Walter Olson, a former Independent Gay Forum contributing author, shares his expectations about what’s ahead for LGBT issues in a Trump administration—and, tangentially, on the obtuseness of left-liberal LGBT political groups. [Update: a slightly revised and more accessible version was published Nov. 13 in the New York Post.] Excerpts:
• Freedom to marry is not going anywhere. The Supreme Court, even after two or three Trump appointments, is unlikely to reverse the outcomes of Windsor and Obergefell unless public opinion itself turns against those outcomes, which I do not believe it will.
• The plans of organized gay groups for sweeping new legislation are largely a dead letter. They will not admit that it was a mistake to have pulled support for the possibly enactable ENDA in favor of the overreaching Equality Act. (For reasons I have written about elsewhere, I myself favor neither of these bills.)
• Following the ACLU’s lead, organized LGBT groups will go on refusing to acknowledge any legitimate role whatsoever for religious or conscience exemptions in discrimination law and will decline to enter any negotiations to amend, refine, or otherwise improve measures like the so-called First Amendment Defense Act (FADA). That will in turn increase the danger that Congress will pass some version that is bad, unfair, or impractical.
• There will be at least one surprise that would ordinarily be seen as positive, such as the first appointment of a gay person to a Cabinet or Supreme Court post.
I agree.
More. Walter adds in the Post version:
I was not a Trump backer in last week’s election, but you don’t have to support him to see the pattern. Since he began testing the political waters in the 1980s he has repeatedly and visibly distanced himself from the rut much of the GOP was mired in on this set of issues.
In his acceptance speech in August, when GOP conventioneers heartily applauded his pledge to “do everything in my power to protect our LGBTQ citizens from the violence and oppression” of jihadist ideology, he departed from his script: “I have to say, as a Republican, it is so nice to hear you cheering for what I just said. Thank you.”
By now it’s part of his brand, and no one cares more about protecting his brand than Donald Trump. I suspect to do that he’ll prove quite prepared to rein in the unwise impulses of some of his appointees.
And on “60 Minutes” Sunday night, CBS News reports:
Trump said after the Supreme Court ruling last year it’s the law of the land — and that he is “fine” with that being the case.
“It’s irrelevant because it was already settled. It’s law,” he said. “It was settled in the Supreme Court. I mean it’s done … these cases have gone to the Supreme Court. They’ve been settled. And– I th– I’m– I’m fine with that.”
This is only a surprise to those who got their news from the mainstream and LGBT media during the campaign, or read LGBT political groups’ dishonest fundraising appeals.
30 Comments for “Trump and LGBT Issues: Beyond the Fear-Mongering”
posted by Jorge on
“Freedom to marry is not going anywhere.”
That’s pretty bold considering Trump pledge that Roe v. Wade would be overturned naturally. His reasoning is rational, but not what I’d call persuasive. After all, most Americans support abortion rights, too.
zzzzz-I agree-zzzzz-I agree-zzzzz-I agree-zzzzz
“There will be less federal funding of pro-LGBT advocacy, both domestic and foreign.”
:O
(Considering Trump’s bias against foreign intervention I’m afraid I have to agree.)
but over his career in politics he has repeatedly and visibly sought to distance himself from the rut in which earlier GOP candidates have been mired on this set of issues. That is part of his brand, and I suspect that to protect that brand he will move if necessary to rein in the unwise instincts of some of his appointees.
zzzzz-I agree.
posted by Tom Scharbach on
A lot of speculation is floating around, and I suppose Olson has as good a chance of being right as anyone else.
I do want to comment on two things:
posted by Lori Heine on
And you voted for Bernie Sanders in the primary. Right? Right? Right?
Moreover, you stood with Jill Stein against Hillary Clinton in the general election? Didn’t you?
If not, then get busy and work for better Democratic candidates next time.
posted by Jorge on
The ACLU is not primarily a lobbying organization and does not “enter negotiations” with lawmakers. . . . The ACLU does comment on proposed legislation from a constitutional standpoint. . . . The ACLU does have a small lobbying office in Washington, and a small staffed communications arm which is charged with educating the public on key civil liberties issues, but lobbying and education are secondary to the ACLU’s primary mission, which is to enforce civil liberties in the courts.
This gets to a problem the American Civil Liberties Union has had for more than a decade, which I am sure I have pointed out on this site: the ACLU publicly and prominently takes absolutist positions on political controversies.
It doesn’t matter whether this is a problem of acting out of political fervor and poor faith (which I am certain of) or a matter of poor public relations. It has done literally nothing in the realms of political pontificating of which it is so fond to portray any different perception, or even to acknowledge that there is a perception of it being ideological and hypocritical.
I would contrast this with the Southern Poverty Law Center, which some on the right also find rather predictably quick to jump the gun on its conclusions that rightist organizations are hate groups or borderline. Its public statements make a point to number-crunch, state definitions, or provide other objective criteria that would be easy to impeach its objectivity with. I’ve not seen it done.
posted by Jorge on
Also, this is the second time I could not understand what you meant in describing the case history before and after the RFRA. Let me try to portray what I think you’re saying:
From 1963 on, Supreme Court precedent would invalidate a federal law due to violating the free exercise clause of the First Amendment if
the law placed a strong burden on the free exercise of a person’s religion, unless both of the following were true: the law served a strong government purpose, and it did so while “strong burdening” the free exercise of a person’s religion in the least restrictive means possible.
The Rehnquist Court then decided that any federal law of “general application” substantially burdening the free exercise of religion was unconstitutional, with no exception.
Congress passed the RFRA to say both state and federal governments can constitutionally write laws substantially burdening religion so long as they serve a strong government purpose and use the least restrictive means. The Supreme Court found this law constitutional as applied to the federal government.
I don’t understand what you’re saying.
posted by Lori Heine on
My former fiance (from 32 years ago) just won election as Maricopa County Treasurer.
And he’s a Republican!
They’re coming to take us away…ha-ha…
posted by Jorge on
I’ll be praying for you and “ex-straight” women everywhere.
posted by Lori Heine on
🙂
posted by Tom Scharbach on
This gets to a problem the American Civil Liberties Union has had for more than a decade, which I am sure I have pointed out on this site: the ACLU publicly and prominently takes absolutist positions on political controversies.
The ACLU takes positions on whether or not actual or proposed laws are constitutional. That is a legal standard, not a political standard. The standard involves drawing lines between what is, and what is not, acceptable under the Constitution. In some cases, the lines are “bright” lines, that is, absolutely clear because the courts have drawn the constitutional line, and the question is whether or not the law or proposed law steps over the line already drawn. In many/most cases, the lines are not “bright” lines because the courts have not yet drawn the lines clearly with respect to a particular fact situation, and the ACLU and other groups that involve themselves in taking positions about the constitutionality of laws find themselves in disagreement. But, whichever is the case, the ACLU’s mission is to take positions about constitutionality in defense of the civil liberties of individuals.
The ACLU does not involve itself with politics in a conventional sense — commenting about the political wisdom of an actual or proposed law, or proposing/negotiating political compromises. Under our constitutional system, we elect lawmakers to do that job. The ACLU leaves the politics to elected representatives; it is not a legislative body or a lobbying organization.
It doesn’t matter whether this is a problem of acting out of political fervor and poor faith (which I am certain of) or a matter of poor public relations.
You are right about that, because none of those factors are relevant to what the ACLU does. To the extent that the ACLU is “absolutist”, it is an inevitable consequence of the work it does. The ACLU is despised by many because the constitutional positions it takes, and the cases it brings to the courts so that the courts draw constitutional lines, often fly in the face of the conventional wisdom and public passions of the day, and the ACLU often finds itself on the side of unsavory/hated individuals and political positions in order to protect civil liberties. That is inevitable.
Because that is inevitable, the ACLU has been unpopular since the beginning for that reason. I hope that it always remains so.
posted by Jorge on
To the extent that the ACLU is “absolutist”, it is an inevitable consequence of the work it does.
No it’s not.
You say the ACLU is not about negotiating compromises and only about commenting on proposed legislation. It would never get involved in such political topics as condemning fearmongering or trying to set a philosophical direction for policy to follow.
That being the case, there should be nothing wrong with the ACLU giving an advisory opinion on where it is drawing its bright line and what falls short of it. It doesn’t.
Because that is inevitable, the ACLU has been unpopular since the beginning for that reason. I hope that it always remains so.
No. I would trace its unpopularity squarely to its actions during the Bush administration following the appointment of Anthony Romero as its Executive Director.
posted by Tom Scharbach on
Tom: Because that is inevitable, the ACLU has been unpopular since the beginning for that reason. I hope that it always remains so.
Jorge: No. I would trace its unpopularity squarely to its actions during the Bush administration following the appointment of Anthony Romero as its Executive Director.
Oh, bullshit, Jorge. Learn your history.
The ACLU formed to protect freedom of speech, in particular to challenge government censorship of anti-war speech during World War I, and subsequently focused on government attempts to restrain freedom of speech in the labor movement. During that period, the ACLU was lambasted by conservative groups such as the American Legion, the National Civic Federation, and Industrial Defense Association and the Allied Patriotic Societies.
The ACLU was founded in 1920, and has a long history. It has been the subject of harsh criticism from all sides of the political spectrum during its long history.
Learn something about the history of the ACLU and come back and try to tell me with a straight face that “ I would trace its unpopularity squarely to its actions during the Bush administration following the appointment of Anthony Romero as its Executive Director.”
Shit, I’m only 70 years old (the ACLU is over a hundred years old) and even I know better than that …
posted by Jorge on
Oh, bullshit, Jorge. Learn your history.
You are missing the trees for the forest.
I realize I haven’t lived through nearly as much history as you have, but what I have lived through, I have lived through. The change was unmistakable when it happened.
posted by Tom Scharbach on
You are missing the trees for the forest.
It’s the other way around, Jorge. You are so focused on the last tree that you are missing the forest.
I realize I haven’t lived through nearly as much history as you have, but what I have lived through, I have lived through. The change was unmistakable when it happened.
All you are describing is the last iteration of “Whoever’s foot is getting stomped by the ACLU’s defense of civil liberties, howls loud.”
Civil liberties issues change as the identify/purpose of groups attempting to suppress civil liberties change. You and yours are just the latest iteration.
Is there any material difference between (1) those who claimed that the ACLU, by defending the right to anti-war speech against government censorship during World War I, hampered the war effort and endangered the lives of American soldiers and sailors, and (2) those who claimed that the ACLU, by defending American citizens against internship and loss of government due process during World War II, hampered the war effort and endangered the lives of American civilians and servicemen, and (3) those who now claim that the ACLU, by defending the civil rights of citizens against government overreach in the “9/11 Laws”, is hampering the “War on Terror” and endangering American civilians and service personnel?
Not really.
posted by TJ on
Again. Trump pledged to appoint justices on the Supreme Court who opposed equal protection, privacy rights, and marriage equality. It ain’t just the one appointment.
Conservative gays have – at different times – chastised centrist and liberal gays for not backing ENDA and also only backing ENDA.
The 1970s gay rights bill would have added sexual orientation, not gender, to civil rights code. It didn’t go anywhere.
So, the strategy was changed (at some point) to a bill that only dealt with employment.
In 1996, it was one vote short of passing. A Colorado Congressman switched his vote.
I can totally get behind being strategic and going slow. Its a reality of Congressional politics….laws….and sausages…..
However, nothing is stopping Congress from passing a bill that only deals with sexual orientation or only deals with housing and employment.
The HRC or the LCR don’t control Congress. Certain mega powerful lobbyist can do that…but……if you think that the HRC has the power to kill or breath life into gay rights bills, you are diving into a bit of fantasy .
posted by Houndentenor on
I guess we’re all hoping that Trump was lying and didn’t really mean the things he said like overturning Obergefell. Seems like he’s rolling back the pledge to repeal Obamacare too? Who knows what he’s going to do. What a mess.
posted by Jorge on
Trump’s interview with 60 Minutes as it aired today has it saying he wants the repeal and replacement of particular Obamacare provisions to be simultaneous.
First of all, “repeal and replace” is not a new position, either for Trump or the Republican party. Second, neither are some of the particular provisions he wants to keep, notably the continued coverage of pre-existing conditions.
With respect to overturning Obergefell, in my view, Trump’s words simply do not match reality.
Mr. Trump already made a public list of prospective nominees that the conventional wisdom says is a list of conservative judges. Has he modified it?
He has made it clear that he believes the result of his judicial nominations will be the overturning of Roe v. Wade, and the return of abortion law to a state matter.
When asked about gay marriage, he has stated that will not be overturned because it has become such a fact of life.
Do these predictions make more sense to anyone than the reverse–Obergefell overturned and Roe upheld?
How many more times has the meaning of Roe been expounded on by the High Court than Obergefell has? In how many legal discussions has Obergefell been called a “super-precedent”, as Roe has in John Roberts’s confirmation hearing? How many judges and elected officials have been removed or jailed for misconduct or contempt of court over abortion in the 43 years since it was made legal in all states?
Did the High Court extend its maxim “The Constitution is not a suicide pact” in Citizen’s United and Miranda, or am I dreaming?
Even if it had, how much more of our nation’s economy and society are dependent on abortion being legal compared to gay marriage being legal? That Trump actually believes the reverse means things I’d rather not say, as I don’t want too many pro-choice people to pick up on it.
posted by Jim R. on
Do these predictions make more sense to anyone than the reverse–Obergefell overturned and Roe upheld?
The difference is political. The social movement over abortion, and the emotional force that abortion provokes among opponents, dwarfs the lingering opposition on the right to same-sex marriage. So you are right, it’s not logical or consistent, it’s just political.
The moral issues over abortion — the taking of life, after all — just do not reach the same level of intensity as arguments over the morality of recognizing same-sex marriage.
posted by JohnInCA on
I’ve been trying to limit my amount of political reading the last week because people are pretty stupid right now, but so far I’ve already heard the following:
President-Elect Trump walking back his wall, it will be a fence in “some places” (he previously promised a wall along all 2000 miles).
President-Elect Trump’s website removing the “muslim ban” (he talked about it a lot, and suddenly poof).
President-Elect Trump saying that they would repeal parts of the ACA (he promised the whole thing)
President-Elect Trump saying that there would be no deportation force, but that he would simultateously deport 2 million folks immediately (he previously had a hardline stance of a deportation force and getting all 13+ million folks out).
And of course, Paul Ryan stating that congress would pay the wall (Trump repeatedly promised that Mexico would pay for the wall).
Now, I haven’t looked into any of those too much, so I’m sure there’s some nuance. But so far he’s walked back multiple promises before he even takes office. So who knows.
posted by Tom Scharbach on
Jorge re Sherbert/Yoder, RFRA, et al: I don’t understand what you’re saying.
You clearly don’t, and it is probably my fault that you don’t because I’ve been “shorthanding” on the subject, assuming a legal/constitutional background that you might not possess.
I prepared a more complete explanation of the cases and laws I’ve been referring to, but it is too long to post on IGF. So Instead of posting, I converted the post to a pdf file titled (“FREE EXERCISE AND LAWS OF GENERAL APPLICATION“) and posted it for you. You should feel free to review it if you wish. I hope that it will be helpful if you decide to review it.
For your convenience, the summary timeline from that document follows
SUMMARY TIMELINE
1879 – 1963
1963 – 1990
1990 – 1993
1993 to 1997
1997 to PRESENT
posted by Tom Scharbach on
Formatting Note: The All Bold paragraph is a formatting error. Properly formatted, the paragraph reads:
posted by Jorge on
Okay thank you. I put the link in my “Regnerus is an Academic Whore” file so I’ll look at it.
posted by Tom Scharbach on
“It’s irrelevant because it was already settled. It’s law,” he said. “It was settled in the Supreme Court. I mean it’s done … these cases have gone to the Supreme Court. They’ve been settled. And – I th – I’m – I’m fine with that.”
This is only a surprise to those who got their news from the mainstream and LGBT media during the campaign, or read LGBT political groups’ dishonest fundraising appeals.
It is not a surprise to those who tracked Trump’s own statements during the course of the campaign. Trump has said on numerous occassions that Obergefell is the law of the land and that he has no interest in fighting it through a constitutional amendment or otherwise.
But that’s half the story. Trump has also said many times that he is willing to appoint Justices ready, willing and able to overturn Obergefell. Two recent examples from among the many:
His statement on 60 Minutes is nothing new, and nothing in his answer on 60 Minutes changes anything.
A bit of advice: Watch what Trump does, not what he says. He will make his first Supreme Court appointment within months. Trump can’t do beans, one way or the other, about Obergefell. The Justices he appoints can.
posted by Tom Scharbach on
Just to be clear, the following is a Stephen quote:
“It’s irrelevant because it was already settled. It’s law,” he said. “It was settled in the Supreme Court. I mean it’s done … these cases have gone to the Supreme Court. They’ve been settled. And – I th – I’m – I’m fine with that.”
This is only a surprise to those who got their news from the mainstream and LGBT media during the campaign, or read LGBT political groups’ dishonest fundraising appeals.
The balance is mine.
Sorry about the formatting.
posted by TJ on
I got my news from places other then the “LGBT left”.
Trump – as a candidate – said that he liked justices like the late justice Scalia. This ain’t spin.
Justice Scalia opposed the majority in Romer v Evans, Lawrence v Texas and the marriage equality decisions. This ain’t spin.
Its nice to be optimistic. Trump will have chance to make important decisions .
However, gay people and allies have a right to be concerned when president-elect holds up justice Scalia as some who he would like to see running the bench.
posted by Tom Scharbach on
A quiet reminder: The President-Elect’s many statements about Justice Scalia are obviously relevant, but we don’t have to do a lot of speculation.
President-Elect Trump has release a list of 21 judges from which he has pledged to select the next Justice.
The most ultra-conservative judges in the country, judges who, like Justice Scalia was, are staunch opponents of the Griswold case line that underpins Roe and Lawrenceare on that list.
A handful of “libertarian-leaning” judges are also on that list, but given the pressures that are going to be placed on the President-Elect by anti-abortion forces in the Republican base, I will be very surprised if President-Elect Trump selects any of them for future nominations. The anti-abortion forces in the Republican base will not tolerate nomination of another Justice in the mold of Justice Kennedy or Sandra Day O’Connor.
A second quiet reminder: As of the moment that the President-Elect’s nominee is approved by the Senate, President-Elect Trump will have no further influence over that Justice, and play no further role in shaping the decisions of that Justice with respect to cases that come before the Court on abortion or LGBT rights or any other matter. That will also be true of any further Justices appointed by President-Elect Trump. The President’s role is to nominate, the Senate’s to approve or reject, but one the horse is out of the barn, the horse is out of the barn.
posted by Jorge on
…The President’s role is to nominate, the Senate’s to approve or reject, but one the horse is out of the barn, the horse is out of the barn.
To paraphrase Thomas Jefferson (and I am going by memory), is there anyone Trump can nominate who can resist the honeyed words of John Roberts?
posted by Tom Scharbach on
To paraphrase Thomas Jefferson (and I am going by memory), is there anyone Trump can nominate who can resist the honeyed words of John Roberts?
If the current Associates are any indication, it looks like just about anybody Trump will easily do so. The Chief seems to be dragged along by the others, unwillingly, a majority of one, most of the time.
posted by Jorge on
😀
I didn’t realize there was a difference!
posted by Doug on
How would this work for you Stephen. Hope you are celibate.
http://www.mirror.co.uk/news/world-news/donald-trumps-potential-nominee-supreme-9274142
posted by TJ on
And we may also get a high ranking white supremacist in the Federal government……