With last night’s passing of longtime Supreme Court jurist Ruth Bader Ginsburg after an extended battle with pancreatic cancer, the legal landscape for LGBTQ+ Americans — and many others — is precariously poised to undergo some radical changes. If Trump and his Republican sycophants have their way, the high court might be shifted even further to the right, affecting many of its past and future decisions. Senate Majority Leader Mitch McConnell (R-Ky.) has already announced his hypocritical plan to swiftly confirm Trump’s nominee to replace Ginsburg with just 46 days remaining until the election.
This flies in the face of his 2016 declaration, a full nine months before that year’s election, that his GOP-controlled Senate would refuse to vote on then-President Obana’s SCOTUS nominee, because it was an election year. McConnell stated, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” The Kentucky senator went on to hold the seat vacated by Antonin Scalia for Trump, robbing Obama’s choice, Merrick Garland of his rightful hearing.
Trump quickly filled that opening with arch-conservative Neil Gorsuch, and after appointing Brett Kavanaugh as Anthony Kennedy’s replacement, a 5–4 conservative majority emerged on the Supreme Court. Trump himself has sought to place his extreme-right imprimatur on the Court since taking office and is keen to fill Ginsburg’s seat as fast as humanly possible. His most likely candidate is Amy Coney Barrett, who can be expected to follow a Trump/McConnell vision of high-court jurisprudence.
So, LGBTQ America, here is how your circumstances now lie. Should Trump be successful in getting a third associate judge confirmed with McConnell’s aid, we can expect the following future-history sequelae (the injury to the country being Trump’s presidency itself):
· Having gained a third SCOTUS judge, the election likely unfolds with more Republicans voting in person, and more Democrats cautiously voting by mail. Trump, who has been bleating loudly about fictitious “mail-in voter fraud”, will use the new Court’s composition to his absolute advantage.
· The morning after the election, Trump will march into federal court, citing “suspicions of widespread mail-in ballot fraud”, and demand that those ballots never be counted.
· The case ends up in the Supreme Court, which established a precedent for rendering decisions on presidential elections when it heard Bush v. Gore in 2000. In that case, the judges ordered the vote count in Florida to stop, awarding the election to George W. Bush. To this day, nobody knows who really won the 2000 election.
· A 6–3 conservative SCOTUS finds for Trump, giving him a second term, and paving the way for him to appoint as many as two more judges.
A lame-duck Trump would then be free to file cases to overturn the landmark Roe v. Wade opinion that guarantees a woman’s right to safe, accessible abortion and birth control treatments. That’s been a long-term goal of the Republican right, and after they accomplish that mission, they’ll quickly turn to another pair of targets on their agenda: LGBTQ rights. Buoyed by Trump’s willingness to attack gays, lesbians, and transgender Americans (as he did in summarily banning trans troops from the military, which lower courts have supported), the GOP is ready to aim squarely at marriage equality and the decriminalization of homosexuality. Both of these advances in LGBTQ rights are provided by case law rather than legislation, meaning future court decisions can overturn them.
Same-sex marriage was legalized nationwide by the 2015 Supreme Court ruling in Obergefell v. Hodges, a 5–4 decision authored by Anthony Kennedy. The Court stated that marriage equity was included in the Fourteenth Amendment’s equal protection clause. Tens of thousands of gay and lesbian couples have since availed themselves of all the rights and privileges of marriage. However, because these rights are protected only by prior case law, they’re easy pickings for a SCOTUS full of Trump judges. The second case in the GOP’s crosshairs is even more far-reaching: Lawrence v. Texas. This 2003 (!) decision made homosexuality itself legal in the United States. Before that date, being gay was a criminal as other sex offense, like pedophilia or bestiality. You could be arrested for violating laws like Texas’ “homosexual conduct” law, which prohibited sex between any two people of the same gender.
The Court, in a 6–3 decision, ruled that such sodomy or homosexuality laws were unconstitutional, because they criminalized activities (sex, displays of affection, or declarations of sexuality) or expressions (gender non-conforming clothing) for one class of people that were legal for other classes of people. Although this meant that such discriminatory statutes could no longer be enforced, states like Texas have steadfastly kept them on the books, anticipating a Supreme Court like the one Trump wants to build. We could see a return to the dark days before the Stonewall Rebellion, when the police raided LGBTQ gathering places, and those who were locked up could lose their jobs ad apartments because they were now sex offenders. It is perhaps instructive to keep in mind that Vice President Mike Pence happily signed a “Turn Away The Gays” bill into law while he was Indiana’s governor. Trump chose Pence as his running mate, which should give you a good idea of Trump’s thinking about LGBTQ people.
Unless five Senate Republicans dare to stand up to Trump and refuse to vote in a SCOTUS nominee until after Inauguration Day, it is likely that the President will have a third judge on the high court. If a vote can be delayed until after January, a new Senate (and, God willing, a new President), can forestall this grim future for us LGBTQ people by appointing a more balanced jurist or two. The fate and future of all free LGBTQ Americans, then, depends absolutely on your vote. Make sure you render a momentous decision of your own on November 3.