Noah Feldman: How LGBTQ rights will fare under a conservative Supreme Court

13October 2020

On Oct. 5, Supreme Court Justice Clarence Thomas issued a statement, joined by Justice Samuel Alito, expressing ongoing disagreement with Obergefell v. Hodges, the landmark gay marriage decision, arguing that it stigmatized religious opposition to gay marriage. The statement understandably raised concerns that a growing conservative majority on the court could use religious liberty as a cover to roll back rights for LGBTQ people.

It is certainly likely that the current conservative majority will recognize exemptions from anti-discrimination law for religious groups like evangelical Christians. However, even after Justice Ruth Bader Ginsburg’s death, and even if Judge Amy Coney Barrett is confirmed, there are still five votes to protect gay and trans rights under most circumstances, including at work and in marriage.

That’s because of 2020’s hugely important Supreme Court decision, Bostock v. Clayton. This ruling extended workplace anti-discrimination law to gay and trans people and makes reversal of 2015’s Obergefell extremely unlikely. The 6-3 decision in Bostock was written by conservative Justice Neil Gorsuch, and joined not only by the court’s four liberals, but also by Chief Justice John Roberts.

Technically, Bostock was about a question of statutory interpretation — the meaning of Title VII — while Obergefell was about whether the Constitution guarantees a right to gay marriage. A justice could in theory think that Bostock is correctly decided while Obergefell was not. But there are powerful jurisprudential, as well as political, reasons to think neither Gorsuch nor Roberts would vote to overturn Obergefell.

The place to begin here is with Gorsuch’s reasoning in the Bostock case. The justice based his decision solely on three words that Title VII uses to specify which workplace discrimination is outlawed: “because of sex.” Gorsuch reasoned that discrimination against a gay or trans person necessarily involves discrimination because of sex. If, for example, you discriminate against a man because he loves another man, that is sex discrimination because you wouldn’t have penalized a woman who loved the same man.

This form of reasoning is notably different from the one used by Justice Anthony Kennedy in interpreting the Constitution in the Obergefell case. Kennedy relied on two different provisions to find the right to gay marriage: the liberty interest contained in the due process clause of the Constitution, and the right to “equal dignity” that Kennedy located in the equal protection clause.

Here’s the reason to be concerned about Obergefell’s future: Neither of these rights has a very strong textual basis in the words of the 14th amendment. It’s also clear that gay marriage was not considered part of the original meaning of the 14th amendment to the Constitution as understood by its drafters. As a result, an originalist like Gorsuch could in theory say that he rejects Kennedy’s reasoning in Obergefell even while reaching the decision he did in Bostock. (Gorsuch wasn’t on the court when Obergefell was decided.)

But the anti-discrimination logic of the Bostock decision makes it unlikely that Gorsuch would vote to reverse Obergefell. Consider what a justice with Gorsuch’s view of discrimination would say about a law that allows men to marry women but not men to marry men. It is overwhelmingly likely that, after Bostock, Gorsuch would have to say that such a law violated the “equal protection of the laws” guaranteed by the 14th amendment. After all, the equal protection clause bars discrimination. If the words of the statute should matter, so should the words of the Constitution.

This textual reading of the equal protection clause is not what Kennedy relied on in Obergefell. But it would provide an independent reason for the court to uphold that ruling. If Gorsuch did eventually vote to overturn it, he would have to explain why the words “equal protection” aren’t just as clear as the words “because of sex.”

(For the true constitutional law nerd: Gorsuch might conceivably try to say the Constitution shouldn’t be interpreted by textualism, which ignores original intent, but by originalism, which in some forms can consider the intent of the drafters. But textualist originalists like Gorsuch and the late Antonin Scalia hate to acknowledge any tension between the two theories, much less a flat-out contradiction.)

What about John Roberts? His commitment to following precedent would make it almost impossible for him to vote to overturn Obergefell, the most famous and important case of his tenure as chief justice. And as Roberts showed this past summer in the abortion case, June Medical Services v. Russo, he is prepared to vote to uphold precedent even where he dissented in the original decision being upheld. Perhaps that helps explain why he joined Gorsuch’s majority in Bostock, despite dissenting in Obergefell five years earlier. Whatever his reason, he felt no need to issue a separate concurrence reconciling the two votes.

In his Bostock opinion, Gorsuch strongly hinted that Title VII and the Religious Freedom Restoration Act should be read to exempt religious people and organizations from the prohibition on discriminating against LGBTQ people. I also think it is likely that, in the fullness of time, Gorsuch will join a conservative push led by Alito to expand religious exemptions for all sorts of things, arguing that they’re guaranteed by the Constitution rather than by statute. I suspect Barrett would also be on board, even though doing so would require effectively overturning an important Scalia precedent. (That case was Employment Division v. Smith, holding that the free exercise clause doesn’t automatically grant religious exemptions from general, neutral laws.)

Unfortunately, it’s fairly likely that exemptions are going to be granted by the conservative court to enable religious groups to continue to discriminate against LGBTQ people under certain circumstances. But rights like gay marriage and equality for gay and trans people in the workplace are now settled law — as they should be.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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