A Court Divided: LGBTQ Rights and Minority Protections in the Balance

The Supreme Court does not move in a straight line. Over the past six years, it has handed down decisions that protected LGBTQ workers from job discrimination, then carved out a constitutional escape hatch for businesses that do not want to serve same-sex couples. It has eliminated the federal right to abortion, while a Justice in the majority hinted that marriage equality might be next. Now a new wave of cases is approaching, and the question is no longer hypothetical: what kind of court is this, and who is it for?

The Landmark That Surprised Everyone

In June 2020, the Court issued what many observers considered the most unexpected civil rights ruling in a generation. In Bostock v. Clayton County, a 6-3 majority held that Title VII of the Civil Rights Act of 1964 — which prohibits employment discrimination “because of sex” — protects gay and transgender workers. Writing for the majority, Justice Neil Gorsuch, a conservative Trump appointee, concluded that an employer who fires someone for being gay or transgender has necessarily discriminated based on sex. “An employer who fires an individual for being homosexual or transgender,” Gorsuch wrote, “fires that person for traits or actions it would not have questioned in members of a different sex.”

The decision was a genuine landmark. Millions of LGBTQ workers gained enforceable protections for the first time under federal law. Justices Alito, Thomas, and Kavanaugh dissented, but the ruling itself appeared to settle a fundamental question about equality in the workplace.

Three years later, the Court began walking it back.

The Escape Hatch: 303 Creative

303 Creative LLC v. Elenis (2023) presented what seemed like a narrow question: could Colorado apply its anti-discrimination law to compel a web designer to create wedding websites for same-sex couples, given that she considered such weddings contrary to her religious beliefs? The Court, in a 6-3 decision written by Justice Gorsuch, said no.

The majority held that designing a website is expressive speech, and that the First Amendment bars the government from compelling a private person to express messages she disagrees with. Lorie Smith, the designer, had not yet refused any real customer — the Court’s majority ruled on a pre-enforcement challenge — but the principle it established was sweeping: when a business provides what the Court deems a “custom, expressive” service, civil rights laws may yield to the service provider’s speech rights.

Justice Sonia Sotomayor’s dissent was blunt. “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” The question left unanswered is where expressive service ends and ordinary commerce begins. Florists? Caterers? Photographers? The lower courts are still working out the answer, and more cases are heading toward Washington.

The Shadow Over Marriage Equality

No recent decision has generated more anxiety about the future of LGBTQ rights than Dobbs v. Jackson Women’s Health Organization (2022), and not only because of what it held. Dobbs overruled Roe v. Wade and Planned Parenthood v. Casey, eliminating the federal constitutional right to abortion. The majority’s reasoning relied heavily on the argument that rights not specifically mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” — a test that, applied mechanically, would imperil many rights recognized in recent decades.

Justice Clarence Thomas made the implication explicit. In a solo concurrence, he argued that the Court “should reconsider” its prior rulings in Griswold v. Connecticut (contraception), Lawrence v. Texas (same-sex intimacy), and — most pointedly — Obergefell v. Hodges (2015), the decision establishing a constitutional right to same-sex marriage. Thomas did not have four colleagues willing to sign onto that position, but he only needs four. The right to marry, which millions of same-sex couples have exercised and relied upon, now sits in a legal gray zone that would have seemed unthinkable a decade ago.

Transgender Rights on Trial

The most consequential pending litigation concerns transgender Americans, particularly minors. In United States v. Skrmetti, the Court agreed to review a Tennessee law banning gender-affirming medical care — including puberty blockers and hormone therapy — for transgender minors. The case was argued in December 2024, and a decision is expected by the end of the Court’s current term.

The core legal question is whether such laws constitute sex discrimination under the Equal Protection Clause. The Biden administration argued that singling out transgender people for different treatment is inherently a form of sex-based classification. Tennessee, and a majority of Republican-led states that have passed similar laws, argue otherwise. Dozens of states have enacted comparable restrictions, and the Court’s ruling will immediately affect them all.

Beyond Skrmetti, the Court is also watching cases involving transgender students and bathroom access policies, and lower courts remain divided on whether Bostock’s reasoning extends to the Equal Protection Clause or remains confined to Title VII.

Religious Liberty vs. Anti-Discrimination Law: A Doctrine in Flux

The tension between expanding religious exemptions and anti-discrimination protections is not incidental to these cases — it is the central fault line of the current Court’s jurisprudence.

The trajectory runs from Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), where the Court ruled narrowly for a baker who refused to make a same-sex wedding cake, to 303 Creative, where the majority laid down a far broader principle. A parallel line of cases has progressively strengthened religious organizations’ ability to claim exemptions from generally applicable civil rights laws under the First Amendment’s Free Exercise Clause, particularly following Fulton v. City of Philadelphia (2021).

Each of these decisions was technically decided on narrow grounds. In combination, they have constructed something broader: a framework in which minority groups’ right to equal treatment in the marketplace can be overridden whenever a court finds that the service provider’s work is expressive, or the provider’s objection is religious in nature. The categories are expanding. The protections are contracting.

What This Means for Accountability

This is not simply a story about legal doctrine. It is a story about an institution that has claimed for itself enormous power — the power to define the scope of constitutional rights for 330 million people — while remaining largely unaccountable for how it exercises that power.

The current Court has a supermajority of six conservative justices, five of them appointed by presidents who lost the popular vote, confirmed by Senate majorities representing a minority of the American public. There are no binding ethics rules. No term limits. No mechanism for the public to respond to decisions it finds unjust, short of constitutional amendment, which requires agreement from three-quarters of the states.

The decisions catalogued here — from Bostock’s promise to 303 Creative’s partial reversal, from Dobbs’ erasure of settled rights to Skrmetti’s pending verdict on transgender healthcare — are not abstract. They are the product of a specific institution configured in a specific way. If the outcomes trouble you, the institution is where attention belongs.

Reforms being discussed — term limits for Justices, enforceable ethics standards, changes to the confirmation process, Court expansion — all start from the same premise: a Court that is unaccountable to the public cannot be fully trusted to protect the public. That is not a radical argument. It is a constitutional one.

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