Justice Stephen Breyer will officially retire tomorrow, leaving LGBTQ rights hanging in the balance

The 83-year-old Supreme Court Justice Stephen Breyer says he will officially retire from the nation’s highest court on Thursday at noon, allowing the nation’s first Black female justice, Ketanji Brown Jackson, to get sworn in and take his place.

Breyer has served on the court since 1994 and has voted with the majority in some of the most consequential LGBTQ rights cases of the modern era.

Related: The never-repealed laws banning same-sex marriage & sodomy are now a ticking time bomb

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Breyer voted with the majority of justices in favor of Romer v. Evans, the 1996 decision which ruled that a state constitutional amendment forbidding local anti-discrimination laws for LGBTQ people violated the U.S. Constitution’s Equal Protection Clause. He also voted with the majority in Lawrence v. Texas, the 2003 decision which ruled that anti-sodomy laws violate people’s right to privacy and interfere with consenting adults’ private sexual decisions.

Additionally, Breyer joined the majority in U.S. v. Windsor, the 2013 decision which helped strike down the so-called Defense of Marriage Act (DOMA) denying federal recognition of same-sex marriages. The court ruling said that parts of DOMA violated the U.S. Constitution’s Due Process Clause and furthered no compelling government interest.

He also voted with the majority in the case of Hollingsworth v. Perry, the 2013 decision which stated that the defenders of Proposition 8, California’s law banning same-sex marriage, lacked the legal standing to defend the law in court. The decision didn’t rule on the legality of the law, but allowed a lower district and appellate court ruling invalidating Proposition 8 to stand.

In 2015, Breyer voted with the majority in Obergefell v. Hodges. The ruling stated that same-sex couples have the fundamental right to marry in order to meet the U.S. Constitution’s Due Process and Equal Protection Clauses.

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Additionally, Breyers voted with the majority in the case of Bostock v. Clayton County, a 2020 workplace discrimination ruling that said that federal law against sex discrimination covers anti-LGBTQ workplace discrimination based on sexual orientation and gender identity.

“It has been my great honor to participate as a judge in the effort to maintain our Constitution and the Rule of Law,” Breyer wrote in his official resignation letter, sent to President Joe Biden on Wednesday.

Notably, all of these cases were decided when the court had a more even split between liberal and conservative justices.

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Jackson’s joining the bench will mean that white men won’t represent the Supreme Court’s majority for the first time ever in history. But her joining won’t change the court’s ideological makeup.

At current, the court has a six-to-three conservative/liberal split, a worrying prospect seeing as the conservative justices have signaled their willingness to overturn the rulings in Lawrence v. Texas and Obergefell v. Hodges.

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