The SCOTUS Event Horizon for the LGBT Movement

With Permission:

From Brynn Tannehill:

By Brynn Tannehill
September 3, 2018

Stop for a moment. Imagine how bad it will be with a conservative Supreme Court ruling on a host of issues related to LGBT people in America.

The reality is that what’s coming is way worse than anything you just imagined. In fact, the moment Brett Kavanaugh is confirmed, we pass through an event horizon, which is a physics term for a point of no return where not even light can escape the gravity well of a black hole. Once he’s seated, there is literally nothing we can legally do to stop the torrent of decisions that will relegate LGBT people to permanent, codified, second class status.  It will be even worse for transgender people, who may not even be able to function in public after these decisions.

There’s three things that people need to realize about what will make this court different from previous courts.

The first is that anti-LGBT religious groups like the Alliance Defending Freedom and the Liberty Counsel are already pushing through numerous cases designed to do all of the horrible things enumerate below. They will be taking these cases to a SCOTUS that wants to take their cases, and wants to find for them.

And they will find for them, even if their arguments are incoherent or seemingly irreconcilable with other decisions made by SCOTUS. The death of the need for intellectual consistency by the court was demonstrated in the 2018 rulings in Masterpiece Cakeshop and Trump v. Hawaii. In these, the court essentially simultaneously found that even a whiff of religious bias by governmental officials was completely impermissible, unless it’s the President and he does it before he gets elected.

Finally, readers need to understand that the court will not care what the effects of their rulings are. This was clearly demonstrated in the Hobby Lobby oral arguments. When the lawyer for Hobby Lobby was confronted with the absolute chaos that would surely follow (and did) if corporations could ignore laws based on the religious beliefs of the owners, he replied, “Look, you’ve got to trust the courts; just because free exercise claims are being brought doesn’t mean that the courts can’t separate the sheep from the goats.”

The Roberts Court accepted this argument that it was acceptable for rulings to cause massive problems down the road. This means that even if a SCOTUS ruling were to make it impossible for transgender people to hold a job, or function in society at all, as a downstream effect of their decision, it is not their problem. They would leave it to other courts to sort out what to do. Those courts would in turn shrug their shoulders and say, it doesn’t matter how awful this ruling is for transgender people, we have to follow it.

You know how I told you the consequences were worse than you could imagine? They get even worse than that if Trump gets to nominate another justice to replace Ginsburg or Breyer. It gets even worse than that if he gets a second term, and has the opportunity to issue a bunch of anti-LGBT executive orders that SCOTUS will uphold as constitutional.

You also have to remember that while it will take 5-10 years for all of these rulings to happen, reversing them will take another 20 to 75 years based on how long it took to reverse horrible cases such as Plessy v. Ferguson (75 years), Lochner v. New York (32 years), Korematsu v. United States (74 years), and Bowers v. Hardwick (18 years). The odds are, if you’re reading this, you will not live to see all the damage that’s coming in the courts undone. Most of these things will happen regardless of how the 2018 or 2020 elections go, because that 5-4 conservative majority will be in place for years.

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