The assault on LGBTQ equality and protections has begun. A Trump presidency and his agenda would be wipe out all that the community has gained.
To limited publicity by the mainstream media, a federal court in Michigan on Aug. 18 invoked the U .S. Supreme Court’s 2014 ruling in Burwell v. Hobby Lobby to uphold an employer’s termination of a male employee who is transitioning to female
Observers in 2014 warned the Hobby Lobby decision could be perverted as the beginning of a legal assault on LGBTQ equality and protections. The Aug. 18 ruling may have been the warning shot.
In that case, District Judge Sean F. Cox ruled that a broad extenstion of religious freedoms of for-profit businesses protects the right of an employer to to fire an employee whose gender transition offends the employer’s private religious beliefs. The earlier Supreme Court case was not directly tied to LGBTQ issues – the relevant matter was an employer’s objection to paying for employees’ contraceptives through a clause in the Affordable Care Act (Obamacare).
The decision in the more recent case has a shaky legal foundation and is prime for being overturned on appeal, according to some legal analysts. Nonetheless, the case may be the opening that anti-LGBTQ forces have been waiting for to challenge legal gains the gay community has made in recent years – including the federal right to same-sex marriage.
The judge in the recent case ruled that the U.S. Equal Employment Opportunity Commission could not pursue claims against a funeral home that fired the transitioning employee because the employer is shielded by the federal Religious Freedom Restoration Act. Douglas G. Wardlow of Alliance Defending Freedom and attroney for the funeral home also invoked religious freedom in a comment to Law360.com that the ruling “is a significant victory for religious liberty” and that the federal government “shouldn’t coerce business owners to violate their sincerely held religious beliefs.”
Religious freedom, also dubbed religious liberty and religious exemption, is a gay-hostile tactic that allows government workers, clergy and businesses to legally turn away LGBTQ people if their religious convictions are offended. The law also insulates religious objectors from being sued successfully and from disciplinary action by employers whose employees refuse to accommodate LGBTQ people based on religious beliefs.
Remember Kim Davis?
The case ought to be a call to arms by LGBTQ people and their allies with their greatest weapon being the power of the vote. What is at stake for the gay community in particular is stated clearly in the official platforms of the two major parties.
Republicans “condemn the Supreme Court’s ruling in United States v. Windsor, which wrongly removed the ability of Congress to define marriage policy in federal law (and) also condemn the Supreme Court’s lawless ruling in Obergefell v. Hodges …
“We, therefore, support the appointment of justices and judges who respect the constitutional limits on their power and respect the authority of the states to decide such fundamental social questions.”
Adversely, language in the Democrats’ platform “applaud(s) last year’s decision by the Supreme Court that recognized that LGBT people – like other Americans – have the right to marry the person they love. But …LGBT kids continue to be bullied at school, restaurants can refuse to serve transgender people, and same-sex couples are at risk of being evicted from their homes. … Democrats will fight for the continued development of sex discrimination law to cover LGBT people. We will also fight for comprehensive federal non-discrimination protections for all LGBT Americans, to guarantee equal rights in areas such as housing, employment, public accommodations, credit, jury service, education, and federal funding. We will oppose all state efforts to discriminate against LGBT individuals, including legislation that restricts the right to access public spaces. We support a progressive vision of religious freedom that respects pluralism and rejects the misuse of religion to discriminate. We will combat LGBT youth homelessness and improve school climates. We will support LGBT elders, ensure access to necessary health care, and protect LGBT people from violence – including ending the crisis of violence against transgender Americans. We will also promote LGBT human rights and ensure America’s foreign policy is inclusive of LGBT people around the world.”
The GOP may not be LGBTQ-friendly, but its platform does hint in its “support (of) appointment of justices and judges” that it is both insufficient and reckless to focus solely on deciding the country’s next president in November. The effectiveness of the next chief executive will hinge largely on which party controls both the Congress and Senate and on the party of individual state governors.
Democrats currently occupy the White House, but Republicans hold majorities in both chambers of Congress and have 31 state governors. That partisan mixture is at the heart of John Q. Citizen’s frustration and disapproval of Washington politics: nothing is getting done and, if GOP Senate leader Mitch McConnel has his way, nothing will be done until the GOP reclaims the presidency.
The present gridlock that has frozen the federal government may be more than partisan division, however. Racism aimed at the current president – the country’s first African American chief executive – may well be at its root. The same deadlock and consequential ineffective goverment could carry over to the next president if certain political scenarios play out.
The most frightening – and likely a death knell for LGBTQ equality – would be the election of President Donald Trump and keeping Republicans in control of both the House and Senate. A less unsettling but still threatening outcome would be the election of Hillary Clinton as president with Republicans maintaining majorites in both chambers. If racism has thwarted Barack Obama’s presidency, it’s a safe bet that President Hillary Clinton will be obstructed by the sexism of a GOP House and Senate dominated by white men.
The ideal government, at least for the LGBTQ community and civil libertarians, would be a Clinton presidency and Democrat majorities in both chambers. That is unlikely, however, even as a deeply splintered and divided Republican Party abandons its own nominee and risks its very survival beyond the election. To regain control of the House, Democrats would need to unseat 30 Republicans, a feat not predicted by political observers. In the Senate, however, the GOP has a tenuous four-seat edge, and Democrats are polling with a higher than 50 percent chance of reclaiming majority control there.
Consequently, the likeliest outcome predicted by pundits and “experts” – who are probably doing a disservice with predictions that could discourage voter turnout – will be a Clinton back in the White House and Republicans holding onto the House but losing the Senate to Democrats.
Control of the Senate is vital for either party to enact its agenda. One of that chamber’s most important functions is convening confirmation hearings nominees to vacant federal judgeships. Those nominees are picked by the president. On that responsibility, Mitch McConnell’s leadership of the Senate has been woefully negligent beyond defense. As of Aug. 22, there were 92 vacancies in the federal judiciary – 11 in courts of appeals and 72 in district courts throughout the country, two in the Court of International Trade and six in the Court of Federal Claims.
There’s also the vacancy that is probably the best and most widely known – on the U.S. Supreme Court. And why is filling that empty judgeship such a bitterly divisive and political issue? Whoever eventually occupies the seat may well dictate the high court’s philosophical direction, that is, conservative or liberal, for as long as the next three decades.
The vacancy was created with the death last February of Associate Justice Antonin Scalia, a Reagan appointee to the court in 1986. Scalia was the high court’s all-important conservative swing vote that broke 4-4 ties, perhaps his most notorious tie-breaking vote coming in the Hobby Lobby case. Scalia’s death left the court essentially deadlocked with four justices voting historically on the conservative side and the other four voting more liberally and progressively.
The federal Constitution empowers the Senate to confirm or reject nominees to federal benches. But McConnell and his Senate are creatures of obstruction and have refused confirmation hearings for virtually every nominee proposed by President Obama, including his Supreme Court pick, Merrick Brian Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. Thus, the main reason for the 92 judicial vacancies in federal courts.
McConnell declared war within hours of Scalia’s death. The Senate head issued a statement that read, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
McConnell’s self-endowed “supremacy” is problematic in three areas. First, it ignores the constitutional requirement of Senate hearings for presidential nominees. Second, the Constitution does not give the electorate a “voice in the selection of their next Supreme Court Justice,” as McConnell claims, although voters can and do contact their individual senators with thoughts about a potential federal judge.
Third, even if Americans “should have a voice,” they’ve already spoken – and McConnell either is not listening or ignoing them. A Senate website monitored by Democrats recently compiled findings of nearly three dozen public opinion polls taken between February, when Scalia died, and May. None of the polls have ever shown majority support for McConnell’s obstructionist tactic and, further, reflect an increase over time in the number of Americans wanting a confirmation hearing for Garland. At the same time, the number of Republicans who initially supported McConnell’s refusal to confirm Garland has eroded as time passes.
In summary, polls reflecting Americans’ belief that Garland deserves a hearing now range from the mid-50s to high 70s.
More is at stake for America than gay rights and protections in November’s election, of course. With little exaggeration, however, this election may well be the most important in the lives of people who have a personal stake in LGBT matters of equal protection under the law, and living and loving whoever they choose without the fear of insititutional and private discrimination and violence.