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U.S. Supreme Court

LGBTQ activists alarmed over concurring opinion in abortion ruling

Justice Thomas calls for ‘reconsideration’ of marriage, sodomy rulings

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U.S. Supreme Court Justice Clarence Thomas (Photo public domain)

LGBTQ activists have expressed alarm over a concurring opinion issued on Friday by U.S. Supreme Court Justice Clarence Thomas calling for the high court to “reconsider” previous decisions overturning state sodomy laws and legalizing same-sex marriage as a follow-up to the court’s controversial ruling on Friday to overturn the Roe v. Wade decision on abortion rights.

In an action that drew expressions of outrage from abortion rights advocates and strong support by right-to-life advocates, the Supreme Court handed down a 6-3 ruling on Friday overturning the fundamental right to an abortion that the court established nearly 50 years ago in its landmark decision known as Roe v. Wade.

In his concurring opinion, Thomas said he supports the high court’s majority opinion overturning Roe v. Wade. He states that he agrees with the ruling that nothing in the majority opinion “should be understood to cast doubt on precedents that do not concern abortion.”

But he also states that in potential future cases, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

He was referring to the past Supreme Court Griswold ruling that overturned state laws banning or restricting birth control such as contraceptives; the high court’s 2003 Lawrence v. Texas ruling that overturned state laws banning sodomy between consenting adults; and the 2015 Obergefell ruling that legalized same-sex marriage nationwide.

“Justice Thomas’s concurring opinion is obviously concerning, but it is important to note that not one other justice agreed with him,” said Sarah Warbelow, legal director of the Human Rights Campaign, the nation’s largest LGBTQ rights advocacy group. “In fact, the majority took pains to disagree with him and clarify that this opinion relates only to abortion. Justice Thomas stands alone,” Warbelow told the Washington Blade in a statement.

“With that said, we know that if the court was willing to overturn 50 years of precedent with this case, that all of our constitutional rights are on the line,” Warbelow said. “Lawmakers will be further emboldened to come after our progress. So, we must be vigilant in protecting our hard-won rights — we’re ready.”

Paul Kawata, executive director of the National Minority AIDS Council (NMAC), said the Supreme Court ruling overturning Roe v. Wade would have a “disastrous effect” on healthcare for women, especially women of color. He said the ruling could also lead to future rulings that adversely impact LGBTQ people and other minorities.

“We have no doubt that the conservative supermajority on the court will not stop with Roe,” Kawata said in a statement. “Justice Thomas’s chilling concurring opinion makes it very clear that the court could target other rights provided by the court — marriage equality, contraception access, and LGBTQ+ intimacy in private to name a few,” he said.

Omar Gonzales-Pagan, who serves as legal counsel for the national LGBTQ litigation group Lambda Legal, said he is especially troubled that Thomas is continuing to push for ending the Supreme Court’s longstanding reliance on the so-called doctrine of substantive due process to expand the rights provided under the U.S. Constitution.

“Justice Thomas’s concurrence is incredibly troubling,” Gonzales-Pagan told the Blade. “Justice Thomas has made it clear that he doesn’t believe in the doctrine of substantive due process, and he called for the reconsideration of that entire doctrine,” he said.

“No other justices joined him on that opinion,” Gonzales-Pagan points out. “But, if the court were to go further than they did today and to reconsider the entire doctrine of substantive due process, it would really call into question all or a large part of the fundamental rights enjoyed by people in the United States.”

Gonzales-Pagan said that potential scenario could play out for same-sex marriage rights and the right of adults to engage in consenting sexual practices if a state or local jurisdiction attempts to pass a law to once again make same-sex marriage or sodomy between consenting adults illegal. Should that happen, the laws would be challenged in the courts and those cases would likely come before the Supreme Court just like the abortion cases did, according to Gonzales-Pagan.

He said he was hopeful but not at all certain that the other justices who did not sign on to Thomas’s concurring opinion could be taken at their word and they would not support overturning the Supreme Court’s Obergefell decision legalizing same-sex marriage or the Lawrence v. Texas decision declaring state sodomy laws pertaining to consenting adults unconstitutional. 

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U.S. Supreme Court

Supreme Court declines to hear case over drag show at Texas university

Students argue First Amendment protects performance

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The U.S. Supreme Court justices on June 30, 2022. ((Photo by Fred Schilling of the U.S. Supreme Court)

The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.

The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.

When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.

The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows “derisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”

The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that “it is not clearly established that all drag shows are inherently expressive.”

Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on “text, history and tradition.”

Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.

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U.S. Supreme Court

Alito renews criticism of the Supreme Court’s landmark marriage equality ruling

Obergefell decision allowed same-sex couples to marry around the country

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U.S. Supreme Court Justice Samuel Alito speaks at a conference in D.C. in December 2023 (YouTube screenshot)

Conservative U.S. Supreme Court Justice Samuel Alito on Tuesday renewed his criticism of the landmark 2015 ruling in Obergefell v. Hodges that established the nationwide constitutional right to same-sex marriage.

His remarks came in a 5-page order that was written in connection with the High Court’s decision not to hear Missouri Department of Corrections v. Jean Finney — a dispute over whether a juror’s position that “homosexuality, according to the Bible, is a sin” can be the basis for striking him from an employment discrimination case that was brought by a lesbian.

The conflict, Alito argued, “exemplifies the danger” he foresaw in the Supreme Court’s same-sex marriage ruling, which was decided by a 5-4 majority with Alito among the justices who dissented.

Specifically, Alito raised concern in his statement that “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.'”

“The opinion of the court in [Obergefell] made it clear that the decision should not be used in that way,” the justice wrote, “but I am afraid that this admonition is not being heeded by our society.”

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U.S. Supreme Court

Supreme Court declines to hear Ind. bathroom case

Transgender boy filed lawsuit against school district in 2021

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Tuesday declined to hear an Indiana case on whether schools can bar transgender students from using a bathroom that reflects their gender identity.

The justices in a brief order denied a request from a central Indiana school district to hear the case, which centers around a now-teenage trans boy, identified in court documents as A.C., who was barred from using the boys restrooms at his former middle school, the Hill reported.

Represented by the American Civil Liberties Union of Indiana, an adolescent trans boy and his parents filed a lawsuit against the Metropolitan School District of Martinsville in December 2021 for failing to provide him with access to bathrooms consistent with his gender in violation of his rights under Title IX, the law prohibiting sex discrimination in educational programs, as well as the Equal Protection Clause of the 14th Amendment. In an August 2023 opinion, the 7th Circuit Court of Appeals found the school district policy did likely violate the student’s rights under Title IX and equal protection.

“We’re thankful the court allowed this momentous victory for the transgender youth of Indiana to stand,” said Kenneth Falk, legal director of the ACLU of Indiana. “This case is about the fundamental right of every student to a safe and inclusive learning environment, and the policy at its core is an affront to the freedom of transgender youth to be themselves. We look forward to continuing to advocate for transgender Hoosiers and their families wherever their equality before the law is challenged.”

Chris Geidner, editor at Law Dork, reported the order protects trans students within the 7th U.S. Circuit Court of Appeals — which includes Indiana, Illinois and Wisconsin — and puts off any Supreme Court review of bathroom bans for some time, likely into 2025 or beyond.

Journalist Erin Reed noted:

“That means that many trans youth in Indiana and in several other states will be allowed to continue using the bathroom of their gender identity, as multiple circuit courts have found in favor of transgender plaintiffs. This does mean that those in the 11th Circuit states, so Florida, Alabama and Georgia, will have to wait longer for protections. But it says that the Supreme Court will not likely not take up bathrooms in coming months.”

The Supreme Court has a track record of declining cases involving trans protections. In 2021, the justices declined to review a ruling from the 4th U.S. Circuit Court of Appeals involving Gavin Grimm, a trans boy in Virginia.

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