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Wednesday, November 16, 2016

Calm Yourself: What Trump Can and Cannot Do About LGBT Rights


I am a law professor who has paid a lot of attention to gay rights for decades, and I am a gay activist who has worked to create and preserve our rights for over forty years.  My husband tells me that Facebook is filled with posts worrying that gays are in major trouble because of Trump’s election, and asked me to write this post explaining what can and cannot happen, and what’s likely to occur.  

Let’s take the rumors one by one.

1.  Is Gay Marriage Ending?

No.  The Supreme Court’s decision in Obergefell v. Hodges (2015) ruled that the United States Constitution requires that gays be given equal marriage rights with straights.  That will remain the law of the land until one of two things happens: (1)  an amendment to the Constitution is passed by Congress and the States saying otherwise (very unlikely—you couldn’t even get the process started in Congress), or (2) the Supreme Court itself overrules Obergefell.

The Court cannot act without having a case before it raising the issue, and there is no such case currently in the pipeline that I know of.  So a new lawsuit would have to be brought in some trial court, and then that decision would have to be appealed to an intermediate appellate court, and that decision finally appealed to the Supreme Court, which would then have to change its mind and say that Obergefell was wrong when decided.  Thus nothing is going to happen fast.  This would take at least two and probably three years before a final ruling was even possible.  But a scenario in which Obergefell is overruled is also unlikely.

The current Court has eight members: four liberals, three conservatives, and Justice Anthony Kennedy, the swing vote on the Court.  Kennedy is also the author of the majority opinion in Obergefell, in which the four liberals joined him to produce the result that gays could marry in all states.  There were four conservative dissenters, one of whom was Antonin Scalia, since deceased and leaving a vacancy that Obama tried vainly to fill.  President Trump will now nominate someone to take that seat, but once that person is confirmed we wouldn’t have a Court that would overrule Obergefell.  Why not?  Because the new appointment is to the Scalia seat, which already was outvoted by the majority I just described.  It would still be 5-4 in favor of gay marriage.

Thus gay marriage is safe until one of the liberals or Justice Kennedy leaves the Court by retirement or death sometime in the future.  This might, of course, happen.  The three oldest members of the Court are two of the liberals (Ruth Bader Ginsburg, who will be 84 in March, and Steven Breyer, 78) plus Kennedy himself, 80.  If Trump were to appoint a raging homophobe to replace one of them Obergefell might be in trouble, but even then it is unlikely the Court would overrule it.  Here’s why.  The Court itself is loath to overrule its own decisions, fearing that it makes the Court look bad if mere personnel changes can so drastically affect the law.  Plessey v. Ferguson (1896) upheld racial segregation as constitutional, and that ugly decision wasn’t overruled until Brown v. Board of Education in 1954.  Moreover, if Trump nominated a known homophobe who vowed to overrule Obergefell, that person is unlikely to be confirmed by the Senate.  Yes there are 52 Republicans in the Senate, but because of the filibuster it takes 60 votes to bring up a judicial nomination for consideration, and so the Democrats can keep a really bad potential Justice from being considered at all.

Maybe, if we’re lucky, the current Court (plus whoever Trump adds to the Scalia seat) will not change for the four years of Trump’s term—hang in there, Justices Ginsburg, Breyer, and Kennedy!  If Trump is not the president after 2020, and a Democrat is elected, the Court would be safe.

Even if Trump appoints a new Justice to replace one of the three I just mentioned, consider that every year large numbers of gays get married and the country becomes more comfortable with that.  What’s the big deal?  The nice thing about the advancement of gay rights is that when it happens nothing calamitous occurs as a result.  In this case it simply means that more people are married—a good thing both socially and for the economy (all those weddings, honeymoons, and anniversaries).  Huge numbers of straight people have gay friends, coworkers, family members, and have happily attended gay weddings.  Forcing gay couples to go back to the pre-Obergefell days would seem wrong to the vast number of Americans, including many conservative judges.

James Obergefell in Front of the Supreme Court Building

Even if Obergefell were overruled it wouldn’t affect existing gay marriages, but only prevent new ones.  It is inconceivable to me and to most legal authorities that the Court would think it had the constitutional power to void marriages made in reliance on the Court’s own ruling, and doing so would produce a nightmare almost impossible to straighten out of actions taken by married people (adoptions, divorces, contracts signed, etc.) that would have to litigated.  When the California voters passed Proposition 8 and stopped gay marriages in that state some years ago, the California Supreme Court promptly ruled that gay marriages entered into prior to the new law were still valid in the state.

So the bottom line is that gay marriage is here to stay, just as Trump himself said recently.

2.  The Return of Don’t Ask, Don’t Tell? 

No.  That would take congressional action, and for the reasons just given about marriage it isn’t going to happen.  The military itself has adapted to gays serving, and there is no reason—just at a time when the military is trying to attract recruits—to return to mess of trying to weed out gays, most of whom are doing a good job for their units.

Obama’s executive order adding the right of trans people to serve in the military might be at risk.  The very meaning of “executive order” means it is a decision made by the president, and Trump would have that choice.  We’ll see, but I suspect that it’s not something he cares about (he’s always been pretty good on gay rights, statements made during the campaign to the right wing aside).

3.  Will Gays Be Forced Into Conversion Therapy?

No.  While it’s true that the rabid homophobes who wrote the Republican convention’s platform threw in every anti-gay thing they could think of, and one of those was approval of conversion therapy (by which gays are turned into straights), conversion therapy is dead, dead, dead.  

First of all, it never worked.  As readers of this blog know I’ve posted the following in a number of my posts:
"During my gay rights activist days and right up until the current moment, I’ve had a standing offer about ex-gay conversion. I will contribute $5000 to the charity of choice of an individual or organization that can produce five men who were once gay and are now straight. There are various conditions: (1) the men must have had significant gay experiences in their lives, (2) become straight through whatever process, and (3) for at least five years thereafter remained completely straight. Finally, they must not have ever been leaders or volunteer workers for ex-gay organizations (just, therefore, normal members) and pass rigorous tests to determine their current sexual orientation (see me for details—I am serious about this). Since ex-gay organizations have been around for over thirty years, you’d think they’d have thousands of former participants who’d easily meet my criteria, but so far no one has taken me up on this. Note that I’m not proposing a bet. If the person/organization can’t find five men who pass the tests, they lose nothing other than a creditability that is often widely touted, but is in tatters whenever considered objectively.  (I would require that if five converted straight men are not produced, the expenses of testing be paid for by the entity accepting my challenge.)"

I advertised this offer in speeches to homophobic audiences, and in various radio and TV interviews.  No one has ever taken me up on it.  I still make it, so feel free to publicize it.

All the science, all the experience, all the history, shows that trying to change gays to straights has no more success than would trying to change straights into gays.  It is a matter of genetics and that’s that.  Exodus International, which for 37 years was a Christian organization that purported to cure gays, closed its doors in 2013, apologizing to all those who had trusted it during its existence, and acknowledging that no one’s sexual orientation was ever altered by its attempts, of which there were thousands.  Ex-gay conversion doesn’t work, and even leading psychiatrists like Robert Spitzer, who once championed “reparative therapy,” have quit and themselves apologized for a practice that is now condemned by the American Medical Association, the American Psychological Association, and the American Psychiatric Association.

Vice President to be Mike Pence thinks it works, but in his own words he’s a “Christian, a conservative, and a Republican, in that order,” and he’s never met a homophobic idea he didn’t embrace with a smile . . . truth be damned.  If Trump were to resign, be impeached, or die, and Pence becomes President—well, Scotland announced it’s accepting American immigrants.

In any event, there is no chance that legislation in favor of gay conversion (“reparative therapy” or whatever euphemism is used) would be passed by the federal government.  Some conservative states might try it, but even that is not likely to fly.  Indeed, a number of states, such as California have barred reparative therapy by law.

4.  Other Matters.

There are some areas for concern, but they’re the same areas that were troublesome before the election.  I refer specifically to trans rights and the ability of those in business to discriminate against LGBT people.  Donald Trump is surrounding himself with some very homophobic people, so even if he himself is not homophobic (which appears to be the case), his administration is not going to advance the gay agenda and we can be in for a rough road, particularly for the unresolved matters explored next.

The trans battle has been hard, and will continue to be so, particularly with no support from the federal government.  It is heartening to learn that transphobic North Carolina Governor Pat McCrory (who shepherded the anti-trans bathroom bill through the state legislature) appears to have lost his bid for reelection, though the race is close and he is promising to contest his apparent loss as I write this.  I’ve written about the North Carolina law before [see Related Posts below].

A big worry is the so-called “Religious Liberty” statutes being considered in some states and even in Congress which would allow discrimination against LGBT people based on religious objections to dealing with sinners such as gay people.  As Indiana Governor, Mike Pence had his battles over this, eventually retreating in confusion [see Related Posts below].  As a legal matter, as a constitutional question, this is an unsettled area, and eventually statutes allowing such a defense will be tested in the Supreme Court.  More conservative Justices appointed to the Court before the issue gets there might be swayed to find such laws constitutional, but who knows?

The major effect that the Trump victory can have on LGBT people is that hatred of all minorities and of women has been given a new license to manifest itself in matters big and small.  Recently the public arena is filled with open slurs that used to be hidden.  It will be more dangerous out there, so watch yourselves.

We’re in for an ugly period in this country, but, as I hope the above demonstrates, it is almost impossible to get major changes through Congress, and the president has limited powers to do things on his own.  Trump’s agenda, such as it is, is not fixed on LGBT matters, and that’s a good thing.  Even the Supreme Court is unlikely to take negative action, and if that happens at all it won’t be for years.

So, my friends, calm down.  The sky is not falling.

Trump Happily Displaying Gay Support Banner

Related Posts:

“A Guide to the Best of My Blog,” April 29, 2013;

“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015;

“A Homophobic Organization Throws in the Towel: Goodbye to Exodus International,” June 21, 2013;

“Discrimination in the Name of Religion: Methodists, Religious Freedom Laws, and What’s Right,” May 31, 2016,

"Five Judges Have Stopped All Further Progress on Gay Civil Rights Legislation," August 18, 2014;

“How To Change Gay People Into Straight People,” September 20, 2010;

“Choose To Be Gay, Choose To Be Straight,” January 25, 2011;

“A Criminal Controls the Detective: Why Trump Will Soon Fire Robert Mueller”;

Monday, November 14, 2016

President Preposterous: Donald Takes the Helm

The 45th President of the United States

The candidacy of Donald Trump began on June 16, 2015, almost a year and a half ago, and it finished this week with his election to the Presidency of the United States.  When it started on that June day, with The Donald attacking Mexicans as “rapists” and promising to build his now-famous wall along the entire southern border, no one in the world would have taken the bet that he would become the 45th President of our country.  Everything that has happened since now seems like a nightmare to responsible people, both Democrats and Republicans, who are very certain that he is completely unprepared for the job.

Stunned Voters

Donald Trump liked running for the office, but no one who knows his history thinks he will actually enjoy being president.  Sure the ceremonial things will be fun for him and his gorgeous wife, but the daily grind of thinking about complicated matters that don’t interest him will drive him nuts.  Those who know him well, such as Tony Schwartz, who wrote “The Art of the Deal” for him, tell us that Trump has the attention span of a kindergartener.  What will happen when he must master complicated scenarios that bore him? 

There’s a rumor that at one point in the campaign Trump offered Ohio Governor John Kasich the Vice Presidency with the understanding that Kasich could run the government while Trump just presided over the fun parts.  Kasich turned him down (and didn’t vote for Trump either), but—hey—perhaps Mike Pence will now jump into that administrative role.  Certainly it’s hard to imagine Trump facing days of tedious work plowing through the minutia of, say, cyber treaties, if he could pass the job to someone else.

When Trump must face big decisions I suspect (and would love to be wrong) that he won’t do the homework necessary to make smart choices.  If his past is our guide he’ll simply go with his instincts.  Witness his disastrous foray into running casinos in Atlantic City.  Those in the business will tell you that casino operation is an art with many complications, but Trump just winged it, and all of his casinos promptly self destructed into debt, ruin, and bankruptcy.  With his latest corporate bankruptcy in Canada recently he now has had seven of them on his resume.

[Click to enlarge]

Trump’s tactic for handling any problem will just be to go with this gut reaction.  That will lead to consequences none of us want to think about.  Tony Schwartz, the author of Trump’s “Art of the Deal” had this to say about the man in a New Yorker article []:  “I genuinely believe that if Trump wins and gets the nuclear codes there is an excellent possibility it will lead to the end of civilization.”

One also wonders if Trump will give up running his businesses as he’s supposed to.  The rules require him to turn his business affairs over to a blind trust, but apparently he’s going to ignore that and just let his kids run things—nothing “blind” about that.  Want to bet that there will be headlines about him being caught making business decisions—decisions that create conflicts of interest with U.S. policy?  As all the sources mentioned below in my prior posts on the man reveal, Donald has always ignored rules getting in the way of his doing whatever he’s wanted to do.  He’s gotten away with this so far, but with three different civil trials underway concerning his personal liability for committing fraud when running Trump University (and pocketing five million dollars from the trusting admirers he fleeced), and the continuing allegations of sexual abuse made by multiple women, ugly headlines containing our new president’s name will be all over the place.

How much damage can Donald Trump do in terms of accomplishing the outlandish goals he announced during the campaign?  Well much of that agenda (abolishing Obamacare, changing the tax laws, etc.) requires Congress to act and that isn’t going to happen.  Yes the Republicans now control both the House and Senate, but the Senate has the filibuster rule which means that nothing controversial can pass without a vote of 60 Senators.  There are only 52 Republican Senators in the new Senate, so Democrats can block any new legislation they disagree with.  Trump can change any of Obama’s executive orders at will (such as climate control agreements or some policies for enforcing immigration), and, yes, that could do much harm. 

If Trump appoints more than one new Justice to the Supreme Court it could create a conservative majority on the Court (Trump would need to appoint two Justices to change things since the first would merely fill Scalia’s seat, already a conservative one).  It would be very difficult, however, to get a very conservative Justice confirmed at all, since the Democrats could block him/her by using the filibuster.  Thus Trump can appoint reasonable Justices with a conservative bent, but not the sort of “take no prisoners” right wing nuts his far right base would loudly cheer.

I will soon write a blog post to calm down the LGBT community.  Wild rumors are spreading that gay rights are over and involuntary conversion therapies for queers will start soon.  None of that is true and for the foreseeable future nothing bad will happen at the governmental level.  However, since the election Trump supporters will feel freer to unleash ugly threats and actions that in the past they mostly only daydreamed about.  Gays, as well as women, blacks, Latinos, Muslims, and others vilified during the election, do need to be worried about a new outpouring of hatred that Trump’s election has unleashed among the citizenry. 

A couple of concluding thoughts:

1.  Poor Hillary Clinton!  She certainly thought she was going to win this one, and, indeed, all the experts did too.  The shock of losing her last chance at the presidency, and doing so in a campaign that recklessly smeared her with calumny, pasting her into the history books as a pathetic figure in spite of her splendid record, makes her remaining days on the planet ones that will be filled with “if only” thoughts and regrets.  Her concession speech was very gracious, but you can bet she’s having trouble sleeping at night.

2.  Scotland announced it will accept American immigrants.

3.  The whole election was a nightmare, the worst most of us will ever experience.  If it seemed to go on and on interminably, that’s because it was in fact an extra long election period.  The rule is that the election is held on the first Tuesday after the first Monday in November.  Normally that means we vote during the first week of November.  But this year October 31st was a Monday, so the first Monday in November was the 7th, delaying the election to the 8th day of the month—the latest it could possibly have occurred.  After this ordeal had already dragged on for what seemed years, this one week extension was like a bad joke.  When I made this observation on Facebook someone pointed out that the election period was even longer: we had an extra hour to endure due to the daylight saving time switch which fell during the extra week.

Well, it’s all over now.  Let’s see what the hell happens next.  As my mother used to say, “Hold your thumbs and hope for the best.” 

Related Posts:

“A Guide to the Best of My Blog,” April 29, 2013;

“Crooked Hillary?  Crooked Donald?” September 30, 2016,

“Comparing Donald Trump to a Badly Infected Big Toe,” August 3, 2016,

“Trump University: A Fraudster for President”? March 10, 2016;]

“Why Hillary Will Stomp Trump In November,” June 30, 2016;

“Trump’s VP Choice:  Introducing Sarah Palin . . . Mike Pence!” July 18, 2016;

“A Criminal Controls the Detective: Why Trump Will Soon Fire Robert Mueller”;