If an issue concerning gays comes before the Supreme Court the Trump Administration will file an amicus brief in favor of the standard homophobic position. When a Colorado baker claimed a religious right to refuse to make a wedding cake for a gay wedding and the case reached the Court, Trump’s position favored the baker. In that case the Court ducked the big issue and sent the case back to the lower courts for a closer examination of the religious arguments. [See my blog post on this “The Supreme Court Did Not Rule That a Baker May Discriminate Against Gays,” June 6, 2018; https://douglaswhaley.blogspot.com/2018/06/the-supreme-court-did-not-rule-that.html]. However that issue won’t go away and the Court is scheduled to hear arguments on the matter once again next term with the big question being whether religious bigotry trumps (pun intended) equal protection of the law. If it were a Muslim baker refusing to sell to a Jew the Court would likely forbid such discrimination. But as soon as homosexuality is part of the picture centuries of prejudice queer the issue and all bets are off.
The Court has another thorny gay issue to deal with this coming year. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on “race, color, religion, sex and national origin.” The question is whether “sex” simply means male or female or whether it also includes sexual orientation. Certainly when the statute was drafted it never occurred to Congress that gays were being protected, and the few cases in the early days that raised the issue said this. But in recent years some of the lower federal courts of appeals have bravely ruled that gays are protected by the clear language of the Act: “sex” includes sexual orientation—how could it not? Other federal courts of appeals disagree and the Court will now settle the issue.
How will it come out? Well my guess is that the gays will lose this one. Certainly the Trump Administration hopes so; just this month it filed an amicus brief saying gays aren’t meant to be covered by the statute. The Court itself has five conservatives and four liberals and the split is likely to be along those lines against the gay inclusion. Justice Anthony Kennedy, who was a strong voice for gay rights, is now gone from the Court, replaced by Brent Kavanaugh, chosen by Trump because he is a trusted conservative jurist.
What about gay marriage in the Trump era? Is it likely to be dumped?
No. We are safe on this one, and I’ll bet big money on this. See me if you want to make such a bet and we’ll negotiate the terms.
Why am I so confident? Because the United States (and much of the world) has now had years of gay marriage and it’s all gone very well, producing almost no downsides. Millions of gay weddings have taken place and millions more are happening every year. This has been remarkably good for the economy (look up the figures on the internet—they are staggering—billions of dollars made each year from such unions). Having gay couples legally married creates stability: gays who can get married show those around them that they're no different than straight couples---they are not just two queers pretending to be something they're not. Poll numbers show that gay marriage is overwhelmingly popular with the public. Almost everyone in this country knows gay people who are married, and most straight people have been invited to gay weddings. This includes members of the United States Supreme Court, all of whom are likely to have gay family members and other family members supporting those gays closely watching the Justices with steady eyes.
Moreover Obergefell v. Hodges, the case stating gay marriage was mandated by the Fourteenth Amendment, was decided in 2015 and four years later it has produced what is uniformly considered a happy result. It is, as lawyers say, a “settled precedent.” The United States Supreme Court is loath to overturn its precedents and rarely does so on big cases like this one. Chief Justice Roberts is steadfast on convincing the country that the Court is not a political animal and changes in the personnel do not lead to overturning decided matters. Most of the Justices will have no appetite for revisiting Obergefell v. Hodges. [Roe v. Wade is another matter, and I wouldn’t place any bets on its continued existence.]
Homophobia won’t kill gay marriage. There won’t even be a significant challenge.
So, readers, my summary is this: Trump has been bad for gay rights, but he can’t win them all and for the most part he doesn’t really care about LGBTQ matters.
And there is a very good chance that by January of 2021 we won’t have to worry about what he thinks at all.
"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
“Must a Baker Create a Cake for a Gay Wedding? What Will the Supreme Court Likely Say?” September 28, 2017; https://douglaswhaley.blogspot.com/2017/09/must-baker-create-cake-for-gay-wedding.html
“A Gay President in 2021?” April 21, 2019; https://douglaswhaley.blogspot.com/2019/04/a-gay-president-in-2021.html