The ‘FES Spotlight Elections’ is a series that presents short opinion pieces on social and economic policy topics that are playing a role in the debates and campaigns leading up to the U.S. Presidential elections of 2016. By presenting views from authors from the African American and Latino communities, from female authors, labor representatives and young people, as well as members of the LGBTQ community, from religious groups, and the working poor, the series aims to offer a voice to segments of the U.S. population and shed light on policy issues that do not get adequate coverage in the mainstream media.
Trump: “I’m much better for the gays. Ask them!” – The gays: “No thanks!”
The words on the façade of the Supreme Court of the United States read “Equal Justice Under Law.” Those powerful words have time and again been defined, re-defined, and often defied by our elected leaders and the justices of the Supreme Court. By any measure, the United States has had a mixed track record when it comes to the protection of minority rights; and the rights of LGBTQ Americans are no exception: In 1986, the Supreme Court upheld a Georgia sodomy law that effectively criminalized homosexual sexual conduct; in 1992, Colorado voters passed Amendment 2 rescinding all local and state laws that afforded legal protections to Colorado’s LGBT community; in 1993, HIV was made a ground for inadmissibility in immigration cases; and between 2000 and 2012, a total of thirty-one states passed constitutional amendments prohibiting same-sex marriage, civil unions, or any marriage-like contract between same-sex consenting adults through ballot initiatives. Hence, it is fair to say that the LGBTQ community has long been in the crosshairs of the culture wars.
In the past eight years, under the leadership of President Obama, and with the turning tide of public opinion, the United States made considerable positive progress in the area of LGBTQ rights and rights protection. A brief and incomplete list of Obama’s efforts to improve the lives of LGBTQ people includes lifting the ban on HIV-positive immigrants, extending marriage benefits to the same-sex partners of federal employees, issuing a U.S. strategy for fighting LGBTQ human rights violations internationally, and recognizing same-sex spousal sponsorship for immigration benefits. While Obama also signed the repeal of Don’t Ask Don’t Tell and the Matthew Shepard Hate Crime Prevention Act, both of which are landmark pieces of legislation, the list above is important to illustrate the extent to which the president can, unilaterally, affect significant policy change. The Obama administration also made the diversity of the federal bench, the White House staff, and the foreign representation of the United States a core effort. Not only did he appoint six openly gay ambassadors and a Special Envoy for the Human Rights of LGBT persons, but his White House staff also includes the first transgender LGBT liaison. Finally, both of Obama’s Supreme Court appointees were in the majority in Obergefell v. Hodges, the decision that extended the constitutional guarantee of the right to marry to same-sex couples nationwide.
It has been said and written many times before, but it bears repeating: the 2016 election is a truly pivotal moment in the history of the United States, and not only because a woman is within reach of the presidency for the first time since the country’s inception 240 years ago. It is a pivotal election because the two candidates offer dramatically different visions for the country and the world and one of them will set the course of domestic and foreign policy for years to come. As the enumeration above illustrates, the advances made during Obama’s presidency in the area of LGBTQ rights and equality are momentous; but they are also fragile. The 45th president’s unilateral executive actions, his or her choice of Supreme Court nominees, and decisions regarding the face and ideological orientation of the U.S. government could drastically alter the lives of LGBTQ Americans.
The Log Cabin Republicans have recently called Donald Trump “the most pro-LGBT nominee in the history of the Republican party.” Still, the Republican presidential candidate’s policy positions vis-à-vis LGBTQ rights and equality are at best muddled, at worst outright dangerous. His party’s platform has been derided as the most anti-LGBT platform in history. Some of its planks include overturning Obergefell, allowing businesses to legally discriminate against LGBTQ people, discouraging adoption by gay couples, as well as some expansive language that could be interpreted as the legalization of conversion therapy for minors. Nevertheless, Trump claims that he is the best choice for “the gays.”
In the aftermath of the Orlando shooting massacre, Trump promised to do everything in his power to protect LGBTQ citizens “from the violence and oppression of a hateful foreign ideology.” Trump’s statement, which many Republicans called historic, illustrates one of his campaign’s greatest shortcomings with the community he swore to protect: his unwillingness to discuss the protection of LGBTQ Americans in terms of domestic policy, rather than terrorist attacks. Sadly, fear mongering is a central element of Trump’s candidacy. The tenor of his campaign has been negative and paranoid while painting the issues with a broad brush, lacking substance and specificity.
While Trump swore to protect LGBTQ Americans in his convention speech, he has repeatedly professed a strongly-held belief that marriage should be limited to opposite-sex partnerships. He has also asserted that he would appoint justices to the Supreme Court who would overturn the Obergefell decision, rolling back the national right of same-sex marriage. Both Clinton and Trump are counting on the Supreme Court slowly moving toward seismic changes in its composition, with three of the eight sitting justices over 78 years of age (Kennedy, Ginsburg, Breyer) and one approaching 69 (Thomas). Although the justices’ decisions to retire are made strategically, due to the increased politicization of the Court, with Scalia’s seat unfilled, the next president could potentially name enough new justices to cement the ideological center of gravity of the Court for a generation.
Despite Trump’s assertions that he is a friend of the LGBTQ community, he has drawn criticism among Republican LGBT organizations for surrounding himself with ardent homophobes such as Ben Carson, Newt Gingrich, and Senator Jeff Sessions. Trump’s running mate Mike Pence also has a sinister track record in undermining LGBTQ equality efforts. Governor Pence signed Indiana’s Religious Freedom Restoration Act paving the way for discriminatory business practices against the LGBTQ community, he refused to comply with executive guidance on restroom access, he opposed the repeal of Don’t Ask Don’t Tell, and he also opposed the passage of the Employment Non-Discrimination Act which aims to prevent discrimination against gay and trans-gender employees. It is because of his decision to surround himself with a bevy of anti-LGBTQ activists that the nation’s largest organization representing gay and lesbian Republicans, the Log Cabin Republicans, ultimately decided not to endorse Donald Trump.
While Trump has offered virtually no specifics as to a domestic LGBTQ rights agenda, his stance on North Carolina’s HB2, the Public Facilities Privacy and Security Act, provides a glimpse into an America under President Trump. The section of the law that garnered the most media attention prohibits transgender individuals from using the bathroom matching their gender identity, which Trump first opposed. His initial position gave rise to the viral video in which Caitlyn Jenner takes to Trump Tower to use the ladies’ room. As Trump frequently does, he flipped on the bathroom issue and claimed that it is up to the states to enact such legislation. The nefarious HB2 has been described as the most sweeping anti-LGBTQ law in the country: besides prescribing bathroom use, it also removed sexual orientation and gender identity from the protection of local and state anti-discrimination policies, and stripped LGBTQ individuals fired for their sexual orientation or gender identity to seek redress in state courts.
Mr. Trump’s position is clear. Although he claims to be the candidate who will do what it takes to protect the LGBTQ community, this is a classic right wing red herring. It is an extension of his anti-Muslim rhetoric with no regard for the lived lives of LGBTQ individuals. His political brand fueled by anti-intellectual populism, resentment against demographic changes, right-wing religious extremism, and the wholesale rejection of Obama’s progressive accomplishments poses a pernicious threat to the rights claims and existing protections of LGBTQ Americans.
Hillary Clinton has been criticized by LGBTQ activists for taking too long to come around to the idea of supporting same-sex marriage. Like President Obama, and many others in her party, Clinton has gone through an evolution on the matter of same-sex marriage. Although she opposed full-fledged marriage as a Senator and as a presidential candidate in 2008, she is on record as supporting same-sex civil unions as far back as 1999. Furthermore, as the Senator from New York she opposed a federal ban on same-sex marriage and supported state-level determinations to legalize such marriages or civil unions. With the changing tide of public opinion, by 2013, Clinton became a stalwart supporter of same-sex marriage. On other issues, Clinton has long advocated for broader protection of LGBTQ rights and for greater equality: she voted to add crimes against LGBTQ individuals as a hate crime and she has also supported teaching about gay rights in schools.
As Secretary of State, Clinton exhibited strong support of the LGBTQ community on the international stage. This is especially important given the Bush administration’s hostility toward the LGBTQ community at home and its lack of engagement in promoting LGBTQ rights abroad. In 2011, as Secretary of State, Clinton delivered a speech in Geneva, Switzerland in recognition of International Human Rights Day. The speech focused on LGBTQ rights around the world and fleshed out Obama’s strategy for fighting LGBTQ human rights violations internationally. In her call to other nations to “be on the right side of history,” Clinton famously asserted that “gay rights are human rights, and human rights are gay rights.” Under Clinton’s leadership the State department worked hard to pass the 2011 United Nations Human Rights Council Resolution on Sexual Orientation and Gender Identity, which gave formal recognition to LGBT rights as part of the international human rights regime. While leading the State Department, Clinton devised policies to ensure not only that State was an LGBT-friendly place to work, but also extended “legally available benefits and allowances to same-sex domestic partners of members of the Foreign Service sent to serve abroad.”
Clinton recently became the first presidential candidate to publish in a gay newspaper, the Philadelphia Gay News. In her op-ed piece she laid out an ambitious and comprehensive agenda for promoting LGBTQ equality. She emphasized the importance of passing the Equality Act, which would provide LGBTQ people with full federal nondiscrimination protection in the areas of housing and employment. In the light of North Carolina’s HB2, this would be an important step to improve the lived lives of the LGBTQ community. Clinton also called attention to the need to stop violent crimes against LGBTQ people, and highlighted the urgency of protecting transgender individuals – especially those of color. An essential component of this effort would be common-sense gun regulations, which she fully supports. Another important element of her LGBTQ agenda is working to achieve an AIDS-free generation by boosting AIDS research and expanding the use of prevention medications. Finally, during the third presidential debate, Clinton also stated that her litmus test for Supreme Court nominees is “whether they will stand up on behalf of women's rights [and] on behalf of the rights of the LGBT community.”
A Clinton presidency promises the continuation and expansion of Obama’s progressive agenda for the LGBTQ community. Clinton’s record, while not perfect, shows that she is going to be a true ally of and advocate for the LGBTQ community. By contrast, the Trump-Pence ticket is a dangerous choice promising more of the culture wars, and the turning back of the constitutional clock on the rights of LGBTQ Americans. For the roughly 9 million people who identify as LGBTQ, this election is, indeed, a pivotal one.
Dorian Kantor is a doctoral researcher at Freie Universität Berlin and a research scholar at George Mason University’s Schar School of Policy and Government. Previously he was a Centennial Center Fellow and Presidential Research Group Fellow at the American Political Science Association. He has lectured on U.S. politics, political institutions, and constitutional law in Germany, Hungary, Brazil, and the United States. He is currently working on his dissertation, entitled “Politics as Law: Juridified Executive Unilateralism in Post-Watergate National Security Crises.”
The views expressed in this publication are not necessarily those of the Friedrich-Ebert-Stiftung or of the organization for which the author works.
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