Here’s How The Incoming Administration Could Erode Our Gains
On Wednesday, the National Organization for Marriageâ€™s Brian Brown issued a money-beg exulting in the election of Donald Trump. NOM is a moribund, money-grubbing organization well beyond its sell date, but with Trumpâ€™s election, bigots have claimed a new relevance.Â
As Brown told his supporters: â€œThis is a bright and exciting time for NOM, and we are committed to taking full advantage of the opportunity we have. Our voice and our views matter to the incoming administration, and that means your voice and views matter.â€
Brown has even outlined â€œThe Planâ€ by which he hopes Trump will erode LGBT rights in the United States.
First, he says, Trump will nominate conservative justices to the Supreme Court, who â€œwill inevitably reverse the anti-constitutional ruling of the Supreme Court imposing same-sex â€˜marriageâ€™ on the nation in the Obergefell decision.â€
Then, Brown says, Trump will â€œrescind the illegal, over-reaching executive orders and directives issued by President Obama, including his dangerous â€˜gender identityâ€™ directives, attempting to redefine gender just as he sought to redefine marriage.â€
He also claims that Trump will â€œreverse policies of the Obama administration that seek to coerce other countries into accepting same-sex â€˜marriageâ€™ as a condition of receiving U.S. assistance and aid.â€
Finally, Brown says: â€œWe will work with President Trump and Congress to pass the First Amendment Defense Act (FADA), which Mr. Trump supports. FADA is critical legislation to protect people who believe in marriage from being targeted by the government for persecution.â€
How likely is it that NOMâ€™s plan for the Trump administration will be implemented?
Alas, there is every reason to think that Trump, and the basket of deplorables he is sure to name to his government, will indeed attempt to erode the advances LGBT people have made under President Barack Obama, and they are likely to succeed in a number of initiatives.
The Supreme Court and Marriage Equality
During the campaign, Trump repeatedly said that he would choose his Supreme Court nominees from a list submitted to him by the hate group Family Research Council and the Heritage Foundation, a conservative think-tank. He also said that his ideal nominee would be someone similar to the late anti-gay Justice Antonin Scalia.
Luckily, a Supreme Court nominee must be confirmed by the U.S. Senate. Even with Republicans in control of the Senate, it is unlikely that the most extreme nominees favored by the Family Research Council and the Heritage Foundation would be confirmed. Democrats are likely to filibuster a nominee who is clearly unfit or far out of the mainstream of contemporary jurisprudence.
Nevertheless, it is likely that Trump will be able to tilt the Supreme Court rightward.
But even if Trump is able to fill more than one vacancy on the Supreme Court â€” the Scalia vacancy, plus others that may arise â€” it is unlikely that the high court would be willing to revisit the marriage issue. Once a constitutional right has been declared, it is difficult to rescind.
Not only would the doctrine of stare decisis (or precedent) discourage the reconsideration of Obergefell, but the fact that the courtâ€™s ruling in Obergefell is popular with the American people would also militate against its summary reversal.
However, a more conservative Supreme Court could well issue rulings that limit the breadth of Justice Anthony Kennedyâ€™s “jurisprudence of dignity,”Â so beautifully articulated in Obergefell. Our marriage rights may well be trimmed by a Supreme Court that grants more deference to statesâ€™ rights or religious exemptions.
And one consequence of that trimming would be a continued and prolonged fight over an issue that should be settled law.
But as Evan Wolfson, the founder of Freedom to Marry and the father of the marriage equality movement, has stated: “The freedom to marry is the law of the land â€” and no one will take that away from us.”
He added: “Those who have gotten married, and those who get married, will remain married, and no one will set them asunder. … There is no action the incoming administration could take, even if they wanted to, that would undo the thousands of marriages lawfully celebrated in all 50 states.”Â
As far as the courts are concerned, the great danger posed by the new administration is, in addition to the slew of conservative district and appellate appointments to the bench that Trump will make, the role that will be played by his Justice Department.
During his first two years in office, Obama allowed his Justice Department to defend the constitutionality of Donâ€™t Ask, Donâ€™t Tell and the Defense of Marriage Act in federal court. However, on Feb. 23, 2011, Attorney General Eric Holder announced a reversal of the departmentâ€™s position, one that had major consequences for LGBT rights.
Holder said that on instructions from the president, the Justice Department would no longer assert the constitutionality of DOMA in court. He said that, while the feds would continue to enforce DOMA until it was repealed by Congress or invalidated by the Supreme Court, the department would not defend it as constitutional.
Holder declared that â€œthe President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,â€ and that under that level of scrutiny the DOMA statute is unconstitutional. The president, Holder said, â€œhas instructed the Department not to defend the [DOMA] statute.â€
With this reversal, the President placed the Justice Department in the service of equal rights, including equal marriage rights. The Departmentâ€™s intervention on behalf of equal rights was a significant factor in winning both WindsorÂ (which invalidated DOMA) and ObergefellÂ (which mandated marriage equality).
In the Trump administration, however, the Justice Department will be employed not to advance equal rights, but to defend â€œreligious liberty,â€ the code name for a license to discriminate against LGBT people in the name of religion.
The Justice Department is currently a party to several cases involving discrimination against transgender students and LGBT employees, arguing on behalf of LGBT plaintiffs. One can expect the Trump administrationâ€™s Justice Department to change sides in the pending cases.
In future cases involving LGBT rights, Trumpâ€™s Justice Department is likely to intervene not on the side of plaintiffs seeking justice, but on the side of those who believe they have a constitutional right to discriminate.
Executive Orders and Regulations
Obama has issued a number of executive orders that further LGBT rights, including one that prohibits discrimination on the basis of sexual orientation and gender identity by federal contractors.
In addition, a number of federal departments, including the Department of Defense, the Department of Health and Human Services, the Department of Housing and Urban Development, and the U.S. Citizenship and Immigration Services, have issued similar nondiscrimination regulations covering the provision of services.
The Department of Education has issued anti-bullying regulations and also guidance concerning the treatment of transgender students.
The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal laws that make it illegal to discriminate against employees and job applicants, has determined that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation and gender identity. This interpretation is currently binding on all federal agencies and departments and governs EEOC enforcement and litigation activities throughout the country. Although courts are not bound by the EEOCâ€™s interpretations, they often give deference to them.
The EEOC has recently announced that sexual orientation and gender identity is a strategic enforcement priority for the agency. It has mounted an aggressive program of litigation on behalf of LGBT people who have experienced employment discrimination.
Executive orders and regulations can easily be reversed, and it is likely that the Trump administration will reverse at least some of the current protections LGBT citizens enjoy. Depending upon the zealotry of particular appointees, many pro-LGBT regulations may be revised at the agency or departmental level.
Most vulnerable are the executive order prohibiting discrimination by federal contractors, the Department of Education’s guidance concerning the treatment of transgender students, and the EEOC’s contention that sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act of 1964.
In May, the House of Representatives passed a Defense Appropriation bill that if ratified by the Senate and signed by the President would allow government contractors to discriminate against LGBT workers on religious grounds, thereby overturning Obamaâ€™s executive order. Obama has vowed to veto the bill should it reach his desk.
If the Senate or Obama rebuffs the initiative by the House of Representatives, Trump may simply rescind the executive order prohibiting discrimination by federal contractors.
During the campaign, Vice President-elect Mike Pence stated repeatedly that Trump would replace the education departmentâ€™s guidance concerning the rights of transgender students with “common sense” regulations that would allow local school districts to set their own policies.
The current guidance, however, is the subject of several pending court battles. In October, the Supreme Court agreed to accept one of these cases, Grimm v. Gloucester County School Board,Â and may issue a definitive ruling on the issue in June 2017. That ruling may turn out to be a broad one that upholds the rights of transgender students or it could be a more limited one based on deference to the guidance offered by federal agencies.Â
The EEOCâ€™s interpretation of the Civil Rights Act of 1964 is also before several courts.
Most of the courts that have ruled on the issue have agreed that “gender identity” is covered by the prohibition of discrimination on the basis of “sex” in the Civil Rights Act. But they have split on whether “sexual orientation” is covered, though that interpretation has gained traction recently.
Trump is likely to appoint EEOC commissioners who will reverse the current interpretation, but if the courts adopt it, the EEOC will be bound by it.
State Department Activism
A hallmark of the Obama administrationâ€™s foreign policy has been support for LGBT rights. As Secretary of State Hillary Clinton declared at the United Nations in 2011, under Obama official U.S. policy is that, â€œGay rights are human rights.â€
Obamaâ€™s ambassadors, including but not limited to his seven openly gay appointees, have participated in Pride parades, promoted equal rights and denounced bigotry.
In 2015, Secretary of State John Kerry announced the appointment of Randy Berry as the Special Envoy for the Human Rights of LGBT Persons, a position created in order “to move towards a world free from violence and discrimination against LGBT persons.”
Kerry remarked that: “Defending and promoting the human rights of LGBT persons is at the core of our commitment to advancing human rights globally â€” the heart and conscience of our diplomacy. Thatâ€™s why weâ€™re working to overturn laws that criminalize consensual same-sex conduct in countries around the world. Itâ€™s why weâ€™re building our capacity to respond rapidly to violence against LGBT persons, and itâ€™s why weâ€™re working with governments, civil society, and the private sector through the Global Equality Fund to support programs advancing the human rights of LGBT persons worldwide.”
On Sept. 20, 2016, in his final address to the United Nations, Obama called for a world-wide end to anti-LGBT discrimination.
It is unlikely that Trumpâ€™s State Department will defend LGBT rights so passionately, particularly considering Trumpâ€™s admiration for President Vladimir Putinâ€™s Russia.
Passage of FADA
During the campaign, Trump unequivocally endorsed FADA, a bill that would license discrimination against LGBT individuals in the name of religion.
Because the current version of the bill was amended to protect both those in favor of as well as those opposed to same-sex marriage, many of the billâ€™s anti-gay supporters have dropped their endorsements. It is not clear what version of the bill Trump supports.
It is probable that the House of Representatives could pass FADA or another â€œreligious libertyâ€ bill that would license discrimination in the name of religion, but it is less clear that the Senate would do so.
Anti-gay legislation is more difficult for the Senate to pass because Democrats hold enough seats to mount a successful filibuster. In addition, there are a handful of Republican senators who will oppose blatant bigotry.
Moreover, state “religious liberty” bills have either been declared invalid by courts or have provoked so great an outcry from businesses and citizens that they have been amended so as to lessen their potential to authorize discrimination.
In 2015, when he was governor of Indiana, PenceÂ created a national furor when he signed into law a “Religious Freedom Restoration Act” that licensed discrimination against LGBT people. Only after protests and threats from businesses to relocate from Indiana did he sign an amendment that diluted the bill’s power to discriminate.
Mississippi’s “religious liberty” bill was passed, but was declared unconstitutional before it went into effect. Mississippi has appealed the court ruling that declared the bill unconstitutional to the 5th U.S. Circuit Court of Appeals.
Trump secured the support of the religious right by agreeing to their demands for anti-gay Supreme Court nominees and anti-gay legislation. He has pandered to them on many occasions, and they expect to be rewarded for their support.
Most ominously, he has chosen a vice president with a long and ugly record of bigotry â€” a fervent cultural warrior whose anti-gay positions have included opposition to “Don’t Ask, Don’t Tell” repeal, the Employment Non-Discrimination Act (ENDA), the Matthew Shepard-James Byrd, Jr. Hate Crimes Act, and both civil unions and marriage for same-sex couples.
Trump’s choice to lead his domestic policy transition team, Family Research Council senior fellow Ken Blackwell, has an equally long and ugly record of anti-gay activism. We can expect that Pence and Blackwell will prioritize anti-LGBT policies and legislation.
What we need to remember, however, is that the policies embraced by Pence and Blackwell are deeply unpopular with the American people. We must also remember that Trump has no mandate to erode LGBT rights.
Not only did he not receive a plurality of the popular vote in the election, but during the campaign he conspicuously refrained from demonizing LGBT people in a campaign characterized by ethnic and racial slurs, misogyny and the mocking of the disabled. He even waved a rainbow flag at one of his rallies to indicate (unconvincingly) his dubious support for us.
The four years of the Trump presidency is likely to be similar to the eight years of the President George W. Bush regime, which was in some ways a long nightmare in which LGBT people were attacked and scapegoated. The difference is that we are now much stronger as a movement than we were then.
Public opinion about LGBT rights has significantly changed, and we are now in a much better position to resist homophobic policies than we were during the Bush years.
Luckily, many of our most successful advocacy groups, including Lambda Legal, the Human Rights Campaign, GLAAD and the ACLU, have assured us that they are prepared to defend LGBT rights. As HRC president Chad Griffin has noted: “The defeats we have suffered tonight demonstrate that our future victories will require us to dig deeper and work harder to continue bending the moral arc of the universe toward justice and equality. We must fight to protect our progress, and to limit the damage that Donald Trump has promised.â€
In an eloquent editorial, New Civil Rights Movement Publisher David Badash emphasized that Trump’s victory “was the result of a brilliant con man, a liar, a fraud, a misogynist, a fascistic bully, activating the remains of a changing society: people who see their last grasp â€” and gasp â€” of power that was handed to them as their birthright in a nation whose election of a Black president has not done enough to absolve its original sin, slavery, slipping away.”
He pledges that “in the wake of one of the most devastating elections in U.S. history, we here at NCRM rededicate ourselves to our mission of fighting for civil rights, for LGBT people, for women, for immigrants, for minorities. And for unmasking and exposing the hate and hypocrisy that always leads to harm for the most vulnerable in society.”
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Ethics Complaint Against Sinema Urges Investigation Into Staffers’ Duties and Her Possible ‘Abuse of Taxpayer Dollars’
If you are hired to work in Senator Kyrsten Sinema‘s office on Capitol Hill there is a 37-page memo you’ll want to read detailing all the responsibilities her staffers are required to perform, from getting her groceries, calling Verizon and going to her D.C. home to wait for a repair person if the internet goes out, scheduling massages, and ensuring her very detailed airplane requirements are met.
“It is your job to make her as comfortable as possible on each flight,” the memo says, as The Daily Beast first reported in December.
But now a group of 13 non-profit organizations have joined to file an ethics complaint against Senator Sinema (I-AZ), a new Daily Beast report reveals Friday, including details from that 37-page memo which the newly-independent lawmaker directed to be drawn up. Dated Thursday, the complaint is titled: “Letter to Senate Ethics Committee Regarding Reports of Sinema Abusing Taxpayer Dollars.”
“Senate Ethics guidelines stipulate that staff should not be asked to perform personal errands for members. This is an unambiguous ethical boundary,” the group’s complaint reads.
It also points to that 37-page memo, which it says, “indicates that staff are required, as a condition of their jobs, to carry out numerous tasks that are outside the scope of public employment, including doing personal errands for the Senator, carrying out household tasks at her private residence, and advancing their own funds for her personal purchases. It makes unreasonably precise scheduling demands, and former staff have confirmed some of the allegations.”
The allegations continue.
“And, most troubling, it calls on staff members, who are employed and paid by the public and explicitly barred from campaign activity, to schedule and facilitate political fundraisers and meetings with campaign donors, presumably during the workday while they are on the clock and physically on federal property.”
“Senate staff are prohibited under your guidelines from engaging in political activity ‘on Senate time, using Senate equipment or facilities.’ While you have not prohibited campaign activity outside work hours, the plain language of the memo clearly implies that Sen. Sinema expects her staff to carry out these scheduling tasks during the workday. And these tasks may separately violate Senate Rule 41.1, which explicitly prohibits Senate employees from ‘solicit[ing]’ campaign funds.”
The complaint also alleges that “Sen. Sinema required her staff to schedule three physical therapy and massage sessions a week related to her training for athletic competitions, and to tightly manage her dietary schedule — while allotting only a 30-minute period on Wednesdays for meetings with the constituents she represents.”
The carefully-worded complaint adds, “the allegations paint a picture of a Senator who is not only unresponsive to her constituents, but also disrespectful and even abusive to her employees and wholly unconcerned about her obligations under the law.”
The Daily Beast has posted a copy of the complaint here.
You can read The Beast’s full report here.
Santos May Owe Thousands in Unpaid Traffic Violation Fines and Fees Across Two States: Report
When he left for Washington, D.C., U.S. Rep. George Santos also appears to have left a string of unpaid traffic violation fines and fees in two states, including red light, double parking, and overtime parking citations totaling thousands of dollars.
The embattled serial liar and freshman New York GOP lawmaker “may owe more than $3,400 in unpaid citations, according to records from New York City and Florida,” CBS News reports.
Included in that total is $1,299.10 from Florida for toll violations that “racked up late fees and were ultimately sent to collections agencies.”
It appears that in November of 2016, as soon as he got his New York driver’s license after having one in Florida, a car previously ticket via a red light camera whose plates match one registered to Santos “began piling up citations in New York City — 29 in the next two and a half years, according to city government records, which do not identify the drivers of vehicles being ticketed.”
“More than $1,800 in payments were made for 17 citations, but another 12 remain unpaid, with $2,142.61 still due, according to city records.”
CBS News also points to a New York Post report from January revealing “a Nissan Rogue driven frequently by Santos in recent months had been issued speeding tickets at least five times since he was elected on Nov. 8, ‘including four times in school zones.'”
Santos is under numerous state and federal investigations that span the gamut from campaign finance to allegedly stolen charity funds donated to save the life of a veteran’s service dog. The dog died after the vet could not afford to pay for the operation.
‘Breathtaking’: Economists Stunned by Job Growth ‘Boom’ as Unemployment Drops to Level Not Seen Since 1969
The year was 1969: Congress certified the results of the election, officially declaring Richard Nixon would be the 37th President of the United States, Joe Namath led the New York Jets to win Super Bowl III, The Beatles released the soundtrack from their hit film “Yellow Submarine,” and unemployment was 3.4%.
It’s been 54 years since unemployment was at 3.4%, but the U.S. Bureau of Labor Statistics released January’s report Friday morning, stunning economists who expected unemployment to go up, not down.
Economists projected 187,000 new jobs would be added to the U.S. economy in January. Instead, the number came in at 517,000, Forbes reported. Prior months were also adjusted to be better than first reported.
“This is a breathtaking number. That spike in stories about layoffs? It was about a small unrepresentative slice of the economy. Real America is still getting back to work,” crowed Professor Justin Wolfers, the popular University of Michigan School of Economics professor, a senior fellow at Brookings.
“Average job growth over the past 3 months is a cracking +356k. A boom!” Wolfers cheered.
“We haven’t seen unemployment this low since before Woodstock, baby,” he added. “Groovy.”
Wolfers wasn’t done. He blasted those who continue to talk about recession: “This is a final nail in the coffin of all the 2022 recessionistas. When average job growth is this high we call it a BOOM.”
For those who just want the bottom line, Wolfers offered this take on the jobs report: “It’s all good news.”
“January marked the 25th straight month of solid job growth,” The Washington Post reports, observing that the “labor market shattered expectations.” The Post adds: “the labor market remains formidable, inflation is beginning to normalize and there are signs that the global economy may be on stronger footing than originally feared.”
Image: President Joe Biden delivers remarks on the economy, Thursday, January 26, 2023, at Steamfitters Local 602 United Association Mechanical Trades School in Springfield, Virginia. Official White House Photo by Erin Scott via Flickr
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