ISSUES&POLITICS

A Supreme Injustice

The impact of Justice Ruth Bader Ginsburg’s death and her replacement Amy Coney Barrett’s role as a trump card, may have long lasting repercussions now that the Supreme Court has become two-thirds conservative, 6 to 3, without any chance of a swing vote.

INTRODUCTION AND INTERVIEWS BY JOHN SOTOMAYOR

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he fought to the very end. Adamant that President Trump not select her successor, iconic liberal feminist Supreme Court Justice Ruth Bader Ginsburg whispered to her granddaughter, Clara Spera, on her death bed, “My most fervent wish is that I will not be replaced until a new president is installed.” Alas, that did not come to pass. On September 13, 2020, Ginsburg died from complications from metastatic pancreatic cancer. On October 27, 2020, President Trump’s nominee Amy Coney Barrett was confi rmed and appointed to the United States Supreme Court, just over a month after Ginsburg’s death thanks to a hurried eff ort by Republicans to assure her appointment before the presidential election. While one can certainly speculate that Justice Ginsburg would have been jubilant over Trump’s loss in the election, and thus, his eventual removal from offi ce, one could argue that with a conservative bench of 6 to 3, a non-correctable new course has already been set.

Questions arise. What will the impact of Justice Ginburg’s death and Justice Barrett’s appointment be on the US Supreme Court, specifi cally to issues of Gay Equal Rights and Religious Freedom? Justice Clarence Thomas and Justice Samuel Alito wish to repeal Gay Marriage. Specifi cally, they wish to repeal the court’s 2015 decision Obergefell v. Hodges, which declared that same-sex couples have the constitutional right to marry under the 14th Amendment guarantee to equal protection of the law. Will the landmark case be reversed?

Embrace Magazine interviewed four local political leaders for answers.

CHUCK HIGGINS President, Citrus

Pride (Crystal River, Fla.)

Justice Ginsburg was an irreplaceable LGBTQ ally on the Supreme Court. She was a tireless ally of the historical arc toward equality for all marginalized people and nothing demonstrates how solid this support was than the act of becoming the fi rst Supreme Court Justice to offi ciate at a same sex wedding!

The confi rmation of Amy Coney Barret will not be a slight shift, it is likely to be a 180. But I must admit it is diffi cult to predict her potential to rule on LGBTQ issues because of the lack of prior cases or rulings on the subject. Still, based on her background I do have an opinion.

Judge Barrett’s strong religious foundations, especially rooted in a very conservative version of her Christian faith, combined with her early shaping by association with Justice Scalia, would seem to easily predict how she might side on almost any LGBTQ issue. Would she be willing to go so far as to vote to overturn marriage equality though? The worrisome opinion would be from a 2013 Law Review article she co-authored, in which she said that the judicial doctrine of stare decisis, standing by previous decisions, is “not a hard and fast rule.” The good news I fi nd in that same article is that she also indicated that she feels that whether or not to revisit a past decision hinges partially on the measure of broad judicial, political and public opinion about the subject at hand. This strikes me as an interesting view, one we often speculate might infl uence the court. Let us hope the polls are ever in our favor!

In my view, the more likely downside, and it’s severe, is that Judge Barrett is likely to err on the side of religious liberty as a trump card of other rights rather than balanced against other rights. For this view I use her conservative religious background, past statements, and her on again off again membership in the Federalist Society. She was a member from 2005-06 and 2014-2017, quitting when she joined the appeals court. Keep in mind that the four dissenting justices in the marriage equality were all Federalist Society heroes.

I believe what will happen with this change is a parallel to what we have seen over the past few years with abortion. People will purposefully bring cases designed to chip away at the edges of marriage equality, for example, allowing organizations to deny adoption, or allowing companies to deny certain benefi ts to same sex couples because it off ends their religious views. This new court in a series of divided opinions, will erode the rights of same sex couples until we’re back in our place as second-class citizens.

BRANDON WOLF Central Florida Development Offi cer and Media Relations Manager, Equality Florida (Orlando, Fla.)

Justice Ginsburg was a champion on the court and a moral compass for the nation. Her legacy is one of staunch support for women’s reproductive rights, LGBTQ civil rights, and more. She helped usher in an era of advancement for LGBTQ people, helping decriminalize homosexuality in 2003, joining the majority to enshrine marriage equality for LGBTQ people in 2013 and 2015, and, in one of her fi nal cases, helping secure workplace protections for LGBTQ people earlier this year. The nomination of Judge Barrett marks a frightening turn for the rights of LGBTQ people across the country. She has expressed doubts in the Obergefell decision that granted our community the right to marry who we love and has questioned the granting of Title IX legal protections to transgender Americans. In short, Ruth Bader Ginsburg leaves behind an incredible legacy of support for the rights of LGBTQ Americans – a legacy now in danger of erasure.

As noted, Justice Barrett poses an extreme threat to the rights of the American people that have been secured through Supreme Court decisions. We know that she has served on the Board of Trustees for a private school with anti-LGBTQ policies. We know that her religious congregation has come under scrutiny. But more concerning than her personal views are her perspectives on law – and precedent. She has on numerous occasions likened Supreme Court precedent to “guidelines” rather than fi rm rules. That means that a Justice Barrett, alongside a Conservative majority on the nation’s highest court, may well be open to relitigating (and removing) rights our communities have fought hard to secure.

The comments by Justices Thomas and Alito regarding marriage equality should send chills down the spines of all Americans. Remember that in 2015, the Supreme Court enshrined the rights of LGBTQ Americans to marry who they love into law. Since then, millions of couples have taken that next step in their relationships. Millions of ceremonies were held. Millions of vows taken. Millions of marriages that now hang in the balance as the Justices call the decision a “problem only the Court can fi x”. The Supreme Court as an institution has been a lifeline for LGBTQ Americans. In the absence of legislative will, the Court has understood that LGBTQ people deserve to be treated with the same dignity and respect as others. That Justices Thomas and Alito are willing to call those hardwon rights into question, threatening to plunge the country into discriminatory days of old, should be a dire warning to all of us about the impact of a potential conservative super majority on the Court.

DONN LOPEZ-SMITH Human Rights

Activist and Equality Florida Board Member for Greater Gainesville (Gainesville, Fla.)

Justice Ginsburg was an outspoken champion of full and equal rights for women during her tenure on the court. Just as important, she joined the majority in every Supreme Court case in which the decision furthered LGBTQ equality and non-discrimination. These seminal cases included the 1996 ruling against the anti-gay Amendment 2 in Colorado (Romer v. Evans) and the overturning state criminalization of sodomy (Lawrence v. Texas) in 2003. She joined decisions in 2013 which struck down the Defense of Marriage act (Windsor v. United States) and reinstated marriages which had been barred in California by Prop 8 (Hollingsworth v. Perry) but most critically Justice Ginsburg was in the majority for the 2015 decision which overturned the remaining same-sex marriage bans throughout the country (Obergefell v. Hodges). These 5-4 decisions would have turned out very diff erently, and not on side of the LGBTQ community, if Justice Ginsburg were not on the bench. Just this year, she agreed with the Supreme Court’s Bostock v. Clayton County 6-3 decision which added protections for LGBTQ workers under Title VII.

Justice Ginsburg was an American hero for women’s and LGBTQ rights in this country. She earned her “Notorious RBG” moniker through her distinguished career fi ghting for equality, freedom and progress in marginalized communities, including our LGBTQ citizens.

Justice Amy Coney Barrett was very careful during her Senate confi rmation testimony to remain noncommittal regarding litigation that may come before the Supreme Court. She had no issue backing the landmark 1954 Brown v. Board of Education court decision on desegregation or the 1967 case that prohibited states from banning interracial marriages (Loving v. Virginia). However, Justice Barrett would not defend or endorse the Lawrence or Obergefell decisions. Her background before joining the Supreme Court is littered with questionable associations with anti-LGBT organizations such as acting on the Board of Trustees for three religious schools that are connected with the People of Praise church which her family attends. Each of these schools had policies that did not allow children of same-sex parents to attend and did not allow LGBTQ teachers in the classrooms. Particularly of concern is her association with Alliance Defending Freedom which is a legal group with conservative beliefs on the expansion of religious freedoms to the detriment of LGBTQ rights. Justice Barrett lectured at events funded and supported by this group. In fact, Alliance Defending Freedom aided in the legal defense for the Masterpiece Cakeshop owner plaintiff s which denied a service to a

same-sex couple based on their purported religious beliefs. Justice Barrett has already heard arguments in the fi rst LGBTQ-related case heard this session, Fulton County v. City of Philadelphia, which also addresses a religious organizations anti-LGBTQ discrimination in placing foster children in same-sex couple homes.

One needs to look no further than the dissent of Justices Thomas and Alito just last month in the case in which the court ruled against hearing the appeal of the former Kentucky county clerk who would not issue marriage licenses to same-sex couples. Both Justices agreed with the decision for the Court to not take on the litigation however they went further by writing a dissent which called the landmark Obergefell decision “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 fi x.” These two conservative extremists went further in the dissent by stating of the county clerk, “Davis may have been on the fi rst victims of this court’s cavalier treatment of religion in its Obergefell decision” and, therefore, the 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.” And most appalling Alito and Thomas stated “Obergefell will continue to have ruinous consequences for religious liberty.” With these hardline conservative and religious exception viewpoints on the prevailing side of future litigation, an entrenched 6-3 right-wing Supreme Court majority will undoubtedly chip away at all of the hard-fought liberties that are at the core of LGBTQ civil rights.

NATHAN BRUEMMER Legislative

Director at Florida LGBTQ Democratic Caucus (St Petersburg, Fla.)

The impact of Justice Ruth Bader Ginsburg’s death on the US Supreme Court will likely be felt for generations to come as the scales of justice will be unbalanced by not only the loss of a brilliant jurist, but also the addition of justice with a judicial record that may demolish decades of progress for LGBTQ+ civil rights, reproductive freedom, and aff ordable health care.

Justice Ginsburg was a champion of equality. Through her work as a civil rights attorney at the ACLU Women’s Rights Project, Ginsburg litigated a series of legal victories between 1971 and 1976 that strengthened constitutional protection for women by extending the Equal Protection Clause. Ginsburg argued in unique ways, often framing gender discrimination in a manner that even critics couldn’t disagree. In Craig V. Boren (1976) she argued not that women had equal freedom to men, but rather equal obligations. Additionally, this critical decision also established a new standard of review for states in gender discrimination cases – intermediate scrutiny.

On the bench, Justice Ginsburg joined rulings that indicated the fi ght for equality was shifting to include the fi ght for LGBTQ+ rights. In Romer v. Evans (1996) the court struck down Colorado’s anti-gay Amendment 2 and in Lawrence v. Texas (2003) the court struck down state laws criminalizing sodomy. Ginsburg also joined rulings through a series of cases that advanced marriage equality, including Windsor v. United States (2013), Hollingsworth v. Perry (2013) and Obergefell v. Hodges (2016).

The last signifi cant LGBTQ+ decision with Justice Ginsburg’s name on it was perhaps serendipitous. Her career was bookended by signifi cant cases involving sex discrimination. In Bostock v. Clayton County (2020) the court found anti-LGBTQ discrimination to be a form of sex discrimination.

While we will need to wait to see the decisions made, the impact of the appointment of Amy Coney Barrett has certainly been foreshadowed by her own words and actions, including her judicial record and her testimony during her confi rmation hearing. Additionally, Barrett holds herself out as a constitutional originalist. She addressed this during the confi rmation hearings, “I interpret its text as text and I understand it to have the meaning that it had at the time people ratifi ed it … [the] meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”

While her statement seems to demonstrate an attempt to feign respect for her duty as a jurist to be neutral and to separate the politics swirling around her specifi c appointment and its timing, it is anything but. Originalism has been politicized by the Republican Party who often heralds its support of conservative appointments to the bench under this alleged “neutral” banner. One needs to look no further than to consider the rhetoric of a fellow originalist. The late Justice Antonin Scalia often asserted the 14th Amendment only barred discrimination on the basis of race.

While fears of a repeal of the Obergefell decision abound after Justices Thomas and Alito issued a statement that the decision needs to be “fi xed,” the more immediate concern is the decision pending in Fulton v. Philadelphia currently before the court right now. This case stands to set a precedent that could allow discrimination against LGBTQ+ families.

The Supreme Court is the fi nal arbiter and guardian of the law in the United States. Our history as a nation is steeped in the fi ght for equal justice under the law – racial justice, reproductive justice, LGBTQ+ justice, and more. Despite the conversative majority that now sits on the highest court of the land that many assume will quell the tide of equality, if recent history is any guide – there is no stopping the rising tides of equality. Americans will continue to fi ght for equality under the law and when we have it one day – we will all win.