US President Donald Trump watches as Supreme Court Associate Justice Clarence Thomas swears in Amy Coney Barrett as a US Supreme Court Associate Justice, flanked by her husband Jesse M. Barrett, during a ceremony on the South Lawn of the White House October 26, 2020, in Washington, DC.
See Amy Coney Barrett get sworn in as Supreme Court Justice
05:30 - Source: CNN

Editor’s Note: Allison Hope is a writer whose work has been featured by The New York Times, The Washington Post, CNN, Slate and elsewhere. The views expressed here are the author’s. Read more opinion on CNN.

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I’ll put it bluntly: LGBTQ families are now facing a frightening unknown, and that fear is spurring action. LGTBQ Americans are now scrambling. What started as a whisper on social media threads and email listservs about what we might do if our rights come under siege has quickly escalated into a hot boil with Justice Amy Coney Barrett’s confirmation. Lawyers are sharing advice for how same-sex families can ensure legal protections if marriage equality goes away – secure second parent adoption papers, living wills, healthcare proxies. Couples are rushing out to get married now in the event they cannot in the coming months and years. Equality-minded ministers are offering to officiate.

Allison Hope

It’s hitting home for me too, starting with a friends’ Facebook recent post. “It’s official!” the message read. “Today, we adopted our son.” The ear-stretching smiles on the faces of my friends – a lesbian couple who have been together for nearly two decades and the pre-adolescent boy they welcomed into their home (the judge, standing in the background, was also smiling) – as they finalized the legal adoption process and expanded their family was palpable. My heart swelled with emotion for them when I saw it. I was full of happiness for the boy who spent a lifetime bouncing around in foster care and can finally feel the security that comes with court-appointed legal protections that bind him to a loving family. I felt joy for my friends, who never thought they’d have a child to call their own. Seconds after tears of happiness for them cascaded down my cheek, I was struck with a new feeling – a piercing, abject fear.

We don’t and can’t know for sure how Barrett will rule on cases relating to LGBTQ rights, but the overall signs, given past comments and statements from other conservative justices on the Court, are not promising. What if Barrett’s confirmation could help put a kibosh in heartwarming happy endings like this one?

My own family could face a similarly terrifying fate. How would I explain to my preschooler that his moms are no longer married, that his family is no longer equal to others under the law? How do you look your child in the eye and tell them that there are people who don’t think you matter? We have our legal documents in a lockbox and pray we are never forced to produce them to prove that we belong to one another.

I, along with many other LGBTQ advocates, bristled when we saw Barrett’s avoidance during her confirmation hearings around questions related to our community, to our right to exist, to live free from discrimination, to protect our families. Though her judicial record doesn’t deal substantively with LGBTQ rights, Barrett appears to be no friend to the LGBTQ community, as shown by her use of an antiquated and harmful phrase – “sexual preference” – while speaking to the Senate Judiciary Committee. In a 2016 lecture, she also misgendered transgender people, called trans women “physiological males,” defended the justices who dissented from the same-sex marriage ruling in 2015 and said it “seem[s] to strain the statute” to hold – as other courts have – that Title IX protects transgender people. What’s more, according to reporting from the Associated Press that raised the hackles of Senate Republicans, Barrett was a trustee of a private school that made no efforts to hide its staunchly anti-LGBTQ policies.

According to Gallup, 67% of Americans favor same-sex marriage, but the majority right-leaning court configuration poses a unique threat for LGBTQ families like mine, who fear that rights and protections we fought so hard for and won so recently will now be unraveled. For most of us, it feels like the ink has barely dried on the Supreme Court’s 2015 ruling that gained us equal footing in marriage, and now – with an open antipathy for that decision expressed by Justices Clarence Thomas and Samuel Alito and this new far-right addition to the highest court – it’s horrifyingly possible our rights could be chipped away at until they are hollow and largely void.

In just one week, the rightward-projected Supreme Court will hear a case that could prevent children from finding homes, all because of the religious beliefs of agencies that take tax dollars from the government. The case, Fulton v. the City of Philadelphia, is being brought by a foster and adoption care agency seeking permission to turn same-sex couples away (and potentially others who don’t comport with their religious views on what constitutes a parent). Advocates fear that the new court configuration, with Barrett’s questionable history on LGBTQ rights, will mean that LGBTQ youth – who make up a disproportionate percentage of all kids who are homeless – will be at even greater risk of not finding affirmative homes and will face a system that is even more hostile to them.

Five years ago, LGBTQ families were validated and protected when we earned the right to legally wed. The Supreme Court ruled in Obergefell v. Hodges, with Justice Anthony Kennedy writing the majority opinion, that it was unconstitutional to deny same-sex couples the same rights and benefits that opposite-sex couples have long realized. We have since tied the knot in droves, creating many happy new wedding tears, some of which have also led to the wails of newborn babies born into homes that are filled with love. The number of newly happy mothers-in-law and grandmas cannot be overstated.

Five years later, I wasn’t surprised by the confirmation this week of Barrett as the ninth Justice on the United States Supreme Court, replacing Justice Ginsburg, who passed away just over one month ago. The outcome was anticipated widely, but the news still felt like a ton of bricks falling on me – and a lot of other people I know and love.

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    Conservatives who espouse so-called family values sure don’t act like they care about families when they callously seek to deny foster care children loving homes, or try to invalidate our marriages. Ultimately, we don’t know how Barrett will rule on the critical cases in front of her; we can only hope she will rule under the thumb of legal precedent and human decency rather than personal, radical fringe beliefs or some stilted sense of loyalty to Trump. The one thing I do know is that she can try to take away the legal documents that bind us, but no one can take away the bond of love that makes us a family.