With Roe in peril, 鈥榮lippery slope鈥� looms larger for LGBTQ Americans
| Irving, Texas
In late 2019, Lorah Trumbaturi and Stephanie Rogers were married under the wide Texas sky in a rural county west of San Antonio.听
It was the end of a long, and sometimes difficult, journey. Ms. Rogers is a lesbian and Ms. Trumbaturi is trans, and in the years they鈥檝e been together 鈥� first in Southern California and then in Texas 鈥� 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 , 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 鈥� to abortion 鈥� for the first time in modern history. What happens to other rights unpopular with conservative 海角大神s 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 鈥� including Justice Samuel Alito, the author of the leaked draft opinion 鈥� and have their that it has 鈥渞uinous consequences for religious liberty.鈥� Conservative lawmakers and lawyers have 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. Trumbaturi and Ms. Rogers link arms. It鈥檚 been seven years since Obergefell, they note 鈥� seven years that have transformed their lives and how they feel society views them. But now they鈥檙e starting to feel whiplash.
鈥淭here has been a lot of progression,鈥� says Ms. Trumbaturi, but 鈥渋t can erase pretty easily, because it鈥檚 such a marginalized group.鈥�
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?
鈥淚 am no longer imagining that there is a slippery slope,鈥� she says. 鈥淭here is a slide happening. It could pick up speed.鈥�
How 鈥渄eeply rooted鈥� are LGBTQ rights?
The past decade has seen LGBTQ rights become the leading edge of a long, steady expansion of fundamental rights 鈥� typically underpinned by the due process clause of the 14th Amendment 鈥� 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).听
By 2003, however, most LGBTQ Americans still lived firmly in the closet. Fourteen states criminalized sodomy, and there were no same-sex spouses 鈥� 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 鈥� with 37 states and Washington, D.C., following Massachusetts鈥� lead 鈥� the high court delivered the Obergefell ruling.听
Both the Lawrence and Obergefell decisions followed a similar rationale 鈥� a rationale that dates back to the Supreme Court鈥檚 contraception and abortion rulings of the 1960s and 鈥�70s. The due process clause of the 14th Amendment 鈥� holding that a state cannot deny a person 鈥渓ife, liberty, or property, without due process of law鈥� 鈥� protects certain substantive, unenumerated rights from government intrusion.
Many unenumerated rights have been recognized by the courts, but this 鈥渟ubstantive due process鈥� doctrine has been criticized by conservatives for empowering unelected judges with the ability to 鈥渃reate鈥� rights that don鈥檛 flow directly from the text of the Constitution.
In the for Dobbs v. Jackson Women鈥檚 Health leaked to Politico last week, Justice Alito writes that overturning Roe and听a related case, 1992鈥檚 Planned Parenthood v. Casey, 鈥渟hould [not] be understood to cast doubts on precedents that do not concern abortion.鈥�
Some analysts are skeptical that the end of Roe would quickly result in the end of Obergefell and other LGBTQ rights.听
But other legal experts have doubts. In the draft opinion, for example, Justice Alito writes that the court 鈥渉as long asked whether the [unenumerated] right is 鈥榙eeply rooted in [our] history and tradition.鈥欌�� The right to same-sex marriage would likely not fall into that category.
In the coffee shop in Dallas, Ms. Trumbaturi says her wife 鈥渨orries too much.鈥�
鈥淚鈥檓 a professional worrier,鈥� 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.
鈥淥ne of the things that鈥檚 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,鈥� she says.
If it becomes harder to talk about and normalize LGBTQ people, she adds, 鈥渋t just makes it easier for people to think of queer people as less existent, I guess, and therefore less in need of defending.鈥�
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.听
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.
鈥淚 had zero idea that a meeting had been set up,鈥� she says. After she immediately contacted the school, officials told her that parents couldn鈥檛 attend the meeting if their child didn鈥檛 request it, and that information about the meeting was protected under a state nondiscrimination law.
鈥淭hat is a gross violation of parental rights, regardless of the content of the meeting,鈥� says Mrs. Littlejohn. 鈥淚t is my job to protect my daughter, and they took that away from me.鈥�
Mrs. Littlejohn and her husband have filed a federal civil rights against the Tallahassee, Florida, school district, hoping to 鈥渧indicate their fundamental rights to direct the upbringing of their children.鈥�
A jury trial has been scheduled for January next year, but it鈥檚 not just the school district that she believes has been interfering in her relationship with her daughter. She鈥檚 concerned about how schools handle students鈥� feelings around gender identity and sexual orientation. But she鈥檚 also concerned about what she believes is partially a socially driven phenomenon.
鈥淚 believe [a lot of these kids] are being swept up into a social movement and not fully understanding the consequences,鈥� she says. 鈥淚鈥檓 very concerned about the issue overall.鈥�
It鈥檚 why she鈥檚 thankful Florida has enacted the Parental Rights in Education law.听
The seven-page law requires schools to share more information with parents regarding their child鈥檚 鈥渕ental, emotional, or physical well-being.鈥� More controversially, prohibits classroom instruction on gender identity or sexual orientation from kindergarten through third grade 鈥渙r in a manner that is not age-appropriate or developmentally appropriate for students,鈥� and it authorizes parents to sue the school district if they believe it isn鈥檛 following the law.听
鈥淭he true bulk of the bill [is] to further protect parental rights,鈥� says Mrs. Littlejohn.听
鈥淭hese are distressing [times], times of crises鈥� in a child鈥檚 life, she adds. 鈥淭hey need their parents the most.鈥�
A 鈥渟kim milk education鈥�?
Critics have labeled it the 鈥淒on鈥檛 Say Gay鈥� law. It is one of many laws and policies implemented in red states in recent months concerning LGBTQ education and health care.听
Florida鈥檚 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.
鈥淭he 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,鈥� said Joshua Matz, a partner at Kaplan Hecker & Fink, a law firm that has filed a federal lawsuit challenging the law, on last month hosted by the National Constitution Center.
鈥淧arents like me who are sending their children to school,鈥� he added, 鈥渄on鈥檛 want their children to get a second-rate or a skim milk education because they鈥檙e made to feel like outcasts and they鈥檙e made to feel like their families are different and less than.鈥�
Another wave of laws and policies, such as a directive in Texas and a law in Alabama, criminalizes parents for arranging gender-affirming care 鈥� defined by the World Health Organization as 鈥渁 number of social, psychological,听behavioural or medical (including hormonal treatment or surgery) interventions designed to support and affirm an individual鈥檚 gender identity鈥� 鈥� for their minor-age children.听
People receiving gender-affirming medical care must typically be over the age of majority before undergoing surgery, experts say. have found that gender-affirming care mental health outcomes for transgender youth, including lowering the odds of .
Signing a law criminalizing certain gender-affirming care procedures in Alabama, Republican Gov. Kay Ivey said, 鈥淭here are very real challenges facing our young people, especially with today鈥檚 societal pressures and modern culture.鈥�
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.
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, 鈥渁re likely to observe higher numbers of transgender people鈥� because 鈥渢rends in culture and the media have created a somewhat more favorable environment for transgender people,鈥� and because of surveys that 鈥渕ore often collect transgender-inclusive gender-identity data.鈥� 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 鈥済rowing visibility and acceptance of transgender people in the United States.鈥�
Some of the people who enact laws like those in Florida and Alabama think that 鈥渢he mere acknowledgment of the reality of LGBTQ people [is] something like proselytizing. The words they use are grooming, or predating, or recruiting,鈥� says Mr. Matz.
鈥淚t鈥檚 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,鈥� he adds.
鈥淓very parent has the right to raise their kids, and it鈥檚 not like schools are meant to usurp that role,鈥� says Mr. Matz.
But schools do have an important role that parents can鈥檛 fulfill, he adds, such as inculcating 鈥渧ery basic values鈥� and introducing children to people who aren鈥檛 like them.
鈥淭o allow laws like this to proliferate in a wide range of settings is to invite social discord,鈥� 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 , Scott Shackford says he thinks the fears 鈥渁re somewhat misguided.鈥�
The draft opinion, he notes, distinguishes abortion from other substantive due process rights because it concerns 鈥減otential life,鈥� and because the court鈥檚 abortion rulings have failed to resolve conflict over the issue.听
鈥淭he same is not true for gay marriage or LGBT issues in general,鈥� he writes. 鈥淎mericans now .鈥�
A majority of Americans also support Roe v. Wade, according to polling that has . Just 28% want to see it overturned, according to a , 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 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 .
鈥淲e are in the midst of a very obvious culture war on LGBT issues,鈥� Mr. Shackford adds. 鈥淏ut conservative justices are not the same as conservative politicians.鈥�
Many legal experts agree that Obergefell likely wouldn鈥檛 be overturned in one fell swoop 鈥� but, they add, Roe wasn鈥檛 either.
鈥淭here are lots of ways to diminish and undermine a right short of overturning a decision, including finding lots of exceptions,鈥� 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 鈥� the equal protection clause 鈥� could help preserve Obergefell and Bostock, and that one conservative justice has already cited it in a decision.
鈥淚n Bostock, Gorsuch said ... it鈥檚 a matter of sex equality,鈥� says Professor Franklin. 鈥淭hat could be a way of upholding LGBT decisions as matters of equality ... under the equal protection clause.鈥�
However, she adds, 鈥淚鈥檇 be surprised if we didn鈥檛 see some chipping away in the areas of LGBT rights and contraception.鈥�
Besides the right to marriage itself, 鈥渢here鈥檚 a whole range of other considerations, like the right to adoption,鈥� says Professor Franklin. 鈥淚t could be that we see a deterioration of rights and protections even as Lawrence and Obergefell stand.鈥�
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.
鈥淥nce you鈥檝e limited it and restricted it, you鈥檝e normalized it in the public鈥檚 mind, and that makes it easier to maybe overrule it at a later date,鈥� says Melissa Murray, a professor at New York University School of Law.
On the phone last week, Ms. Trumbaturi also is unsure that public support today will protect LGBTQ rights in a post-Roe world.
鈥淚 just don鈥檛 think it鈥檚 in the limelight yet,鈥� she says. 鈥淎ll the while, restrictions on transgender people have been prolific鈥� across red states.
Whether the right to same-sex marriage is ultimately overturned or not, Ms. Rogers and Ms. Trumbaturi say they are crafting an 鈥渆xit plan鈥� to move to a more LGBTQ-friendly state. They hope to not use it 鈥� their parents live in Texas. But mostly, they hope that the equal rights they鈥檝e 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 鈥渉ave come a long way ... just in general acceptance, and in being more affirming.鈥�
鈥淚 have to have hope that people who are living in fear will have a moment when they鈥檙e like, OK, this isn鈥檛 as bad as I think it is,鈥� she adds.
鈥淵ou can鈥檛 maintain a fear state forever. People eventually have to exhale.鈥�
Editor鈥檚 note: The article has been updated with the correct spelling of听Lorah Trumbaturi鈥檚 name.
Part 1:听鈥楬ard for it to be a bigger deal鈥�: The future of American rights
