This past weekend, the Republican Party in Texas voted on an outrageous platform that not only denies the results of the 2020 presidential election, but also rejects gay marriage and seeks to “protect” minors until they turn 17 against “predatory sexual behaviors,” such as drag queens reading stories aloud to children.
Drag queens are predators, trans women are a threat and gay marriage is a violation of the “natural order”: This is all part of the widening and re-energized attack by Republicans on L.G.B.T.Q. people and culture in the wake of the Supreme Court’s 2015 ruling in Obergefell v. Hodges guaranteeing a right to same-sex marriage.
The ruling was heralded as a major civil rights victory by its proponents, but many opponents of gay rights saw it as a lost battle in a war, not the loss of the war. For them, gay marriage is too big a development to simply accept.
Dennis Prager, writing in National Review, argued that the ruling completed “the secularization of America” and sealed “the end of America as the Founders envisioned it.”
Mitch McConnell, then the Senate majority leader, was a staunch opponent of gay marriage. He was one of six Republican senators to sign an amicus brief trying to convince the court to reject it. But after the ruling, even he acknowledged that there was little more that Congress could do. “The courts have pretty well spoken,” he said.
But opponents of gay rights wouldn’t stop there. There were other avenues of oppression: the presidency, the states and the composition of the court itself.
In 2016, Donald Trump was elected. Although he had disavowed the violence at the Pulse nightclub in Orlando, promising to protect the L.G.B.T.Q. community from “violence and oppression,” courting openly gay donors like Peter Thiel and later referring to gay marriage as settled law, he would go on to take unprecedented steps “to undermine and eliminate rights protecting L.G.B.T.Q. people,” as Alphonso David, then the president of the Human Rights Campaign, put it in 2020.
Among Trump’s exhaustive list of transgressions against gay people were his administration’s attempts to literally erase them by trying to block new questions about sexual orientation from the census and trying to define transgender people out of existence, proposing to “define sex as either male or female, unchangeable, and determined by the genitals that a person is born with,” according to The New York Times.
Then, there was the Supreme Court itself. Shortly after it sanctioned gay marriage, Mike Huckabee, a presidential candidate in 2016, fumed that the “Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the law of gravity.” He warned, “The only outcome worse than this flawed, failed decision would be for the president and Congress, two coequal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny.”
It was clear that the fight was just getting underway.
Justice Anthony Kennedy, writing for the majority, put it this way: “The idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts,’ ” quoting former Justice Robert Jackson.
Opponents of gay rights saw that as judicial overreach. And now, Kennedy has been replaced by Brett Kavanaugh, who refused during his confirmation hearing to say whether he thought the gay marriage case was correctly decided. Amy Coney Barrett has also joined the court, replacing another justice who was in the gay marriage majority: Ruth Bader Ginsburg. During a 2016 lecture, Barrett seemed to defend the justices who dissented in the gay marriage case and questioned whether it was up to the court to decide issues like which bathroom transgender people should be allowed to use.
Around that time, Republican state legislators were introducing a number of bathroom bills, an early step in their push to oppress queer people. Then came a series of state laws preventing transgender women and girls from participating in female school sports.
These attacks were never going to remain focused only on trans people. (Even if they did, it would still be a horrific attack on human rights.) Now, we are witnessing the inevitable result, as Republican legislators widen the attacks to queerness itself.
Just this year, we saw Florida pass its “Don’t Say Gay” bill.
Make no mistake, this is all part of a renewed, broad-based attack on gay rights and gay culture, to stanch the rise of young people who are coming out. And if you think a right once established by the court can’t be rescinded by the court, look no further than the expected ruling coming from the court on abortion.
There is no finality in the battle for civil rights. Wins don’t stay won. They must be defended and can sometimes be reversed.
Republicans may not be able to push people back into the closet, but they can try to re-establish some stigma to prevent them from coming out in the first place and build them — us — cultural gay ghettos if we do.