Here’s How The Incoming Administration Could Erode Our Gains

On Wednesday, the National Organization for Marriage’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 Trump’s election, bigots have claimed a new relevance.Â

As Brown told his supporters: “This 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.”

Brown has even outlined “The Plan” 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 “will inevitably reverse the anti-constitutional ruling of the Supreme Court imposing same-sex ‘marriage’ on the nation in the Obergefell decision.”

Then, Brown says, Trump will “rescind the illegal, over-reaching executive orders and directives issued by President Obama, including his dangerous ‘gender identity’ directives, attempting to redefine gender just as he sought to redefine marriage.”

He also claims that Trump will “reverse policies of the Obama administration that seek to coerce other countries into accepting same-sex ‘marriage’ as a condition of receiving U.S. assistance and aid.”

Finally, Brown says: “We 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.”

How likely is it that NOM’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 — the Scalia vacancy, plus others that may arise — 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 court’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 Kennedy’s “jurisprudence of dignity,” so beautifully articulated in Obergefell. Our marriage rights may well be trimmed by a Supreme Court that grants more deference to states’ 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 — 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

Justice Department

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 Don’t Ask, Don’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 department’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 “the 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,” and that under that level of scrutiny the DOMA statute is unconstitutional. The president, Holder said, “has instructed the Department not to defend the [DOMA] statute.”

With this reversal, the President placed the Justice Department in the service of equal rights, including equal marriage rights. The Department’s intervention on behalf of equal rights was a significant factor in winning both Windsor (which invalidated DOMA) and Obergefell (which mandated marriage equality).

In the Trump administration, however, the Justice Department will be employed not to advance equal rights, but to defend “religious liberty,” 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 administration’s Justice Department to change sides in the pending cases.

In future cases involving LGBT rights, Trump’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 EEOC’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 Obama’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 department’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, 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 EEOC’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 administration’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, “Gay rights are human rights.”

Obama’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 — the heart and conscience of our diplomacy. That’s why we’re working to overturn laws that criminalize consensual same-sex conduct in countries around the world. It’s why we’re building our capacity to respond rapidly to violence against LGBT persons, and it’s why we’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 Trump’s State Department will defend LGBT rights so passionately, particularly considering Trump’s admiration for President Vladimir Putin’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 bill’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 “religious liberty” 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, Pence 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.

Conclusion

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 — 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.”

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 — and gasp — 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.”