Here’s the problem with the latest LGBTQ equality vs. “. That one involved a baker who didn’t want to sell a wedding cake to a gay couple (even if one of his employees decorated it). In an idiosyncratic decision, the Court ruled for the baker because the Colorado Civil Rights Commission didn’t take his religious objections seriously, dismissing them as either ridiculous or as a cover for homophobia, or both.
That was a very narrow decision, on somewhat unique grounds. My coverage of the case for The Daily Beast was headlined, “Supreme Court Sides With Anti-Gay Baker. It’s Not a Loss for LGBT Equality.” Because rather than carve out a big religious exemption for any business wanting to turn away gay people, the Court merely decided that governments need to take religious objections into account.
But then came the aftermath. Everywhere, both on the right and the left, the decision was presented as a win for the anti-gay folks. Whether the baker was a hero or a bigot, everyone agreed he won, and that the Supreme Court just said that, yep, you can turn the gays away.
A hundred mini-Masterpiece Cakeshops did exactly that. From petty government officials to, yes, pizzerias, businesses felt emboldened to deny services based on the sexual orientation of their customers. The case was catnip for the Tucker Carlsons and Steve Bannons of the world. It was seen as a victory for Trump. And, I would argue, it was another in the drip-drip-drip of cases that have made same-sex marriage somewhat less equal than straight marriage.
Protesters try to block each other’s signs as they gather in front of the Supreme Court of the United States on Dec. 5, 2022 in Washington, D.C.
Kent Nishimura/Los Angeles Times via Getty Images
Fulton vs. Philadelphia, decided last year, was another. Again, the case itself was narrowly decided: a Catholic-affiliated adoption/foster agency wouldn’t place kids with gay couples, and the Court found that the city of Philadelphia didn’t follow its own procedures in considering whether to allow them to do so. But the headlines drove home the idea, “adoption agencies can turn away gay couples.”
This has happened over and over again—including the granddaddy of “religious freedom” cases, Hobby Lobby v. Burwell, about a family-owned business refusing to cover contraception in their Obamacare-mandated insurance plans. That, too, was actually a narrow decision, but it inaugurated an erosion in civil rights that is now a decade old and that culminated (so far) in overturning Roe v. Wade.
That’s the problem with this week’s case. On its facts, it’s close. But it won’t be read that way. When it comes down in a few months, it will be heralded as another setback for same-sex marriage. It will chip away at the underlying right itself. And it might pave the way for the Court to limit or overturn same-sex marriage rights entirely.
Which everyone on the Right knows. This case is bogus. It bears repeating: Smith hasn’t sought or been denied a religious exemption. She’s just suing. But it’s not even her, really; it’s the Alliance Defending Freedom, a largely dark-money-funded Christian Right organization that has been involved in most of the major “religious freedom” cases of the last decade. (I scarequote the term because real religious freedom means being practicing your religion freely, not using it to deny rights to others.)
And if the ADF is like every other legal activist organization, they found this case, and this plaintiff, through careful research and strategic planning. They knew that if they could get a case that’s close enough to free speech—more than the baker, the wedding chapel, the photographer, and the restaurant—they could win. And they knew that a win on any grounds, no matter how narrow, would accomplish their real goal, which is destroying my family by denying it legal protection and recognition.
That’s what this case is really about: overturning Obergefell v. Hodges and leaving same-sex marriage for state legislatures to decide. (The “Respect for Marriage Act”—soon to be signed into law by President Biden—only requires states to respect same-sex marriages from other states, not legalize them themselves.)
It’s about reducing my rights to equality on paper rather than in practice. And eventually, just as the Court did for millions of women last summer, it’s about taking them away entirely.
