LGBTQ Americans and their friends could find themselves living in a hell they never imagined if the Trump administration’s policies continue unchecked down the path that Christian evangelical extremists have laid out for the president.
The Federalist Society and the Heritage Foundation gave President Trump a list of 25 nominees to replace retiring moderate Supreme Court justice Anthony Kennedy. All 25 represented a threat to the human-rights gains of the past half-century. The president dutifully chose Brett Kavanaugh, of the District of Columbia Court of Appeals, from that list designed by his core supporters to reverse progressive measures that Kennedy backed during his time on the high court.
Human-rights organizations and LGBTQ leaders noted that the list of potential nominees included “extraordinarily extreme” advocates of conservative ideology who would harbor contempt for the nation’s LGBTQ community. The inclusion of another staunch conservative to follow Trump’s previous appointment, Neil Gorsuch, could tip the high court toward decades of intolerance.
At risk are same-sex marriage rights, reproductive rights, transgender rights, freedom from faith-based discrimination, and anti-discrimination measures designed to protect all people—particularly LGBTQ people and immigrants.
To many Houstonians, the most pertinent ongoing legal battle that may soon reach the Supreme Court involves employer-provided benefits for the same-sex spouses of City workers—benefits that have long been enjoyed by heterosexual couples. When former mayor Annise Parker extended same-sex benefits in 2013, an uproar from conservative Christians led to a court challenge by Houston pastor Jack Pidgeon.
The all-Republican Texas Supreme Court sided with Pidgeon, claiming a lack of understanding as to what rights same-sex couples are entitled to—despite the U.S. Supreme Court’s 2015 decision in favor of marriage equality. Then the high court declined to hear the case and sent it back to Texas courts, where Pidgeon v. Turner now sits. The City of Houston will continue to offer same-sex benefits until there is a final resolution of that lawsuit.
If Pidgeon v. Turner returns to federal courts, a new high court that is tipped to the far right would be unlikely to rule favorably for LGBTQ City of Houston employees—exactly what the compilers of the nominees list were hoping for.
To date, no case directly involving transgender rights has been decided by the U.S. Supreme Court, but that could happen due to Trump’s determination to ban trans people from military service. Multiple lower federal courts have blocked the president’s efforts so far, but one of the many pending cases, such as Doe v. Trump, could wind up before the high court.
Court cases addressing the religious freedoms of Christian bakers, florists, and others who want to refuse service to same-sex couples will surely be heard by the U.S. Supreme Court again. Just before Kennedy’s retirement, justices ruled that the Colorado Civil Rights Commission had overstepped its authority when it penalized the owner of Masterpiece Cakeshop for refusing to bake a same-sex wedding cake. The court’s majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission purposely sidestepped the question of whether that baker had unlawfully discriminated against a same-sex couple.
The case of Arlene’s Flowers, Inc. v. Washington, which involves a florist who was sued by the State of Washington for refusing to provide flowers for a same-sex wedding, could be the next religious-discrimination case to reach the high court.
Meanwhile, employment discrimination is the focus of EEOC v. R.G. & G.R. Harris Funeral Homes. It involves the firing of a transgender woman by a Michigan funeral home after she came out. Federal civil-rights laws do not explicitly include sexual orientation and gender identity, and less than half of the states have added such language to their nondiscrimination laws. Observers expect this case, or one like it, to reach the high court.
A “bathroom case” such as Doe v. Boyertown Area School District will also likely be heard by the Supreme Court. The Trump administration rescinded guidelines instituted by the Obama administration for schools, and that has prompted the Pennsylvania school district (and others across the country) to bar trans students from using restrooms according to their gender identity.
Any one of these cases reaching a U.S. Supreme Court with two Trump appointees will most likely lead to unfavorable decisions for LGBTQ citizens—and widespread backlash.
Conservative pundits claim that the concerns about a new court with an ultra-conservative majority are “overblown,” but LGBTQ Americans—or at least the older ones among us—know better. We’ve lived through the discrimination once, and we don’t want to do it again.
To all of you LGBTQ supporters of Trump who parrot the president’s claims about his spectacular economic achievements, let me say that money only goes so far to enrich your lives. There was a time, not too long ago, when laws prevented gatherings of LGBTQ people—both in public and in private homes. In the 1950s, district attorneys in some Texas cities waged war on LGBTQ people by raiding private homes to disrupt same-couples who were dancing with each other. If you aren’t free to enjoy your life without the fear of discrimination and arrest, you have nothing.
It’s essential that LGBTQ Americans and their friends vote—in greater numbers than ever—for progressive candidates who can stop Christian evangelical conservatives from eroding 50 years of hard-won human-rights gains.
This article appears in the September 2018 edition of OutSmart magazine.