Second-tier Marriages

Abstract

This Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now "on the books," the Supreme Court's treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n and 303 Creative LLC v. Elenis reveals the status quo's hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court's LGBTQ rights advancement cases why such diminishment has occurred in Masterpiece and 303 Creative and what these recent decisions mean for sexual minorities. Retrenchment is not an unexpected halt to the LGBTQ rights progress of the early 2010s because of some new grievance from the status quo; rather, retrenchment is part of the ongoing establishment's maneuverings involving group rights and identities that have always been at play in our democratic commitments-particularly as a settler colonial state. Specifically, from a historical-political perspective, this Essay anchors Masterpiece and 303 Creative within our American settler colonial experience to explain the persistence of retrenchment. From this anchoring, the Court's motivations in 303 Creative become clearer. Ultimately, the American settler colonial experience informs the Court's normative vision of queer people and relationships post-Obergefell. As this Essay reveals, these post-Obergefell decisions that involve same-sex couples allow the Court to normatively envisionsame-sex relationships after marriage equality—putting an imprimatur on same-sex relationships as second-tier to opposite-sex relationships as a way to ultimately preserve or privilege a discriminatory, heteronormative status quo.