“Representation matters. I wore my father’s prayer hat, and stood at the steps of the Supreme Court, waving our flag.” – Ibrahim “Ibby” Baig
On June 15th, 2020, Ibrahim “Ibby” Baig awaited, like many others, for a decision of paramount importance to the lives of gay Americans to come down from a court that has never had an openly LGBTQ+ member. He stood before the marble pillars guarding the doors to “equal justice under law,” and though he stood alone he felt a moment of unspoken solidarity and emancipation, which was captured on the cover of the New York Times(pictured top-left). “I’m so happy that my face was not on the cover, because my face wasn’t important. What was important is what I represented to young gay Muslim boys and girls like me,” Baig said. While he recognized that there was great liberty that had been afforded to us that day, he was sobered by the fact of how far we still have to go.
Only a few months later, and immediately following the death of Justice Ruth Bader Ginsburg, Justices Alito and Thomas took it upon themselves to threaten same-sex marriage, putting it in jeopardy once again. With her memory as a champion for LGBTQ+ rights in my mind, I find myself struggling to understand their rationale that the great body of American jurisprudence is somehow so inflexible and unyielding that the Supreme Court simply cannot extend its protections upon gay couples to marry. In doing so, they remain relics in the ideological fluctuation of the Supreme Court, a fluctuation which opens, or in their case closes, the doors of justice.
Although the freedom to marry is not written directly in the constitution, it was a case involving marriage that gave birth to the concept that there is a body of rights in the penumbra of the Constitution. The 1965 Supreme Court in Griswold v. Connecticut readily accepted a right to privacy within marital affairs that was not explicitly stated but rather found by reasonably inferred from the text. The court concluded:
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Further grounding its decision two years later, the Supreme Court in Loving v. Virginia ruled unanimously that the individual freedom to marry was protected under the purview of the Fourteenth Amendment. At one point, interracial marriage in America was so offensive as to warrant illegality, yet the court ruled here that “[t]he Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.” This ruling is situated in a long and hard-fought battle by Black Americans to be recognized as equals, a battle that continues today as they continue to face injustice under the law.
This struggle for rights is paralleled with the struggle of the LGBTQ+ community. It was not until 2003 that the Supreme Court ruled that laws banning “sodomy” between consenting adults were unconstitutional in Lawrence v. Texas. It was then another ten years until gay couples could rightfully receive the estate of their deceased partner in United States v. Windsor. That same year, Californians were guaranteed their right to equal marriage status recognition in Hollingsworth v. Perry because the same rights existed between same-sex couples and “traditional” couples. Even then, the Supreme Court avoided answering the question on the nationwide constitutionality of same-sex marriage, waiting two more years to answer in Obergefell v. Hodges. Justices Alito and Thomas, respectfully, wish to deprive us of this right again.
In Justices Alito and Thomas’s writing, they posit the right of LGBTQ+ Americans to marry as incompatible with, and mutually exclusive to, the right of religious freedom. Without reference to how this decision in and of itself specifically limits the free exercise of religion for an individual and their circumstances, they rely only on the assumption that it may be the case that religious institutions or persons are labeled as “bigoted” for not viewing same-sex marriage as valid. It could be in some penumbra of the First Amendment, which says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” that they make their argument that the First Amendment ought to protect religious exercise from any public scrutiny. Granted, in the extreme circumstance of this scenario where the practice of religion was banned, it would make sense then, and only then, that the law is struck down as unconstitutional. However, the mere existence of a contrary public opinion to a religion does not cause this, nor does it seem sufficiently able to invalidate free exercise absent some additional action.
For Justices Alito and Thomas’s argument to hold, the Supreme Court would have to ensure the widespread enforcement of respect by society-at-large for every religion in order for there to be the “free exercise of religion” that they envision, and that is most certainly not the case today. Further, their argument would allow government agents, such as Kim Davis, to deny giving a marriage license on any religious ground. Might their stance differ if someone wished to apply traditional Jewish doctrine, which holds that a man should not marry a woman who cannot have children? Or prevent a case of divorce from being heard because it is a woman filing for divorce from her husband and Biblical doctrine forbids it? In effect, their argument would make the government an instrument of forcing one individual’s religious version of marriage onto another because they managed to assume a government role overseeing state-sanctioned marriage (and not a role officiating religious marriage). Given that they regularly criticize the protection of marriage for having no textual basis in the Constitution, would the consequences of their own arguments withstand the same scrutiny?
It might be better argued that marriage, as an establishment recognized both within government and in religion, be balanced between allowing free exercise for those who wish to abide by religious doctrine and forbearance from allowing too much respect to anyone religion specifically. It seems reasonable to apply common law standards of consent, age requirements, and other concepts that we find consistently within. But let us also remember that the common law has evolved significantly in other concerns, such as mental health, ability, healthcare, and individual liberties over the past 50 years, and that it should do the same for marriage. We have come to a point in our society where we accept same-sex relationships as valid and have recognized that life as a nuclear family is not the ideal circumstance for everyone. Further, we must remember that it has now been five years since the Obergefell decision and that nearly 500,000 households in America are legally-recognized same-sex couples. Can justice demand that a major cultural shift, the lives of 1 million Americans, and the development of a significant body of rights for the LGBTQ+ community all be uprooted under due process and equal protection?
It seems to be an absurd notion that fundamental freedom to marry the person of your choice is incompatible with other rights safeguarded by the Constitution. While I firmly believe that everyone should recognize the humanity of gay love and accept the dignity in societally-recognized marriage, that is not necessarily the ideal we must reach. The exercise of religion is a personal matter, and its limits are between the individual and their higher power; however, the law cannot impose that respect of religious doctrine mandatorily on others. What we should commit ourselves to is the protection of rights within the text and penumbra of the Constitution in their totality, whether or not they conform strictly to the limiting principles of our own religion. This is not a foreign concept, as even conservative members of the LGBTQ+ community agree; Chad Felix Green of The Federalist writes, “[t]o defend all of our rights, we must stand together.”
This significant injustice, while at the forefront of our minds at the moment, is only one symptom of the much greater issue at hand. The legal community and culture are the greatest factors in preventing the advancement of LGBTQ+ rights (among others). Our system favors clear definitions, labeling, categorization, and order, which has been especially restrictive to transgender and nonbinary folx. This has implications for their recognition by the government and often requires them to undergo the undignifying (and sometimes violent and volatile) treatment of being deadnamed or misgendered in order for them to enact any meaningful rights in the pursuit of life and liberty. While they may be permitted to marry either in the category of same-sex or “traditional” marriage, it is apparent that this language was created on the strict gender binary and that it did not have trans folx in mind when the court ruled marriage equality into law.
This gatekeeping is further reflected in the community, and much like the common law, it is based on primarily Christian and Eurocentric standards. Even in the manner in which we present ourselves, it is commonplace to feel compared to the ideal of a white, heterosexual, cisgender man, typically married with children, who has few or no visible tattoos or piercings with standard business attire and “appropriate” hair. Variance from this norm is punished in the form of wage gaps and workplace discrimination, and the law firm practice is easily susceptible to outside social pressures reinforcing these stereotypes. Judicial positions virtually require that a person have a strong knowledge of both British and American history as well as the way in which Christian morality is interwoven into the common law, all beyond knowing the application and letter of the law. Having an inherent knowledge, by virtue of social circumstance, gives certain people an upper hand towards these positions, which reflects in data and information regarding the judiciary. 80% of judges are white; 73% of judges are men; there are only two Native American judges and no Muslim judges; 1.4% of federal judges identify as LGBTQ+; there are no transgender or non-binary federal judges; only one openly LGBTQ+ person sits on a Circuit Court; there has never been a person openly identifying as LGBTQ+ on the Supreme Court ever.
The system which determines our rights was not built for us, and we must now face what can only be a revived attempt to push us out of the law and the legal profession. Members of the Supreme Court would attempt to shut the courthouse doors, depriving us of the equal protection and due process which justice demands for us. On this Coming Out Day, gay people should be able to proudly say that we will not go backward in our progress toward equality. We should be able to realize the equitable idea that our rights and religious freedom can coexist with each other. We, too, belong in all places where decisions are being made. Now open the doors and let us in.
Authors Note: The quotes at the beginning of this article are from an interview with Ibrahim “Ibby” Baig. He currently works as a Special Assistant to the Deputy Assistant Secretary of Antidumping and Countervailing Duty Operations in the Department of Commerce International Trade Administration. He is also the Vice President for Commerce Pride, the LGBT+ employee resource group, and a Senior Fellow for Humanity in Action, which began as a Holocaust remembrance group and has transformed into an international education group that explores the intersection of democracy, pluralism, human rights, and social justice. Any views in this article are stated in his capacity as a private citizen and do not necessarily reflect the opinion of the government, Department of Commerce, or his employers.