Republicans are circling the wagons to undo marriage equality & Justice Samuel Alito is leading the herd
When the Supreme Court overturned Roe in 2022, Clarence Thomas argued in a concurrent opinion the court “should reconsider” its past rulings on contraception, same-sex relationships and same-sex marriage.
Two years later, momentum seems to be building for the Court to revisit Obergefell, the landmark 2015 case that legalized gay marriage in all 50 states.
Samuel Alito, who’s criticized Obergefell in the past, appears to be leading the charge.
Politics, but make it gay!
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The 73-year-old uber conservative justice brought up the decision’s “danger” this week in response to a Missouri case about people being removed from a jury after voicing objections to same-sex relations. Though the Supreme Court rejected the petition, Alito indicted he sides with the state.
He said Obergefell shows how “Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be labeled as bigots and treated as such by the government.”
In other words, Alito isn’t worried about queer people being discriminated against. It’s the homophobes who must be protected!
The case at hand, Missouri Department of Corrections v. Jean Finney, is a discrimination lawsuit. Finney is arguing her employer, the Missouri Department of Corrections, discriminated against her because she’s a lesbian. At trial, her attorney asked potential jurors how many of them grew up attending a religious organization that taught homosexuality is a sin.
Finney’s lawyer then moved to strike jurors based on their responses about whether they could set aside their beliefs and render an impartial verdict. Three jurors said they could not and were removed from the pool.
The Department of Corrections contends Finney’s attorney was religiously discriminating against those jurors. The Missouri Court of Appeals upheld the verdict and the state Supreme Court declined to review the case. Those denials prompted Missouri’s Attorney General to petition the conservative Supreme Court.
The Attorney General’s request was denied on a technicality, but not before attorneys general of 13 other states issued their support.
Though Roe was officially overturned in June 2022, anti-abortion lawmakers and judges were chipping away at the law well before then. An increasing number of conservative state legislatures placed restrictions on abortion before the ruling was repealed in full.
We seem to be seeing a similar coordinated effort with gay marriage. In light of Alito’s recent comments, Tennessee Gov. Bill Lee signed a law allowing public officials to refuse to perform same-sex unions. While the bill doesn’t allow officials to deny marriage licenses, state employees are no longer required to solemnize same-sex partnerships.
If you think that sounds like the definition of a slippery slope, you’re not alone. “Let’s be clear — this bill is intended to exclude LGBTQ+ folks from equal protection under the law,” said Molly Whitehorn, a director for the Human Rights Campaign.
Though 39 Republican House members and 12 senators voted for the Respect for Marriage Act, which mandates federal recognition for same-sex and interracial marriage, there’s been an alarming decline in GOP support for same-sex relationships.
Only 40% of Republicans now say they’re in favor of same-sex marriage, down from 56% just one year ago.
Of course, rights are not stripped in one fell swoop; but rather, over the long haul. Red states started with trans sports bans, and now lawmakers in at least 37 states have introduced bills to restrict gender-affirming healthcare.
Tennessee is one of those states. Lee has signed four trans sports bans and barred gender-affirming care for minors. He’s also signed a bill criminalized drag shows on public property or any location where children under 18 could be present.
Only two of the justices on the Supreme Court — Elena Kagan and Sonia Sotomayer — voted to codify same-sex marriage (though Ketanji Brown Jackson believes in the constitutional right to gay marriage as well). The Court, of course, has a 6-3 conservative majority.
Two of those judges, Alito and Thomas, are ardently against marriage equality. It may not be a coincidence that Alito’s latest statement came this week, coinciding with Tennessee’s new law allowing officials to not perform same-sex marriages.
We’ve seen this movie play out before. Another one appears to be starting…
