When either Hillary Clinton or Donald Trump is sworn as the next president, Supreme Court Justices Stephen Breyer will be 78, Anthony Kennedy will be 80, and Ruth Bader Ginsburg will be 83. They are three of the five justices who in 2013 granted all federal rights to married gay couples, and then ruled for nationwide marriage equality two years later. The two other justices who joined them in these rulings were both appointed to the Supreme Court by President Obama. Obama’s two terms propelled LGBT rights dramatically forward. This election will determine whether we continue this progress, or reverse it.
Supreme Court decisions, whether good or bad, can be reversed. The Bowers v. Hardwick ruling of 1986, an outrageous ruling that affirmed the right of Georgia to arrest gay people for having consensual sex, was overturned in 2003 when the court deemed state anti-sodomy laws unconstitutional. Could marriage equality be reversed with new Supreme Court appointments from Trump? As Sarah Palin would say, you betcha!
Trump has told Fox News that he would “strongly consider” appointing judges to overturn marriage equality. He told a Republican audience in Iowa that no matter how they felt about him as a person, they would end up supporting him: “You have to vote for me. You know why? Supreme Court judges.” He has repeatedly signaled to conservatives that a vote for him will be a vote for a court more hostile to marriage equality, as well as abortion rights.
Trump has pledged to conservatives that he will nominate justices in the mold of Antonin Scalia, lauding the late jurist’s “brilliance” and “legacy of protecting Americans’ most cherished freedoms.” But to LGBT Americans, Scalia has a legacy of never missing an opportunity to deny our civil rights, and denigrate our humanity.
Scalia was responsible for the most anti-gay invective ever heard from our highest court. In his scathing dissent in the 1996 Romer v. Evans opinion, which ruled that Colorado could not have a blanket ban on anti-discrimination protections for gays, he compared gay people to murderers, polygamists, and animal abusers. At an appearance at Princeton University in 2012, Scalia rhetorically asked, “If we cannot have moral feelings against homosexuality, can we have it against murder?”
Trump’s base of Christian conservatives are energized over the prospect of more judges like Scalia on the Supreme Court. They are also excited by Trump’s running mate, Governor Mike Pence of Indiana.
Pence has an extensive history of political hatred toward gays. Besides signing Indiana’s anti-LGBT “religious liberty” law, Pence signed a bill in 2013 that reaffirmed jail time and fines for gay couples who applied for a marriage license, and for Indiana clergy who “solemnize” a marriage of two men or two women. As a congressman, Pence proposed diverting funding from HIV/AIDS prevention, to helping gays undergo “conversion therapy.”
Last spring, candidate Trump did have one brief moment of enlightenment around LGBT issues. After the governor of North Carolina signed an egregious bill banning LGBT civil rights protections, and further barring transgender people from using the bathroom corresponding to their gender identity, Trump voiced opposition to the legislation. He suggested that North Carolina should just “leave it the way it is,” and that people should have the right to use whichever bathroom “they feel appropriate.”
But in typical Trump fashion, this position was short-lived. In less than 24 hours, he was agreeing with Fox News’ Sean Hannity that “local communities and states should make their own decision” whether to discriminate against LGBT Americans. As Jordan Weissman of Slate online magazine puts it, Trump tends not to have policy positions; he has “policy moods” that change easily.
Trump knows he’s not going to outright win the LGBT vote. His goal is to shave enough points off Hillary’s LGBT majority to propel him to victory in key states, and into the White House. To do this, he lies. He claims, “I’m much better for the gays” than Hillary Clinton, who vocally supports full civil rights and equality for all LGBT individuals and families.
Donald Trump hopes a significant minority of LGBT voters will overlook his opposition to federal marriage equality, and his support for the right of state and local governments to enshrine discrimination against us into law, all because he uses the words “radical Islamic terrorism.” But in the United States, it is not shariah law that threatens us. It is a Trump presidency.