The Fragile State of LGBT Rights

The Fragile State of LGBT Rights

By Michael Hamar

The 30th Hampton Roads Pride Week that occurred last month was by all measures a huge success: a record crowd turnout, no rain as in prior years, a major corporation, Newport News Shipbuilding returning as a presenting sponsor (joining WHRO, Decorum Furniture and the City of Norfolk), and many new sponsors/partners joined the effort – even the CIA contributing at the $5,000 level.  There was a surprise visit by Governor Northam and the First Lady of Virginia, Pam Northam.  All in all, it was an amazing experience and is a testament to how far LGBT rights have come since my first attendance at a local pride event in 2002.  Yet, I find myself with a heavy sense of foreboding.  So much is yet to be done in Virginia and past achievements are now increasingly threatened in Washington, D.C.   

At the state level, the reality is that there remains a long way to go before the rights of LGBT Virginians will be fully secure.  Despite a Governor and Attorney General who are LGBT allies, LGBT citizens continue to lack any state law employment non-discrimination protections.  Likewise, we lack any state law public accommodation protections.  This state of affairs in Virginia can be laid at the feet of a handful of Republicans in the House of Delegates who most recently killed every LGBT friendly bill during the 2018 session of the General Assembly.  Locally, Delegates Jason S. Miyares (R-Virginia Beach) and Barry Knight (R-Virginia Beach/Chesapeake) were key players in this anti-LGBT effort.  And Virginia’s lack of LGBT protections is not going unnoticed.   A recent piece in LGBTQ Nation looked a Human Rights Campaign study that listed the five best and the five worse states for LGBT families.  Here’s an article excerpt on the five worst states, which include Virginia:

The five worst states, in descending order, are: North Dakota, South Dakota, Wisconsin, Virginia, and, in last place, West Virginia.  All of these states lack comprehensive laws protecting their LGBTQ residents. Conversion therapy for minors isn’t explicitly prohibited and same-sex couples will have a harder time adopting.

Making matters worse, within Virginia, none of the cities of Hampton Roads made the lists of “best cities” for LGBT families.  Only the cities of Arlington and Alexandria made the “best” list for Virginia.  Fortunately, there is a positive aspect to the situation in Virginia: with luck, in 2019, Democrats can win control of the House of Delegates and Virginia can belatedly enact legislation that will move it from the list of worse states to one attractive and welcoming to all. 

At the federal level, things are increasingly terrifying despite the fact that polls confirm that some two-thirds of Americans are supportive of LGBT rights and same sex marriage.  The Trump/Pence regime continues to seek to rescind Obama era protections for LGBT citizens. In this post 4th of July period, the hypocrisy and betrayal of the principles of the Founding Fathers by Trump/Pence can be summed up by quotes from two founding documents.  The first is the Declaration of Independence which in relevant part states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, . . . .

The second quote comes from the preamble of Thomas Jefferson’s draft of the Virginia Statute for Religious Freedom (which is routinely ignored by Virginia Republicans):

The impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, . . . [O]ur civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry, that therefore the proscribing any citizen as unworthy the public confidence, by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages, . . . . encourage, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time.

The recent ruling by the U.S. Supreme Court in Masterpiece Cakeshop – which allowed a “Christian” baker to cite alleged religious belief as a basis to refuse service to a same sex couple planning their wedding – is disturbingly being construed by many on the far right as a license to discriminate against LGBT citizens (and even non-white citizens) because of their non-conformity to religious dogma.

Sadly, things are likely to get far, far worse in the context of the U.S. Supreme Court if Donald Trump and the Republican controlled U.S. Senate are successful in placing a right wing ideologue on the Court to replace retiring Justice Kennedy (who increasingly seems to have been possibly “bought” by Trump through his dealings with Kennedy’s son, a official with Deutsche Bank AG, the sole major western bank that will make loans to Trump and his companies).  Disturbingly, the ultra-right wing Federalist Society appears to be doing the vetting for possible replacements.  Any one of the proffered nominees should be considered extremely hostile to LGBT rights and same sex marriage.

Two prominent law professors recently authored a column in the New York Times on the possible fate of Justice Kennedy’s rulings in the realm of LGBT rights.  These rulings include  Romer v. Evans in 1996, when the justices struck down a Colorado law that prevented gay people from being recognized as a protected class; Lawrence v. Texas, the 2003 decision that made sex between gay couples legal across the country, even in those 13 states – including Virginia – that still had sodomy laws on the books; United States v. Windsor, the case that struck down the Defense of Marriage Act, which interpreted the term “marriage” to apply only to unions between a man and a woman; and Obergefell v. Hodges in 2015, the case that ultimately made same-sex marriage legal in every state. The professors noted as follows:

His [Kennedy’s] gay-rights decisions will now face a   majority on the court, which is likely to overturn, cut back or nullify at least some of them. . . . When Trump’s second nominee takes his seat at the court, probably this fall, a majority of the court is likely to disagree with Justice Kennedy’s expansions of L.G.B.T. rights. And even without overturning his signature cases, Justice Kennedy’s decisions can be narrowed and their implications minimized.

If Justice Gorsuch’s narrow view of Obergefell prevails, gays and lesbians may one day enjoy a right to marry without marriage equality. . . . Justice Kennedy ultimately punted, leaving the key questions once again unaddressed. With his resignation he ensured they would be answered by a future, more conservative court more likely to see anti-gay discrimination as perfectly rational.

What might Trump’s nominee to replace Kennedy look like?  One name on Trump’s short list is Amy Coney Barrett, currently a judge on the 7th Circuit Court of Appeals.  Trump appointed her to that court eight months ago.  Otherwise, she has no judicial experience whatsoever.  If appointed, Barrett could prove to be an Antonin Scalia on steroids when it comes to believing her extreme right Catholic beliefs should be binding on all Americans.  Moreover, Barrett is no ordinary Catholic.  She belongs to a cult-like mostly Catholic group, People of Praise, which has heavy Pentecostal overtones, including a belief in prophecy, speaking in tongues, divine healings, and wives being subservient to their husbands. 

Not surprisingly, People of Praise is hostile to LGBT rights and abortion as well.  Presumably, Barrett holds such views as well.  Disturbingly, when nominated for the 7th Circuit Court of Appeals, she sought to obscure her non-mainstream religious beliefs.  If she is Trump’s nominee, her beliefs need to be challenged head-on and revealed publicly to all Americans even at the risk of Trump and others trying to hold her up as some type of Christian martyr.  Simply put, America does not need a Pat Robertson/Jerry Falwell clone on the U.S. Supreme Court, be it Ms. Barrett or one of Trump’s other potential nominees. 

Unfortunately, defeating an extremist nominee to the Supreme Court will be difficult given the realities of the GOP’s gerrymandering of congressional districts and a U.S. Constitution that grants two (2) U.S. Senators to states with tiny reactionary populations – e.g., Wyoming has a population of less than 600,000 while the cities of Hampton Roads have a population of 1.7 million; Montana has slightly over 1 million residents while New York City has over 8.5 million.   Nonetheless, the majority of Americans appalled by the Trump/Pence regime’s agenda must act to convince Senators to vote “no” on any extremist nominee.  Of equal importance is being registered to vote and going to the polls and voting against proponents of the Trump/Pence agenda in November.