Anyone with even a passing interest in LGBTQ equality likely is familiar with the explicit legislative and judicial attacks on the community’s rights in 2022. After all, we saw widespread media coverage of the 36 states that introduced over 300 anti-LGBTQ laws or policies this year. Likely less obvious to both casual observers as well as those who closely follow LGBTQ civil rights issues are several non-LGBTQ cases handed down by the U.S. Supreme Court in 2022.
Scaffolding these legal setbacks is the equally troubling rise of anti-LGBTQ rhetoric in the public square. What’s old is new again: 2022 has seen the reprisal of decades-old narratives and tropes demonizing and dehumanizing LGBTQ people. For example, 2022 brought with it a marked uptick in the language of “grooming” — an accusation lobbed at gays and lesbians in the 1970s alongside accusations of pedophilia.
Together, these legal attacks and alarming rhetoric rendered 2022 a year of dangerous retrenchment for LGBTQ Americans and their civil rights.
Anti-LGBTQ Legislation in 2022
Most of these anti-LGBTQ laws — 86 percent of them — target youth, especially transgender youth. This included bans on gender-affirming health care, the targeting of parents who provide such care to their transgender children and laws banning transgender girls from playing on girls’ sports teams. The harm these laws inflict on trans youth cannot be overstated.
State legislatures also kept busy in 2022 passing “Don’t Say Gay” laws. These laws amount to a gag order on educators, prohibiting discussion of sexual orientation and gender identity in some grade levels. Six states now have these censorship laws on the books. Five other states have laws requiring that parents be notified of and given the opportunity to opt their children out of LGBTQ-inclusive curricula. Of course, these laws place particular burdens on LGBTQ students and students whose parents are LGBTQ, but they also harm heterosexual and cisgender students.
Texas has floated a bill that would criminalize drag shows. These bills follow on the heels of a marked increase in right-wing extremists terrorizing Pride celebrations and drag shows while spewing misinformation about such events. Right-wing media has joined conservative lawmakers in this effort: Fox News’s Tucker Carlson has made the false claim that drag queen story hours for children, which have emerged as popular family-themed drag events, in reality have the goal to “indoctrinate and sexualize children.”
States weren’t alone in their anti-LGBTQ lawmaking. Congress stepped into the fray when over 30 Republican members proposed a national “Don’t Say Gay” bill, provocatively titled the Stop the Sexualization of Children Act. While it did not pass the House when the Democrats were in control, the 2022 midterms tipped the balance of power in the House to the Republicans. Should the law pass in the next session, it would nationalize the harm already being done at the state level.
To be sure, when anti-LGBTQ laws have been challenged, courts have so far put a hold on them. But these are not true victories for LGBTQ people. Rather, these courts are issuing injunctions, which merely stop enforcement of the laws while the parties fight out the legality of the laws in court, a process that can take years and could still lead to their eventual enforcement. While the temporary pause on enforcement of these laws is a positive for the LGBTQ community, the ultimate outcome of the legal challenges remains up in the air. Collective anxiety and fear will persist in the interstitial period, as will the introduction of such laws in state legislatures around the country. Until a court definitively strikes down these anti-LGBTQ laws, states will remain empowered and emboldened to continue passing them.
Anti-LGBTQ Court Decisions
While some anti-LGBTQ legislation was temporarily blocked in the courts, judges also joined legislatures in diminishing LGBTQ rights this year. In September, a judge in Texas held that a mandate contained in the Affordable Care Act that requires employers to provide insurance coverage of a drug that prevents the transmission of HIV could not be applied to a company that had a religious objection to such coverage. The company argued that compliance with the mandate made it “complicit in facilitating homosexual behavior,” which in turn violated its sincerely held religious belief that the “Bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct.”
This religious exemption from complying with the Affordable Care Act tracks efforts by wedding vendors seeking similar religious exemptions from state public accommodations laws so that they may refuse goods and services to same-sex couples. In fact, on December 5, 2022, the U.S Supreme Court heard oral argument on one such case: 303 Creative LLC v. Elenis, a case in which a Christian wedding website designer is seeking a religious exemption from Colorado’s anti-discrimination law so that she may turn away same-sex couples. She argued that application of the Colorado law violates her First Amendment free speech rights because it forces her to express a message about marriage that conflicts with her religious beliefs.
Notably, this case could further expand the ability of vendors to receive religious exemptions and thus gain the right to discriminate against LGBTQ customers. That is because the court’s previous anti-LGBTQ religious exemption case involved the First Amendment’s Free Exercise Clause, as opposed to the Free Speech Clause that is at issue in 303 Creative. In its 2015 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court granted a religious exemption to Colorado’s law to a baker who wanted to refuse to sell a wedding cake to a same-sex couple. The court held that the adjudication process was tainted with religious hostility and thus violated the First Amendment’s Free Exercise Clause. Although the baker in Masterpiece Cakeshop also asserted a free speech claim, the court did not address that claim.
The free speech claim is now teed up in the 303 Creative case. If the court finds in favor of the web designer, going forward vendors will have two legs to stand on when claiming the right to discriminate — the Free Speech Clause and the Free Exercise Clause. Stay tuned: The court’s ruling in this case is expected by June 2023, although many suspect that a decision in favor of the website designer is likely, based on the court’s decisions in its last term.
The Hidden Threat to LGBTQ Rights
Likely more elusive to even those most attentive to LGBTQ civil rights are a series of dangerous doctrine-shifting decisions from the U.S. Supreme Court this year that, on their surface, had nothing to do with LGBTQ civil rights. So why include such cases in a year-end wrap up of the LGBTQ legal landscape? Because these cases set the stage for significant retrenchment in the area of LGBTQ civil rights moving forward.
Dobbs v. Jackson Women’s Health Organization
One of 2022’s blockbuster Supreme Court cases, the Dobbs decision struck down 50 years of precedent when it overruled Roe v. Wade and proclaimed that the U.S. Constitution does not protect the right to abortion. Although Dobbs didn’t present any questions about LGBTQ civil rights, its holding imperils those rights, including the right to gender-affirming health care and the right to same-sex marriage declared in the 2015 case of Obergefell v. Hodges.
Why does a case overruling a constitutional right to abortion threaten same-sex marriage? Because the reasoning on which the right to abortion was based in Roe is the same reasoning on which the right to same-sex marriage was based in Obergefell. In fact, Justice Thomas’s concurring opinion in Dobbs explicitly invited the court to revisit — and reverse — Obergefell.
Thus, even what looks like good legislative news — the recent passage of the Respect for Marriage Act and its pending signature into law by President Biden — isn’t all that good. The passage of that act was lauded by many as a victory for LGBTQ civil rights. But it does not — and cannot — prevent the right to marriage from being taken away, as only the Supreme Court has the power to declare what constitutes a fundamental right under the U.S. Constitution. And after Dobbs, the Obergefell holding is up for grabs.
Should that occur, the question of same-sex marriage would return to the states, just as the question of the right to abortion has returned to the states after Dobbs. The Respect for Marriage Act would provide no protection against states banning same-sex marriage. In fact, it is likely that over 30 states would ban same-sex marriage and the Respect for Marriage Act would be powerless to stop them.
Kennedy v. Bremerton School District
Bremerton presented a dispute under the First Amendment’s Establishment Clause. A public high school football coach who knelt on the 50-yard line of the field to pray at the end of each game challenged his termination. The school district believed that the coach’s public prayer under these circumstances violated the First Amendment’s Establishment Clause. As a result, the school district fired the coach when he continued his public prayers after having been notified that such conduct was prohibited. The court sided with the coach.
Until this case, the enforcement of the Establishment Clause to preclude public prayer in schools was largely accepted as an instance in which such speech should and could be constrained to preserve the separation of church and state. It is thus neither punishment nor discrimination by the state to find that public prayer is impermissible in some contexts — including on the facts of Bremerton, as held by the lower courts. The Establishment Clause itself supports the prohibition of public prayer in circumstances such as the one presented in Bremerton — at least it did until the court upended Establishment Clause jurisprudence in that case.
Carson v. Makin
Carson v. Makin involved a challenge to a program in Maine that provided tuition assistance to send children to private schools. The program had a non-sectarian provision that prohibited the use of such state funds to pay for private religious schools. The court sided with parents who challenged the non-sectarian provision: It held that the prohibition on funds for religious schools violated the First Amendment’s free exercise provision.
In reaching these results, the court put Christian nationalist interests out of the reach of long-established and now-gutted First Amendment principles that, until 2022, demanded the separation of church and state. These cases threaten LGBTQ rights — even though they didn’t involve any claims with regard to sexual orientation or gender identity. Why? Because religious faith has long been used to justify homophobia, conversion therapy and anti-LGBTQ policies. The weakened wall between church and state opens up space for religiously based anti-LGBTQ rationale to propel more anti-LGBTQ legislation. It opens up space for anti-LGBTQ rhetoric — including sectarian prayer — in public schools, a place where LGBTQ students are particularly vulnerable to harm. Two of the religious schools in Maine that will now receive state funds openly discriminate against LGBTQ students.
West Virginia v. EPA
This case presented the question of whether the Environmental Protection Agency (EPA) has the authority to devise certain carbon emissions caps. Congress frequently delegates authority to federal agencies to promulgate regulations that will implement federal legislation. However, courts may use a doctrine known as the Major Questions Doctrine to hold that in some instances, such as when the issue is one of “major political significance,” a general delegation of authority by Congress isn’t enough. In those instances, Congress must give clear statutory authorization for such agency authority.
In the West Virginia case, the court applied the Major Questions Doctrine to hold that the EPA did not have such authority. The holding has been described as an attack on the administrative state that was a legal farce. The case is another whose downstream effects may make LGBTQ civil rights more vulnerable to attack.
What does an EPA case have to do with LGBTQ civil rights? More than initially meets the eye. The EPA regulations under attack in the West Virginia case are not unusual. Much of federal law is implemented through administrative agencies. For example, the EPA promulgates regulations to implement the Clean Air Act. Similarly, the Department of Education promulgates regulations to implement Title IX, the federal law that prohibits sex discrimination in education programs or activities that receive federal financial assistance.
As such, the West Virginia case’s attack on the power of federal agencies to promulgate such regulations may have downstream effects on other agencies, like the Department of Education’s power to promulgate pro-LGBTQ regulations to implement Title IX. The Department of Education currently is undertaking to do just that. The court’s abuse of the Major Questions Doctrine in the West Virginia case opens the door for its misuse in future cases, including cases challenging these pro-LGBTQ Title IX regulations should they become final. Climate change and Title IX’s coverage of LGBTQ students (especially transgender athletes) are both cultural flashpoints, so the court’s willingness to power grab in the climate change regulatory context suggests that it would be willing to do so in a case challenging pro-LGBTQ Title IX regulations. When such a case is filed, opponents of LGBTQ rights likely will shop for a favorable judge and seek a nationwide injunction, which would halt implementation of the regulations for as long as the dispute is tied up in litigation.
“Imperial Supreme Court”
Each of these non-LGBTQ cases holds the potential to have dangerous downstream effects on LGBTQ rights. The court’s shift to the right has been marked by a willingness to take its opinions “in radically different directions.” Professor Mark Lemley describes today’s court as the “Imperial Supreme Court” because its recent decisions have “taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts” in a manner that leads to the conclusion that it seeks to consolidate power in one place: itself.
Its recent LGBTQ cases reveal that the court has its sights set on further dismantling LGBTQ rights in the name of Christian nationalism. The non-LGBTQ cases of Bremerton, Makin, West Virginia and Dobbs set the stage for the ongoing retrenchment of LGBTQ rights when cases like the 303 Creative reach the court.
In sum, 2022 saw a tripartite attack on LGBTQ rights, although only two of those might be on the radar of most LGBTQ people and their allies — anti-LGBTQ legislation and anti-LGBTQ decisions by lower courts. These expressly anti-LGBTQ attacks are, of course, dangerous and cause for concern. But their explicitness means that they can be targeted by LGBTQ activists and allies; LGBTQ people can organize, rally, lobby, run for office and litigate to push back against these express attacks.
It is the third prong of the tripartite attack, the Supreme Court’s insidious shift to the right in the constitutional and regulatory spheres in non-LGBTQ cases, that is especially nefarious and troubling because these decisions hide their destructive power to undermine LGBTQ rights. The hidden quality of the threats makes it more difficult to rally, organize and set an agenda for the LGBTQ rights movement that can tackle head-on the downstream threats to LGBTQ rights posed by these cases. LGBTQ rights activists and allies will need to build more powerful coalitions in 2023 with other progressive causes, such as environmental justice advocates and First Amendment activists, to anticipate these downstream threats and organize to meet and defeat them.
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