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SCOTUS takes its first swipe at LGBTQ rights

Could Obergefell be next?

In a stunning blow to equal rights, the Supreme Court ruled last Friday in favor of Christian Colorado web designer Lorie Smith who refused to create websites for same-sex couples even though the state bans such discrimination.

The court ruled 6-3 for Smith, saying she can refuse to design websites for same-sex weddings despite a Colorado law that bars discrimination based on sexual orientation, race, gender and other characteristics. The court said forcing her to create the websites would violate her free speech rights under the Constitution’s First Amendment.

Reaction to the ruling sparked anger, outrage, and further accusations that this bench had become an activist court by choosing to rule on ethical questions and along ideological lines.

LGBTQ and progressive activists around the country are now wondering aloud if this ruling sets the stage for the Court to revisit Obergefell vs. Hodges, the landmark 2015 case that legalized same sex marriage. After voting to overturn Roe V. Wade last June, Justice Clarence Thomas suggested they should do just.

In his concurring opinion at the time, he wrote that the justices “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” — referring to three cases having to do with Americans’ fundamental privacy, due process, and equal protection rights.

At the time, his opinion galvanized members of the LGBTQ community, advocates, and lawmakers in both parties to quickly pass federal legislation with an extra layer of protection for marriage rights. In December, President Biden signed that legislation into law as The Respect for Marriage Act.

The new law requires that all states recognize same-sex marriages unions, but it doesn’t require states to issue them.

In Virginia and 34 other states, same-sex marriage bans still exist on the books but have been invalidated by Obergefell. If Obergefell is overturned, they would again be activated. Similar to what happened to abortion rights after the Supreme Court overturned Roe, people’s access to same-sex marriage licenses would depend on where they live.

In Virginia the ban on same sex marriages was passed after voters approved a Constitutional amendment in 2006. Attempts by the General Assembly to repeal the amendment since them have failed multiple times. Even if repeal were to pass the General Assembly, it would have to be for two years in a row and even then would still require a voter referendum.

So the short piece of advice for same sex couples living in Virginia is this: if you’re already legally married in any state, should Obergefell go by the wayside, your marriage is safe under the Respect for Marriage Act.

Meanwhile, back in Colorado, our web designer claimed as part of her lawsuit that she had been contacted by two gay men recorded only as “Stewart” and “Mike” to design invitations and place setting cards for their upcoming wedding. She had included a copy of the email request in her lawsuit documents not as a basis for her suit, but as evidence that such requests had already come.

When The Associated Press contacted Stewart this week to verify his story, he wrote back with this stunning revelation: he said he never submitted the request and didn’t know his name was part of the lawsuit until he was asked about it by another reporter.

“I was incredibly surprised given the fact that I’ve been happily married to a woman for the last 15 years,” he said. He declined to give his last name for fear of harassment and threats.

If our unethical Supreme Court is willing to hear a case in which no harm was done to the plaintiff, but the plaintiff was obviously willing to lie to support her case, anything is possible.

Go get married if that’s what you want to do. Before it’s too late.

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