by Lisa Kenn
Keen News Service
(This report was previously published by the Keen News Service, which covers national political and legal news for LGBT news media organizations around the country. It is reprinted here with permission.)
Scanning back over the past decade of stories impacting the LGBT community, the classics of Charles Dickens come to mind. Like in the infamous passage from “A Tale of Two Cities,” the past decade for LGBT people carried “the best of times” and the worst. It was an “age of wisdom” and of foolishness; “an epoch of belief” and incredulity; “a season of light” and then darkness. It was “the spring of hope,” followed by the “winter of despair.”
The question that looms over the start of the new decade is whether hope and light, wisdom and belief — in American democracy and in the hearts of American people — will prevail.
In a letter to U.S. House Speaker Nancy Pelosi December 17, 2019, President Donald Trump warned that the House impeachment proceedings against him constituted “open war” and an “attempted coup.” He likened the investigation into his request that Ukraine announce an inquiry of the then-top-polling Democratic presidential candidate for 2020 to the Salem Witch Trials. In a widely viewed on-the-spot interview following a Trump campaign rally in Pennsylvania, a supporter of the president speculated that, if the Congress removed Trump from office, Trump supporters would react with “physical violence in this country that we haven’t seen since the first Civil War.”
This was not one aberrant view. In August, an ABC News survey documented 36 incidents of violence in which the perpetrator said he was inspired to act because of Trump — seven by people who opposed Trump, 29 by people who supported him.
“The perpetrators and suspects identified in the 36 cases are mostly white men, … while the victims largely represent an array of minority groups — African Americans, Latinos, Muslims and gay men,” said ABC.
“ABC News could not find a single criminal case filed in federal or state court where an act of violence or threat was made in the name of President Barack Obama or President George W. Bush,” said the network.
THE PRESIDENTIAL BEST AND WORST: That is the contrast that the LGBT community has had to grapple with during this decade — the contrast of two presidents and the very different environments for LGBT people during their tenures.
|Trump and Obama: presidential best and worst
During the administration of President Obama, the federal Defense of Marriage Act was eradicated, the long-sought right to marriage equality was realized, Congress repealed the ban on gays in the military and the Obama administration said transgender people could serve, too. LGBT people working for the federal government could file employment discrimination claims under Title VII of the Civil Rights Act of 1964. Those working for companies that contracted with the federal government also had protection under a presidential executive order. And, President Obama made clear, through actions and words, that he would stand up for the civil rights of LGBT people.
During the Trump administration, many of those gains were lost. President Trump announced a ban on transgender service members within months of taking office. He signed an executive order reversing Obama-era protections for LGBT federal employees and contractor employees. Under President Trump, the Department of Education withdrew an advice letter to schools that had suggested transgender students were protected by Title IX. The Department of Health and Human Services announced it would no longer interpret the Affordable Care Act to prohibit discrimination based on gender identity and it removed questions from at least two federal surveys that would have identified data specific to LGBT people. The Department of Housing and Urban Development canceled a survey to determine the prevalence of homelessness among LGBT people and removed from its website a link that instructed emergency shelters on sensitivity to transgender people seeking help.
Beyond this large contrast between the administrations of Obama and Trump, there were these other major moments of light and darkness in the closing decade.
JUSTICE ANTHONY KENNEDY RETIRED: Kennedy did not have the best LGBT voting record on the U.S. Supreme Court (that honor goes to Ruth Bader Ginsburg), but he did provide the crucial fifth vote for and led that majority in writing eloquently the most historic and significant decisions in support of equal rights for LGBT people. In the past decade alone, he led the decision (U.S. v. Windsor in 2013) that struck down the Defense of Marriage Act (DOMA) that had denied recognition of marriage licenses for same-sex couples for any federal purpose. He led the majority again in writing Obergefell v. Hodges (in 2015), striking down state bans against recognizing or issuing marriage licenses to same-sex couples.
But the season of light was followed by the darkness. In 2017, he voted with a majority, in Trinity Lutheran v. Comer, to say that church schools should receive state grants the same as non-church schools. Lambda Legal said the ruling amounted to state support for discrimination based on sexual orientation. Then, in 2018, he led a majority in Masterpiece Cakeshop v. Colorado that enabled a baker to discriminate against same-sex couples to evade a state law barring sexual orientation discrimination in public accommodations by claiming a religious right to do so.
And then, suddenly, he retired. That not only meant the loss of Kennedy, it meant turning his seat over to an ultraconservative replacement and tipping the balance decidedly away from the trend of progressive attitudes toward LGBT people as equal citizens.
COURT STRUCK BANS ON MARRIAGE FOR SAME-SEX COUPLES: In 2015, the U.S. Supreme Court ruled that state bans on marriage for same-sex couples are unconstitutional and that states must recognize marriage licenses issued to same-sex couples from other states. The 5 to 4 decision, in Obergefell v. Hodges, came 43 years after the first same-sex couple brought a case before the Supreme Court seeking marriage equality. The court dismissed that appeal, Baker v. Nelson, in 1972, but efforts to achieve marriage equality continued through the four decades. There were battles in the courts and on the ballot. Finally, the legal challenged reached the Supreme Court again and Justice Anthony Kennedy, writing for the majority, stated that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same-sex may not be deprived of that right and that liberty. … The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.”
CONGRESS REPEALED “DON’T ASK, DON’T TELL”: In another long-standing battle for the LGBT movement, Congress in 2010 repealed a law enacted in 1993 that banned openly gay or lesbian people from serving in the military. Democratic President Barack Obama helped drive through passage of the repeal of the ban signed into law by a previous Democratic president, Bill Clinton. When Clinton signed the ban, most Americans supported the ban (56 percent), but by the time of the repeal, only 21 percent supported a ban. In 2010, a Williams Institute study estimated there were 48,500 lesbians, gay men, and bisexuals serving on active duty.
Since the repeal, the Defense Department has participated in Pride celebrations, an openly gay man served as the Secretary of the Army (under the Obama administration), and lesbians, gay men, and bisexuals can be honest about their sexual orientation without being discharged. A Defense Department survey in 2015 estimated about 80,000 service members were lesbian, gay, or bisexual. But the fight goes on, as the Trump administration attempts to defend its ban on transgender service members. As the decade closed, efforts to thwart the ban through language in a bill in Congress authorizing Defense spending failed, but legal challenges are still proceeding through the courts.
GOP CONTROL OF U.S. SENATE: In the November 2014 elections, Republicans won control of the Senate, giving the party dominance in both chambers of Congress and making the prospects for passage of any pro-LGBT legislation — including the Equality Act (aka the Employment Non-Discrimination Act) — virtually nil. With Republicans in control of the Senate, it also gave right-wing conservatives complete control over the filling of U.S. Supreme Court seats, a control they exercised — some say overreached — to obstruct the confirmation of appointees by President Obama — including a Supreme Court nominee — and give President Trump two appointments to the Supreme Court, creating a new conservative majority on the nation’s highest court. It also enabled conservatives to mount an aggressive campaign to confirm young and conservative judges to federal appeals (47 so far) and district courts (112). The effects of their confirmations will be felt for decades to come.
DOMA NO MORE: With Justice Anthony Kennedy writing for the 5 to 4 majority, the U.S. Supreme Court declared in 2013 that the key provision of DOMA was unconstitutional. The law, signed by President Clinton in 1996, had barred any federal entity from recognizing for the purpose of any benefit the valid marriage license of a same-sex couple. The majority opinion in U.S. v. Windsor said DOMA Section 3 violated the constitutional guarantees of equal protection and due process. The decision struck like the first domino to fall in a long line of walls against marriage equality. State legislators cited it during debates over marriage equality bills; state and federal courts cited it to strike down other DOMA-like laws and regulations.
At the start of a new year and a new decade, the presidency, the control of Congress, and the U.S. Supreme Court stand once more as pivotal determinants in the “futurity,” as Dickens called it in “Hard Times.” “Do the wise thing and the kind thing,” he offered that troubled world, “and make the best of us and not the worst.”