This Pride season, the Supreme Court is flying the rainbow flag.  Or at least not burning it.  Earlier this month, the Court issued a landmark ruling interpreting federal prohibitions on sex discrimination in employment as including protection on the basis of sexual orientation and gender identity.  That ruling builds on a trend over the last two decades where the Court struck down state laws targeting queer people out of animus, protected the right to same-sex sexual intimacy, and recognized same-sex marriage rights on both the federal and state levels.  And it continues an even older legacy of protecting the expressive rights of queer people.  These are, of course, critically important opinions acknowledging the humanity and rights of LGBTQ individuals.  The most recent employment discrimination ruling is particularly significant for transgender people, whose lives have often been ignored or attacked. 

Celebrated as it should be among social justice advocates, the Supreme Court’s seeming embrace of LGBTQ rights should not detract from a bleaker reality:  as to other marginalized groups, the Court continues in many contexts to turn a blind eye and if it continues to rule in favor of government power in criminal procedure cases, the most marginalized in the LGBTQ community will continue to suffer disproportionately.  Put bluntly, the Supreme Court may be glossing over, or pinkwashing , its record of failing to protect people of color, women, immigrant communities, and those ensnared in our carceral systems. 

For example, during the same period that it was upholding formal LGBTQ rights, the Supreme Court has made it easier to enact racist voter disenfranchisement efforts, upheld the Trump Administration’s Islamophobic Muslim Ban, and opened the door to more and more abortion restrictions.  Likewise, the Court, on the very same day it ruled in favor of LGBTQ employment protections, declined to reconsider the doctrine of qualified immunity.  Thus, police officers will be allowed to continue to harm citizens with limited constitutional recourse to hold them or their departments accountable.   The Court’s refusal to revisit this extremely problematic shield means that people of color, including trans people of color, will continue to be harmed disproportionately by the police.

In short, in contexts ranging from privacy law to criminal law, the law continues to operate in an unequal manner. All told, the story is one of what UC Berkeley Law Professor Russell K. Robinson has described in the context of the Court’s equal protection jurisprudence as “LGBT exceptionalism.”  One might describe it even more narrowly, as white, cis, gay exceptionalism.  The right to enter into a marriage contract or express oneself at work takes on a less shiny patina if you are afraid you will be physically harmed or imprisoned en route to the courthouse or your place of employment.

To build on Chief Justice Roberts’s favorite judicial metaphor, we must not let the Court’s LGBTQ-rights decisions take our eye off the ball—the Court’s jurisprudence continues to be characterized by the retrenchment of privilege, not anti-subordination. 

And even though the Supreme Court’s conclusion that federal anti-discrimination law protects LGBTQ people is correct, not even advantaged LGBTQ people can rest easy.  As the Court’s decision in Masterpiece Cakeshop portends, the judicial battle for LGBTQ rights is far from over.  That is, through either the First Amendment Free Exercise Clause or the Religious Freedom Restoration Act, the Court could create broad religious exemptions that, for example, permit employers and public accommodations to discriminate against LGBTQ people based on their purported religious objections.  On two fronts then, social justice advocates cannot let up, protections for the LGBTQ community must be intersectional and move beyond mere formal anti-discrimination coverage, and we must continue to be vigilant against overly broad religious exemptions enabling private discrimination.

This post is authored by Scott Skinner-Thompson and Kate Levine. Scott Skinner-Thompson is an Associate Professor at Colorado Law School, specializing in LGBTQ and civil rights.  Kate Levine is an Associate Professor at Cardozo Law School, specializing in criminal law. 

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