Working Towards Equality: 5 Years After Obergefell
On June 26th, 2015, the Supreme Court decided the case Obergefell v. Hodges. This case was brought by petitioners in Ohio, Michigan, Kentucky, and Tennessee, who were seeking to challenge their states’ bans on same-sex marriage. In a 5–4 ruling, the court declared that bans on same-sex marriage were unconstitutional. Chief Justice Kennedy wrote, in the majority opinion, that “this analysis compels the conclusion that same-sex couples may exercise the right to marry.”
The Obergefell decision was an incredibly important step towards equality. It affirmed that same-sex couples have the right to marry, making it clear that LGBTQ+ people have rights under the 14th Amendment. However, contrary to the belief of many, perfect equality for LGBTQ+ people was not achieved with this decision. There were — and still are — many steps that had yet to be taken. Obergefell was significant not because it was the end of the road, but because it signified an acknowledgment that LGBTQ+ people were equal in the eyes of the law, and that we would be progressing further down the road towards being equal in the eyes of society. On June 26th, 2015, there was reason for optimism. Today — June 26th, 2020, five years to the day after the Obergefell ruling — there continues to be reason for optimism, but there is also reason for worry. That reason is the harmful policies of the Trump Administration.
Every now and then, Donald Trump claims to be an ally of the LGBTQ+ community. But even the slightest investigation into his policies while in office reveals that these claims, like most of his claims, are empty and false. Trump has not been an ally to LGBTQ+ people — rather, he has been an ally to bigots, homophobes, and transphobes.
Before the campaign even begun, Trump was displaying anti-gay policies, by naming Mike Pence, one of the most openly homophobic politicians in the country, as his running mate. As a congressman, Pence co-sponsored a Constitutional amendment that would have banned same-sex marriage nationwide, voted against the Employment Non-Discrimination Act, and voted against the repeal of “Don’t Ask, Don’t Tell”. As governor of Indiana, Pence supported a bill that would add an amendment to Indiana’s constitution to ban same-sex marriage. Trump’s selection of Pence as vice-presidential nominee made it clear that his administration was not pro-LGBTQ+ rights. Trump himself was well aware of Pence’s homophobic tendencies — at an event in 2017, Trump joked that Pence wanted to “hang them all”, a comment with such callous indifference to his vice-president’s hatred for LGBTQ+ Americans that it would be a scandal in any other administration. Other presidents have been against LGBTQ+ equality, but none have ever joked about hanging gay Americans.
But it’s not just disgusting “jokes” and looking the other way on homophobia from others. No, the Trump administration has pursued policies that actively harm LGBTQ+ Americans. The Department of Health and Human Services under Trump has proposed a change to the Affordable Care Act that would exclude protections based on sexual orientation and gender identity, and created a new office dedicated to defending physicians who refuse care, including to LGBTQ+ people. Trump’s Department of Justice ceased enforcing anti-discrimination laws that protected transgender and nonbinary employees from workplace discrimination. Trump’s Department of Housing and Urban Development proposed a rule allowing homeless shelters to discriminate against transgender and nonbinary individuals. Trump’s administration has also rolled back or entirely eliminated many Obama-Biden policies that protected LGBTQ+ people, such as guidance instructing schools to treat transgender students consistently with their gender identity and policies to house transgender prisoners in prisons matching their gender identity. Within hours of Trump’s inauguration, pages with information about LGBTQ+ rights and resources were removed from the White House website and other government websites.
Just a few weeks ago, another LGBTQ+ rights case was decided in the Supreme Court. Altitude Express v. Zarda was a case in which a gay skydiving instructor alleged being fired for his sexual orientation. This landmark case shows both how far we’ve come and how far we still must go. The positives first: In a 6–3 decision (authored by Trump appointee Neil Gorsuch!), the Court declared that firing someone because of sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964. This decision unequivocally stated that firing someone for being gay or transgender is illegal, and is already widely regarded as one of the most significant victories for civil rights in recent history. Now onto the negatives: the Trump Administration fought hard against this decision. They filed an amicus curiae brief on behalf of the petitioners, arguing that the firing of Zarda should be legal. A disappointing but expected stance from Trump, seeing as how the 2020 Republican platform (the exact same as the 2016 Republican platform) condemns the Obergefell decision as “lawless” and vows to choose judges who would overturn it.
Can we, the American people, afford to give Donald Trump a second term? If you are a member of the LGBTQ+ community, or if you have friends or family in this community, or if you are simply a human being with compassion who doesn’t like seeing people discriminated against for who they are or who they love, think for a moment about what another term of Trump could do. In the last few years, Trump and Pence have moved to erase years of progress towards equality. From bans on serving in the military to restrictions on adoption, Trump seems determined to prevent LGBTQ+ people from doing anything.
Contrast this with Joe Biden, who famously came out in support of same-sex marriage in 2012, before even President Obama did. Biden has a 7-pillar plan to advance LGBTQ+ equality by protecting LGBTQ+ people from discrimination, supporting LGBTQ+ youth, protecting LGBTQ+ individuals from violence and working to end the epidemic of violence against the transgender community (particularly transgender women of color), expanding access to high-quality health care for LGBTQ+ individuals, ensuring fair treatment of LGBTQ+ individuals in the criminal justice system, collecting data necessary to fully support the LGBTQ+ community, and advancing global LGBTQ+ rights and development. Read the details of this policy at https://joebiden.com/lgbtq-policy/.
Today, as we commemorate the 5-year anniversary of the landmark Obergefell decision, we must realize that the 2020 election is a choice between polar opposites. On one hand, we have Donald Trump, whose official party platform states that “Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society.” On the other hand, we have Joe Biden, who said in 2012: “Who do you love? Who do you love? And will you be loyal to the person you love? And that’s what people are finding out is what all marriages, at their root, are about.” If you stand against homophobia, transphobia, and anti-LGBTQ+ discrimination, the choice in November couldn’t be clearer.
Originally published at https://bidenwarroom.org on June 26, 2020.
