On Tuesday, July 19, the House chamber erupted in applause after Speaker Nancy Pelosi gavelled in the final vote tally on the Respect for Marriage Act. In an extremely rare act of bipartisanship, 47 Republicans voted in favor of codifying same-sex marriage.
It was the only good thing that has happened for LGBTQ people in a very long time and while the moment was, on a certain level, exhilarating, it was in many respects performative: the bill will never pass the Senate.
Mere days before the House vote, Texas Senator and likely 2024 presidential candidate Ted Cruz said that the Supreme Court was “clearly wrong” and “overreaching” in its decision to legalize same-sex marriage.
The Texas Republican’s remarks were in response to Justice Clarence Thomas asserting in the decision to overturn Roe v. Wade that the Supreme Court “should reconsider” past rulings, including Obergefell v. Hodges, which legalized gay marriage nationwide.
“Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history,” Cruz said on his July 16 podcast, “Verdict with Ted Cruz,” in which he discussed the “vulnerability of the Obergefell ruling.”
Cruz said, “marriage was always an issue that was left to the states. We saw states before Obergefell — some states were moving to allow gay marriage, other states were moving to allow civil partnerships. There were different standards that the states were adopting.”
He added, “the way the Constitution set up for you to advance that position is, convince your fellow citizens and that if you succeeded in convincing your fellow citizens, then your state would change the laws to reflect those views. In Obergefell, the court said, ‘no, we know better than you guys do, and now every state must, must sanction and permit gay marriage.’”
Cruz said, “I think that decision was clearly wrong when it was decided. It was the court overreaching.”
Cruz matters because Texas has led on all the most repressive anti-LGBTQ laws. In addition, the Texas anti-abortion law, the most stringent in the country with no exceptions for rape or incest, led directly to the Supreme Court ruling that reversed Roe.
As I reported earlier this month, Texas Attorney General Ken Paxton would enforce sodomy laws should Lawrence v. Texas be overturned. And the Texas GOP platform, codified last month, declared homosexuality “abnormal” and calls for end to same-sex marriage.
The 40-page Texas GOP party platform contains a series of anti-LGBTQ policies including an end to same-sex marriage and nullification of the Obergefell v. Hodges U.S. Supreme Court ruling, support for conversion therapy, bans on gender-affirming care for trans youth and total restriction of any sex education that includes sexual orientation or gender identity.
But if that feels extreme, it actually mirrors the national Republican party platform.
The fact is, it’s a really bad time to be queer in America. It’s also a really bad time to be trans or nonbinary. The Republican party as a whole is virulently anti-LGBTQ. It’s not new news – it’s just that Donald Trump codified anti-LGBTQ attitudes throughout his presidency and Trumpism has subsumed the GOP.
As I have reported for PGN and other venues, the Biden administration has been well-meaning toward LGBTQ people. Within his first month, President Biden issued an executive order on “preventing and combating discrimination on the basis of gender identity or sexual orientation.” That order was an attempt to implement the Supreme Court’s 2020 decision in Bostock v. Clayton County.
In that ruling, that the Court vitiated Title VII’s prohibition against employment discrimination on the basis of sex by definition bars employment discrimination on the basis of sexual orientation and gender identity. Biden’s executive order directed federal agencies to “fully implement” laws that prohibit sex discrimination in accord with this interpretation of Bostock.
Periodically President Biden and Vice President Harris have made other pro-LGBTQ announcements, as they did for Pride Month. And both Biden and Harris tweet supportively to LGBTQ people from their respective accounts.
But if we are honest about both the administration and the Democratic party, LGBTQ people have been failed badly, all while the GOP has ramped up their anti-LGBTQ rhetoric, and with it, in the states and the courts, actions that put the very lives of queer and trans people at risk.
Conventional political wisdom asserts that criticizing Democrats during a midterm battle is working for the GOP. It’s not––it’s working for the people––the most vulnerable people in America. If Biden, Harris and the Democrats can’t stand up to valid intra-party criticisms, how will they stand up to the GOP?
The lack of attention to the attacks on queer and trans people by HHS and the education department in particular is not without consequence. On July 15, a Trump-appointed federal judge temporarily blocked the Biden administration from enforcing directives that extended civil rights protections to LGBTQ students and workers.
The lawsuit was filed by Tennessee Attorney General Herbert H. Slatery III and joined by 19 other states, and contended that the government was infringing on states’ rights to regulate their workplaces and schools. In point of fact, as the Biden administration argued, they hadn’t actually implemented these regulations yet.
These fights for the civil rights and liberties of LGBTQ people are ongoing and dangerous. And nothing, right now, is standing in their way.