In the days since Donald Trump became president-elect, I have heard many people voicing fears that the hard-fought victory of same-sex marriage will be rolled back under a Trump presidency. Many, perhaps most, of these folks are like me: white, cis, gay men living in Democratic states. I understand the fears. Despite Trump’s gesture toward the issue being "settled law" in a Sunday night 60 Minutes interview, Vice President–elect Mike Pence—who seems likely to be the ideological and policy soul of the administration—is staunchly against LGBTQ rights. In the days since the election, groups that oppose LGBTQ rights have spoken out about how they hope to overturn marriage equality. But these fears are misplaced, and they distract from outcomes the LGBTQ community should really fear under a Trump presidency.
Marriage equality came to the Supreme Court in two parts. In 2013, the court decided in United States v. Windsor that the Defense of Marriage Act was unconstitutional. DOMA prevented the federal government from recognizing same-sex marriages that were otherwise legal under state law. After Windsor, people in same-sex marriages in states like New York were able to receive federal benefits, such as treatment as a married couple under tax law.
The next decision was Obergefell v. Hodges in 2015. It was in Obergefell that the court held that states could not ban same-sex marriage. Obergefell guaranteed the constitutional right to marriage. This extended marriage equality to states that had not previously enacted it or recognized it under state constitutional law.
To roll back marriage equality, Obergefell and Windsor would have to be overturned. But the five justices who joined those opinions are still on the court. There is no reason to believe that they would overturn their prior decisions. And it would be a long road to even make that an option.
To overturn Windsor, Congress would have to pass a new version of DOMA. While I disagree with them on most issues, House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell are not stupid. They recognize that public opinion has moved on marriage equality and that re-enacting DOMA would be politically treacherous. While there are many vocal Trump supporters who still oppose LGBTQ rights, they are a shrinking minority of the country.
To overturn Obergefell, a state legislature would have to pass a new same-sex marriage ban. I grant that this is a more likely event. But any such ban would immediately be ruled unconstitutional by a Federal District Court, a ruling that would be summarily upheld by a Federal Court of Appeals. Once the state lost at those levels, it would have the opportunity to ask the Supreme Court to hear the case, but there’s no guarantee that the court would do so. The state would have to get four justices to vote in favor of hearing the case. The court is not, usually, in the business of overturning its recent decisions. Would Chief Justice John Roberts want to once again throw the court into the midst of a debate over marriage equality, knowing that the majority that ruled in favor of equality is still on the court? Roberts has at the front of his mind the court’s reputation and his legacy, and I doubt that he would want any part of this fight.
Of course, this analysis would change if a President Trump were able to appoint a replacement for Justice Kennedy, Justice Ginsburg, or Justice Breyer. But within this context, from where we stand today, an assault on marriage equality is not the greatest threat to the LGBTQ community.
This is not to say we have nothing to fear. Off the top of my head, I can think of at least five ways in which LGBTQ progress is in jeopardy:
- Gloucester County School Board v. G.G. is a case before the Supreme Court this term. The issue is whether under Title IX of the Civil Rights Act, schools must treat transgender students consistent with their gender identity. It is not at all clear that a majority of the court will vote in favor of the young trans man who was subjected to a discriminatory bathroom policy at his school. Relatedly, the Department of Education under Trump will likely change its interpretation of Title IX to no longer encompass gender identity-related discrimination.
- Losing both the presidency and the Senate means that it will be impossible to pass the Equality Act, which would extend federal civil rights protections to discrimination on the basis of sexual orientation or gender identity. And at the state level, we are unlikely to see progress on passing comprehensive non-discrimination laws in the majority of states that lack them. The burden of these impossibilities will fall on LGBTQ people living in red states, where it may be legal to be married, but it is also legal to be denied housing or employment because of who you are married to.
- The First Amendment Defense Act will likely be passed, which will expressly permit discrimination on the basis of sexual orientation or gender identity, so long as that discrimination is based on a religious objection.
- LGBTQ people may be less likely to be granted refugee or asylum status. The burden of this will fall on people of color.
- The Civil Rights Division of the Department of Justice will likely roll back its efforts to protect LGBTQ and HIV-positive people. Hate crimes perpetrated against LGBTQ people may go un-prosecuted. The burden of this will fall disproportionately on those in red states, where state attorneys general may be less willing to prosecute, and on people of color, especially trans women of color, who face disproportionate levels of violence.
Does the LGBTQ community have to circle the wagons? Yes, but that circle must be inclusive. Should the LGBTQ community be frightened by the rhetoric and the direction of our country? Yes, but we should not give in to overblown rhetoric of our own. Does the LGBTQ community have a long fight ahead of us to obtain and preserve our right to be fully equal members of our society? Yes, but those fights are about much more than marriage.