One thing I’ve noticed since the election of Donald Trump as President of the United States is that most people don’t understand how national marriage equality came to pass in the United States, nor do they have an understanding of how it could be threatened.
On one hand, there is a large group of people who feel that all LGBTQ+ rights could be immediately overturned by President Trump and Vice President Pence. I would argue that these people are slightly over-worried about what could happen over the next four years.
On the other hand, there are people who are suggesting that Donald Trump’s statements of indifference on the issue (i.e. his comment that he is “fine” with gay marriage, or his comment that the cases are “settled”) means that LGBTQ+ rights are totally safe. This is complacent and wrong.
The truth is a mixed bag, and I’ll try to break it down a little bit.
How did we get national marriage equality?
National marriage equality was achieved in the United States on June 26th, 2015. The policy result of legal gay marriage occurred as a part of the ruling in Obergefell v. Hodges which was a case before the Supreme Court (SCOTUS).
The fact that this case was even considered by the SCOTUS is pretty remarkable in of itself. In 1972, SCOTUS refused to hear an appeal of the Minnesota Supreme Court which ruled that same-sex marriage bans were not unconstitutional because there “was no federal question.” Essentially, in 1972 the SCOTUS was saying that gay marriage was of no concern to the federal government and hence they had no interest in intervening.
So why did they intervene now? The short answer is, there was disagreement in the lower courts.
Many plaintiffs sued for the right of marriage, arguing that the constitution guaranteed them the right to marry — irregardless of gender. These cases were typically first heard in US District Courts, then appealed to US Circuit Courts of Appeal.
Through 2013 and 2014, Circuit Court after Circuit Court ruled that gay marriage bans were unconstitutional. The long parade of victories, however, ended with the Sixth Circuit Court. The Circuit Court argued that the issue of marriage equality was already addressed by the SCOTUS’s refusal to address it in 1972.
Now that there was disagreement among the Circuit Courts, the Supreme Court had to weigh in. Consolidating the issue into one case — Obergefell v. Hodges — the Court came to a decision that denying marriage licenses to homosexual couples was unconstitutional.
Okay, why is this all important?
First off, the explanation above was pretty abridged and condensed. And it’s essentially the long-form way of saying that Donald Trump cannot undo marriage equality over night.
So, what can’t Trump and Pence do?
They can’t single-handily repeal marriage equality,
The court changing its opinion on gay rights took over forty years. Generally, the Supreme Court operates under the mantra of “Stare Decisis” which is Latin for — “let the decision stand.” That is to say, the Supreme Court usually respects precedent and does not change their rulings on a whim.
Right now there is one open seat on the Supreme Court. That open seat is replacing conservative Justice Anton Scalia. So Trump’s first appointment will not even redefine the balance of the court, but additional appointments could.
However, the Supreme Court is not the only court that matters. Part of the reason the issue of gay marriage returned to the Supreme Court is because 7 years of liberal justice appointments from President Obama changed the culture of district and circuit courts. If it did happen, reversing marriage equality would probably be the same slow war of attrition. Not likely to happen overnight, but increasingly possible over time.
What can Trump and Pence do?
During his term, President Obama signed Executive Order 13672, which protected LGBTQ government contractors from discrimination in hiring or in general employment. As an executive order, it was willed into existence by the President, and any President can overturn it at his will.
As Commander-in-Chief, Trump could also make it more difficult for openly gay people to serve in the military. While “Don’t Ask, Don’t Tell” was repealed as a policy, President Trump would have great latitude to make service difficult for gay soldiers if he wanted to.
Also, the minutia of everyday policy choices are important. Donald Trump’s Cabinet nominees and agency directors can impact policy in little ways that could make basic things more difficult for gay people and couples. For instance, Donald Trump’s Department of Education would be unlikely to protect trans students from discrimination as Obama’s has tried to.
There is also legislation in the works that could demote gay marriages into second class marriages. Trump has previously pledged to sign the “First Amendment Defense Act” which allows landlords and employers to discriminate against gay people if discrimination is a part of their “religious beliefs.” This act would make it difficult for gay people to do business, rent an apartment, make a basic purchase, or essentially just exist.
Furthermore, in terms of the Obergefell marriage equality decision, the justices that Trump appoints have much more bearing on how this plays out than what Trump says. The President has no authority to set the agenda of the court or dictate their rulings (this is a myth believed by many conservatives who feel like President Obama is responsible for the more liberal rulings of the court in the last 8 years). That is to say, President Trump could be totally against the repeal of same-sex marriage rights, but the conservative justices he is looking to appoint could totally overturn it anyways. Indeed, President Trump could even condemn the decision after-the-fact if he wanted to save political face. His personal opinion on the ruling doesn’t matter, and should give nobody any true solace.
So, what’s the conclusion?
If you are a LGBTQ person, there are many reasons to be concerned about the election of Donald Trump and Mike Pence. They will be the chief executives of the federal government, and have no interest in protecting gay people (who overwhelmingly voted against them).
That being said, they are severely limited by the courts, and our federal system of government, in what they can just snap their fingers and change. The best course forward is to be vigilant, stay informed, and fight against their anti-LGBTQ actions whenever possible.