Center for American Progress Action

RELEASE: An Obama Supreme Court Versus a Romney High Court, LGBT Rights at Stake this November
Press Release

RELEASE: An Obama Supreme Court Versus a Romney High Court, LGBT Rights at Stake this November

Press Contacts

  • Christina DiPasquale

Read the full report here.

Washington, D.C. — Today the Center for American Progress Action Fund released “An Obama Supreme Court Versus a Romney High Court.” This report examines several narrowly decided Supreme Court decisions—including several key gay rights cases—that could be overruled if either President Obama or Gov. Romney has the opportunity to change the ideological makeup of the Court. Four of the Court’s nine justices are currently over the age of 70, so the winner of November’s election could shape the Court for a generation to come.

The Supreme Court’s decisions protecting gay men and lesbians from an overzealous government are on the menu if the Supreme Court becomes more conservative. Both Romer v. Evans, which struck down an antigay Colorado constitutional amendment, and Lawrence v. Texas, which abolished Texas’s “sodomy” law, were 6-3 decisions with the retired Justice O’Connor taking the pro-gay position. If one more conservative joins the Court, both of these decisions could easily be overruled.

The fate of state antidiscrimination laws protecting gay and transgender Americans could also hang in the balance this election, as conservative justices have weaponized the First Amendment in order to undermine such laws. Thus, in Boy Scouts v. Dale, a 5-4 Supreme Court held the Boy Scouts immune to a state antidiscrimination law protecting gay people because requiring the Scouts to comply with the law would violate their right to “expressive association.” And in Christian Legal Society v. Martinez, four justices joined a dissent arguing that student groups that exclude gay members are immune to public university antidiscrimination policies—an argument that essentially requires the state to subsidize antigay groups by giving them privileged access to a university’s facilities.

A more progressive Court would likely entrench Romer and Lawrence, and additional left-of-center justices would also be far less sympathetic to claims that an organization can be immune from antidiscrimination law. Conversely, if Gov. Romney replaces just one of the five justices who have historically shown sympathy for gay rights claims, the invigorated new conservative majority could sweep away pro-gay precedents and strip lawmakers of their power to protect gay and transgender Americans.

Read the full report here.

To speak with CAP Action experts on this topic, please contact Christina DiPasquale at 202.481.8181 or