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
“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html
“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html
“A Homophobic Organization Throws in the Towel: Goodbye to Exodus International,” June 21, 2013; http://douglaswhaley.blogspot.com/2013/06/a-homophobic-organization-throws-in.html
“Discrimination in the Name of Religion: Methodists, Religious Freedom Laws, and What’s Right,” May 31, 2016, http://douglaswhaley.blogspot.com/2016/05/discrimination-in-name-of-religion.html
"Five Judges Have Stopped All Further Progress on Gay Civil Rights Legislation," August 18, 2014; http://douglaswhaley.blogspot.com/2014/08/five-judges-have-stopped-all-further.html
“How To Change Gay People Into Straight People,” September 20, 2010;
“Choose To Be Gay, Choose To Be Straight,” January 25, 2011;