Editorial: Let's All Take A Deep Breath

By, Justin Ayars, JD

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When the Supreme Court of the United States (SCOTUS) decided in favor of cakeshop owner Jack Phillips in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), many in the LGBTQ community concluded that their hard-fought rights—including marriage equality—were in serious jeopardy. Similarly, when Justice Anthony Kennedy—a 1987 Reagan appointee—announced he would retire this summer, many feared that President Trump’s second pick to serve on the bench would shift the high court’s ethos so dramatically to the political right that landmark cases such as Roe v. Wade (1973) and Obergefell v. Hodges (2015) would not just be relitigated; but, that the precedents they established would be overturned entirely. I, however, do not believe these seminal cases, or the rights they conferred, are in peril.

Stare Decisis

Although, at first blush, it may seem that the very foundations of Americans’ civil rights are under attack, I would strongly urge our readers to sit back and take a deep breath. Unlike Virgil’s character Dante in the Inferno who shuttered when he read the inscription, “Abandon all hope, ye who enter here,” upon passing through the gates of Hell, I do not believe that all hope is lost. I believe this because of the powerful legal doctrine of stare decisis (“to stand by things decided”)—a principle embedded within the very foundation of American jurisprudence. In short, this doctrine means that SCOTUS will not overturn a past decision unless there are extraordinarily strong grounds for doing so. Adhering to this bedrock principle ensures the consistent, reliable and predictable development of the law, while assuring the public of the court’s integrity.

Right to Privacy

In 1973, SCOTUS reaffirmed in Roe that Americans have a constitutional right to privacy; a right that, while unenumerated in the Constitution itself, essentially exists within the “penumbra” of its text. For nearly 100 years, the right to privacy has been the justification for a wide range of civil liberties cases, including Pierce v. Society of Sisters (which, in 1925, invalidated an initiative in Oregon requiring compulsory public education); Griswold v. Connecticut (which, in 1965, invalidated a Connecticut law banning any individual from using any drug or instrument for the purpose of preventing contraception); Roe v. Wade (which, in 1973, struck down a Texas abortion law, thereby restricting state powers to enforce laws against abortion); and, Lawrence v. Texas (which, in 2003, struck down a Texas sodomy law, thus eliminating state powers to enforce laws against sodomy).

It’s worth noting that Lawrence explicitly overturned Bowers v. Hardwick, a 1986 case in which SCOTUS upheld a Georgia law that criminalized sodomy and oral sex between consenting adults in the privacy of their own homes. By decriminalizing sodomy based on a constitutional right to privacy, Lawrence not only set the stage for marriage equality, but it also illustrated how the court is willing to overturn prior decisions only when there is “special justification.” See United States v. International Business Machines Corp. 517 U.S. 843 (1996). Such was the case when SCOTUS overturned Plessy v. Ferguson (which, in 1896 upheld racial discrimination laws under the doctrine of “separate but equal”) in Brown v. Board of Education of Topeka (which, in 1954 declared state laws establishing separate public schools for black and white students unconstitutional). Brown paved the way for the Civil Rights Acts of 1964 and Voting Rights Act of 1965, which, collectively, invalidated Jim Crow laws in nearly 20 states.

Since cases such as Roe (which, has been reaffirmed several times, including in the 1991 case of Planned Parenthood v. Casey, which applied the principle of stare decisis to Roe) and Obergefell are based, in part, on the well-established legal principle that individuals have a constitutional right to privacy, it is highly unlikely that SCOTUS will overturn the precedents they established (the right to have an abortion and marriage equality, respectively). Moreover, whomever President Trump taps to serve on the high court will, undoubtedly, recall that the United States Senate did not confirm President Reagan’s first pick for the high court in 1987, Judge Robert Bork, in part because he did not believe that individuals have a constitutional right to privacy. Reagan later appointed, and the Senate confirmed, Justice Anthony Kennedy. To reiterate, stare decisis has protected—and will continue to protect—the right to privacy and those decisions (Roe, Obergefell, etc.) based on this fundamental right.

LGBTQ Rights

Returning to the Masterpiece decision, media headlines could cause people to conclude that SCOTUS supports discrimination against gay couples and that their civil rights are, therefore, on the chopping block. However, a deeper reading of the opinion reveals that the justices sided with the baker, Mr. Phillips, on a set of narrow facts that don’t have a wide application or any major implications whatsoever. In fact, the Masterpiece opinion explicitly defends gay rights and confirmed the ruling in Obergefell. If the gay couple in Masterpiece were to return to Masterpiece Cakeshop today and request a cake to celebrate their wedding anniversary, Mr. Phillips would have no First Amendment right to turn them away. Masterpiece, therefore, is another example of stare decisis at work and, indeed, was a victory for the LGBTQ community.

Concerning the LGBTQ community’s civil liberties en masse, I suggest we follow in the footsteps of the Civil Rights Era and work towards enacting a federal nondiscrimination law. Such a law would end the patchwork of state-based statutes that serve to outlaw antigay discrimination in 22 states, while allowing it in 28 others. This federal approach would also constrain the executive branch’s use of executive orders and agency rules to permit anti-LGBTQ bias.

In the meantime, it’s important that we all take a deep breath and recognize that SCOTUS is an institution with a history, and that history must be followed with very limited exceptions. While the LGBTQ community—and all Americans—must be vigilant when it comes to ensuring their rights are protected, we need not act like Chicken Little and proclaim that the sky is falling. Though it may seem cloudy now, I truly believe that, in the long run, justice will prevail and the sun will shine brightly upon us all.

Justin Ayars