By Ann Rostow
Oh, Man
I always have to read my previous column before I start a new one, mainly in order to avoid repetition. And thus I was obliged to reread my glib pre-election column, which filled me with self-loathing. The jocular faux fear of Trump winning the election. The implied discussion of whether or not the lame duck senate might confirm Merrick Garland. The observation that Clinton’s new nominee won’t reach the Court in time to hear the transgender rights case.
Um, sorry folks. Clinton’s nominee isn’t going to reach the Court ever. Because Clinton isn’t going to reach the White House. Because we elected Donald Trump to be President of the United States. Even now, two weeks later, I wake up in a mist of dread. Something very bad has happened, but I’m still too sleepy to figure out what it is. Ah, yes. President-elect Donald Trump. I grasp desperately for something else to think about and try to sleep again, but it’s too late. I’ve remembered. I’m awake.
It feels callous to try and imagine the implications of a Trump presidency for the GLBT community. This is a man who campaigned on letting South Korea and Japan go nuclear and teaming up with Bashar Assad to “fight ISIS.” This is a man who mused about “renegotiating” the U.S. debt, as if it were a real estate contract rather than a series of treasury instruments denominated in the world’s reserve currency, with terms set at auction. Oh, and by the way, guess who owns most of America’s debt? Not China, but American families through their retirement accounts. Another huge chunk is owned by American corporations.
This is a man who might register some Americans by faith. I know, we all think the federal courts would put a stop to that, but as one Trumpite pointed out, the Supreme Court itself gave the green light to Japanese internment in what is considered one of the most disgraceful opinions in the Court’s history.
Let’s go there, shall we?
First, in 1943, the justices ruled against Gordon Hirabayshi, an American citizen who refused to submit to a curfew for citizens of Japanese descent. The following year, in Koramatsu v U.S., a 6–3 majority ruled that the government had the right to put Japanese Americans into internment camps.
In 2012 President Obama awarded Gordon Hirabayshi a posthumous Medal of Freedom. And a few months before his death, Justice Scalia told law students at Santa Clara University that the past court opinion he admired most was Justice Jackson’s dissent in Korematsu. “It was nice to know,” said Scalia, “that somebody on the Court realized that it was wrong.”
“A military order, however unconstitutional, is not apt to last longer than the military emergency,” wrote Justice Robert Jackson in the dissent that Scalia appreciated so much. “But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.”
“The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
It’s never been overturned, but Korematsu is (we thought) as discredited as Plessy v Ferguson or Dred Scott v Sandford. The notion that someone would actually pick up Jackson’s “loaded weapon” and cite this travesty as a legitimate precedent is as horrifying as anything we’ve come to expect from the Trump entourage. The approving reference came from Kansas Secretary of State Kris Kobach, an anti-immigration hysteric who is set to meet with Trump shortly.
We could talk about the dangers of Trump all day and all night and we’d still find ourselves like Ilsa and Rick, recognizing that our GLBT problems don’t amount to a hill of beans in this crazy world. And yet…this column is supposed to focus on the GLBT community, so here goes nothing.
Long Live the Justices
I confess that I have not spent much time considering the impact of a Trump presidency on our community civil rights goals. Even though two weeks have passed, I have not had the heart to focus on this cowardly new world. In fact, I find that I can only think about Trump and all that he represents for short periods of time. After that, something in me rises up and I have to dive into a book or a tall glass of somethin’ somethin’.
First, let’s take a deep breath and remember that the five-justice gay rights majority is still intact regardless of who Trump will chose to replace Justice Scalia. Indeed, it’s doubtful that anyone could be to Scalia’s right, although that said, our majority is getting on in years. Um, I can’t think about that too much. La la la la la (fingers in ears).
Second, while last column I was sad that a ninth justice would not be seated in time to consider the transgender rights case out of the Fourth Circuit that is scheduled for this current High Court session, this week it makes me happy. A 4–4 tie on the merits of the case (whether or not Title IX’s ban on sex discrimination in public schools implies a ban on trans discrimination) would leave our transgender rights victory at the lower court intact, although it would not create a legal precedent. But hey, it’s better than a 5–4 reversal, right? Better than a kick in the pants!
But as we’ve discussed in the past, this transgender case may be about something completely different, which brings us back to the problems with President Trump.
Government agencies interpret ambiguous laws based on the philosophical, and often political, bent of those in charge. It’s no surprise that the Obama Justice Department’s Equal Employment Opportunity Commission believes that federal law should be interpreted to include sexual orientation under the (Title VII) ban on sex discrimination in the workplace. It’s no surprise that the Obama Education Department’s Office of Civil Rights thinks Title IX means that transgender bias, like sex bias, is illegal in public schools and colleges.
Back in March, the 2–1 panel of the U.S. Court of Appeals for the Fourth Circuit wrote that they were obligated to follow Obama’s agency policy by ruling in favor of the transgender teen who wanted to use the boy’s facilities at his Virginia high school. But were they really bound by law to do that? And did it matter that the agency wrote a letter to the appellate panel explaining the administration’s views? In accepting review of this case, the Supreme Court has noted that it aims to answer this question about legal deference, a comment that makes some of us wonder if the justices even care about the transgender civil rights at issue.
Now, think about the incoming Trump administration. Do you believe Trump’s EEOC or Office of Civil Rights is going to push a GLBT-friendly interpretation of all these federal laws? Our legal activists have been operating as partners with the Justice Department and the rest of the administration for most of the last eight years, but all that’s over now. I don’t know how much antigay energy the Trump Justice Department will bring to bear on their policies, but they’re not going to be doing us any favors. Many GLBT activists have not fully appreciated the subtle, but extremely powerful, support of our constitutional lawyer of a president, but perhaps they’ll notice it after the fact when it will be profoundly missed.
Will the Center Hold?
I’ve been reading a few scare headlines in the wake of Trump’s victory. But no, the High Court is not going to roll back marriage rights, not even if we lose our gay rights majority a few years down the road. That’s nice, but it won’t stop Trump-led Republicans from passing wide-ranging antigay religious freedom laws that will keep our community’s litigators busy for years.
It’s not even Trump himself that we have to fear. He seems indifferent, or even mildly supportive of GLBT rights. But he has also announced his intent to roll back all of Obama’s executive orders on day one. In theory, that would include the executive order that requires federal contractors to protect their gay and trans workers against job bias, covering some 14 million GLBT workers in the process.
Even if Trump doesn’t personally hate us, large numbers of his groupies are itching to put us back in our place, so I doubt Trump would disappoint his allies by retaining Obama’s pro-GLBT contractor policy.
And yes, we still have our marriage majority, led by Anthony Kennedy. But Kennedy does not necessarily vote for transgender rights, nor is he a dependable ally in the fight against state-sanctioned religious bigotry. The man voted in favor of Hobby Lobby, albeit through a narrow concurring opinion of his own.
So what does this mean? Well, I’m not sure. I suppose we can count on Kennedy to stand with us if or when a case reaches the Court that asks whether or not Title VII’s ban on sex discrimination should cover sexual orientation bias as well. At some point next year, the full court of the Seventh Circuit will likely rule that it does, in a case that could continue to the Supreme Court. And earlier this month, a federal court in Pennsylvania ruled in favor of a gay man’s constructive discharge claim under Title VII (in a case that was filed on behalf of that man by the Obama administration).
On the other hand, what would Kennedy say to the antigay Colorado baker who has asked the Supreme Court to hear his appeal now that the Colorado Supreme Court has declined to listen to him? Jack Philips ran into his state’s anti-discrimination laws when he refused service to two gay men, and is now waiting to see if the U.S. Supreme Court will take an appeal. Already, the High Court has ducked a similar gay wedding case out of New Mexico, where a photographer got nailed for refusing to take a gay wedding gig. While we’re at it, florist Barronelle Stutzman has just argued her antigay wedding case before the highest court in Washington State.
Will one of these so-called “religious freedom” cases hit the High Court’s docket during the Trump years? And if so, will Kennedy rule as the champion of gay rights, or will he be the guy who lined up with Sam Alito in favor of religious freedom? How can we know?
Would You Rather?
What else is new? I’m not a fan of Francois Fillon, the likely center right challenger for the French presidency next year, although I suppose he’s better than Le Pen. This reminds me of the bizarre adjustments we are making, thanks to our surreal new political context: What a relief it is that, say, Mitt Romney might be Secretary of State. Mitt’s not so bad! How nice it is that Trump picked Reince Priebus rather than Steve Bannon for his Chief of Staff. We can live with Reince!
Finally, one of the most touching post-election essays I read came from Jesse Wegman writing in the New York Times. Wegman has a two-and-a-half-year-old daughter, Sami, who got a Hillary Clinton action figure last spring as a joke. The doll had long since been forgotten, and Sami had no way of knowing about the election, yet on Wednesday, November 9, she demanded that her mother find “Hilly Kinton,” as she called her, and after the doll was unearthed from the bottom of the toy chest, she stared at it for a long time and then insisted she take it to school.
Of course she knew about the election. I have no idea how or even what she knew or sensed, but just as we have read about a 100-year-old woman who was proud to vote for Clinton, so it is that Sami fills out the chronological timeline. The image of a toddler staring sadly at Hilly Kinton on the day after the election—a little girl who can’t even really speak her feelings—well, that would have brought tears to my eyes if they hadn’t already been there.
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