Extremists see ending marriage equality within grasp

The architect of the Texas anti-abortion law also urged the Supreme Court to re-criminalize "homosexual behavior"

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A lot of people thought it was alarmist when some of us wrote during the 2016 presidential campaign, and over the four diabolical and destructive years of the Trump administration, that LGBTQ rights would be in peril.

We were told by some political reporters in 2016 that Donald Trump really wasn’t anti-gay. He had, after all, sent Elton John a congratulations on the occasion of his civil union 11 years earlier, Maggie Haberman of the New York Times told us in making this claim.

Fast forward to 2021, and the three justices Trump put on the Supreme Court — after he promised religious extremists during the 2016 campaign that he’d nominate judges who would overturn same-sex marriage — are emboldening enemies of LGBTQ equality.

They’ve certainly empowered them on the issue of abortion, allowing Texas’s anti-abortion law to stand, ending virtually all abortions in that state. And the theocrats on the court likely will officially overturn Roe v. Wade, having decided to take up Mississippi’s anti-abortion law, with oral arguments set for December 1.

Over the weekend, the man responsible for the legal framework of the Texas law filed an amicus brief in the Mississippi case. Former Texas Solicitor General Jonathan Mitchell, a religious zealot who carefully calibrated the design of the Texas law to get around Supreme Court precedent and appeal to the the far-right high court, argued in the brief that Roe should not only be overturned; he lashed out at the “court-invented rights to homosexual behavior and same-sex marriage.”

The brief, primarily focused on throwing out precedent on abortion and birth control, claiming women can “control their reproductive lives” by “refraining from sexual intercourse,” also urges the Supreme Court to take a sledge hammer to the 2003 Lawrence v. Texas decision, which ended sodomy bans in the states, and the 2015 Obergefell marriage equality decision:

These “rights,” like the right to abortion from Roe, are judicial concoctions…

…This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.

“Leave these decisions hanging by a thread.”

Chaos of course would ensue if states were able to make their own decisions on same-sex marriage. But this court prefers chaos — and certainly invites those who would create it — if it would throw abortion back to the states, which is what it did by not taking up the Texas case. Allowing sodomy laws once again would criminalize not only gay sex but, basically, all private sexual activity a state does not condone.

Whether or not the court would actually do these things at this time is not really the relevant question right now. The fact that Mitchell, on a victory lap, as well as other zealots, feel emboldened to call for vicious stripping away of human rights with such bravado underscores both their intent and how Trump, the evangelical conservative movement and and the radicals on the Supreme Court have emboldened them.

Mitchell had helped write a previous anti-abortion law in Texas, which the Supreme Court — with a far different make up — struck down in 2016. He went back to the drawing board and wrote a law that could give justices intent on stopping abortion a way to let a draconian law stay on the books for now — while he continues to fight to snuff out Roe v. Wade, already on its deathbed.

Mitchell’s one-man law firm has been on retainer from the Alliance Defending Freedom, the far-right legal group that has challenged LGBTQ rights over and over again. ADF, as the the Southern Poverty Law Center describes it, “has supported the re-criminalization of sexual acts between consenting LGBTQ adults in the U.S. and criminalization abroad.” Mitchell’s payments, per the Guardian, are for “religious freedom” guidance.

Anyone who thinks the enemies of queer equality won’t keep trying to find ways to harm or destroy LGBTQ rights, including marriage equality, isn’t reading the room. “Religious liberty” is in fact how they will continually carve out exceptions to civil rights for LGBTQ people. The goal is to keep chipping away — as they have done with Roe v. Wade for decades — so that the rights in the end are meaningless or completely voided.

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