Mahmoud, Skrmetti, and 303 Creative: Ignoring Original Meaning, Rewriting Precedent, and Discounting Harm to LGBTQ People

Document Type

Article

Publication Title

Houston Journal of Health Law & Policy

Version

Pre-publication version of article; page numbering differs from final published journal article.

Journal Abbreviation

Hous. J. Health L. & Pol’y

Abstract

This essay critically examines three recent Supreme Court decisions in which the interests of LGBTQ people came out on the losing end of constitutional rulings: 303 Creative LLC v. Elenis, Mahmoud v. Taylor, and United States v. Skrmetti. It details how a  majority of the current Court—made up of justices who have advocated for “original meaning” and “history and tradition” approaches to constitutional interpretation in other cases, and who have been hard at work dismantling what they perceive to be activist precedents from the twentieth century—are suddenly found relying in Mahmoud, Skrmetti, and 303 Creative on super-charged and selective readings of twentieth century precedents that have never been grounded by the Court in either original meaning or history and tradition.

This essay also situates the Court’s LGBTQ jurisprudence within the broader march towards securing equal dignity and equal citizenship for all Americans. Those goals were prominent in the push for the 1875 Civil Rights Act, the promise of which was ultimately deferred for nearly 90 years. They reemerged in the fight for Title II of the 1964 Civil Rights Act and in the Court's subsequent treatment of sex discrimination. And those same themes animated the Court's key decisions on LGBTQ rights from 1996 to 2015—decisions that increasingly advanced the cause of expanding access to civil rights. But the promise of that jurisprudence has now given way to a disturbing pattern of gerrymandered decision-making in which the Court has consistently discounted harm to LGBTQ people.

First Page

1

Last Page

33

Publication Date

2026

Comments

The page numbers in the linked pre-publication version of this article differ from the final published article, which appeared on pp. 99-136.

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