The End of Pride Month?

How the Supreme Court has attacked Marriage Equality

Jun 30, 2025

Yesterday I finished one of my Father’s Day books: Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes by Leah Litman. Litman teaches law at the University of Michigan and is one of the three cohosts of Crooked Media’s Strict Scrutiny podcast.

Litman explores five different areas addressed by the Roberts Court. She considers abortion rights, LGBTQ+ rights, voting rights, campaign finance reform, and the operation of federal agencies. Using pop culture references, she analogizes actions taken by the Court and the jurisprudential theories drawn on to reach their decisions. For the five areas listed, she uses tropes from Barbie, Mean Girls, Game of Thrones, Arrested Development, and American Psycho, respectively1. She concludes the book by relying on the wisdom of Elle Brooks in Legally Blonde2. It’s my favorite book on the law since Elie Mystal’s Allow Me to Retort.3

She writes in the introduction that Lawless is a big-picture book..

Sometimes [it] is necessary to illustrate the big picture and avoid normalizing what is happening. The Supreme Court is repeatedly elevating the feelings, sentiments, and political views of the Republican Party. The Republican justices are churning out different jurisprudential theories and doctrines that ignore the views of the people who, for the most part, are not part of the modern Republican coalition. Sometimes the sore winners on the Court are fashioning legal rules that pretty much stick it to those groups as well.
The Republican-appointed justices seem to think that the real victims of discrimination today are the Republicans, who not longer enjoy the kind of outsize influence, political power, and social standing they one did. They think that Republicans are supposed to be the big men on campus for all time. One of those big men on campus, Brett Kavanaugh, along with his fellow Federalist Society fraternity brothers (and Amy) seem to want to make sure they always will be. And when the justices invent stories about how Republicans are the ones being harmed today, they cause real harm to real people. (10-11, italics in original)

As she says, it’s a lot to tackle. I’m only going to tackle two of her chapters this week and return to the others later. Today (as the final day of Pride Month) I want to look at her argument on cases ranging from Lawrence (same-sex behavior) through Windsor (ending DOMA) through Obergefell (marriage equality), to Masterpiece Cakeshop and 303 Creative (religious exemptions). Wednesday, I’m continuing my exploration of economic inequality by looking at Litman’s chapter on campaign finance reform.4

Litman argues that with 303 Creative, the Court “maintained that discrimination against LGBT people (aka, guaranteeing equality) was discrimination — against the religious and social conservatives who don’t believe in equality for LGBT individuals.”

It’s kind of like the 2004 movie Mean Girls, where a deluded group of girls declare themselves queen bees, act like jerks, and clear the way for others to do the same — all while insisting they’re the real victims. One of the mean girls (Regina George) reflects on why she had to banish her then-friend Janis Ian from (junior) high society: “My birthday was an all-girls pool party, and I was like, ‘I can’t invite you Janis, because I think you’re a lesbian.’ I mean, I couldn’t have a lesbian there!” Regina has all the power, but she still thinks the mere presence of a lesbian threatens her. (Actually, the mere idea of a lesbian, since the label comes as news to Janis.)
That’s the vibe the Supreme Court channeled after the historic victory for LGBT rights in Obergefell. The justices are undoing rights that democratic legislatures enacted into law and they are making constitutional law less democratic in the process. (54)

She then traces the above mentioned history of LGBTQ rights granted by previous Courts.5 She draws a sharp parallel between LGBTQ jurisprudence and the post-Reconstruction period where the Court reversed course during what is known as the Redemption (that is, the redemption of white power).

Throughout the history of LGBTQ decisions, Litman follows the breadcrumbs through the various dissents and public statements made by the current (or former) justices. Their interest in stemming the acceptance of LGBTQ rights is expressed in concerns about religious people and other conservatives being maligned for their apparent heart-felt opposition to same-sex marriage. The actions of Jack Philips of Masterpiece Cakeshop, who refused to bake a cake for a same-sex marriage and 303 Creative, who refused to create a website for a nonexistent same-sex wedding, were not seen as actions against LGTBQ people. No, it was all about endorsing same-sex marriage, which they didn’t believe in. As she observes, this suggests that they would opposed the cake or the wedding website even if straight people asked for it (which is hard to envision).

So raise you hand if you’ve even been personally victimized by the Supreme Court. In Mean Girls, Regina George insists that she is the one victimized (by Janis Ian’s mere presence) when the reality is … the opposite. When the high school math teacher asks the gymnasium full of girls to close their eyes and raise their hand if they’ve even been “personally victimized by Regina George,” everyone raises their hands.
The same is true for the Supreme Court’’s mean boys (and girl). The Court is poised to decide whether public education on topics of gender and sexuality unconstitutionally victimizes those parents whose religious beliefs are opposed ot LGBT rights (or LGBT people’s existence).6 Sometimes, people in these circles think that the mere presence of images symbolizing LGBT equality victimizes them. (90-91).

And so, the Roberts Court selects a victim class impacted by democratically determined legitimate decisions. Then they strip those laws of power to protect those supposedly harmed in clearly undemocratic fashion.

And if you think it’s bad for LGBTQ rights, wait until you see what they’ve done to obliterate campaign finance laws in order to preserve the speech rights of the very wealthy and connected. More on Wednesday.

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