A Vote for Trump is a Vote Against Marriage Equality

The beginning of the end of gay rights.

Thanks to Donald Trump’s Supreme Court, Obergefell — the case that made same-sex marriage legal — is on borrowed time.

In one of its less-covered late June blockbuster cases, the Court ruled against a married couple seeking the right to continue living together in the United States. Sandra Muñoz, an American woman, and her husband, who is Salvadoran, had been doing so — lawfully, in every way — for five years before a consular official decided to force the couple apart. He did so on unfounded speculation her husband, who had no criminal record, “planned to engage in unlawful activity.” Muñoz argued that the violations leading to the separation violated her fundamental right to marriage.

Justice Amy Coney Barrett’s ruling against Muñoz hinges on the finding that “a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.” Splitting hairs, Barrett claims the question is not about marriage per se. Instead, Barrett says, Muñoz “actually claims something more distinct: the right to reside with her noncitizen spouse in the United States. That involves more than marriage and more than spousal cohabitation.”

Barrett’s distinction lets her deny Muñoz the strict scrutiny she’d be entitled to were the Court to acknowledge she’s fighting for the full enjoyment of marriage rather than an unprotected derivative of that institution. In so doing, Barrett lays the groundwork for her conservative coterie to continue carving away at the fundamental right to marriage. Phrased another way, conservative justices are playing judicial Jenga, testing routes to eroding the right to marriage with the aim of ending same-sex marriage.

Muñoz is a classic example of overreach by the Roberts Court. Justice Sonia Sotomayor calls out the majority’s agenda deftly in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. Most notably, she opens with a sentence from Obergefell, making the stakes clear. She notes, “the majority today chooses a broad holding on marriage over a narrow one on procedure.” Sotomayor characterizes the holding aptly: The decision “holds that Muñoz’s right to marry, live with, and raise children alongside her husband entitles her to nothing when the Government excludes him from the country.” Put simply, this holding means that the government’s prerogative to ban Muńoz’s husband on the basis of pure speculation supersedes her fundamental right to marriage.

The dissent is nothing less than a claxon-level warning of Obergefell’s vulnerability — or, worse, expiration. And that’s just the beginning. As Sotomayor points out, the majority used disturbingly similar language about abortion prior to overturning Roe v. Wade.

The Roberts’ Court endgame is eliminating substantive due process altogether,¹ conservatives’ jurisprudential bugbear. Substantive due process doctrine protects rights closely connected to life, liberty, and property protected by the Fifth and Fourteenth Amendments but not enumerated in the Bill of Rights — the right to contract, corporeal autonomy, and, yes, marriage. These rights reside in “the penumbra.” So, too, does the dignity right, fundamental to all LBGTQ+ rights — and the topic of a later section of this post — and a host of others.

Don’t Be Fooled — or Complacent

It’s tempting to frame Trump’s judicial takeover as abstract, a problem for the long term, dismiss the lower courts — even seek solace in the Roberts Court’s June 2020 surprisingly sane ruling for LGBTQ+ people finding sex-based workplace protections cover sexual orientation and gender identity discrimination.

Perhaps the majority simply wasn’t ready to leave logic behind altogether. Being discriminated against on the basis of the sex of who you love or how you do or do not conform to sex and gender stereotypes is no less sex discrimination than that which spurred the seminal 1989 sex-stereotyping case. And yet, just four years after inking the common-sense culmination of 40 years’ legal reasoning, the Court’s already all but binned its 2020 ruling — just about the same time it took its clearest shot at Obergefell.

This Court will go no further on gay, queer, and trans issues — not in a beneficial direction. The uber-conservative super-majority has already targeted the jurisprudence underlying LGBTQ+ rights, including marriage and dignity both. Which isn’t to say it’s not also breaking new ground, having recently granted, among others, a case with potentially catastrophic implications for transgender youth nationwide.

Trump Would Make All of This Worse — Again

In his earliest days as candidate for president, Donald Trump claimed to support the LGBTQ+ community. As recently as 2020, a surrogate — an openly gay Trump-appointed ambassador — claimed Trump was “the most pro-gay president in history.” The coverage coincided with a claim Trump “launched a global campaign to decriminalize homosexuality.” Yet it was followed by confirmation from the Trump White House that the administration viewed transgender Americans differently than it did lesbian, gay, and bisexual people — an admission of their intention to not just disenfranchise but attempt to divide members of these groups.

Trump’s has lurched to and fro on the topic of gay rights rhetorically but not substantively. Yet, troublingly, even dedicated LGBTQ rights activists remain complacent — or perhaps distracted. The full scope of right-wing initiatives to disempower and oppress LGBTQ+ people, most via state laws is both sprawling and diffuse. State legislatures are ground zero: targeting trans youth, banning books, and attacking drag queens, among other endeavors.

LGBTQ+ people and allies cannot afford to remain focused on just one arena — local, state, or national — or a single issue. To do so comes at the expense of vigilance on other fronts. Trump has a robust anti-LGBTQ+ agenda: reversing protections for transgender students under Title IX and, if he gets his way, eliminating “transgender” altogether as well as erasing expanded employment and other protections extended all too recently to LGBTQ+ people.

From posturing as an ally to LGBTQ+ Americans, Trump went on to ban on transgender military service and try to end protections for incarcerated transgender people as well as eliminating non-discrimination protections for LGBTQ+ in the Affordable Care Act. This year, Trump began his campaign with a promise to end gender-affirming care for transgender youth in the United States. Once again, that’s just the tip of the iceberg: Trump has done more to persecute and to facilitate the persecution of LGBTQ+ than any president in recent memory — tough competition with DOMA and DADT still fresh 

With RFK, Jr., onboard, the crazy will only reach new heights vis-á-vis the LGBTQ+ community.

1. More on this later — both in this post and in a subsequent post, pending the author’s ability to get through Gorsuch’s newest problematic publication.