James M. Oleske (Lewis & Clark Law School – Paul L Boley Law Library; Lewis & Clark College – Lewis & Clark Law School) has posted Mahmoud, Skrmetti, and 303 Creative: Ignoring Original Meaning, Rewriting Precedent, and Discounting Harm to LGBTQ People (26 Hous. J. Health L. & Pol’y (forthcoming)) on SSRN. Here is the abstract:
This essay critically examines three recent Supreme Court decisions in constitutional cases dealing with the interests of LGBTQ people. Those interests came out on the losing end of 6-3 rulings in each of the cases discussed: 303 Creative LLC v. Elenis, Mahmoud v. Taylor, and United States v. Skrmetti. Of course, as Justice O’Connor once cautioned, it can be a mistake to infer too much from the “win-loss record” of parties who “happen to come” before the Court. And even the cynics should be open to the possibility that a careful reading of the decisions will bring reassurance that neutral principles long championed by the justices in the majority are doing impartial work. But a close examination demonstrates precisely the opposite. Justices who have advocated for “original meaning” and “history and tradition” approaches to constitutional interpretation in other cases, and who have been hard at work dismantling what they perceive to be activist precedents from the twentieth century, are suddenly found relying in Mahmoud, Skrmetti, and 303 Creative on super-charged and selective readings of twentieth century precedents that have never been grounded by the Court in either original meaning or history and tradition.
This essay also situates the Court’s LGBTQ jurisprudence within the broader march towards securing equal dignity and citizenship for all Americans. Those goals were prominent in the push for the 1875 Civil Rights Act, the promise of which was ultimately deferred for nearly 90 years. And those same themes were again pervasive in the Court’s gay rights jurisprudence from 1996 to 2015, the promise of which has now been called into doubt by a pattern of gerrymandered decision-making in which the Court has consistently discounted harm to LGBTQ people.