I won’t mince words: Each day, values that we hold dear — inclusion, tolerance and equality — are in danger like never before. Over the past two weeks, we’ve seen Americans ban together in unprecedented ways, from the Women’s March in Washington, D.C., to a small town in Alaska where 2 feet of snow fell as they marched, to hundreds of international cities around the world and most recently at airports everywhere. It has been inspiring.
Since Obergefell vs. Hodges, the anti-LGBT argument has been that the First Amendment was curtailed with the U.S. Supreme Court ruling that mandated marriage equality nationwide. The backlash has been real and in three years more than 250 anti-LGBT bills were introduced in 29 state legislatures — all based around religious freedoms. In addition to bills allowing business owners to deny services and public accommodations to LGBT people, bills were introduced in several states condoning discrimination in adoption settings against LGBT prospective adoptive and foster parents.
Earlier this week, a rumor circulated that President Trump was gearing up to unveil an anti-LGBT executive order that would make taxpayer funds available for discrimination against LGBT people in social services; allow federally funded adoption agencies to discriminate against gay parents; eliminate nondiscrimination protections in order to make it possible to fire federal employers and contractors based on their sexual orientation or gender identity; and allow federal employees to refuse to serve people based on the belief that marriage should be between a man and a woman, and that gender is an immutable characteristic set at birth, which would impact a broad range of federal benefits. The White House issued an official statement Tuesday that Trump would keep in place President Obama’s executive order banning federal contractors from anti-LGBT discrimination.
It’s unclear if any future executive orders could sanction LGBT discrimination but such an order could be just the beginning and foreshadow the First Amendment Defense Act (FADA), which Trump promised to implement. I am not a legal scholar but instead of trying to reverse settled Supreme Court precedent like trying to overturn Obergefell vs. Hodges, anti-LGBT activists would be better served by effectively nullifying our rights through a move like FADA; same result, less work. If I were them, I would dull the effects of Obergefell vs. Hodges through a combination of FADA and, on the Supreme Court side of things, by pointing to decisions like the recent Hobby Lobby case.
In Hobby Lobby, the Supreme Court was asked to strike a balance between a woman’s right to obtain contraception from an employer’s health-care plan and the company’s religious freedoms. In doing so, with an opinion penned by Justice Samuel Alito, the Supreme Court ruled that “closely held corporations” can decline to provide coverage for birth control in the health-care plans they offer to their female employees if the coverage would violate the owners’ religious beliefs. When the decision came down, a firestorm erupted between religious groups and LGBT-rights advocates; within days, Obama received a letter signed by more than 150 religious leaders asking him to “respect this vital element of religious freedom” by exempting religiously affiliated groups from adhering to the LGBT antidiscrimination protections contained in his executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
While the Human Rights Campaign, Lambda Legal and the ACLU have all pledged to sue the federal government immediately upon the passage or repeal of any bill aimed at discrimination, religious-freedom laws are difficult to fight in court because they are intentionally vague. Critics say that in recent years, anti-LGBTQ politicians have championed religiously based laws precisely for their ambiguity, not in spite of it. The law instructs judges to take religious rights more seriously, but doesn’t tell them how to rule. Anti-LGBT advocates can hide behind religiously based laws by saying that they are not discriminating; they are simply restoring religion’s place in society.
In the past, we had defenders of civil liberties in our government. In our previous reality, an attorney general would instantly denounce a discriminatory executive order or law like FADA as unconstitutional. This week, Trump fired the acting attorney general who said she would not defend his controversial ban on immigration from seven Muslim-majority countries. Our next attorney general will likely be Sen. Jeff Sessions who was grilled on several controversial issues during his confirmation hearings, most notably allegations of past racism and his suspected involvement in drafting Trump’s travel ban. This week, much of the Judiciary Committee’s examination focused on Sessions’ record on LGBT equality and more specifically, his sponsorship of the proposed FADA — again, which he defended.
Perhaps the most appalling of Sessions’ responses to questioning from Sen. Al Franken was how he turned the definition of discrimination on its head. He argued that FADA is necessary to “prohibit the federal government from taking discriminatory actions” but what he calls “discriminatory actions” are in fact longstanding federal civil-rights protections. If Sessions is confirmed as attorney general, and Trump does issue any anti-LGBT executive orders, such orders could very quickly turn into the full-blown FADA. That leaves us with a racist, homophobic attorney general and the lawyer who defended North Carolina’s discriminatory HB2 bill — John Gore, who was given a key role in the Department of Justice’s Civil Rights Division — as our two highest protectors of civil liberties in the United States.
We are a country founded on “checks and balances” and the Supreme Court is our last “check” to the complete “unbalance” of power we are witnessing. This week we will learn Trump’s choice for the vacancy on the Supreme Court. Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer, three of the judges who voted to legalize same-sex marriage, are 78, 80 and 83, respectively. We must not and cannot lose one of the pro-LGBT elder justices.
Needless to say, while we’ve been fearing this moment, no one could be fully prepared for how devastating the last two weeks would be for so many Americans. But we also shouldn’t underestimate the strength we have when we stand together. I implore everyone, not just the LGBT community, to remember that love does trump hate. Stay vigilant, continue to mobilize and with rule of law, empathy, love and kindness, we will prevail.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in New Jersey and Pennsylvania and specializes in LGBT law, family law, business law, real-estate law and civil rights. Her website is www.giampololaw.com, and she maintains a blog at www.phillygaylawyer.com. Reach out to Angela with your legal questions at 215-645-2415 or [email protected].