Unfortunately, “winning” seems to include living in a country where half our fellow citizens are becoming a cult and would rather see a neo-fascist strongman in charge than a capable executive.
JESUS TAKE THE WHEEL
Readers, I’m writing on election night at about midnight East Coast time. Why? Because I wanted my column to reflect the wonderful news that Democrats had won a landslide victory and taken back the Senate, setting the stage for a vast renewal of hope for America and for our vibrant GLBT community.
Instead I’m watching the chaos of an election that hangs on the thread of the vaunted blue wall, which won’t count votes until whenever, giving Trump the chance to bluster about late results that shouldn’t count.
For all I know, by the time you read this the whole mess will have been sorted out to our benefit and all will be well. But the specter of a Trump win is still alive for me at this moment, and it’s horrifying. Like many people, I became more and more alarmed while watching the 2016 results, until the nightmare became reality. This time, I settled in happily, my Champagne glass filled to the brim, thinking that finally, this whole horror show will soon be over. And then, what the hell! I think we’ll win, but do we have to trigger our PTSD in the process? Do we have to go through this?
James Carville says we’re just fine and just have to be patient. He told Democrats to put away the razor blades and the Ambien. Okay, I’m calming down. But still, there’s a big difference between a blue tsunami combined with a Senate majority, and a narrow victory that leaves Mitch McConnell in charge. Plus, we will probably have to fend off a barrage of Trump legal tactics, which I don’t think will succeed, but which stir up his minions around the country.
But all that said, my friends, there is only one critical goal here. And that is defeating Trump, even if we only have a few electoral college votes to spare and even if we have to suffer through a chaotic end game from the president.
And even if we don’t win the Senate, we will still be able to dismantle much of the Trump administration’s anti-GLBT policies. All the cabinet departments’ antigay and anti-trans position statements are gone. The ban on transgender military service is gone. The State Department’s antigay position on human rights will be revised back to normal. The Justice Department will once again become a neutral force for equality. The weight that has been pressing down on our community’s chest for four years will be lifted from one day to the next.
BACK TO SCOTUS WE GO
We will be left diminished by the Trump years, and most of all by the change in the Supreme Court. On November 4, the Court will hear oral arguments in Fulton v Philadelphia, the main gay rights case of this session.
We dodged a bullet in the Title VII case last summer, winning an unexpected 6-3 majority in favor of the idea that GLBT bias is a form of sex discrimination and therefore illegal under Title VII of the Civil Rights Act of 1964. That ruling would also suggest that GLBT bias is illegal in every other federal law that bans sex discrimination, particularly Title IX of the Education Amendments of I forget the year (1972?) which governs discrimination in public schools and colleges.
So that was great! Justice Gorsuch was the unexpected author of the opinion, and it looked as if we might count John Roberts as an occasional swing vote ally in the future. Now, however, we’ve replaced our greatest champion with a woman who appears poised to become one of our greatest adversaries. Justice Gorsuch may have sided with us on an arcane question of textual interpretation in the Title VII case, but it’s doubtful he will join us on a matter of religious freedom. And here we have a question of whether or not the City of Philadelphia can refuse to place foster kids with Catholic Social Services, a group that does not accept same-sex couples as foster parents on religious grounds.
Philadelphia does not do business with those who discriminate on the basis of sexual orientation. Yet Catholic Social Services argues that it should enjoy a religious exemption to this regulation. Think about that. If businesses and individuals can claim a faith-based excuse for ignoring gay rights laws, what purpose do those laws serve? They become meaningless. Meanwhile, no one argues that a Christian business can refuse customers based on race or gender, even if they might find some scriptural basis for such a policy. Yet religious bias against GLBTs is commonly understood as a legitimate matter of faith.
I find this really irritating.
I’m a little drunk.
BETWEEN CHURCH AND STATE
There’s a lot more to our big gay Supreme Court case I’m sorry to say. Sorry because it’s hard to write about legal stuff when the world is falling apart and I’m into my second bottle.
But this is important. One of the main issues to be decided in Fulton v Philadelphia transcends gay rights. And that is the question of whether religion can be used to avoid a law that is generally applicable and does not involve faith. Just thirty years ago, the Court said no, in an opinion written by Antonin Scalia. It makes sense. You can’t claim your faith requires a fireworks display in the middle of the city, or a peyote ritual in violation of drug laws. As Scalia noted, religion can’t be used so broadly, otherwise every man would become a law unto himself.
This case has specifically asked whether or not that precedent, Employment Division v Smith, should be overturned. If that happens, the wall between church and state will buckle and religious expression will become, not just a legal consideration, but a legal priority.
Will it happen? Before Ginsburg’s death I’d say no. Now, we don’t just have six conservatives on the Court, but we have five, possibly six, justices with strong leanings towards faith-based actors. And for what it’s worth, they’re all Catholics, which is a little weird in my view. (Throw in Sotomayor and we have seven Catholics on the nine-member High Court.) If these justices band together to throw out such a major precedent, there’s no telling what they might get up to in the future. They won’t undo marriage equality, but they could easily rule that people of faith can ignore our unions at will.
STUCK WITH STARK REALITY
Well, that analysis did nothing to lift my spirits. And now I’m back to the unnerving election results. We seem to have won the electoral vote in Nebraska which is small comfort.
It is now nearly four in the morning East Coast time, and the situation is no clearer than it was at midnight. The pleasant sense of confidence inspired by James Carville has gone away, and I now fear I will have to go to bed with a gnawing fear in my stomach, tossing and turning for hours. Tomorrow morning I’ll be stuck with stark reality, whatever that may be, without the benefit of a boatload of Champagne in my system to ease my distress.
Fast forward to stark reality and it looks like we’re winning. Unfortunately, “winning” seems to include living in a country where half our fellow citizens are becoming a cult and would rather see a neo-fascist strongman in charge than a capable executive. Oh, and I have a hangover.