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LGBTQ Activists Are Quietly Preparing For A Nightmare: The Supreme Court Undoing Marriage Equality




The ramifications of the Supreme Court’s decision last month in Dobbs v. Jackson Women’s Health Organization to overturn almost a half century of reproductive rights guaranteed under Roe v. Wade also landed like a bombshell for LGBTQ campaigners across the country. Interviews with 10 activists and legal strategists, including attorneys who argued the case for marriage equality before the Supreme Court, revealed genuine fears that the court’s demonstrated willingness to revisit and overrule established precedent would soon come for LGBTQ rights.

“I would characterize it as a pretty seismic effect,” Beach-Ferrara said. “It’s like living in an area that’s prone to earthquakes. You know it could come, but this is a big one.”

“I don’t know who across our community is not alarmed,” said Jennifer Pizer, acting chief legal officer at Lambda Legal. “One would need an ocean of optimism to not be alarmed.”

In addition to their distress at the rolling back of abortion access, these campaigners have been particularly shaken by the concurring opinion from Justice Clarence Thomas, who went further than the other five conservatives by openly calling for the court to “correct the error” in legal reasoning that formed the basis in other 14th Amendment cases that guaranteed the rights to contraception, same-sex relations, and marriage equality. Many said they believed Thomas was signaling sympathetic officials across the country to start working to get a case before the court. Two campaigners described it in the same terms: an invitation to mischief.

“He sort of laid out a target and said go for this,” said David Stacy, government affairs director for the Human Rights Campaign, who predicted state legislators would heed Thomas’s call. “We definitely think that could be the starting gun for a more aggressive effort to challenge these things.”

“It was clearly a threat to the rights we fought for,” said Evan Wolfson, founder of Freedom to Marry. “The threat is real.”

In the wake of the Dobbs decision, these activists described conversations with colleagues and lawmakers that have taken on a new urgency as they imagine the fallout from a worst-case scenario. Campaigners who had turned their attention to pushing for marriage equality in other countries are now imagining what a return to the US might look like. Some groups have prepared information packets for LGBTQ people to reassure them their marriages are secure for now, but to warn them that fresh legal attacks are likely. Others have been working with Democrats on the House Judiciary Committee for a public hearing on Thursday billed as “The Threat to Individual Freedoms in a Post-Roe World.”

“I think people in the community had assumed that marriage was off the table — that we have turned the corner on that as a country,” National Center for Lesbian Rights Legal Director Shannon Minter said.

“Believe me: all the LGBTQ legal and advocacy groups are on alert,” Minter added.

Some campaigners, like Kendra Johnson with Equality North Carolina, are fielding calls from nervous people in their community, asking what steps they might take to best secure their marriage, shared assets, or parental rights — through a second parent adoption or an updated will or power of attorney, for example — just in case the legal sky falls in.

“We’ve seen early reports of massive calls to estate planning attorneys, people who are specialized in LGBTQ law, seeing an uptick in consultations,” Johnson said. “I’ve seen different seminars already being hosted on how to protect your families in light of Roe. So there is great fear and trepidation in the community.”

The threat is so real that two of the people interviewed for this story expressly declined to imagine what kind of case might travel up to the Supreme Court, lest they unintentionally help their opponents achieve their goal.

“The last thing I’m gonna do is speculate about what those cases might look like,” said Mary Bonauto, the civil rights project director at GLBTQ Legal Advocates & Defenders (GLAD) who led oral arguments in Obergefell. “The last thing I want to do is provide anybody with any ideas they don’t already have.”

James Esseks, the director of the ACLU LGBTQ & HIV Project who was also among the attorneys who argued Obergefell, said he believed the conservative justices were emboldened and unfettered. He described the Dobbs decision as a “game changer” for abortion rights and for “the realm of the possible for this court.”

“It’s entirely possible that this court rolls back a whole series of rights that the country has taken for granted for a long time,” Esseks said.

For Esseks, even discussing marriage equality once again with a reporter felt somewhat surreal.

“It is hard to go back here,” he said. “It’s otherworldly. It’s through the looking glass.”

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