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By Rachel Cohen
Kim Davis is easy to hate. She wants to eliminate gay marriage in the United States. She exudes misery. She is very plain.1
She’s made a career out of self-victimization, getting fired for literally refusing to do her job. It’s unsurprising every vaguely political Instagram meme account (here including the New York Times) latched on back in August when Kim filed a petition for
a writ of certiorari requesting the Supreme Court overturn Obergefell v. Hodges, the case that legalized gay marriage across the country.2
Kim’s cert petition was treated as breaking news. Never mind that only
6% of attorney-submitted cert petitions and less than 3% of total cert petitions are granted. Never mind that Kim is not just an unbelievably unlikable petitioner but also has a tenuous-at-best argument about why she has standing to challenge
Obergefell.3
And never mind that the Court had already granted cert in a case that has perhaps
broader implications for the future of LGTBQ+ rights in this country,
Little
v. Hecox (consolidated with West Virginia v. B.P.J.).
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Little will be heard this term, and it asks the Court to determine whether LGBTQ+ identity is a suspect class for purposes of Equal Protection Clause analysis. (If that full sentence made sense to you, feel free to skip the next two paragraphs.)
The Equal Protection Clause of the Fourteenth Amendment bars states from denying “equal protection of the laws”; it’s the main Constitutional anti-discrimination protection. Courts have decided the requirements of the clause differ depending on what groups
are being treated differently under the law. For example, it’s much likelier that laws that treat people differently based upon age will be found Constitutional than laws that treat people differently based on race. The Court has outlined three different standards
of review, and identified some classifications that fall into each bucket. The most stringent is strict scrutiny, which applies to race-based classifications and requires the government demonstrate that the differentiation furthers a compelling government
interest and is narrowly tailored to meet that interest. As the name implies, it’s very hard to pass this test. The next bucket is intermediate scrutiny, which applies to sex-based classifications and requires the government show the differentiation furthers
an important government interest using means that are substantially related to the interest. Finally, most classifications are subject to rational basis review, which shifts the burden to the challenger, who must demonstrate that the government action is
not rationally related to a legitimate government interest. Because of these different standards, perhaps the most important part of Constitutional anti-discrimination challenges is which bucket the group at issue falls into.
The Court has never definitively addressed what standard of review should apply to laws that differentiate based on LGBTQ+ identity.
Obergefell was decided based on substantive due process grounds,
not equal protection grounds. The closest the Court has come was in Justice Gorsuch’s surprise opinion in
Bostock
v. Clayton County, where he found trans identity to be a sex-based classification entitled to workplace protections under the Civil Rights Act. But this was a case addressing Title VII interpretation, not interpretation of the Equal Protection
Clause.4
Little’s ‘question
presented’ in its granted cert petition is whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the Equal Protection Clause of the Fourteenth Amendment.
This QP is set up to avoid the kind of media furor spurred by Kim’s Obergefell
challenge, but make no mistake: it’s also set up to give the conservative Justices the chance to make the level-of-scrutiny determination for the entire LGBTQ+ community, and if they opt for rational basis review, it will become functionally legal
for red states—and the federal government—to pass broad laws discriminating against LGBTQ+ individuals, with little recourse. This was always the path the Court was going to choose, and legal commenters should have known this and been honest about it, instead
of stoking panic about an impending Obergefell overturn.
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Despite the overt politicization of the Roberts Court, the Justices still want to be faux-incrementalist. They will gaslight the broader public and pretend to be deciding things in good faith until
Cass
Sunstein et. al.5
finally refuse to let them. Little lets the Court move toward overturning
Obergefell, something they absolutely want to do, by addressing a novel legal question—whether queer identity is definitively subject to rational basis review—as it applies to trans women in competitive sports. And
many Democrats who shared a rainbow infographic celebrating the Court’s refusal to grant Kim Davis’ cert petition will fall over themselves to parrot Republican talking points about the fairness issues at play in women’s sports, as the Court uses the unpopularity
of this almost-nonexistent
group of trans women in college and professional sports to open the floodgates for broad discrimination based on queer identity across the country.
The Kim Davis cert petition is intentional misdirection, whether Kim herself intended the misdirection or not.6
The GOP wants you to celebrate victory in a battle that had no impact whatsoever on its broader war on LGBTQ+ rights. They’ve been shockingly successful in doing so. Where this strategy is pointed out, one is sure to be met with outraged comments asking why
people on the left can’t ever let people celebrate a victory.7
When I pointed out the same things in August, there were plenty of commenters telling me not to be dismissive of people’s fear. Here’s the thing: fighting these well-organized fascists requires us to be clear-eyed about what is and is not a threat. And a complicating
factor in identifying real threats is that many of our supposed allies would like to avoid having to defend trans people altogether, viewing their existence as a political liability.
There is no group of people you can sacrifice in the hopes that doing so will appease Stephen Miller and his ilk’s hunger for an explicitly Christonationalist state.8
But malicious operators in this country are well aware that if their attacks on the queer community originate in attacks on the
single
digit numbers of trans women playing college sports, many supposed allies to the queer community will watch them happen in silence.9
Don’t let them be right.
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1
This is said non-normatively, there are way better reasons to hate Kim Davis, it’s just that this absolutely plays a role in why the internet loves to hate her so much.
2
Most cases come to the Supreme Court via petitions for certiorari, brought by parties who are dissatisfied with outcomes from appeals courts. These cert petitions include a ‘Questions Presented’ section that identifies the specific legal issue the parties
consider serious, unclear and/or disputed enough to require the Supreme Court to weigh in.
3
Copy/pasting what will be my go-to standing footnote: Standing essentially requires (NOT LEGAL ADVICE) that a party have suffered an injury that is attributable to the government’s unconstitutional behavior and can be addressed through the courts. Every once
in a while you can get standing before the actual injury happens. Like many fucking terrible legal doctrines, this exists largely to prevent the courts from being overwhelmed with challenges, to which I say: if you need to institute doctrines that limit access
to the system in order to make the system work, maybe the problem is the system.
4
An optimist might say that if Justice Gorsuch (and Chief Justice Roberts, who joined the
Bostock opinion) thinks that trans identity is sex-based, it should be subject to intermediate scrutiny, but that would require levels of optimism that I cannot currently find for myself. There’s a reason
Little brings the Equal Protection analysis via trans women in sports.
5
Cass Sunstein is a Harvard Law professor married to former UN Ambassador Samantha Power; they’re viewed in many elite spaces as a liberal power couple. He also seems to have zero idea what’s happening in this country, please read the interview if you haven’t,
I’m begging.
6
My money is on not. She doesn’t seem very bright. Another mark in the easy-to-hate column, I fear.
8
I have been struck by the Islamophobic projection in my comments on posts about Zohran Mamdani’s victory, remarking on the oppression of women in Islam, as if the greatest threat to female autonomy in this country could ever be anything other than white nationalist
versions of evangelical Christianity.
9
Just as many supposed free-speech proponents will watch attacks based on pro-Palestinian speech in silence, and many supposed feminists will watch the carceral state attack Black women and their children in silence, and on and on.
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