Photo Credit: ZerborIt has been said that if you repeat a lie enough times, it becomes the truth. So it is with the false narrative that our Constitution cannot provide civil liberties and equal protection for members of the LGBT community while it simultaneously respects individual religious beliefs and practices.
Despite being in a nation that sprouted from seeds of personal liberty, freedom and individual rights, the politically manufactured controversy that pits religion against equal rights has come before the United States Supreme Court repeatedly over the past four decades. During that time, the LGBT community has achieved significant and life-changing successes in multiple cases and were finally able to cast aside the fallacious judicial theory that the moral views of some should be permitted to segregate and do harm to others.
However, oral arguments in those cases over the past four decades were peppered with moral condemnation of the LGBT community and off-color humor one might hear in a frat house. The resulting High Court opinions were fractured and included scathing dissents from Chief Justice Rehnquist and Justices Scalia, Thomas and Alito that were filled with invectives against gays and lesbians, denigration of a “so-called ‘homosexual agenda,’” and comparisons of LGBT status to “adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”
The dissenters champion the views of a minority of Americans whose animosity toward gays and lesbians is rooted in their religious beliefs. They add cosmetic phrases like “sincerely held” to soften the true nature of these exclusionary religious beliefs, and they describe those views as so-called “traditional Christian values” to falsely ascribe them to the divine, as if Jesus himself opposed LGBT rights.
In doing so, the dissenting opinions claim both a moral superiority to denigrate LGBT people and widespread support for imposing this righteous piety in the nation’s law books. This concept of “morals legislation,” as Justice Scalia called it, is actually a conflation of the legitimate lawmaking process that advances societal norms and prohibits conduct generally agreed to be unacceptable with a legislative process that incorporates exclusionary religious views that reject LGBT civil rights protections and marriage equality.
Under the erroneous circular logic advanced in these Supreme Court dissents, in order to not violate the free exercise of religion clause, the government elevates the so-called “sincerely held religious beliefs” that reject LGBT people as sinners because they offend “traditional Christian values.” In short, the dissenters seek to do that very thing the Constitution forbids: make a law respecting the establishment of a religion. The dissenters do not see it that way, and previously decried the Supreme Court majority’s rejection of the “morals legislation” model that transacted in the adoption and enforcement of laws designed to withhold civil rights protections and liberties from the LGBT community.
In recent weeks, there has been a seismic shift in the legal analysis that will be brought to bear on the Court’s docket. Several of the Justices are on record championing Originalism as legitimate Constitutional scholarship—something it is not, as discussed in my last New Jersey Law Journal monthly column.
Justices Thomas and Alito, the two most severe opponents of LGBT equal rights, are clearly feeling emboldened. They began the new SCOTUS term with a joint statement in which they committed to work to protect “traditional Christian values” from “the court’s cavalier treatment of religion” which will manifest initially in their calculated efforts to rescind the right to marriage equality for committed same-sex couples and their families established in Obergefell v. Hodges, 576 U.S. 644 (2015). Justices Thomas and Alito pointedly stated, “By choosing to privilege 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. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”
Their joint “statement … respecting the denial of certiorari” in Kim Davis v. Ermold, et. al, 592 U.S. ____ (2020), was stunning for numerous reasons, not the least being the sense of unseemliness that pervades judicial operations as Supreme Court Justices appear to foment political and legal efforts to destabilize the five-year old Obergefell decision and undercut its legitimacy. Indeed, the Kim Davis certiorari denial that served as the vehicle for delivering Justice Thomas and Alito’s joint statement represents one of numerous examples of significant resistance to implementation of marriage equality, especially in provincial areas of the country.
The Justices’ decision to speak out in this manner and on this particular matter was also curious because there is much more to Kim Davis’ story than her notoriety as a former Kentucky county clerk who refused to issue a marriage license to a gay couple as required by state law following the Obergefell ruling.
First, while Davis’ religion did not approve of same-sex marriage, apparently it did approve of Davis’ four marriages to three men during her lifetime. More importantly, the county clerk who issued those four separate marriage licenses apparently approved. Second, Kentucky voters drummed Davis out of office following her refusal to issue the marriage license to the gay couple. Third, Kentucky state and federal courts rejected Davis’ claims that she should not be required to do the job she gets paid to do by Rowan County residents because she did not support marriage equality. Instead, Davis was held liable to the gay couple she refused to service and ordered to pay hundreds of thousands of dollars in damages and attorney fees.
Justice Alito has also taken his advocacy outside the court room in recent months to deliver speeches to private organizations including the Federalist Society. Using language that clearly demonstrates he has no intention of feigning impartiality, he expresses frustration about name-calling and insults hurled at people because of their faith: “You can’t say that marriage is a union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.” In response, I will merely say how unfortunate for Justice Alito that he has not spent his life as a gay man because then he would really know what name-calling and insults are.
The renewed consideration of backtracking on LGBT civil rights is disturbing and dangerous to those of us who have seen much worse times for our community. Considering that the overwhelming majority of Americans support the freedom to marry, the efforts to undo LGBT civil rights advances coming from the highest offices in the federal judiciary do two grave harms. First, they reflect an arrogance that one can impose their own minority religious perspective, values and views on others. Second, they erode confidence in the fairness and impartiality of the judiciary that is critical to its operations and success.
The rights of LGBT people to get married, raise families, have jobs, and not be subjected to criminal penalties for their private intimacy should not be a war—or “culture war,” as Justice Scalia patronizingly referred to it in his dissent in Lawrence v. Texas, 539 U.S. 558 (2003). For well over a half century, the Supreme Court has repeatedly recognized that the Equal Protection of the law is a Constitutional promise to every person, even those with whom we disagree. Despite the many differences across our humanity, in recent years, the Court has refused to allow “gay persons … [to be] treated as social outcasts” and has enshrined their “dignity and worth” as privacy rights rooted in the Constitution. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. __ (2018).
Thomas Prol is a partner at Sills Cummis & Gross, P.C., in Newark, and was the first openly gay president of the New Jersey State Bar Association (2016-17). He writes a monthly column for the NJ Law Journal. The opinions expressed are his own.
