Irving, Texas
Eighteen months ago, Lorah Trumbatori and Stephanie Rogers were married under the wide Texas sky in a rural county west of San Antonio.
It was the end of a long, and sometimes difficult, journey. Ms. Rogers is a lesbian and Ms. Trumbatori is trans, and in the years they’ve been together – first in Southern California and then in Texas – their parents had gradually, sometimes awkwardly, warmed to their partnership. Her father is accepting, says Ms. Rogers, though probably not affirming.
But a ride off into the sunset did not follow. In fact, their union began another long, difficult journey. First, the pandemic struck, and in a state where LGBTQ couples can feel uncomfortable in public, they could barely be in public at all. Now, legal winds are rising that could uproot the rights that have helped them feel like safe, valued, and equal members of society.
Why We Wrote This
The Supreme Court appears on the cusp of overturning a right – to abortion – for the first time in modern history. What happens to other rights unpopular with conservative Christians that, like abortion, were underpinned by the 14th Amendment? Part 2 of an occasional series.
Last week, a draft opinion overturning the right to abortion leaked from the U.S. Supreme Court. While the final opinion could be different, and while the draft opinion stressed that the abortion right lies on shakier legal ground than other rights not explicitly mentioned in the Constitution (known as unenumerated rights), many legal experts are less sure.
Three current members of the court voted against recognizing a right to same-sex marriage in Obergefell v. Hodges – including Justice Samuel Alito, the author of the leaked draft opinion – and have repeated their objections that it has “ruinous consequences for religious liberty.” Conservative lawmakers and lawyers have argued recently that same-sex marriage carries the same fundamental flaw as other unenumerated rights. Meanwhile, red states around the country are enacting laws and policies targeting LGBTQ youth and their parents.
Sitting in a cafe in Dallas last month, weeks before the leak of the draft opinion, Ms. Trumbatori and Ms. Rogers link arms. It’s been seven years since Obergefell, they note – seven years that have transformed their lives and how they feel society views them. But now they’re starting to feel whiplash.
“There has been a lot of progression,” says Ms. Trumbatori, but “it can erase pretty easily, because it’s such a marginalized group.”
Speaking on the phone last week, after the leak of the draft opinion, Ms. Rogers admits she has had trouble sleeping. But she still has some dark humor. Will Texas try to unmarry them? Should they get married in a bunch of other states? Or set up an LLC to protect their assets in a state that recognizes their marriage?
“I am no longer imagining that there is a slippery slope,” she says. “There is a slide happening. It could pick up speed.”
How “deeply rooted” are LGBTQ rights?
The past decade has seen LGBTQ rights become the leading edge of a long, steady expansion of fundamental rights – typically underpinned by the due process clause of the 14th Amendment – over the past half-century. What began with the dismantling of Jim Crow segregation in the 1960s continued with the expansion of sexual freedom rights, such as to contraception (Griswold v. Connecticut) and abortion (Roe v. Wade).
By 2003, however, most LGBTQ Americans still lived firmly in the closet. Fourteen states criminalized sodomy, and there were no same-sex spouses – at least officially. The Supreme Court legalized sodomy that year in Lawrence v. Texas. The next year, Massachusetts became the first state to legalize same-sex marriage. Twelve years later, as norms changed and same-sex relationships became more visible and accepted – with 37 states and Washington, D.C., following Massachusetts’ lead – the high court delivered the Obergefell ruling.
Both the Lawrence and Obergefell decisions followed a similar rationale – a rationale that dates back to the Supreme Court’s contraception and abortion rulings of the 1960s and ’70s. The due process clause of the 14th Amendment – holding that a state cannot deny a person “life, liberty, or property, without due process of law” – protects certain substantive, unenumerated rights from government intrusion.
Many unenumerated rights have been recognized by the courts, but this “substantive due process” doctrine has been criticized by conservatives for empowering unelected judges with the ability to “create” rights that don’t flow directly from the text of the Constitution.
In the draft opinion for Dobbs v. Jackson Women’s Health leaked to Politico last week, Justice Alito writes that overturning Roe and a related case, 1992’s Planned Parenthood v. Casey, “should [not] be understood to cast doubts on precedents that do not concern abortion.”
Some analysts are skeptical that the end of Roe would quickly result in the end of Obergefell and other LGBTQ rights.
But other legal experts have doubts. In the draft opinion, for example, Justice Alito writes that the court “has long asked whether the [unenumerated] right is ‘deeply rooted in [our] history and tradition.’” The right to same-sex marriage would likely not fall into that category.
In the coffee shop in Dallas, Ms. Trumbatori says her wife “worries too much.”
“I’m a professional worrier,” Ms. Rogers replies.
And she does worry, she continues, that the country is moving back toward a marginalization of LGBTQ people. Then she worries about the consequences that could have.
“One of the things that’s always been said in the LGBT community is, if you just get to know your gay friend, your gay neighbor, your trans friend, your trans neighbor, whatever, you will begin to humanize them,” she says.
If it becomes harder to talk about and normalize LGBTQ people, she adds, “it just makes it easier for people to think of queer people as less existent, I guess, and therefore less in need of defending.”
The question of parental rights
In Florida, January Littlejohn also expresses worries, but from a very different perspective. Hers started in the spring of 2020, when her 13-year-old daughter told her she was confused about her gender and thought she might be nonbinary.
Mrs. Littlejohn became more worried when, soon after the next school year had begun, her daughter climbed into the car and mentioned, offhandedly, that school officials had asked her in a private meeting which bathroom she wanted to use.
“I had zero idea that a meeting had been set up,” she says. After she immediately contacted the school, officials told her that parents couldn’t attend the meeting if their child didn’t request it, and that information about the meeting was protected under a state nondiscrimination law.
“That is a gross violation of parental rights, regardless of the content of the meeting,” says Mrs. Littlejohn. “It is my job to protect my daughter, and they took that away from me.”
Mrs. Littlejohn and her husband have filed a federal civil rights lawsuit against the Tallahassee, Florida, school district, hoping to “vindicate their fundamental rights to direct the upbringing of their children.”
A jury trial has been scheduled for January next year, but it’s not just the school district that she believes has been interfering in her relationship with her daughter. She’s concerned about how schools handle students’ feelings around gender identity and sexual orientation. But she’s also concerned about what she believes is partially a socially driven phenomenon.
“I believe [a lot of these kids] are being swept up into a social movement and not fully understanding the consequences,” she says. “I’m very concerned about the issue overall.”
It’s why she’s thankful Florida has enacted the Parental Rights in Education law.
The seven-page law requires schools to share more information with parents regarding their child’s “mental, emotional, or physical well-being.” More controversially, the law prohibits classroom instruction on gender identity or sexual orientation from kindergarten through third grade “or in a manner that is not age-appropriate or developmentally appropriate for students,” and it authorizes parents to sue the school district if they believe it isn’t following the law.
“The true bulk of the bill [is] to further protect parental rights,” says Mrs. Littlejohn.
“These are distressing [times], times of crises” in a child’s life, she adds. “They need their parents the most.”
A “skim milk education”?
Critics have labeled it the “Don’t Say Gay” law. It is one of many laws and policies implemented in red states in recent months concerning LGBTQ education and health care.
Florida’s law goes into effect in July, and critics are concerned that the classroom instruction provision is so vague and ambiguous that, coupled with the potential for legal action, the existence of the LGBTQ community will be effectively erased from school life.
“The anxiety is that teachers and schools will be so scared about what the law might mean … that they will err in favor of just abolishing any recognition whatsoever of the existence or reality or integrity of LGBTQ people and families,” said Joshua Matz, a partner at Kaplan Hecker & Fink, a law firm that has filed a federal lawsuit challenging the law, on a podcast last month hosted by the National Constitution Center.
“Parents like me who are sending their children to school,” he added, “don’t want their children to get a second-rate or a skim milk education because they’re made to feel like outcasts and they’re made to feel like their families are different and less than.”
Another wave of laws and policies, such as a directive in Texas and a law in Alabama, criminalizes parents for arranging gender-affirming care – defined by the World Health Organization as “a number of social, psychological, behavioural or medical (including hormonal treatment or surgery) interventions designed to support and affirm an individual’s gender identity” – for their minor-age children.
People receiving gender-affirming medical care must typically be over the age of majority before undergoing surgery, experts say. Numerous studies have found that gender-affirming care improves mental health outcomes for transgender youth, including lowering the odds of lifetime suicidal ideation.
Signing a law last month criminalizing certain gender-affirming care procedures in Alabama, Republican Gov. Kay Ivey said, “There are very real challenges facing our young people, especially with today’s societal pressures and modern culture.”
She signed another bill the same day prohibiting classroom discussion of gender identity and sexual orientation in elementary school.
While some believe being transgender is part of a social phenomenon that children are being peer-pressured into, studies and surveys suggest that a growing acceptance of transgender identity has led to the existing transgender population being more comfortable coming out publicly.
A study published in 2017 in the American Journal of Public Health estimated the number of transgender U.S. adults at almost 1 million. Further national surveys, it added, “are likely to observe higher numbers of transgender people” because “trends in culture and the media have created a somewhat more favorable environment for transgender people,” and because of surveys that “more often collect transgender-inclusive gender-identity data.” The number of respondents to the second U.S. Transgender Survey in 2015 more than quadrupled from the first survey in 2008-09, an indication of the “growing visibility and acceptance of transgender people in the United States.”
Some of the people who enact laws like those in Florida and Alabama think that “the mere acknowledgment of the reality of LGBTQ people [is] something like proselytizing. The words they use are grooming, or predating, or recruiting,” says Mr. Matz.
“It’s the same instinct that somehow the very presence or reality of LGBTQ people is somehow nefarious, somehow trying to win people over to the cause,” he adds.
“Every parent has the right to raise their kids, and it’s not like schools are meant to usurp that role,” says Mr. Matz.
But schools do have an important role that parents can’t fulfill, he adds, such as inculcating “very basic values” and introducing children to people who aren’t like them.
“To allow laws like this to proliferate in a wide range of settings is to invite social discord,” he continues.
Could the equal protection clause come into play?
Not everyone is fearful that the potential end of Roe this year would lead to the quick demise of LGBTQ rights like same-sex marriage.
Writing in Reason magazine, Scott Shackford says he thinks the fears “are somewhat misguided.”
The draft opinion, he notes, distinguishes abortion from other substantive due process rights because it concerns “potential life,” and because the court’s abortion rulings have failed to resolve conflict over the issue.
“The same is not true for gay marriage or LGBT issues in general,” he writes. “Americans now support gay marriage recognition.”
A majority of Americans also support Roe v. Wade, according to polling that has remained consistent for decades. Just 28% want to see it overturned, according to a Washington Post-ABC News poll out last week, while 54% say it should be upheld.
But there may also not be five votes on the current court to overturn Obergefell. Justice Neil Gorsuch wrote a 2020 opinion extending federal anti-discrimination protections to LGBTQ workers, in Bostock v. Clayton County. Justice Brett Kavanaugh dissented from that ruling, but in a different way from Justice Alito. Chief Justice John Roberts, who also dissented in Obergefell, is well known for upholding precedents he personally disagrees with.
“We are in the midst of a very obvious culture war conservative backlash on LGBT issues,” Mr. Shackford adds. “But conservative justices are not the same as conservative politicians.”
Many legal experts agree that Obergefell likely wouldn’t be overturned in one fell swoop – but, they add, Roe wasn’t either.
“There are lots of ways to diminish and undermine a right short of overturning a decision, including finding lots of exceptions,” says Carey Franklin, a professor at the University of California, Los Angeles School of Law.
Interviewed again after the leak of the draft opinion, Professor Franklin points out that another clause in the Constitution – the equal protection clause – could help preserve Obergefell and Bostock, and that one conservative justice has already cited it in a decision.
“In Bostock, Gorsuch said … it’s a matter of sex equality,” says Professor Franklin. “That could be a way of upholding LGBT decisions as matters of equality … under the equal protection clause.”
However, she adds, “I’d be surprised if we didn’t see some chipping away in the areas of LGBT rights and contraception.”
Besides the right to marriage itself, “there’s a whole range of other considerations, like the right to adoption,” says Professor Franklin. “It could be that we see a deterioration of rights and protections even as Lawrence and Obergefell stand.”
That process may soon begin. Next term, the Supreme Court will hear a case asking whether a Colorado nondiscrimination law forcing a web designer to make websites for same-sex weddings or make no wedding websites at all violates her free speech. It is a redux of a 2018 case involving a Colorado baker, which the court decided on narrow grounds. If the court rules in favor of the web designer, it could pave the way for other forms of discrimination against LGBTQ people.
“Once you’ve limited it and restricted it, you’ve normalized it in the public’s mind, and that makes it easier to maybe overrule it at a later date,” says Melissa Murray, a professor at New York University School of Law.
On the phone last week, Ms. Trumbatori also is unsure that public support today will protect LGBTQ rights in a post-Roe world.
“I just don’t think it’s in the limelight yet,” she says. “All the while, restrictions on transgender people have been prolific” across red states.
Whether the right to same-sex marriage is ultimately overturned or not, Ms. Rogers and Ms. Trumbatori say they are crafting an “exit plan” to move to a more LGBTQ-friendly state. They hope to not use it – their parents live in Texas. But mostly, they hope that the equal rights they’ve come to enjoy in recent years remain. They hope to have more days like that day they were married under the wide Texas sky.
In the Dallas coffee shop last month, Ms. Rogers notes how a lot of people in her family “have come a long way … just in general acceptance, and in being more affirming.”
“I have to have hope that people who are living in fear will have a moment when they’re like, OK, this isn’t as bad as I think it is,” she adds.
“You can’t maintain a fear state forever. People eventually have to exhale.”
Part 1: ‘Hard for it to be a bigger deal’: The future of American rights
