As SCOTUS Careens To The Right, AGs Must Use Their Power To Advance LGBTQ+ Rights

Attorneys general must make clear the LGBTQ+ community merits the most zealous advocacy by their state to help realize true liberation.

By Jonathan Miller and Amanda Hainsworth

I n a concurring opinion issued in Dobbs last week, Justice Clarence Thomas argued that the Supreme Court “should reconsider” its past rulings on contraception access, intimate conduct, and marriage equality. His point was that those decisions — dating back to the 1960s — suffer from the same supposed faulty logic as Roe. If Roe falls, so should Griswold, Lawrence, and Obergefell. It was absolutely harrowing to read those intentions spelled out on the pages of a Supreme Court decision.

Justice Alito’s majority opinion as well as Justice Kavanaugh’s concurrence provide only cold comfort that those precedents are safe. Those assurances are meaningless (not worth the paper its printed on, some have said), since it is clear that no progressive/rights-affirming precedent is safe with this extremely conservative and activist Supreme Court.

As a result, rights protection is going to take a lot more than the courts. With that in mind, it’s useful to revisit the vital role state attorneys general (AGs) have played — friend and foe — in the journey to marriage equality and the achievement of other crucial LGBTQ+ rights. Lessons from the past help us to understand what AGs must do to protect equality now that the Supreme Court is on the warpath.

It will be absolutely necessary to rely on state AGs to maintain hard-fought victories on the LGBTQ+ equality front. The future of rights protection also requires a new vision for AGs, one that champions proactive and repeated interventions, centering increasingly innovative and bold uses of the power these offices possess.

A BRIEF HISTORY OF HELP + HARM

In May 2008, the California Supreme Court ruled that the state’s constitution guaranteed the right of same-sex couples to marry. Thousands of couples in California — many of whom had waited decades — got married over the next six months.

Then, California voters passed Proposition 8, which effectively reversed the decision of the state courts.

Ted Olsen and David Boies (famous opponents in Bush v. Gore) banned together to launch a federal lawsuit aimed at extending Loving v. Virginia to same-sex couples. In the early months of that case, then-state attorney general Jerry Brown made a crucial decision; he declined to defend Prop 8, having concluded that it was unconstitutional.

That pivotal decision meant Prop 8 was stripped of its legitimacy — it had no backing by the government. Ultimately, the U.S. Supreme Court allowed a lower court decision to remain in place when it concluded that the proponents of the law did not have standing to appeal the case in Hollingsworth v. Perry. Ultimately, Prop 8 was struck down by the federal courts. The decision didn’t guarantee marriage equality in other states, but when combined with United States v. Windsor — when the Supreme Court ruled that the federal government cannot discriminate against same-sex couples when determining federal benefits and protections — it laid the groundwork for a cascade of new cases over the next 24 months which resulted in Obergefell.

Jerry Brown’s decision to decline to defend Prop 8 set an important precedent, as several state AGs followed suit in subsequent years and refused to defend discriminatory marriage laws.

And state AGs are not only on the defendant side of the “v”. In 2009, for example, then-Massachusetts Attorney General Martha Coakley partnered with GLBTQ Legal Advocates and Defenders (GLAD), and brought a case led by now-attorney general Maura Healey against the U.S. government challenging the federal Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman for the purposes of all federal statutes and regulations.

Massachusetts’ suit, which was consolidated with Gill v. OPM (a case brought by private plaintiffs represented by GLAD), became the first-ever successful challenge to DOMA — and the first federal statute struck down on rational basis equal protection analysis (which prohibits the government from imposing restrictions on liberty that are irrational or arbitrary) since the 1970s.

The Prop 8 case stood at the beginning of a wide array of advocacy by state AGs to advance LGBTQ+ equality, especially over the past decade. Since that time, state AGs have pushed for transgender anti-discrimination protections under state and federal law, and they have challenged federal policies seeking to curtail these rights.

They have fought against gay conversion therapy, pushed to ensure that the Affordable Care Act includes extensive protections for LGBTQ+ people, and have advocated that schools be more welcoming and inclusive places, especially for people who have been traditionally bullied and harassed by other students and faculty.

It is an expansive and growing track record of championing equality.

THREATS TO THE LGBTQ+ COMMUNITY

As much as state AGs have been critically important vectors for change in the fight for LGBTQ+ equality, these efforts have been offset by AGs in conservative states who have sought, often in increasingly aggressive ways, to undermine LGBTQ+ rights.

The most recent and draconian example of the potential of state AGs to inflict serious harm on LGBTQ+ communities is Texas AG Ken Paxton’s issuing a formal legal opinion equating the provision of gender-affirming care to minors with child abuse.

Paxton picked up his pen after the Texas legislature declined to enact a ban on gender-affirming care and despite overwhelming evidence that gender-affirming care is safe and medically necessary for the health and well-being of transgender youth.

The Texas Governor then used AG Paxton’s opinion as the basis for a directive requiring the state’s Child Protective Services agency to open child abuse investigations into all reports of families with children who are receiving gender-affirming care.

Unsurprisingly, the Governor’s directive was quickly challenged and enjoined by Texas state courts, but AG Paxton has continued to vehemently defend the directive and his opinion on appeal.

Not only has AG Paxton’s actions singled out transgender children and their families for devastating discrimination and harassment, but they have communicated to these families and their communities that transgender people are unwelcome in Texas at best, and at worst? Should not exist at all.

AG Paxton’s opinion is not an outlier in its purpose or effect.

For decades, conservative AGs have defended state laws that barred LGBTQ+ people from marriage or adoption, criminalized sodomy, and sanctioned discrimination in public accommodations, housing, and employment.

Conservative AGs across the country are currently defending state laws that bar transgender people from accessing healthcare and restrooms and that prohibit transgender kids from participating in school athletics.

State AGs have likewise led and joined multi-state litigations and amicus briefs arguing in favor of denying LGBTQ+ people full equality and restricting protections at the federal level,

Indeed, conservative AGs have consistently used all of the tools at their disposal, including their pulpits, to make the case that targeting LGBTQ+ people for discrimination and harassment is necessary and appropriate.

(See: Bostock v. Clayton County, Georgia, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Obergefell, Windsor, and Lawrence v. Texas.)

Unfortunately, in many states, these efforts have helped shift public policy and discourse, particularly with respect to transgender people.

As of this writing, 18 states have enacted laws that ban transgender kids from school athletics, at least 15 states have restricted access to gender-affirming care or are considering laws that would do so, 6 states have censored discussion of LGBTQ+ people and issues in schools, and anti-LGBTQ+ sentiment continues to rise.

WE NEED AGGRESSIVE AG INTERVENTIONS AND PROTECTIONS

As conservative states become increasingly bold in their attempts to roll back LGBTQ+ protections, and the Supreme Court continues careening to the right, it is imperative that state AGs continue to use their offices to protect the LGBTQ+ community — including in more aggressive and creative ways.

While Justice Alito’s draft decision in Dobbs suggests that other precedents relying on the constitutional right to privacy, — including Obergefell (same-sex marriage) and Lawrence (criminalizing sodomy), are different from abortion and therefore not impacted by the decision…

The fact remains that the draft opinion chips away at the fundamental support for constitutionally-protected privacy rights and sets the stage for future restrictions on LGBTQ+ rights as well.

The threat to the LGBTQ+ community posed by the current Supreme Court is further compounded by its sympathy to religious liberty claims, which are increasingly used to narrow LGBTQ+ rights as well.

And the recent state legislative landscape makes abundantly clear that abortion restrictions are often adopted alongside anti-LGBTQ+ measures, suggesting that it may only be a matter of time until the Supreme Court takes up those measures further erodes these rights too.

LEVERAGING STATE AG POWER

The preservation of rights in this increasingly hostile national landscape may require even more persistent and bold uses of state AG power. AGs may consider adopting a “whole-of-office” approach, including with respect to LGBTQ+ rights.

This model could include prioritizing civil rights and consumer protection investigations of violations of state anti-discrimination laws and strategic enforcement actions to advance rights, requiring criminal prosecutors to prioritize prosecutions of hate crimes and hate groups who target LGBTQ+ people and communities (even and especially when those attacks are from out of state).

It also means directing assistant attorneys general who advise state agencies and defend state laws to employ an equity lens to their work to proactively mitigate any potential to harm LGBTQ+ people and communities.

State AGs should consider making further investments in community engagement and outreach, particularly in communities that have been historically marginalized and disempowered — especially Black and Brown transgender people.

These communities are often skeptical of law enforcement and government agencies (and for good reason!) so AGs must work intentionally and in community to build trust and empower people to seek the assistance and protection of the office.

In addition, state AGs should build upon existing multi-state partnerships by strengthening and deepening collaborations on civil rights issues, including LGBTQ+ rights.

This can be achieved by sharing information about relevant trends or concerns in their states or policies that have proven particularly effective before a lawsuit has been filed or an investigation initiated.

Proactive information sharing may lead to earlier interventions and consistent litigation and policy positions across offices. Likewise, state AGs can increase their collaborations with relevant federal agencies where there is synergy around the protection of LGBTQ+ people.

Finally, state AGs each have an important role to play in norm-setting within their states. By setting transparent office priorities, taking public policy positions, making arguments in court and in briefs, opening investigations, and pursuing litigations, AGs communicate directly to the people of their states precisely who and what matters.

By deploying all of the tools at their disposal, AGs can make clear in their states and across the country that LGBTQ+ people not only matter, but merit the most zealous advocacy by their state to help realize true equality and liberation.

This article was adapted from an essay originally published by the American Constitution Society as part of its Expert Forum.

Amanda Hainsworth is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office.

Jonathan Miller is Chief Program Officer at Public Rights Project. This article represents the opinions and legal conclusions of its author(s) and not necessarily those of the Office of the Massachusetts Attorney General.

Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.