I have never fielded more phone calls, emails and Facebook messages than since the passage of marriage equality as I did this week. That’s because everyone in the LGBT community is concerned about the state of their rights. For those wondering how actively President-elect Donald J. Trump wants to roll back LGBT rights, this is the first in a series of columns outlining the possible ramifications of his administration on the progress we’ve made.
The first signal came disturbing early on the day after the election, when the New York Times reported that Trump’s first priority for America was to select a conservative nominee for the Supreme Court vacancy. With a vacancy on the Supreme Court and three judges who voted to legalize same-sex marriage — Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer — at the ages of 83, 80 and 78, respectively, tipping the scale towards an anti-LGBT Supreme Court is scarily within reach.
Legal scholars say that to actually reverse Obergefell vs. Hodges, the case that gave us marriage equality nationwide, it would take a myriad of confounding events. If the makeup does change, the issue would again need to be brought before court. The most likely possibility would be for a state to defy Obergefell vs. Hodges and pass a law barring or inhibiting marriage rights for gay couples. An attempt to do so just failed two months ago in Tennessee, but there is desire to do so again in states like Indiana, Arizona and Alabama.
The anti-LGBT argument post-marriage equality has been that Obergefell vs. Hodges has curtailed the First Amendment. Chief Justice John Roberts, along with the other three dissenters, breathed new life into all of the Religious Freedom Act (RFAs) cases. Amid the “bakery,” “pizza” and “wedding-gown” cases where LGBT individuals were denied services and/or products for their weddings based on private business owners’ religious beliefs, more than 200 anti-LGBT bills were introduced in 29 state legislatures — all based around religious freedom. In addition to bills allowing business owners to deny services, bills were passed or introduced in several states condoning discrimination against LGBT prospective adoptive and foster parents.
The proposed federal RFA is called the First Amendment Defense Act and Trump has pledged to sign it if it is passed by Congress. The bill was introduced in the House in June 2015, and would legalize anti-LGBT discrimination among employers, businesses, landlords and health-care providers as long as they claim to be motivated by firmly held religious beliefs. It would also act to overturn the executive order signed in 2014 by President Obama prohibiting anti-LGBT discrimination among federal contractors.
A statement on Trump’s website reads: “Religious liberty is enshrined in the First Amendment to the Constitution. It is our first liberty and provides the most important protection in that it protects our right of conscience. Activist judges and executive orders issued by [p]residents who have no regard for the Constitution have put these protections in jeopardy. If I am elected president and Congress passes the First Amendment Defense Act, I will sign it to protect the deeply held religious beliefs of Catholics and the beliefs of Americans of all faiths. The Little Sisters of the Poor, or any religious order for that matter, will always have their religious liberty protected on my watch and will not have to face bullying from the government because of their religious beliefs.”
While the Human Rights Campaign, Lambda Legal and American Civil Liberties Union have all pledged to sue the federal government immediately upon the passage or repeal of any bill aimed at discrimination, religious-freedom laws are difficult to fight in court because they are intentionally vague. Critics say that, in recent years, politicians have championed RFAs precisely for their ambiguity, not in spite of it. RFAs allow legislators to effect change from a safe distance. The law instructs judges to take religious rights more seriously, but doesn’t tell them how to rule. Anti-LGBTQ advocates can hide behind RFAs saying they are not discriminating; they are just restoring religion’s place in society.
The way to undo or dull the effects of Obergefell vs. Hodges without a reversal is through a combination of the First Amendment Defense Act and, on the Supreme Court side of things, through the recent Hobby Lobby decision. In Hobby Lobby, the Supreme Court was asked to strike a balance between a woman’s right to obtain contraception from an employer’s health-care plan and the company’s religious freedoms. In doing so, with an opinion penned by Justice Samuel Alito, the Supreme Court ruled that “closely held corporations” can decline to provide coverage for birth control in the health-care plans they offer to their female employees if the coverage would violate the owners’ religious beliefs. When the decision came down, a firestorm erupted between religious groups and LGBT-rights advocates and, within days, President Obama received a letter signed by more than 100 religious leaders asking him to “respect this vital element of religious freedom” by exempting religiously affiliated groups from adhering to the LGBT antidiscrimination protections contained in his executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
It is safe to say that, with the people Trump has surrounded himself with, along with FADA and the Hobby Lobby precedent, LGBT rights are in danger during the next presidential administration. The following is what Trump could attempt to do, and what I will address in more detail in future columns:
- Reverse or nullify the effect of marriage equality
- Rescind all of President Obama’s executive actions protecting LGBT people, including nondiscrimination protections for federal contractors and all of the guidance protecting transgender workers and students under federal law
- Pass the Civil Rights Uniformity Act (ironic name) which would ensure that no federal law offering protections on the basis of “sex” includes transgender people
- Pass the First Amendment Defense Act, a bill that would extend a nationwide license to businesses, landlords, health-care providers and others to to deny service to same-sex couples
- Codify the Russell Amendment, which allows any federal contractor or recipient of federal funding to discriminate against LGBT people
- Resume U.S. aid to countries that openly oppress their LGBT citizens and effectively prevent LGBT asylum seekers from finding refuge in the U.S.;
- The “repeal and replacing” of Obamacare, including its protections for transgender people and women.
I implore the LGBT and allied community to remember that love does trump hate and now more than ever. Our youngest generation has grown up believing in equality, and knowing that allows me to sleep a little better at night. They know that bigotry disguised as religious liberty is still bigotry. With that said, this is our America. We got ourselves here, and now, it’s time to mobilize and get ourselves out using the tools of rule of law, empathy, love and kindness.