Current Supreme Court Pose to LGBTQ+ Rights?
Far-right justices like Clarence Thomas and Samuel Alito have always opposed LGBTQ+ rights on the Court. Both have sought to severely limit such rights in the name of religious liberty or free speech. Although not going as far as Thomas urged, the Court has recently ruled against requiring a baker and a religious foster care agency to serve same-sex couples in accordance with state law.
With three Trump justices now on the Court, some worry that “Thomas may now be speaking for the majority” on LGBTQ+ rights. Yet bias and other harmful action against LGBTQ+ people continues across the country. And the Court has agreed to decide one case that threatens to significantly weaken civil rights laws that protect LGBTQ+ and other individuals. The Court will hear the case next term, after a Justice Jackson joins the Court.
What Case on LGBTQ+ Rights Will the Court Hear After the New Justice is Confirmed?
The new case concerns a Colorado law that prohibits discrimination in public accommodations based on LGBTQ+ status and other grounds. As in many other states, refusal to serve same-sex couples by a business open to the public violates the law. In the case before the Court, a woman who merely plans to open a wedding website design business wants to be able to refuse to serve same-sex couples, claiming that the law cannot validly interfere with her alleged First Amendment rights.
The far-right group representing the designer seeks a judgment that would gut the public accommodations law. They want her to br sble to put a public disclaimer on her website saying she will not serve same-sex couples. The Tenth Circuit refused, noting that no one has yet even asked the company to design such a website.
The Court nevertheless agreed to take the case. Their review will focus on one question. Does applying the civil rights law to “compel an artist to speak or stay silent” violate the First Amendment?
As one analyst has explained, the case “threatens to undo decades of civil rights protections” and harm LGBTQ+ people and other systematically oppressed groups. It would do so by “allowing business owners to return to a darker time” when they misused religious or free speech views as an excuse to violate non-discrimination laws. Many businesses could claim they function as “artists” and resist “compelled” speech to comply with such laws. But if a business can post a sign stating they refuse to serve same-sex couples, what will stop them from refusing to serve interracial couples and openly saying so on their websites?
The Court long ago rejected such religious views and free speech excuses to violate anti-bias laws. It reaffirmed that view in the baker’s case, before Justices Kavanaugh and Barrett joined the Court. The very fact that at least four justices voted to hear the Colorado case, however, strongly suggests danger to LGBTQ+ and other civil rights.
What other LGBTQ-related cases could the Court decide?
A number of anti-LGBTQ+ actions by states have already produced lawsuits that could wind up in the Supreme Court. Texas Attorney General Paxton’s shocking declaration that gender-affirming treatment for transgender youth somehow constitutes “child abuse” tops the list. This has led to the triggering of nine investigations by this declaration and Governor Abbott's order of a "prompt and thorough" investigation in each case. One mother warned that “[c]hildren will die because of Governor Abbott’s order.”
In response to a lawsuit in Texas state court, a judge recently issued a preliminary injunction against proceeding with or starting such investigations. A full trial will occur in July, but the state has already appealed the injunction. No matter how the initial appeal comes out, whoever loses will likely appeal again. The lawsuit could well reach the Supreme Court, perhaps as early as next year.
Florida has provided another example with its recent passage of a troubling “Don’t Say Gay” law. The legislation prohibits public school districts from teaching about sexual orientation or gender identity in grades K through 3. Because of the broad wording of the law, advocates fear that it could apply in higher grades and could lead to lawsuits by parents who claim that their children received “inappropriate instruction” in these areas.
The federal Department of Education is among those condemning the law. It indicated that it will take necessary legal action if the law results in discrimination against LGBTQ students. One or more such cases concerning the Florida statute could wind up in the Supreme Court.
What could a Justice Jackson do?
As history demonstrates, cases concerning LGBTQ+ rights closely divide the Court. Jackson would replace Justice Breyer, part of the three-justice minority that reliably supports LGBTQ+ rights. It will take years of hard work by progressives to change the Court’s composition, just as the Far Right did.
On a divided Court, however, one new justice can still make an important difference. As the late Justice Byron White reportedly stated , with each new justice, there’s a new Supreme Court. Jackson’s history of achieving consensus on divided issues on the US Sentencing Commission could help in this area.
In addition, Justice Sandra Day O’Connor explained that Justice Thurgood Marshall influenced the Court by sharing his life experiences. The perspective of a Black woman justice may similarly make a difference in cases dealing with discrimination against targeted groupis. As Rev. Leslie Watson Wilson recently put it, “[a]ll American people will benefit when deliberations and decision-making on our highest court are sharpened by the perspective and persuasive power of a Black woman justice.”
That perspective will likely also sharpen dissents from far-right Court rulings. This will help promote reconsideration of such issues by Congress or the Court in the future. For example, a strong dissent by Justice Ginsburg helped lead Congress to change federal civil rights law and overcome a Court ruling that limited fair pay for women on the job. Congressional legislation to more explicitly protect LGBTQ+ people could repair at least some of the damage done by the Court. Several such bills have already been introduced in Congress.
Elevating Ketanji Brown Jackson to the Supreme Court will not immediately solve the problems posed by its far-right majority. However, in light of the crucial issues like LGBTQ +rights that are at stake, it is an important first step.