Georgia is on its way to creating a law that would allow state-funded adoption agencies to turn away LGBTQ couples ― or, more specifically, to turn away any parents the agencies don’t approve of based on religious beliefs.
Make no mistake: This anti-LGBTQ adoption bill is part of a wide-reaching plan by religious conservatives ― backed by President Donald Trump and his administration ― to turn same-sex marriage into second-class marriage with a longer-term goal of overturning federal marriage rights for gays and lesbians entirely.
How are religious conservatives turning same-sex marriage into second-class marriage? By getting courts to rule that wedding-related businesses can turn away gay couples based on the business owners’ religious beliefs, by allowing governments to refuse to give the same benefits to spouses within same-sex marriages as they do to those within opposite-sex marriages, and by allowing adoption agencies to say no to LGBTQ parents.
I’ve written before about their strategic plans. They date back to at least 2014 ― before the 2015 Obergefell marriage equality ruling ― when anti-LGBQ conservatives mapped out what they would do if they lost at the high court (which they did). I sat in on a panel at the Family Research Council’s 2014 Values Voter Summit, during which Frank Schubert (the mastermind behind California’s infamous Proposition 8, which banned same-sex marriage in 2008), the National Organization for Marriage’s Brian Brown and others articulated a two-pronged strategy. This strategy, they said, would mirror their highly successful attacks on abortion rights and Roe v. Wade over the years. They would incrementally chip away at marriage rights for queer people in the short-term through the creation of new laws while, in the long-term, working to overturn any high court ruling that granted federal rights ― the goal being to send the issues back to individual states to decide.
Anti-LGBTQ adoption laws, which Texas and other states have passed and which Georgia may soon pass, are integral to these strategic efforts. And Trump has become instrumental in anti-LGBTQ conservatives’ short-term and long-term goals, not just by courting white evangelicals and signing orders that would harm queer people ― such as banning transgender people from the military ― but, more important, by putting Neil Gorsuch on the Supreme Court.
There’s no question Trump has massively influenced attempts to diminish same-sex marriage.
Gorsuch, a “religious liberty” fanatic, has breathed life into this two-pronged strategy. His presence may have played a significant role in the Supreme Court taking up Masterpiece Cakeshop v. Colorado, a case in which a baker challenged lower-court rulings that determined he’d discriminated against a gay couple by not serving them a wedding cake in violation of Colorado’s anti-LGBT protections in public accommodations. It takes four justices to take a case, and the Supreme Court had turned away similar cases in years past, when Antonin Scalia, who was a staunch defender of the autonomy of the states (if an ardent homophobe himself) was on the court.
The Trump administration filed a strong brief defending the baker, and Trump’s solicitor general, Noel Francisco, even argued before the Supreme Court last fall that bakers should be able to put a sign in their window saying they don’t serve gays based on their religious liberty. As I noted after sitting in the court and watching the justices pepper each side with questions, Gorsuch was completely down with the idea that the baker had been the one discriminated against. As many court watchers have observed, it will all come down to the swing vote of Justice Anthony Kennedy, who seems as if he could decide either way.
But even if the baker loses at the Supreme Court, strong dissenting opinions matter when it comes to the long-term goal ― especially when that dissenting opinion comes from Gorsuch and his religious liberty crusade. In a recent case, for example, the U.S. Supreme Court upheld putting both parents on a birth certificate when one of the parents in a same-sex marriage conceives the child; thus, an Arkansas law treating gay and heterosexual parents differently in this regard was ruled unconstitutional. However, Gorsuch, joined by justices Samuel Alito and Clarence Thomas, wrote a firebrand dissent that encouraged states not to see the case as settled. As Harvard legal scholar Noah Feldman observed, Gorsuch was clearly “inviting state courts to put up barriers to marriage equality.”
Texas soon took Gorsuch up on the invitation; its state Supreme Court ruled unanimously that same-sex married couples need not be given spousal benefits that heterosexual married couples are given. The U.S. Supreme Court, in turn, let that ruling stand.
There’s no question that Trump, having embraced religious conservatives and their causes, not just with words but with actions (including White House directives and choice of judicial nominees) has massively influenced attempts to diminish same-sex marriage.
This influence has emboldened those like the GOP legislators in Georgia who, even in the face of calls for boycotts by Hollywood actors and directors and threats from big business, are pushing ahead with bigotry. Georgia’s Republican governor, Nathan Deal, concerned about the business backlash, dealt those legislators and their backers a blow two years ago when he vetoed a “religious liberty” bill that would have been discriminatory against LGBTQ people.
In the Trump era, however, anti-LGBTQ conservatives feel encouraged, knowing their two-pronged strategy to take down marriage equality is getting a big boost by the current administration.