Over the years, my legal columns for this magazine have ranged from, “Here’s what we can do to protect and grow your families in an era of legal discrimination” to “I predict the Supreme Court is going overturn marriage discrimination laws and here’s why” and now, perhaps, back to, “Here’s what we can do to protect and grow your families in an era of legal discrimination.” This is because LGBTQ people are understandably nervous about recent statements made by Justices Alito and Thomas, combined with the appointment of a very conservative Justice Amy Coney Barrett to replace Ruth Bader Ginsburg, long a champion of equal rights.
Thomas and Alito’s statements came in a statement denying a petition for writ of certiori (legalese for deciding not to hear a case in the Supreme Court) on behalf of Kim Davis, the former county clerk in Kentucky who decided to ignore the law and denied marriage licenses to same sex couples. Notwithstanding the fact that Kim Davis herself had married four times with various permutations of childbirth outside of the sanctity of marriage, Davis argued that it was her religious faith, and not bigotry, that led her to deny the licenses. Fast forward: She lost and was ordered to pay $224,000 in attorney fees for the people who challenged her refusal to grant marriage licenses.
Alito and Thomas actually agreed that Ms. Davis’ request to be heard by the Supreme Court should be denied, but they went out of their way to portray her as the hapless “victim of this Court’s cavalier treatment of religion in its Obergefell decision,” and said she would not be the last. Many people were particularly alarmed with their statement that in deciding in favor of marriage equality in Obergefell, “the Court has created a problem that only it can fix.”
Is it time to panic? Absolutely not. It is no surprise to anyone who monitors the Supreme Court that Justices Alito and Thomas would like to impose their extremely conservative religious interpretations of the law in any case involving religion, even tangentially. They wrote scathing dissents to Obergefell and would not be expected to change their minds as they have consistently been on the far conservative fringe of the Supreme Court. Their approach is focused primarily on religious “freedom” for individuals or organizations to decide whether they want to bake cakes for LBGTQ weddings or to hire openly gay employees in a Catholic school.
What is often overlooked, however, is that in some respects, several Justices fall far more in the “center” in ideology when it comes to LGBTQ issues. In a landmark decision, in June 2020, in a case referred to as Bostock, the Court voted 6–3 that we are protected from discrimination by the Civil Rights Act of 1964. Additionally, Chief Justice Roberts (generally thought to be conservative) issued a very rare statement of rebuke to Donald Trump, reconfirming the notion that there is no such thing as an “Obama Judge” or a “Trump Judge.” In one of her earliest acts on the Supreme Court, Coney Barrett recently agreed to deny certiorari to lawsuits aimed at invalidating the results of the Presidential election in Pennsylvania and other states, including Wisconsin.
Similarly, in a case watched closely by LGBTQ advocates, on December 14, 2020, the Supreme Court denied review of a 7th Circuit Court of Appeals decision under which Indiana was directed to issue birth certificates naming both the biological parent and her spouse as parents in cases where the parties are married at the time of the child’s birth. Box v. Henderson, et al was not filed under a religious freedom argument, but rather an Equal Protection and statutory construction argument, but if the Supreme Court justices were truly interested in applying their own personal histories or perceived political biases, it would have been simple enough for them to muster up the votes to hear, and then potentially overturn, these decisions.
Does this mean we have a slam-dunk majority who will undoubtedly uphold laws protecting LGBTQ citizens now and forever? No. We have to continue to be vigilant, and we need to understand the importance of elections from the local county clerk to the Presidency and everything in between. I continue to be startled by otherwise very educated people who tell me they can’t vote for the Wisconsin Supreme Court “because I don’t live in Dane County.” We have to ensure that we are visible and that we encourage LGBTQ citizens and our allies to run for office and support those who do. So, yes to vigilance and action, no to panic.
Somewhere in this beautiful annual Love Edition of Our Lives, there will be a photo of my wife and me, recognizing that come February 24, 2021, we will have been together for 26 years. I am confident that in next year’s edition, with the continued support of our friends, family, and allies, we’ll still be listed as “married.”
Michele Pereault is a shareholder and Chair of the Family Law department of DeWitt LLP. Her practice includes representing families and individuals in family matters ranging from adoption, to prenuptial agreements, divorce, and estate planning. She’s also a former Board member of Fair Wisconsin.