QUEER VOICES
02/16/2017 11:30 am ET | Updated Feb 16, 2017

The Plot To Turn Same-Sex Marriage Into Second-Class Marriage

Anyone who thinks that marriage equality is “settled law" needs to think again.

Jeffrey Hamilton via Getty Images

Since the election in November, religious conservative zealots have been giddy ― super-emboldened in their battle against LGBT rights. Through various avenues now coming into view they are hellbent on making same-sex marriage into second-class marriage. And they could very well succeed.

Donald Trump courted evangelicals studiously and under the radar during the election. He wink-winked and nudge-nudged to them while being hailed as gay-supportive by the above-the-radar media, which would help keep him from alienating other voters. It worked. He won. And anti-LGBTQ hate groups like the Family Research Council, Focus on the Family and others are once again feeling as if they can accomplish anything.

The Trump administration, at the groups’ behest, decided last week not to fight in court for transgender students, letting a judge’s ruling stand against President Obama’s directive from 2016. Neil Gorsuch, Trump’s Supreme Court nominee, is beloved by religious conservatives, an example of “success and access” they now believe they have, as a New York Times headline put it. They’re encouraged that he rejected arguments by a transgender prison inmate seeking medically necessary hormone treatment, and backed religious exemptions in the Hobby Lobby case. In the states, bathroom bills (and other anti-equality bills) are still abounding, even after North Carolina proved with HB2 they could lead to the downfall of a governor.

And a concerted effort is also well underway to chip away at marriage equality. I’ve been writing about this long-term plan for several years, actually, going back to a panel I sat in on at the 2014 Values Voter Summit in which the mastermind of the Proposition 8 campaign, Frank Schubert, had said conservatives would have to find a gay “version” of “partial birth abortion”  if they lost on marriage equality at the Supreme Court (which of course they did in 2015 on the Obergefell case).

It sounds crazy and bizarre but what he meant was they’d have to grab onto a term or an idea, and both exploit misunderstandings and emotions while engaging in distortion. This is one way they’ve chipped away at abortion rights since Roe v. Wade. There is no such thing as “partial birth” abortion, just a late term surgical procedure known as Intact D&E, that’s used after late term miscarriages and, very rarely, in late term abortions, mostly when the life of the mother is in jeopardy. In 2000, it accounted for .17 percent of abortions. Nonetheless, re-branding this procedure as “partial birth” abortion tapped into people’s emotions around an issue about which some may be uncomfortable and know little about, even if they lean toward a pro-choice position. That helped religious conservatives in passing the “Partial Birth Abortion Ban Act” in 2003, which was upheld by the Supreme Court in a 5-4 decision in 2007.

We’ve seen an effort to do this regarding marriage equality with “religious liberty” bills in the states, allowing for business owners or government workers to turn away gay or lesbian couples if gay marriage offends their faith, attempting to play on fears that religious individuals are being discriminated against. Several of these bills were beaten back in the Obama era (though some passed, in Arkansas, Mississippi and North Carolina, for example), even as some polling showed the strategy could work nationally.

And now, in the Trump era, we’re seeing the effort possibly gain steam with the stroke of Trump’s pen, and also move into the courts and into possible federal legislation, in addition to a continued push with state laws.

Two weeks ago a far-reaching executive order circulating within the Trump administration was leaked, reported on by Sarah Posner in The Nation.  It would allow for all kinds of religious exemptions, including for those who oppose marriage equality:

The four-page draft order, a copy of which is currently circulating among federal staff and advocacy organizations, construes religious organizations so broadly that it covers “any organization, including closely held for-profit corporations,” and protects “religious freedom” in every walk of life: “when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.”

Trump claimed in an interview on “60 Minutes” shortly after the election that he was “fine” with the marriage equality decision at the Supreme Court, calling it “settled law” (though he publicly still opposes marriage equality), but the order, if signed, would make all of that moot. As Nico Lang noted in an astute LA Times piece focused on the “coming war against same-sex marriage,” if Trump signs the order: 

Same-sex partners may get to keep their marriages under the Trump administration, but those unions will mean little if the federal government erodes the rights and benefits afforded to that status.

And that would be second-class marriage, achieving the long-term plan of evangelicals leaders and strategists. 

After a lot of media attention, the administration announced it wasn’t signing the order ― for now. But Trump will have it in his back pocket, ready to whip out when he needs it to galvanize his base, particularly if religious conservatives aren’t happy ― and they won’t be happy if they can’t erode LGBT rights. Trump won the election by a handful of votes in three states (75,000 votes), getting an electoral college win but losing the popular vote by 3 million. He can’t afford to lose any votes ― and he’s already running for re-election ― and his approval rating already is abysmal.

Even if Trump doesn’t sign the order, there’s the possibility that the First Amendment Defense Act will pass. It would do through legislation a lot of what the order would do, allowing businesses and government employees to opt-out of dealing with gay and lesbian couples based on their religious beliefs ― second-class marriage. Trump said he would sign it, though it would surely face a filibuster in the current Senate. But, much as the resistance movement against Trump has grown in an encouraging and empowering way, none of us knows what the Senate will look like after 2018 and if the GOP might have a filibuster-proof majority while still retaining the House. 

Then there is a third leg of the strategy to create second-class marriage. In Texas, the state supreme court will hear oral arguments on March 1 in a case out of Houston that seeks to have government deny spousal benefits to employees in same-sex marriages only ― again, based on “religious liberty.” (And right now, the Texas legislature is also pushing ahead with several “religious liberty” bills that would allow for that and more.)

All three of these strategies and others would surely hit a wall if they got to the current Supreme Court, where Justice Kennedy and the four liberals would rule for equality. But Gorsuch, though we’ve heard so much about his gay friends recently, is, as I wrote about in detail earlier in the week, an originalist like the late Antonin Scalia, and has sided with religious conservatives in the past. 

And if Trump gets to replace Justice Kennedy or any of the high court’s liberals, then all bets are off. The gay “version” of “partial birth” abortion could likely be upheld, whether it is an executive order, federal legislation or from a state court ruling. If you follow the current political realities and the push for second-class marriage, you can see how anything is possible. Anyone who thinks that marriage equality is “settled law” needs to think again.

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