As a presidential candidate, Donald Trump worked an audience like an orchestral conductor. With a stroke of the hand he summoned chants of “ten feet higher,” “lock her up” or just a round of boos for the media.
So when he paraded around the stage carrying a wrinkled rainbow flag with “LGBT for TRUMP” scrawled onto it in 2016, it went off like the final cannons from Pyotr Tchaikovsky’s “1812 Overture” — a masterpiece celebrating Russia’s defeat of Napoleon’s invasion. Trump’s supporters used the antics to roar on about how Hillary Clinton was really the bigot because she supports countries that persecute members of the LGBTQ community.
His LGBTQ flag antics are gone from our national memory. Now Trump will leave a lasting signature on the makeup of the Supreme Court: a conservative majority that could have an effect on LGBTQ rights.
The direction of the court in terms of overturning recent precedent (Janus v. AFSCME) is what concerns Emily Farrell, an attorney and president-elect of the board of directors for HIV Alliance, a local nonprofit.
Although she says it’s more difficult to justify taking away a right afforded to people, a more direct approach the conservative-leaning Supreme Court might take is redefining which spousal benefits same-sex couples can have.
Trump nominated Brett Kavanaugh on July 9 and he will likely be appointed soon. He has a positive reputation with conservative groups, including the Oregon Republican Party.
“If confirmed, he pledges to serve with an open mind, while striving to faithfully apply the Constitution of the United States, as written,” Oregon Republican Party Chairman Bill Currier said in a statement.
But the American Civil Liberties Union issued a statement after Trump announced his appointment, requesting that senators ask whether Kavanaugh agrees that constitutional law evolves with time, as apparent with segregation, sex discrimination and marriage equality.
So it’s unclear whether Kavanaugh will agree with Anthony Kennedy — whose vacancy he’ll fill — when it comes to LGBTQ issues.
Kennedy, nominated by President Ronald Reagan in 1988, was the swing vote in Obergefell v. Hodges, which legalized same-sex marriage in the U.S. in 2015. He wrote the opinion of the court, writing that marriage “embodies the highest ideals of love” and the case asked for “equal dignity in the eyes of the law.”
Kavanaugh has caught the eye of a nonprofit called the Judicial Crisis Network (JCN), which, in 2016, contributed $1 million to the National Rifle Association and $500,000 to CatholicVote, a conservative group that opposes same-sex marriage. JCN also threw $4.5 million into an ad airing in five states that tells Democratic lawmakers to stand with their constituents and not with “radical liberals.”
Sure, 61 percent of Americans — and 67 percent of Oregonians — favor marriage equality, according to a poll conducted in 2017 by the Public Religion Research Institute, a nonpartisan organization. However, one national group disapproves: 51 percent of Republicans.
Although the Republican Party maintains the minority in marriage equality opposition, the party currently runs the legislative and executive branches of government — and they appointed the majority of the Supreme Court.
The Supreme Court will see cases with LGBTQ issues interacting with religious freedom. In Masterpiece Cake v. Colorado Civil Rights Commission, SCOTUS ruled that the cake shop owner, Jack Phillips, had his free speech rights violated because he didn’t get a fair, neutral hearing on his complaint, maintaining that the civil rights commission exercised a hostility to religion during his case.
As a result, the ruling could open the door to similar issues, Farrell says.
And now the Trump administration has a new religious liberty justice league. Attorney General Jeff Sessions’ remarks when announcing the formation of the Religious Liberty Task Force sounded like it’s more interested in protecting Christianity than any other religion.
“We’ve seen nuns ordered to buy contraceptives,” Sessions said at the July 30 press conference. “In substance, [Trump] said he respected people of faith and he promised to protect them in the free exercise of their faith. He declared we would say ‘Merry Christmas’ again.”
Sessions was also proud of Phillips, who “bravely” defended his business when asked to bake a cake for a gay wedding.
Farrell says another outcome of a conservative majority Supreme Court could be undoing protections set in place by the Affordable Care Act.
“Walking back those protections has the potential to disproportionately impact individuals living with HIV and AIDS,” she says in an email to Eugene Weekly. “This also has the potential to impact transgender individuals’ ability to access health care and medical treatment.”
During Sen. Ron Wyden’s July tour through Oregon, he told EW the Affordable Care Act would return to the Supreme Court soon. The vacancy will be a referendum on whether the U.S. will “go backward on health care.”
The Trump administration refused to defend it in court against 20 Republican-led states. This case, Wyden says, will most likely make its way up to the Supreme Court, and the next justice could be the deciding vote.
Wyden adds that Senate Majority Leader Mitch McConnell has a double standard when appointing a Supreme Court justice. Citing the “Biden Rule,” McConnell refused to appoint former President Barack Obama’s nominee, Merrick Garland, because the election should dictate which party makes the decision.
So Trump got his nomination with Neil Gorsuch’s appointment. More than a year later, Kavanaugh could be the second Trump pick to don robes.
However, Wyden says, a second Trump appointment “could turn back the clock” on basic freedom issues.