The US Supreme Court starts its term next month without any cases on its docket dealing directly with LGBTQ rights. But two potential blockbuster cases set to be decided this term could have devastating effects on LGBTQ people, weakening long-held constitutional precedents that have served to underpin their rights, and putting them in greater danger of physical harm as hate crimes in America rise.
The fact that the court could strike down the constitutional protection to abortion access in Roe v. Wade has already made headlines and put reproductive rights advocates on high alert. Similarly, the possibility that the court could broaden the Second Amendment’s application to strike down laws — in Massachusetts and several other states — that place limits on carrying firearms in public has raised alarm among gun control advocates.
But the impact of such rulings will be much broader.
“Gun violence has been disproportionately affecting the LGBTQ community from the days when Harvey Milk was shot and killed to the Pulse massacre in Orlando just five years ago,” said Omar Gonzalez-Pagan, senior attorney for Lambda Legal. The legal advocacy group filed an amicus brief in the gun-law case, urging the court to uphold a New York law that places restrictions on carrying guns outside the home.
Gonzalez-Pagan noted that three out of four transgender people who are murdered each year die by gun violence. The FBI has warned of a rise in anti-transgender hate crimes, though the exact size of the spike is hard to quantify because such poor data are collected about attacks motivated by animus about the victim’s sexual orientation or gender identity.
Yet the Supreme Court has given clues about how it views appellate court rulings upholding public-carry gun restrictions. Last year, after the court dismissed a similar challenge because the law at issue was repealed, Justice Brett Kavanaugh openly signaled his belief that those lower courts incorrectly applied the high court’s 2008 ruling that established an individual constitutional right to own guns for self-defense.
In a concurrence, Kavanaugh noted that “the Court should address that issue soon.” He’s now getting his wish, and the consequences could be devastating.
The fight over abortion rights also presents a real danger to LGBTQ people.
The court is set to hear arguments in December in the challenge to Mississippi’s law banning abortions after the 15th week of pregnancy. That case, as well as the legal challenges to Texas’ extreme sixth-week abortion ban and bounty-hunting law that have begun their journey toward the high court, will provide the justices with an opportunity to either strike down Roe v. Wade or severely limit it.
The future of Roe comes down to whether the justices still believe the constitutional privacy right on which Roe stands emanates from the “liberty” right in the Constitution.
Such unenumerated rights form the basis of a host of civil rights and other protections: the right to use contraception, to enter an interracial marriage, and to engage in a consensual intimate relationship without criminal penalty.
Same-sex marriage is probably not on the court’s constitutional chopping block. The 2015 ruling establishing a constitutional right for same-sex couples to marry was not based solely on the kind of unenumerated privacy right that served as the basis for Roe. It was also protected by the Constitution’s guarantee of equal protection under the law, so it would be a difficult legal hill to climb to try to overturn marriage equality.
But if the court throws the privacy right out the window, it could make it less likely, for example, for the court to extend its privacy-right-based past rulings to apply to the right of gay couples to adopt, or the right to access gender-conforming surgery.
Other cases the court could take up this term could expand the ability of people and organizations to claim religious-based exemptions from statutory laws, including those that prohibit discrimination against LGBTQ people. The court’s willingness on its shadow docket — unsigned orders issued without full briefing or argument — to grant such exemptions to churches and other religious groups who objected to pandemic-related restrictions on large gatherings is a strong tea leaf.
The blow that the court could deal to individual reproductive rights and the interest of cities and states to protect their citizens from gun violence is bad enough. But it’s important to remember that the stakes are even higher for LGBTQ people and all marginalized Americans.