Few American figures can be credited with advancing LGBTQ+ rights over the last three decades as much as the late Supreme Court Justice Ruth Bader Ginsburg. To understand just how consequential she was, one need only look at the lineup of blockbuster civil-rights cases in which she provided the tie-breaking fifth vote:
Lawrence v. Texas (2003), which invalidated Texas’s ban on sodomy and similar laws across the country.
United States v. Windsor (2013), which found that the Defense of Marriage Act, which barred the federal government from recognizing same-sex marriages performed in the states, violated the Constitution.
Obergefell v. Hodges (2015), which ushered in marriage equality nationwide.
Along with the Court’s less-narrow rulings in Romer v. Evans (1996), which struck down a Colorado law forbidding LGBTQ+ people from enacting city-level nondiscrimination laws, and Bostock v. Clayton County (2020), which made it illegal to fire a person simply because of their sexual orientation or gender identity, these five cases blew apart the legal framework that justified discrimination and ushered in the modern-day era of queer equality.
“Every advancement the LGBTQ+ community made at the Court over the last 20 years reflected Justice Ginsburg’s influence,” said Human Rights Campaign President Alphonso David in a statement. “From Lawrence to Obergefell and Bostock, the Court has been essential to creating a more equal and fair America for LGBTQ+ people.”
Replacing Ginsburg with a hardline conservative — which President Donald Trump pledged to do “without delay” — will tip the balance of power on the bench for a generation, giving its right wing a 6-3 majority to roll back not only queer rights, but abortion, voting, immigrant, and workers’ rights as well.
When it comes to LGBTQ+ issues, the Court is less likely to overturn precedent wholesale than to water down the meaning of existing victories. With public opinion squarely on the side of equality, social conservatives have changed tack: Rather than oppose queer equality outright, they are seeking to exempt themselves from the new social order.
As LGBTQ+ legal equality marched forward, opponents of queer rights swarmed legislatures over the past decade with dozens of bills that would excuse religious individuals, businesses, and government-backed nonprofits from following generally applicable nondiscrimination laws. All but a handful of these bills — many flying under the banner of “religious freedom restoration acts” — have failed to amass sufficient support in statehouses across the country. So conservatives are increasingly looking to the courts.
Foes of LGBTQ+ rights claimed a qualified victory on that front just two years ago. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Justices found in favor of a baker who refused to provide a wedding cake for a same-sex couple. But the ruling was narrow, hinging on the open hostility public officials on the Colorado Civil Rights Commission showed toward the cakeshop owner, whose beliefs they called “irrational” and “offensive.” In focusing on the behavior of the decision-making bodies, the Court sidestepped the broader question of whether religious business-owners and institutions are exempt from nondiscrimination laws.
“The outcome of cases like this in other circumstances must await further elaboration in the courts,” wrote Justice Anthony Kennedy for the Court’s majority.
The ideological composition of the Court has changed since Justice Kennedy wrote the opinion in Masterpiece. Kennedy — an ideological moderate who was often the swing vote on LGBTQ+ issues — retired later that year, and was replaced by ultraconservative jurist Brett Kavanaugh.
With a newly emboldened conservative majority, the Court wasted no time in gutting nondiscrimination protections. Over the summer, the Justices ruled in Our Lady of Guadalupe School v. Morrissey-Berru that a religious school district could not be sued for discrimination under what is known as the “ministerial exception.” Under this doctrine, the government is forbidden from interfering with the relationship between religious organizations and their “ministers.” According to the Justices, this even includes two lay-teachers at religious schools who sued their districts for discriminating against them on the basis of age and disability. In a pointed dissent joined by Justice Ginsburg, Justice Sonia Sotomayor criticized the broad use of the ministerial exception to strip secular workers of their rights.
