Photo by Fred Schilling
In June 2023, six out of nine Supreme Court justices ruled in 303 Creative LLC v. Elenis that a Colorado graphic designer could legally discriminate against same-sex couples by refusing to make websites for their weddings. The case expands the narrower precedent of Masterpiece Cakeshop v. Colorado Civil Rights Commission, a 2018 decision which ruled that the Colorado Civil Rights Commission could not compel a bakery to sell a wedding cake to a same-sex couple. Both rulings used the First Amendment’s provision for religious freedom as a bludgeon against the LGBTQ+ community’s right to access to public life.
Those two are so far the only cases under the Roberts court to infringe on queer civil rights protected by the Constitution. However, given the sharply conservative turn the Court took during the Trump administration, the anti-LGBTQ+ decisions in two recent cases present a clear warning. Future decisions may have much further reaching implications, including overturning established queer federal civil rights.
Dobbs v. Jackson Women’s Health Organization, the case which overturned Roe v. Wade, provides a crucial study in the current Court’s approach to recently established rights. Under the due process clause of the 14th Amendment, US states cannot “deprive” citizens of “liberty […] without due process of law,” language which forms the basis for Constitutional protections of queer rights. For example, it formed the Constitutional basis for the right to abortion in Roe v. Wade.
However, the Roe v. Wade interpretation is controversial among the Constitutional originalists on the Court: conservative Justices hold that the meaning of an amendment is frozen to its meaning at the time it was enacted — which, for the 14th Amendment, was 1868. In a 6–3 majority opinion, Justice Alito argued that the right to abortion was not deeply rooted in American history, excluding it from the scope of the 14th Amendment. Like the right to an abortion, LGBTQ+ rights — including marriage and the right to have intimate queer relationships, established in 2003 with Lawrence v. Texas — are not enshrined in 19th century American history. The reasoning used in deciding Dobbs v. Jackson Women’s Health Organization are well suited to overturn other landmark queer protections.
In particular, Justice Clarence Thomas, the longest serving Supreme Court Justice, has already called queer constitutional protections “demonstrably erroneous.” In a concurring opinion for Dobbs v. Jackson Women’s Health Organization, Thomas argued that the Court “should reconsider” landmark queer rights, including Lawrence v. Texas and the right to same-sex marriage created in Obergefell v. Hodges. Thomas went on to say that the due process clause of the 14th Amendment “does not secure any substantive rights,” implicating the future of queer rights in Supreme Court legal philosophy.
The six-justice conservative majority on the Supreme Court is unlikely to rule in favor of queer rights in upcoming terms. However, there is reason for hope: in a 2020 ruling, conservative Justices Neil Gorsuch and John Roberts joined the liberal minority in a 6–3 ruling which affirmed transgender and queer protections under the Civil Rights Act. Upcoming dockets may see similarly strange bedfellows reaffirm queer legal protections — or they may see the 6–3 majority which overturned Roe v. Wade apply the same standard to Obergefell v. Hodges.
Author: JQ Shearin (She/Her)
Copy Editors: Bella (She/They), Ava Rosenberg (She/They)