The Future of Gay Rights Is Extremely Fragile

June is Pride month across America and in many other parts of the globe.  It is a time to reflect on and celebrate lesbian, gay, bisexual, and transgender history - which has so often been hidden from view by the dominant straight, white society, if not openly oppressed. Given the current political climate under the Trump/Pence regime which seeks to grant extraordinary rights to Christian extremists, Pride month and Pride events remain important, perhaps as important as every.   Here in Virginia, LGBT citizens continue to lack any state law employment non-discrimination and public accommodation protections thanks to Republicans in the General Assembly. The recent ruling by the U.S. Supreme Court in the Masterpiece Cakeshop case which allowed a “Christian” baker to cite alleged religious belief as a basis to refuse service to a same sex couple planning their wedding is being construed by many on the far right as a license to discriminate against LGBT citizens (and even non-white citizens).  Sadly, things are likely to get far worse if Der Trumpenführer and the GOP controlled U.S. Senate place a right wing ideologue on the Supreme Court to replace retiring Justice Kennedy who increasingly seems to have bought by Trump (see this Vanity Fair piece).  A piece in the New York Times by two law professors looks at the distressing days ahead.  Here are excerpts: 

In 30 years on the Supreme Court — the past 13 as the swing justice — Justice Anthony Kennedy has been the decisive vote in cases on issues ranging from abortion to affirmative action. Yet his legacy will be defined primarily by his opinions in the area of gay rights, where he wrote the major majority opinions expansively reading the Constitution to protect gay Americans.

His gay-rights decisions will now face a hostile majority on the court, which is likely to overturn, cut back or nullify at least some of them. And he has made it surprisingly easy.

Justice Kennedy’s gay-rights legacy, however, is at risk and not just because of the slim vote margins that produced it. Unfortunately that margin is almost certainly gone already.

When President Trump’s second nominee takes his seat at the court, probably this fall, a majority of the court is likely to disagree with Justice Kennedy’s expansions of L.G.B.T. rights. And even without overturning his signature cases, Justice Kennedy’s decisions can be narrowed and their implications minimized.

And those who will want to cabin his legacy will be aided by the justice’s own decision-making style. His opinions often hedged, refusing to establish strong rules to protect gays and lesbians going forward.

Most important, he balked at declaring that laws discriminating on the basis of sexual orientation should be, like those discriminating on the basis of race or gender, presumed suspect by the courts. Much of constitutional law depends on the “levels of scrutiny.” If a law burdens a fundamental right or discriminates on the basis of race or sex, courts take a hard look to make sure the government has a really good reason for the law. In the marriage cases, a fair analysis should have depended less on “the universal fear” of loneliness and more on whether the bans were subject to rational-basis review or something stricter. If rational, the bans should survive. If strict, they would fail. Both sides petitioned the court to rule on that question, but Justice Kennedy could not bring himself to decide it.

These doctrinal points Justice Kennedy neglected are not mere niceties. Lower courts need such guidance to determine whether laws biased against L.G.B.T. people should be upheld. Indeed, lower courts have previously read Justice Kennedy’s opaque language in Lawrence to allow states to ban gay adoption and permit governments to fire employees for engaging in private, consensual sexual behavior. The language in the marriage cases could allow similar mistakes.

If Justice Gorsuch’s narrow view of Obergefell prevails, gays and lesbians may one day enjoy a right to marry without marriage equality.

Justice Kennedy left unanswered one of the pivotal questions for the future of gay rights: Do businesses have a right to discriminate against gay and lesbian employees or customers if the business owners claim a religious objection? The issue was teed up perfectly this term, but Justice Kennedy ultimately punted, leaving the key questions once again unaddressed. With his resignation he ensured they would be answered by a future, more conservative court more likely to see anti-gay discrimination as perfectly rational.

Back in 2010, after the Supreme Court’s decision in Citizens United overturned one of former Justice Sandra Day O’Connor’s campaign finance opinions, she lamented her retirement, saying, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.”

It may be Justice Kennedy — and those Americans who’ve found protections and respect in his decisions — with similar regrets in the years to come.

I'd be lying if I didn't admit that I am very fearful for the future.

Will The DOMA Decision Have a Ripple Effect?

Justice Anthony Kennedy

One thing is clear in the wake of yesterday's Supreme Court rulings on gay rights: there is still a great deal of work to be done in states like Virginia where legal recognition of gay relations is banned by the state constitution, where gays can be fired at will from their jobs and where we still face housing discrimination and all too often homophobic judges.  Thus, while yesterday gave rise to reasons to celebrate, the reality here in Virginia is that little has really changed.  LGBT Virginians remain second class - fourth class? - citizens.  Will the DOMA ruling help to set a movement for change in motion?  A piece in Politico looks at this question.  Here are excerpts:

The Supreme Court’s same-sex marriage decisions managed to do the impossible: get gay rights advocates and conservative Justice Antonin Scalia to agree.

Writing for the majority striking down the Defense of Marriage Act, Justice Anthony Kennedy was unsparing, declaring that the law’s “purpose and effect [is] to disparage and to injure” those in same-sex marriages, subjecting them to “a stigma” that “humiliates tens of thousands of children now being raised by same-sex couples.”

Kennedy insisted this kind of language wasn’t meant to support marriage equality litigation in future state-by-state fights, but the justice often seen as the intellectual leader of the court’s conservative wing wasn’t convinced.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia warned. 

Precisely, say the prospective challengers.  “Scalia’s dissent is absolutely on the money,” American Civil Liberties Union executive director Anthony Romero told POLITICO. “It’s going to open the floodgates for litigation applying equal protection standards to laws discriminating against LGBT people.”

“It gives me great joy” to find agreement with Scalia, gay rights activist and Clinton White House adviser Richard Socarides said. He said Kennedy’s withering condemnation of the motivations of same-sex marriage opponents and his lamentations about the impact of discrimination on the children of same-sex couples will be a major boon for the gay rights cause.  “I think the language is going to be extremely useful because it’s very powerful and it makes clear the court takes a very dim view of laws targeting gay people,” Socarides said.

However, Kennedy’s majority opinion in the DOMA case falls short of something both gay groups and the Obama Administration asked the court to do: explicitly declare that government classifications based on sexual orientation are subject to “heightened scrutiny” by the court.

Romero called the ruling “huge” and “a tipping point, but said the ACLU will be hedging its bets on the legal impact of the decision. The civil liberties groups is pressing on with litigation in some states but also mounting a significant legislative effort to legalize gay marriage in many of the 37 states where it is not legal, and in many cases, banned.

The ACLU has hired Republican strategist Steve Schmidt, a top adviser to Sen. John McCain’s 2008 campaign, to build GOP support in the states for legislation to make gay marriage legal. “There’s support for marriage equality among Republicans ranging from moderates to the Tea Party,” Romero said, offering a pitch that casts the issue as one of “limited government.”

Romero noted that the DOMA case the court decided Wednesday left intact a portion of the 1996 law that says states can’t be forced to recognize same-sex marriages performed in other states. He said that means marriage rights in every state remain critical even if same-sex couples have more and more places they can tie the knot.

In short, the battle continues, although there are many days I'd like to just leave Virginia and move to a place where the boyfriend and I could be fully equal.  Sadly, many gays don't have the luxury of being able to pick up and move.   Hence we remain in backward rat holes like Virginia.