It has been an ominous month at the Supreme Court for LGBT rights. In what has been hailed as the biggest case of the term, the justices signaled that they may rule in favor of a baker who refused to sell a wedding cake to a same-sex couple. And in a much less talked about but no less important case, the Court refused to stop a lawsuit, which would allow state and local governments to deny people in same-sex marriages their spousal benefits, from moving forward in Texas state court.
At first blush, these potential setbacks for equal rights are surprising coming from a Supreme Court that just a few years ago boldly extended the fundamental right to marry to same-sex couples. It was a signal moment in the history of LGBT rights. So why would the justices now be watering down the promise of equal citizenship?
Actually, we’ve been down this road before. After the Supreme Court decided the landmark desegregation case Brown v. Board of Education in 1954, the justices also began to dilute the force of that ruling. The next year, the Court held that school districts didn’t need to remedy the constitutional violation of segregation immediately. Rather, they merely had to do so “with all deliberate speed”—a wishy-washy compromise that significantly undermined the force of the original decision and delayed integration for years. Today, the Supreme Court appears poised to make a similarly catastrophic mistake on LGBT rights. Ultimately, the justices’ waffling won’t smooth the transition to equal citizenship. Instead, it’s likely to inspire opponents of same-sex marriage to fight on with renewed intensity.
When the justices instructed school districts to implement desegregation with all deliberate speed, they thought the slower pace would lessen opposition to desegregation. The opposite happened. All deliberate speed emboldened the defenders of segregation to stall for time as they organized massive resistance. It would take years for state-sponsored racial segregation in schools to end. In 1968, an exasperated Supreme Court, tired of the ongoing battle, declared that the “time for mere ‘deliberate speed’ has run out.”
It was, in many ways, too late. White flight, fueled by state funding that prioritized suburban development over urban improvement, left public schools with too few whites to achieve the goals of integration. Even today, more than a half century after Brown, public schools remain largely segregated—no longer in law but continuing in fact.
The Supreme Court seems on the precipice of making the same mistake again. Even before the Court’s landmark marriage equality ruling in 2015, Justice Ruth Bader Ginsburg gave a speech about the danger of the Court going too far, too fast in recognizing new rights. Although she was talking about abortion, her comments were widely understood to be a warning about LGBT rights. In the marriage ruling itself, Justice Anthony Kennedy called for “protection” of “religious organizations and persons” that “seek to teach the principles that are so fulfilling and so central to their lives and faiths.”
Kennedy, of course, will be the swing justice once again in the wedding cake case. The oral arguments in early December focused mainly on whether the cake store’s owner would be forced by Colorado’s anti-discrimination laws to engage in compelled speech if he were required to provide a cake for a same-sex wedding. Yet Kennedy returned to the question of religion—and how to protect the people who oppose LGBT rights on religious grounds. Suggesting that the Colorado government agency had expressed intolerance towards the baker’s religion, Kennedy implied that he may be prepared to rule in favor of the baker. And everywhere that Kennedy goes, the Supreme Court is sure to follow.
The refusal of the Court to intervene in the spousal benefits case could portend another compromise, one that allows state and local governments to pick and choose which marriages they will support. The Texas state government is trying to stop the city of Houston from extending public employees’ state spousal benefits to same-sex couples. Houston had asked the Supreme Court to stop Texas’s lawsuit now, given the apparent constitutional violation in giving separate but unequal spousal benefits.
By declining to weigh in for now, the Roberts Court—like the Court that announced “all deliberate speed” in 1955—is sowing confusion about the justices’ commitment to equal citizenship. And although the Court may believe that delay shows respect for sincerely held religious beliefs, it will almost certainly encourage many to fight on with even more determination against same-sex marriage and gay rights more generally. If a state can deny these marital benefits, what other ways can they discriminate against same-sex couples? And if the baker wins, he will be followed by a chef, a dressmaker, or a DJ. New and unexpected businesses will claim a right to discriminate too.
Another course is available. In contrast to its halting approach on school desegregation, the Supreme Court took a firmer stand on the civil rights laws barring discrimination on the basis of race in employment and public accommodations. The Civil Rights Act of 1964 was also the subject of numerous lawsuits claiming the law violated First Amendment rights—long before the baker challenged Colorado’s anti-discrimination laws. The courts rejected those arguments in case after case, insisting that the eradication of discrimination was too important.
At the oral argument in the wedding cake case, the lawyers on all sides of the case agreed on one thing: The baker would not be allowed to discriminate on the basis of race, regardless of any expressive or religious reasons. That principle, however, is so clear and beyond dispute only because the Supreme Court refused to carve out exceptions to the Civil Rights Act all those years before.
The law already provides only patchwork protection for LGBT rights. Federal law does not prohibit discrimination on the basis of sexual orientation, although some states, like Colorado, do. With the Trump administration scaling back the limited protections in the law for transgender rights and an unwelcoming Congress, the Supreme Court is the only branch of the federal government left to secure LGBT rights.
The Court should refuse the temptation to water down the right to marry and leave LGBT people as second-class citizens—welcome in some stores but not others, or with unequal benefits from the government. Equality should be enforced now, not with all deliberate speed.