If there’s one thing I hope Americans have learned from the Trump presidency and unified Republican control of Washington it’s that nothing is sacred. The 2016 election has probably been dissected more finely than any election in our country’s history, but I believe one under-examined factor in the election result was complacency.
I think Trump’s win, at least in small part, came down to complacency on the part of people who would have come out to oppose Trump had they been more aware of how much was at stake. Or perhaps – if not complacency – then a failure of imagination or a lack of understanding about just how much there was to lose under a Trump presidency and full GOP control of government.
Don’t get me wrong – there were many, many people who did get this, and were out there doing everything in their power to warn about it and to try to turn people out to vote for Hillary. But at the same time, there were a number of people who had been lulled into the comfort of eight years of the Obama presidency and the progressive advances that came along with it on a number of fronts. Whether it was on the environment, LGBT rights, workers’ rights, etc., I think many people (even if subconsciously), felt, “yeah, we’re good now,” without taking into account how easily any or all of those gains could be reversed.
I’m hoping that now, nearly one year into Trump’s presidency, people are realizing that there’s almost nothing – no progress – in this country that can’t be undone when governmental power changes hands. And on that note, I have an update on a legal dispute over same sex marriage rights that I first wrote about back in July in a post called “Wedded Miss.” At the time, the Texas Supreme Court had just overturned a lower court ruling that had granted health & life insurance benefits to the same-sex spouses of city employees in Houston.
The Texas Supreme Court said that, despite the United States Supreme Court (SCOTUS) ruling in Obergfell v Hodges, which legalized same sex marriage throughout the country, it wasn’t clear what rights other than marriage SCOTUS intended to grant to same sex couples. To be clear, the Texas Supreme Court didn’t definitively rule that the spousal benefits should not be extended, but it ruled that Obergfell didn’t necessarily require that they should be. So it sent the case back to the lower court to be reconsidered, taking Obergfell into consideration (the Obergfell ruling had come down while the Texas case was working its way through the lower courts). Houston has been able to continue to offer the spousal benefits in the meantime.
For reasons I explain in the original July post, the ruling by the Texas Supreme Court was absurd. Here’s just part of the reason, as I explained it at the time:
Obergfell need not grant any additional rights other than the right to marriage for this case to be decided. Marriage itself confers a collection of legal rights within it. So any married couple – whether same sex or opposite sex – is now entitled to all of the legal rights that come with a legal marriage. If an opposite sex spouse is entitled to insurance benefits through the city, then there would be no legal justification for denying it to a same sex spouse. Their marriage is equal under the law.
I hope you’ll take a couple minutes to click over and read the entire post, so you can a full picture of the issues involved. Anyway, the city of Houston appealed this ruling to SCOTUS. And now, last Monday, SCOTUS announced that it was rejecting the appeal. The announcement from SCOTUS came with no dissent or comment. So, in other words, this was not a ruling on the merits by SCOTUS. The Justices did not hear the case and then render a decision – they simply declined to take the case.
So this sets no precedent on the issue. And some lawyers, including a lawyer for prominent LGBT-rights group LAMDA legal, say no meaning at all should be derived from this. SCOTUS simply declined to take the appeal, these lawyers say, because the case is still working its way through the Texas courts and has not come to a conclusion yet.
However, gay marriage opponents are portraying it as a victory for their cause, with one attorney/activist at the center of the case claiming:
The U.S. Supreme court could have taken the case and used it to further expand Obergefell. They chose not to. It’s confirmation that the Texas Supreme Court got it right.
He also claimed that SCOTUS rejecting the appeal has “precedential value” for the entire country This is clearly misleading, as SCOTUS has said on several occasions in the past that denial of a request for appeal “without more has no significance as a ruling.” But some activists on the pro-LGBT side are worried that SCOTUS turning down the appeal may be a bad sign for LGBT rights. The President and CEO of GLAAD said that SCOTUS . . .
. . . has just let an alarming ruling by the Texas Supreme Court stand which plainly undercuts the rights of married same-sex couples. Today’s abnegation by the nation’s highest court opens the door for an onslaught of challenges to the rights of LGBTQ people at every step.
In any case, whether or not we can glean anything directly from SCOTUS’ refusal to take the appeal right now, in the long run it’s certainly not good news for same-sex marriage supporters. Given the political realities in the state (see the end note on the original Wedded Miss post), it seems unlikely that the Texas Supreme Court will come to a different conclusion the next time this case makes its way to them. So, most likely, Houston will eventually try to appeal this case to SCOTUS again. But by then, it’s much more likely that Justice Kennedy – who joined the Court’s four liberal Justices to provide the 5th vote to legalize same sex marriage in Obergfell- will have retired and been replaced by Trump’s chosen successor. Whoever that’s going to be, he or she will undoubtedly not be warm to same-sex marriage.
Additionally, it’s hard not to view this case in conjunction with last week’s other news out of SCOTUS: the Court heard oral arguments in the Masterpiece Cakeshop case. That’s the case in which a baker, Jack Phillips, refused to bake a wedding cake for the wedding of two men in Colorado in 2012, saying that it conflicted with his religious beliefs. The Colorado Civil Rights Commission found that Phillips violated Colorado’s public accommodations law, which prohibits discrimination based on sexual orientation. Phillips appealed to SCOTUS. Phillips’ argument to the Court is that requiring him to sell wedding cakes for same sex marriages violates not just his religious freedom but – interestingly – also his free speech rights.
This case is troubling for supporters of same sex marriage because it opens up the possibility that SCOTUS may chip away at same sex marriage rights – rights which, as noted above with the Texas case, should encompass not just the wedding ceremony itself, but the same full “constellation” of benefits that accompany a marriage for any straight couple.
Observers who were inside the courtroom for oral arguments seemed to think that Justice Kennedy was quite hostile to the arguments by the Colorado solicitor general (i.e. the side arguing on behalf of the same sex couple). The comment from Kennedy that got the most attention was when he opined that:
Tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.
Kennedy did ask sharp questions of both sides though, and he’s been known to play devil’s advocate. So despite the consensus among pundits that he seemed to disfavor Colorado’s argument, it is truly impossible to predict where Kennedy will come down on this case. Most likely, we won’t find out until the end of the SCOTUS term in June, as decisions in the blockbuster cases usually don’t get announced until the last few days of the session.
In the end, in both of these cases, it may turn out that this concern is for nothing. Maybe Kennedy will vote the way we hope on Masterpiece Cakeshop and, maybe he’ll still be there to vote our way again if the Texas case ever makes its way back to SCOTUS. But: imagine a world where Merrick Garland is sitting in that Supreme Court seat instead of Justice Gorsuch. Imagine a world where Hillary Clinton would choose Justice Kennedy’s replacement if he decides to retire at the end of this term.
Imagine if we didn’t have to hold our breath and wish and pray and examine every word out of the mouth of a single conservative leaning Justice, in the hopes that maybe, just maybe, he’ll vote our way this time. Imagine if millions of same-sex couples didn’t have to spend all year waiting anxiously to find out if they’re going to lose precious, hard-earned rights that they have only just recently gained. That’s how much is at stake here, on just this one discrete issue. For the next three years, Democrats/Progressives/those of us on the Left will be going through a similar calculus on every issue that we hold near & dear to our hearts.
Trump famously asked audiences on the 2016 campaign trail, “What the hell do you have to lose?” He addressed the question specifically to African American voters he hoped to win over to his side. But it’s a question we all should be asking ourselves. And let’s be sure to keep the answer in mind when election day 2018 rolls around.