Gay rights are on the midterm ballot after Clarence Thomas opinion, says new GLAAD ad

GLAAD is out with a new ad first shared with The Hill that highlights how LGBTQ rights are on the ballot this year in the midterm elections for the House and Senate.

“We all have to turn out to vote. It’s important for all families,” Kent and Diego, a gay married couple with two children, say in the new ad produced by GLAAD, the LGBTQ media advocacy group.

The ad, airing nationally this week, is part of a larger campaign by GLAAD to engage voters ahead of the midterms. The group also released a new version of a public service announcement aired last year featuring the Briggles, a Texas family of four with a transgender child.

“We are putting a lot against the midterm election to get LGBTQ voters engaged and to the polls because we do know that when LGBTQ folks and our allies vote, they vote for pro-equality candidates,” Sarah Kate Ellis, the group’s president and chief executive, told The Hill in an interview.

Ellis said she’s optimistic that LGBTQ voters will turn out this year to fend off a GOP takeover in Congress. Following the 2020 presidential election, 93 percent of registered LGBTQ voters in a GLAAD post-election poll said they turned out to vote, a quarter of which for the first time. More than 70 percent said they voted for President Biden.

Another GLAAD poll in February found that 83 percent of registered LGBTQ voters said they would likely vote in the midterm elections this November, including 50 percent that said they are “extremely motivated” to vote.

“These elections get more and more personal for our community,” Ellis said, “and we have more and more at stake.”

The Supreme Court’s summer ruling overturning the Roe v. Wade decision on abortion has led to bans on that procedure in a number of states.

The decision also threatened gay rights, which a concurring opinion by conservative Justice Clarence Thomas made clear.

Thomas said that a number of court decisions based on the due process clause of the 14th Amendment should be reconsidered given the decision to overturn Roe v. Wade, including the landmark Obergefell v. Hodges decision that legalized same-sex marriage nationwide.

Alarmed Democrats in the House, joined by nearly four dozen GOP lawmakers, passed the Respect for Marriage Act in July to enshrine marriage equality in federal law.

The measure has not been taken up by the Senate, however, where GOP opponents have argued it does not adequately address religious protections.

In an interview this week with The Hill, Kent and Diego, the married couple from the new GLAAD ad, said they have always had to view their relationship and their family as something that needed to be protected. 

The two men agreed to speak on the condition that their last names not be used to protect their family’s privacy.

“When anybody talks about taking away the protections that we value, we perceive that as a threat — whether that’s from people in our community or someone like Justice Thomas — and we take that really seriously,” Diego said.

While some Republicans have said there’s little chance that Obergefell will be overturned and have brushed off the Respect for Marriage Act as a election-year stunt by Democrats, a number of prominent GOP senators have also insisted the case was wrongly decided when it went before the Supreme Court in 2015.

These Republicans say the power to recognize same-sex marriages belongs with the states — many of which still have statutes or constitutional amendments on the books that prohibit same-sex couples from being legally married.

State-level bans on same-sex marriage are unenforceable as long as the court’s Obergefell ruling stays intact, but after the conservative court voted to overturn Roe v. Wade in June — reversing nearly 50 years of precedent — LGBTQ couples are no longer confident their rights will continue to be protected under settled law.

“It’s deeply troubling that marriage equality could be overturned and we’d have to return to the days of finding our own way through legal protections and working with lawyers and having all the paperwork in place,” Diego told The Hill. “There’s just so many hoops that families shouldn’t have to jump through. We just hoped and assumed that was all in the past.”

After meeting in 2002, Diego and Kent got engaged in 2005 and were married in a small chapel ceremony in 2007, nearly a decade before same-sex marriage was legalized nationwide.

When their first son was born in 2011, both Diego and Kent were in the delivery room. But after the birth, they received devastating news: despite being selected by their son’s birth family to adopt him as a couple, only one of them could legally adopt him because their marriage was not recognized as valid by the state in which they lived.

“I so distinctly remember the terminology that the non-legal parent was recognized as ‘other adult in household.’ How cold and uncaring is that?” Kent said.

To protect their family, the couple married again in 2012 in Washington, D.C., where same-sex marriage had been legal since 2010. Two years later, they moved to Minnesota, where their legal marriage was immediately recognized.

The pair said they briefly discussed moving back to their home state, but quickly ruled that option out after the 6th U.S. Circuit Court of Appeals upheld a 2004 constitutional amendment banning same-sex marriage.

Choosing to remain in Minnesota, Diego and Kent worked with a local attorney to secure legal recognition for their son’s non-adoptive parent and amended his birth certificate to include both parents. In 2015, they jointly adopted their second son.

Minnesota is one of just over a dozen states with neither a statute nor a constitutional amendment banning same-sex marriage. The state legalized same-sex unions in 2013, less than a year after voters shot down an amendment to its state constitution that would have outlawed them.

But Diego and Kent and other couples like them, regardless of the states in which they live, say they are tired of their rights always hanging in the balance.

“If I were to label an emotion to it — fear,” Diego told The Hill when asked how he felt reading Thomas’s opinion that suggested landmark cases including Obergefell be revisited. “And on the heels of that, exhaustion.”

“Once the Supreme Court starts pulling threads, what’s going to be left of our family?” he said.