On the same day that early voting opened for the state of California (Monday, October 5th), Supreme Court Justices Clarence Thomas and Samuel Alito blasted the Supreme Court’s 2015 Obergefell v. Hodges decision that legalized same-sex marriage for the entire country. October 5th happened to also be the first day of the Supreme Court’s new term. The eight current Justices ultimately declined to hear a case brought by former Kentucky county clerk Kim Davis, who refused to issue a marriage license for LGBTQ couples five years ago after the Obergefell decision was made. Writing for himself and Justice Alito, Thomas believes the Kim Davis case didn’t “cleanly” present the issues in the court’s Obergefell 5-4 decision five years ago.
However, Alito and Thomas also made sure to call out that they believe Obergefell v. Hodges undermines people’s “religious freedom” and needs to be overturned. “Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision,” Thomas and Alito wrote. “This petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ruinous consequences for religious liberty.”
As many in the LGBTQ community and our allies already know, “religious liberty” is another dog whistle, a euphemism for taking away our rights and overturning established federal law. As a popular meme making the rounds online read, “if you’ve never had a Supreme Court case decide if you have the same rights as others, you have privilege.” After all, overturning gay marriage is baked into the official Republican Party platform, which has remained unchanged since the 2016 election. It reads: “Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values…We do not accept the Supreme Court’s redefinition of marriage and we urge its reversal, whether through judicial reconsideration or a constitutional amendment returning control over marriage to the states.”
With the battle raging over filling Justice Ruth Bader Ginsburg’s vacant seat, Alito and Thomas have set the stage for long-lasting conservative control of the Court should Amy Coney Barrett get approved by the Senate’s Republican majority prior to the election. Many fear that aside from gay marriage, equally important issues that directly effect LGBTQ folks are in danger of getting overturned by a conservative Court, including the landmark Roe v. Wade abortion decision as well as the Affordable Care Act, which if taken away, could potentially mean no healthcare for millions in the middle of a pandemic.
But it’s not just the Supreme Court that affects LGBTQ voters. The Equality Act, passed by the Democratic House last year but stuck in committee in the Republican Senate, would amend the 1964 Civil Rights Act to prohibit discrimination based on gender or sexual orientation in employment, housing and education. In terms of military employment specifically, the Department of Defense instituted a “Deploy or Get Out” policy, which removed military personnel living with HIV from service solely because of their status. And of course, the Trump administration banned transgender people from serving in the US military, going against expert advice of military leadership, medical authorities and the general public.
In fact, the Trump administration’s insurmountable attack on the most vulnerable in our community -transgender people- has been unprecedented. Betsy DeVos’ Department of Education overturned Obama-era guidances for treating transgender students consistent with their gender identity, which included using correct names/pronous as well as access to the restrooms consistent with their identity. DeVos also refused to rule out federal funding for schools that discriminate against LGBTQ students, and used Title IX to claim that school policies allowing trans youth to participate in sports consistent with their gender identity violated federal law.
Secretary of Housing and Urban Development Ben Carson, meanwhile, allowed emergency shelters to deny access to transgender and gender nonconforming people. Elsewhere in the federal government, the Federal Bureau of Prisons rolled back an Obama-era policy that housed transgender prisoners consistent with their gender identity, while Trump’s Department of Health and Human Services proposed a new definition that narrowly defined sex as male or female, unchangeable and determined by birth. Agency staff, including those at the Centers for Disease Control, were even instructed to stop using the word transgender in official reports.
Of course, no discussion about the election’s implications on LGBTQ voters can be complete without addressing how our community has been affected by the Trump administration’s (lack of) decision making regarding Covid-19. Look no further than our own local ‘gayborhood’ of West Hollywood. Since quarantine began in March, four popular, long-standing gay bars closed their doors permanently: Gym Bar in July, Flaming Saddles in August and both Rage and Gold Coast Bar closed in September. The sad social media messages from the management of each of these historic establishments all had in common the lack of support from the national government.
Jacqui Squatriglia and Chris Barnes, owners of Flaming Saddles, wrote in an August 16th Facebook post: “Covid-19 has [wreaked] havoc globally, and with a better national strategy here in the U.S. perhaps things would have been different. With the rules as they stand today there is no way we could [have] fulfilled our fiscal obligations that were presented to us at this location.”
While many have also cited lack of cooperation byWeHo landlords in the face of the pandemic as a contributing factor, no doubt more guidance or financial help from the federal government would have also been important in the prevention of these closings. One can only hope that whenever the pandemic is finally over, the new businesses that replace these gay bars are just as welcoming and inclusive.
Beyond LGTBQ gayborhoods getting erased, the entire community has been a target of erasure by the Trump administration for the last four years. Within hours of his swearing in, information on LGBTQ rights and recognition were removed from government websites. Trump and Pence also blocked questions on sexual orientation from the census in order to prevent the collection of crucial data that could help improve government programs and resources for LGBTQ people. And despite the promise that Trump made to fight homophobia abroad, Trump’s State Department issued a directive to ban rainbow flags during Pride month at U.S. embassies across the world, and also refused to condemn attacks on LGBTQ people in Chechnya and Brunei.
The RNC may claim that Trump has taken “unprecedented steps” in support of our community, but clearly actions and laws have not done so in any way. The stakes are so high in the 2020 election that almost every issue impacts the diverse and widespread LGBTQ community in America. Of course with 2020 throwing out as many plot twists as it has, a lot can happen before the election on November 3rd (the candidates held separate town halls on competing networks instead of doing a second debate last week, for example). So far, the the gay community has not been the focus of debate questions in any substantial way. This may change tomorrow during the final head to head between Trump and Biden, and whatever each man says, if you or someone you love is LGTBQ, it’s important to factcheck their statements. The facts here should be more than enough to help you decide, though.
Fellow Angelenos — please make the effort to vote (it’s thankfully pretty painless here in California) and please vote with kindness in your heart. Many marginalized people are hurting, so let’s work together and make a system that works for everyone, not just for some.