Over the past year, as marriage equality rulings swept across the country, the U.S. Supreme Court repeatedly declined to step in. Now that the justices have agreed to hear marriage cases this term, many advocates of equality are optimistic that the Court will affirm that state marriage bans are unconstitutional.
That would be great news for LGBT Americans, and for all Americans who cherish equality. But even while we imagine those celebrations, we should keep in mind the damage that has been done by the Roberts court. Even if the Justices uphold Equal Protection and deliver a victory to same-sex couples, it will still be the same Court whose 5-4 far-right majority regularly diminishes the legal rights of women, workers, voters, people of color, religious minorities, and, yes, gays and lesbians.
It was only a few months ago that the Court, through the Hobby Lobby decision, handed anti-gay conservatives a powerful new weapon to wield in their efforts to keep LGBT people outside the protections of the law. While the case involved contraception and health insurance, the transformation of the Religious Freedom Restoration Act effected by the 5-4 majority has immense implications for LGBT equality. RFRA was passed in 1993 as a shield to protect individuals' ability to exercise their religion. But in Hobby Lobby, the Roberts Court transformed it into a sword wielded to deny other people their legal rights, equating religious offense to a substantial burden on religious exercise. This is a radical transformation of the concept of religious liberty, one that threatens to filter down to the state level, where many states either have or are considering their own versions of RFRA.
So even where laws prohibit discrimination against LGBT people, those most likely to engage in such discrimination are wielding "religious liberty" as a rationale to not have to obey those laws. A court interpreting a state RFRA and following the Hobby Lobby logic could easily equate a business owner's being religiously offended by a gay employee or customer's "lifestyle choice" with a significant burden on their religious liberty, thereby undermining existing and hard-won anti-discrimination protections.
Justice Ginsburg's dissent pointed out the risk to a variety of types of anti-discrimination laws posed by the majority decision. Tellingly, Justice Alito responded that laws prohibiting race-based discrimination should not be affected, but did not extend that assurance to other categories.
Hobby Lobby is just one of many 5-4 decisions where far-right Justices bend logic and the law in order to achieve their conservative policy goals. Citizens United and related cases gave wealthy corporate interests far more influence over our elections; Shelby County severely weakened the Voting Rights Act and opened the door to new wave of state disenfranchisement laws; Harris v. Quinn undermined union organizing ... Unfortunately, the list goes on and on.
Next year, we have a chance to elect a president who is dedicated to restoring a Supreme Court that will protect all of our constitutional and legal rights. All it would take is one progressive Justice replacing a conservative. We should not have to suffer more damaging 5-4 rulings.
As for the marriage case now before the Court, the outcome could well have been decided on November 4, 2008, when Americans elected Barack Obama and not John McCain. Had Justices Souter and Stevens been replaced, not by Sonia Sotomayor and Elena Kagan, but by "justices like Roberts and Alito" as McCain promised, the outcome of the marriage case would be in little doubt ... and it would not be good.
So even if the Court does the right thing in the marriage case, and agrees that there is no gay exception to the Constitution's promise of equality under the law, we should remember that the Roberts Court remains a dangerously conservative force endangering our most important rights - and that we as voters will decide the Court's direction when we vote for president in 2016.