The Supreme Court had overruled more than 300 of its cases. With a Senate confirmation of Amy Coney Barrett, there should be a real concern that many landmark cases could be overturned. In recent years, the Supreme Court has been split four liberal, four conservative, and one swing vote. Chief Justice John Roberts now seems to be the swing vote replacing Justice Anthony Kennedy to bring balance to the Court. If Amy Coney Barret is confirmed, the balance will shift to three liberal, five conservative, and one swing vote. That puts Roe v. Wade in jeopardy, it puts the Affordable Care Act in jeopardy, and it puts Obergefell v. Hodges in jeopardy. Barrett has already indicated that she would like to see Roe v. Wadeoverturned. She has been critical of the Affordable Care Act. She has also voiced her disagreement with the 2015 Obergefell v. Hodges decision, which declared that same-sex couples have a constitutional right to marry under the 14th Amendment guarantee to equal protection of the law.
Her stance on Obergefell v. Hodges should be the most concerning for many in the LGBTQ+ community, especially after the news that Justices Clarence Thomas and Samuel Alito issued a strongly worded and scathing attack against the Court’s 2015 same-sex marriage decision on Monday. The justices issued the broadside when the Court declined to hear a case brought by a former Kentucky county clerk who refused to issue a marriage license for same-sex couples. The two justices agreed with the decision not to hear the case but used the occasion to make a strong statement about their disagreement with Obergefell v. Hodges. Writing for himself and Alito, Thomas said that the Court’s decision “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.”
His words came in a case brought by Kim Davis, a former county clerk in Kentucky, who refused to issue marriage licenses to same-sex couples and was sued in the aftermath of the same-sex marriage decision. “Davis may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision,” Thomas and Alito wrote. But they agreed that the Court properly decided not to take up Davis’ case because, they said, it does not “cleanly” present the issues in the Court’s 5-4 decision five years ago. Nevertheless, they said, the case “provides a stark reminder” of the consequences of the same-sex marriage decision. By choosing to endorse “a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix,” they said. “Until then, Obergefell will continue to have ruinous consequences for religious liberty.”
The fact that Thomas and Alito chose this moment to issue their blast provoked dismay in the LGBTQ+ community and elsewhere. At a time when the Supreme Court judicial balance is precarious, it is particularly alarming that there are justices who want to overrule Obergefell. Obergefell is a precedent the Court has reaffirmed and has allowed hundreds of thousands of couples to get married and legally affirm their commitment to each other. We have to ask ourselves, what would happen if Obergefell is overturned? It would lead to the end of same-sex marriage, but would it also invalidate the marriages that have already occurred? This would be a disastrous setback for LGBTQ+ rights. The Court is usually hesitant to overturn its own decisions, but it has famously been done several times and quietly many more times.
Chief Justice Roberts, who dissented in the 2015 decision along with Thomas, Alito, and the late Justice Antonin Scalia, did not sign on to the Thomas-Alito statement in the case, which could be a positive sign for a changed opinion from him. Trump appointees Neil Gorsuch and Brett Kavanaugh also did not sign the statement. But Barrett has indicated her disagreement with the 2015 decision, and Roberts, Gorsuch, Kavanaugh, and Barrett have all been staunch supporters of robust religious rights, de-emphasizing the concept of separation between church and state and emphasizing the importance of the free exercise of religion.
A conservative Court, especially one who disregards the separation of church and state, is a frightening proposition, making it all the more imperative to get out and vote. We have to win the Senate and the White House while retaining the House of Representatives. The Republican Party is barreling ahead with its effort to install Barrett mere weeks before Election Day. The reckless rush to vote indicates the desperate and corrosive power grab at play, one that places the future of the Court at risk. If Republicans succeed, and Democrats win the Senate and the White House in November, Democrats will have no choice but to add seats for additional justices—not as a means of political one-upmanship, but, paradoxically, to save the Court.
For the past few years, court-packing has mostly been a fringe idea, and the Democratic establishment has been resistant to the notion because Republicans would someday surely try to respond in kind. The current battle over the Supreme Court changes everything; if Barrett is confirmed and Trump loses the election, adhering to norms and accepting the status quo on January 20 poses a greater harm than expanding the Court would. Because of the damage Barrett’s confirmation could do to the nation, adding justices may be the only way to restore the institutional legitimacy of the Court.
Consider the nature of McConnell’s gamble in pushing forward Barrett’s nomination. If Trump wins, there is little upside to the current rush to fill the late Justice Ginsburg’s seat; the Senate would easily be able to confirm Barrett just a few weeks later, and with far broader public confidence. However, if Trump loses, Republicans might not have enough votes during the lame-duck session to confirm Barrett because a handful of Republican senators—particularly senators from states that seem poised to break for Biden—could hesitate to disregard the will of voters so brazenly. The fact that Trump advisers and allies are pushing so hard to vote on Barrett’s confirmation before the election is a sign of how many of them believe he’s likely to lose. They are desperate. Their desperation seems even truer now that McConnell is determined to push through with his original confirmation schedule despite the spread of the coronavirus among Senate Republicans. By forcing a vote before Election Day, McConnell is ensuring that electoral loss—which is to say, the public’s will—won’t prevent conservatives from filling the seat.
So let me say this loud and clear if you are LGBTQ+ or an Ally, which I assume you are since you’re reading this blog, it is imperative that you vote for Joe Biden for president and vote for Democrats down the ballot. We must preserve our rights. At this point, a vote for a Republican is a vote against LGBTQ+ rights. The following is from the 2020 Republican Party Platform:
There are many other reasons that I have mentioned numerous times for voting for Democrats in this election, but if you care about our right to marry, our right to have jobs without the fear of losing them over our sexuality, or maybe you want to adopt a child, all of this hangs in the balance in this election. While I doubt I will ever get married (I’m older and not in the best of shape, and I live in Vermont where there are slim pickings), I still want the ability to get married if I ever meet the right person. I want equality for all members of the LGBTQ+ community, and that is in jeopardy with the current administration. If you were considering not voting, think again. You cannot afford not to vote. Our lives depend on voting blue in this election. Every vote is needed to defeat the current president and the disastrous policies of the Republican Party. We are literally in a fight for our lives, and we must let our voices be heard loud and clear.