Matt Lavietes

Nearly seven years after the Supreme Court ruled same-sex marriage the law of the land, New Jersey enacted a law Monday to protect this relatively new right throughout the Garden State. 

Prior to the Supreme Court’s landmark decision in Obergefell v. Hodges — which legalized sex-marriage nationwide in 2015 — New Jersey’s state courts had already struck down a same-sex marriage ban in 2013.

But as a majority of the Supreme Court’s conservative justices appeared open to overturning Roe v. Wade last month, new fears that the court could also make an about-face on the Obergefell ruling have prompted some lawmakers to enshrine same-sex marriage into state law.

“We’ve been fighting for marriage equality for decades, and to turn back the clock would be devastating,” New Jersey Assemblywoman Valerie Vainieri Huttle, who co-sponsored the newly passed bill, told NBC News. “I can’t emphasize enough the fact that we need to safeguard it in light of what’s happening on a federal level today.”

Both chambers of the New Jersey Legislature passed the bill last month, and New Jersey Gov. Phil Murphy, a Democrat, signed it into law Monday. 

“Despite the progress we have made as a country, there is still much work to be done to protect the LGBTQ+ community from intolerance and injustice,” Murphy said in a statement. “New Jersey is stronger and fairer when every member of our LGBTQ+ family is valued and given equal protection under the law.”

Will the Supreme Court overturn Roe v. Wade? New arguments stir emotions

DEC. 5, 202104:50

Last month, the Supreme Court heard 90 minutes of oral arguments concerning a Mississippi law that would ban almost all abortions in the state after 15 weeks of pregnancy. A majority of the court’s conservative justices appeared prepared to uphold the law and possibly overturn Roe v. Wade — the 1973 landmark decision holding that women have a constitutional right to have an abortion before fetal viability, usually around 24 weeks.

The prospect of the 1973 ruling being overturned has prompted fears among lawmakers and LGBTQ advocates that the justices might also walk back precedent on a range of other cases, including Obergefell.

Before the Supreme Court legalized same-sex marriage nationwide, 37 states and U.S. territories had already legalized marriage equality. But of those, only 19 had legalized the nuptials through state legislation, according to an NBC News analysis. Therefore, if the Supreme Court were to overturn Obergefell, same-sex marriage would be prohibited in the majority of the country and vulnerable in states where it was not written into law.

“The Supreme Court right now is showing us that nothing is guaranteed,” West Virginia Del. Cody Thompson said. “A lot of things that we take for granted right now, that we think are enshrined and are safe, ultimately now we’re realizing are not safe and are not necessarily always going to be there for us unless we remain vigilant.”

In response to the court’s oral arguments on reproductive rights, Thompson and fellow West Virginia Del. Danielle Walker — who are the Legislature’s only out LGBTQ lawmakers — said they will introduce a bill this month to codify same-sex marriage into law, similar to the legislation New Jersey enacted this week. West Virginia legalized same-sex marriage through litigation in 2014, but it never enshrined the right through legislation.

While the court’s seeming willingness to overturn Roe v. Wade has sparked fears among some state lawmakers, lawyers who argued in favor of gay rights in landmark LGBTQ cases shot down the notion that the high court would overturn the same-sex marriage decision even if given the opportunity to do so.

“I appreciate that you have legislatures who are trying to step in and do what they can to update their laws,” said Mary Bonauto, who argued on behalf of same-sex couples in Obergefell and now serves as the civil rights project director at GLBTQ Legal Advocates & Defenders, or GLAD. “We all just have to be careful to avoid giving credence to the idea that reversing Obergefell is inevitable. We are not expecting this. It would be outrageous.”

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Bonauto added that Obergefell was “constitutionally correct” because the court has repeatedly made clear that “marriage is a choice for the individual to make and not the government” and is “part of equality.”

Over the last several decades, the court has struck down laws when states tried to prevent people from marrying on the basis of their race, criminal history and their ability to pay child support payments.

Paul Smith, who argued in favor of gay rights in Lawrence v. Texas, which struck down state laws criminalizing consensual same-sex activity in 2003, agreed with Bonauto, saying it is “unlikely” that the court would overturn Obergefell because it is “incredibly popular.”

Support for same-sex marriage among Americans reached an all-time high last year, according to a June Gallup Poll, with 70 percent of Americans — including a majority of conservatives — in favor of it. 

“The court would be shooting itself in the foot if it were to do this,” Smith said.

Regardless, in 2020, following the Supreme Court’s rejection of an appeal from Kim Davis, a former Kentucky county clerk who denied marriage licenses to same-sex couples, two of the court’s conservative justices, Clarence Thomas and Samuel Alito, issued a blistering rebuke of the Obergefell ruling and signaled that they would be open to reversing it. 

The justices said Davis “may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last,” adding that the high court “has created a problem that only it can fix.”

Some legal experts pointed to this statement and some of the court’s more recent rulings involving same-sex couples as evidence that marriage equality remains vulnerable.

In 2018, the court issued a narrow ruling in favor of a Colorado baker who refused to make a cake for a same-sex wedding in Masterpiece Cakeshop v. Colorado Civil Rights Commission. And last year, in Fulton v. City of Philadelphia, the court ruled in favor of a Catholic adoption agency that wanted an exemption from Philadelphia’s nondiscrimination law, which would have required the agency to allow LGBTQ couples to adopt.

“The justices have been asked to chip away at the equality and liberty of same-sex couples in a variety of different contexts, and the Supreme Court has not done an adequate job in recent years of rebuffing those efforts,” said Camilla Taylor, director of constitutional litigation for LGBTQ civil rights organization Lambda Legal. “And so, certainly our opponents feel like they have an open invitation right now.”

A Colorado man launched a Facebook page to help solve cases involving LGBTQ people who are missing or have died but have yet to be officially identified. 

Lazarus Rise, who is transgender, started the Missing and Unidentified LGBT Individuals Facebook page in April 2020. He was inspired to do so after discovering a decades-old case of a missing woman who investigators originally thought was cisgender but later discovered she was transgender.

The unidentified trans woman was found dead and was believed to have been killed in Clermont, Florida, in 1988. Investigators learned she was transgender after her body underwent DNA testing in 2015, upending the case.

“How many other people are out there like that — unidentified — that could have been trans, but you never know it because they can’t speak for themselves anymore?” Rise asked during an interview with KUSA, an NBC affiliate in Denver. “So, it really started making me think about all the people that have gone missing and unidentified that no one ever noticed or cared about it.”

LGBTQ people — and transgender and gender-nonconforming people in particular — disproportionately face discrimination and violence in the United States. At least 50 trans or gender-nonconforming people, the majority of them Black, have died by violence this year, making 2021 the deadliest year on record for trans people, according to the Human Rights Campaign, which has been tracking fatal anti-trans violence since 2013.

Rise’s missing LGBTQ persons Facebook page acknowledges this, noting that while the page is dedicated to finding all missing LGBTQ people, it has a “strong focus on missing and unknown transgender/gender non-conforming individuals.”

Missing people the page has recently highlighted include Aubrey Dameron — a 25-year-old Indigenous trans woman who went missing in Grove, Oklahoma, in March 2019 — and Baby James Dawson, a Black trans woman who went missing in Caldwell, Texas, in October 2020.

“There is such a lack of representation, especially with queer, Black and brown people,” Rise told KUSA. “No one really cares, and it is such an injustice. So if I could do whatever I can and just put my articles out there and just get people to read and talk about it, then I’m doing my job.”

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Rise added that he hopes the page will ensure that missing and unidentified LGBTQ people are identified by their correct names and pronouns.

“Trans people, they fight hard for their identities and their names, so it’s the least I could hope is to give that back to them in hopes that they can be respected in death,” Rise said. 

A report released last month by the Human Right Campaign found that in approximately 80 percent of the reported transgender fatalities since 2013, victims were initially misgendered by the media or law enforcement. And in at least 30 of the 50 trans fatalities recorded this year, police initially misgendered victims and used their birth names, an NBC News analysis found.

Federal prosecutors arrested a man Monday who they said threatened to attack this year’s New York City Pride March with “firepower” that would “make the 2016 Orlando Pulse Nightclub shooting look like a cakewalk.” 

Officials from the FBI and the New York Joint Terrorism Task Force announced that Robert Fehring, 74, was charged with mailing dozens of letters threatening to assault, shoot and bomb LGBTQ-affiliated individuals, organizations and businesses, including New York City’s annual Pride festival.

After executing a search warrant at his home in Bayport, New York, last month, law enforcement agents recovered photographs from a Pride event on Long Island this year, two loaded shotguns, hundreds of rounds of ammunition, two stun guns and a stamped envelope addressed to an LGBTQ-affiliated attorney containing the remains of a dead bird, federal prosecutors said.

“Fehring’s alleged threats to members of the LGBTQ+ community were not only appalling, but dangerous, despite the fact he hadn’t yet acted on his purported intentions,” Michael J. Driscoll, the assistant director-in-charge of the FBI’s New York Field Office, said in a statement.

A criminal complaint released Monday said Fehring had sent more than 60 threatening letters to members of and organizations affiliated with the LGBTQ community since 2013 and as recently as September. 

In many of the letters, he describes LGBTQ individuals as worse than the “bottom of the pig-pen” or states that “even animals know better” than to engage in same-sex activity, according to the complaint.

Notably, the complaint stated that Fehring threatened that there would “be radio-cont[r]olled devices placed at numerous strategic places” at the 2021 New York City Pride March with “firepower” that would “make the 2016 Orlando Pulse Nightclub shooting look like a cakewalk,” referring to the massacre at the gay nightclub in Orlando, Florida, which left 49 people dead and dozens injured.

NYC Pride, which runs New York City’s Pride march, “received threatening letters earlier this year and reported them,” the organization’s executive director, Sandra Pérez, told NBC News in an email. 

“We are cooperating in any way we can, and we remain committed to the safety and well-being of the LGBTQIA+ community,” she added.

Prosecutors also detailed an incident in which Fehring allegedly sent a letter threatening the organizer of the Long Island Pride event in East Meadow, New York. The letter called the organizer a “freak” and stated, in part, “You are being watched. No matter how long it takes, you will be taken out…. high-powered bullet…. bomb….knife…. whatever it takes.”

Last month, Fehring waived his Miranda rights and allowed federal prosecutors to interview him, according to the complaint. During the interview, he acknowledged that he authored certain letters under investigation and that he had a general animosity toward the LGBTQ community, according to the complaint. 

There is “a sick overdose of that stuff being shoved down everybody’s face on the paper, on the TV and all over the place and I’m not a fan of any of the homosexuality, homosexual thing,” he said. 

Fehring is expected to make his initial appearance in court Monday afternoon.

Supreme Court Justice Brett Kavanaugh seemed to suggest earlier this week that landmark LGBTQ cases could support overturning federal abortion rights.

The Supreme Court heard 90 minutes of oral arguments Wednesday concerning a Mississippi law that would ban almost all abortions in the state after 15 weeks of pregnancy.

A majority of the court’s conservative justices appeared prepared to uphold the law and possibly overturn Roe v. Wade, the 1973 landmark decision holding that women have a constitutional right to have an abortion before fetal viability, usually around 24 weeks.

The crux of Wednesday’s oral arguments centered around whether the justices should preserve or walk back on precedent, a court decision that is considered authority for subsequent cases involving similar or identical circumstances. The court’s liberal justices warned that reversing a decades-old ruling would politicize the country’s highest court.

However, citing two landmark gay rights cases — Lawrence v. Texas, which struck down state laws criminalizing consensual same-sex activity in 2003, and Obergefell v. Hodges, which resulted in the legalization of same-sex marriage across the United States in 2015 — Kavanaugh suggested that overruling the court’s previous opinions was standard procedure.

“If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent,” Kavanaugh said. “If we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?”

The lawyers who argued in favor of gay rights in the landmark LGBTQ cases offered differing views on the validity of the argument by Kavanaugh, who was appointed in 2018 by then-President Donald Trump.

Mary Bonauto, who argued on behalf of same-sex couples in Obergefell v. Hodges and now serves as the Civil Rights Project director at GLBTQ Legal Advocates & Defenders, or GLAD, challenged Kavanaugh’s analogy.

“It’s a pretty thin interpretation of a reversal,” she told NBC News. “The reversals that Justice Kavanaugh is citing were about righting wrongs. They were centered on the rights of individuals and expanding constitutional protections to more individuals, not about taking rights away.”

When the court ruled in favor of same-sex couples in Obergefell v. Hodges, it effectively overturned its prior decision in Baker v. Nelson. That ruling centered on Jack Baker and Mike McConnell, who in 1970 were blocked from obtaining a marriage license. The high court rejected the men’s case in 1972 without ever hearing oral arguments. 

Bonauto argued against Kavanaugh’s comparison of reversing Baker v. Nelson to the potential reversal of Roe v. Wade.

“There was no briefing, there was no argument. They just essentially utterly dismissed the case for basically: ‘There’s no way same-sex couples seeking to marry have claim under the Constitution.’ The end,” she said.

LGBTQ advocates largely agreed with Bonauto, saying that the landmark gay rights decisions in Obergefell v. Hodges and Lawrence v. Texas “reflected the growing societal understanding of our common humanity.”

“To that we say, NOT IN OUR NAME,” Sharon McGowan, legal director of the LGBTQ advocacy group Lambda Legal, said of Kavanaugh’s argument in a statement Wednesday. “Those landmark LGBTQ decisions EXPANDED individual liberty, not the opposite.”

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But Paul Smith, who argued in favor of LGBTQ rights in Lawrence v. Texas — which overruled the court’s 1986 decision in Bowers v. Hardwick — suggested that Kavanaugh’s comparison was valid. Smith said that in order to win Lawrence v. Texas, he also had to bolster the argument for the court overriding precedent.

“We really, actually made those arguments ourselves in Lawrence because that was the whole point — we had to get rid of Bowers v. Hardwick,” Smith, who is now a professor at Georgetown University Law Center, said. “It is certainly one of the most prominent examples of an overruling that’s happened in the last 20 years.”

“People talk about stare decisis when they like the prior decision and not when they don’t,” Smith added, referring to the legal term for following what the court has ruled previously.

But during the oral arguments, Justice Sonia Sotomayor raised the question of whether overruling Roe v. Wade could open the floodgates for the court’s 6-3 conservative majority to overrule a broad swath of previous opinions it does not agree with.

“Why do we now say that somehow … Roe and Casey are so unusual that they must be overturned?” Sotomayor said Wednesday, referring to Planned Parenthood v. Casey, a 1992 opinion that affirmed Roe v. Wade.

Later, during the oral arguments, Justice Amy Coney Barrett pressed Mississippi Solicitor General Scott Stewart, who was defending the Mississippi abortion limits, to address Sotomayor’s assertion.

Stewart said that several of the other cases Sotomayor cited, including the LGBTQ cases, produced “clear rules that have engendered strong reliance interests and that have not produced negative consequences,” in contrast to Roe v. Wade.

But if the court does overrule the landmark abortion law, some legal experts warn that previous rulings, including the landmark LGBTQ decisions, would be in danger.

“You can be sure that the Alliance Defending Freedom has the lawsuit ready to file the day after the Supreme Court issues an opinion broadly overruling Roe,” Katherine Franke, the director of the Center for Gender and Sexuality Law at Columbia Law School, said referring to a Christian law firm with a decadeslong track record of litigating against LGBTQ rights. “They will file the next day challenging Obergefell and even Lawrence. I have every confidence that that is what they’re to do.”

The court is expected to decide on the Mississippi abortion law early next summer.