Why We Must Amend the Constitution to Protect LGBTQ Rights

An amendment would be immune to the politics of the Supreme Court in ways a law is not.

When the Supreme Court affirmed a same-sex couple’s right to marry in 2015, many in the LGBTQ community felt the U.S. had reached a tipping point (though there were, of course, many anti-LGBTQ laws still on the books around the country).

“No longer may this liberty be denied,” said Justice Anthony Kennedy. Well, Kennedy, who many saw as a moderate, left his post and was replaced by far-right religious zealot Justice Brett Kavanaugh. It now seems many liberties LGBTQ people have been fighting for may soon be denied.

To address this concern, advocates in the LGBTQ community have called for passing the Equality Act, which would ban discrimination against LGBTQ Americans in housing, employment, and elsewhere by expanding the Civil Rights Act of 1964. Others, like the LGBTQ organization GLAAD, are also calling for a constitutional amendment to protect LGBTQ rights, a more aggressive measure that some skeptics believe is unrealistic given America’s polarized political landscape. That said, a constitutional amendment is the only way to ensure the Supreme Court cannot create exceptions to a ban on discriminating against LGBTQ people, as it could if the Equality Act is passed.

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Lawmakers and advocates hold press conference to discuss the Equality Act.

In April, the Supreme Court announced it will begin hearing oral arguments in October for cases that will determine if an employer is barred from discriminating against individuals based on their sexual orientation or gender identity under the Civil Rights Act of 1964. The Court has so far punted on deciding if businesses can deny service to LGBTQ individuals because of a business owner’s religious beliefs, but it’s likely it will rule on this question sooner than later. The Court has already allowed this administration’s transgender military ban to take effect.

The Supreme Court’s shift to the right under this administration means it is quite likely it will rule against LGBTQ rights in multiple ways in the near future.

“It is not hard to imagine the Court as currently constituted—or with even more Justices appointed by Republican presidents—enshrining even broader religious exemptions in constitutional doctrine,” David B. Cruz, a professor of constitutional law at the University of Southern California, tells NewNowNext.

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Brett Kavanaugh is sworn-in as Associate Justice of the U.S. Supreme Court by Associate Justice Anthony Kennedy.

Caroline Mala Corbin, a law professor at the University of Miami, explains that Kennedy largely supported LGBTQ rights, and Kavanaugh doesn’t share this view. “It is certainly possible that the Supreme Court will conclude that religious individuals, organizations, or businesses have a religious right to discriminate,” Corbin says.

Religious groups that are determined to push back LGBTQ progress have become emboldened under the Trump administration. It is nearly a certainty more lawsuits will be levied by these groups in an attempt to get the Supreme Court to rule against LGBTQ rights, and the situation may grow even more dire if the Court changes again.

Kavanaugh is to the far-right on the ideological spectrum, but even Justice Neil Gorsuch, who is seen as more moderate than Kavanaugh, is extreme when it comes to siding with religious groups. If Trump were to get the opportunity to replace one of the sitting liberal justices, two of which are in their 80s, LGBTQ rights could be systemically eliminated.

Many LGBTQ rights advocates believe passing the Equality Act would ensure LGBTQ rights are protected. Though the Republican-controlled Senate has refused to move this bill forward—and it’s unlikely it would be signed by President Trump if it somehow made it through the Senate, as he has said, through a spokesperson, that he does not support it—it’s possible the Democrats will take back the Senate and the White House in 2020 and make it law. However, even if that does happen, there is no guarantee this conservative Supreme Court won’t completely undermine it.

Geoffrey Stone, a law professor at the University of Chicago, confirms that the Supreme Court could “hold it unconstitutional as applied in particular situations for religious reasons.”

“Religious plaintiffs are not out to completely eliminate anti-discrimination law,” Corbin says. “They just do not want the law to apply to them.”

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The U.S. Supreme Court.

In bowing to the demands of religious groups, the Supreme Court could rule that you can’t be discriminated against for being an LGBTQ individual unless the person doing it happens to be a religious fanatic. This does not sound like the protection of one’s liberty.

Therefore, though this is surely a big ask, the Constitution must be amended to protect LGBTQ people. GLAAD has taken up this fight, and it is essential that Democrats running for president recognize the need for such an amendment. This is the only way LGBTQ Americans can be assured their rights without fear of having them taken away by the country’s highest court.

An amendment can be passed with a two-thirds majority vote in both the House of Representatives and the Senate. That will be significantly harder than getting a regular bill passed, but an amendment would be immune to the politics of the Supreme Court in ways a law is not. The Court would not be able to rule that this amendment does not apply to religious people. This is what makes it the superior and necessary path forward.

The Constitution is supposed to guarantee that our fundamental rights cannot be infringed upon, and if religious zealots with expensive lawyers can chip away at those rights through an obsequious Supreme Court, then the Constitution is not doing what it was meant to do, and it must be altered.

A right that exists part-time is not a right at all.

Thor Benson is a traveling journalist who is currently located in Los Angeles. He has contributed to publications like The Atlantic, The Daily Beast, Rolling Stone and elsewhere
@thor_benson