Latest Supreme Court battle a reminder that true LGBTQ equality is far from won

Latest Supreme Court battle a reminder that true LGBTQ equality is far from won

“The struggle for gay rights is over,” the writer James Kirchick wrote in The Atlantic in June. And just like that, you could almost smell the smoldering keyboards across the country. 

I loathe sports metaphors, but if we were playing football, this headline still smacks of celebrating a touchdown on the opposing team’s 20-yard-line. 

Yet it’s safe to assume Kirchick – a Brookings Institute fellow and openly gay reporter who, in 2007, won the National Gay and Lesbian Journalist Association’s award for “Journalist of the Year” – revels in a robust debate, else he wouldn’t pen such a provocative piece. That piece, it should be noted, is more nuanced and thoughtful than the headline. 

(Indeed, I’m convinced he enjoys a good dust-up after watching Kirchick’s glorious trolling of the Russian propaganda network RT in 2016, in which he donned rainbow suspenders and dismantled the Kremlin’s anti-gay laws before the network booted him.)  

“If you had told gay activists 10 or even five years ago that their energies would center upon campaigns related to various foods – forcing pious pastry chefs to make cakes and boycotting Chick-Fil-A, or “hate chicken,” because its Christian owner has donated money to efforts opposing same-sex marriage – most would have considered their missions complete,” he wrote.

But one of Kirchick’s assertions – that a victorious LGBTQ movement can cool it in the U.S. – will be put to the test in the coming days and weeks. 

It is not farfetched that a generation of LGBTQ Americans could face a future in which they are broadly accepted in secular and even non-secular society, but may still be terminated from their jobs with impunity.

Justices on the U.S. Supreme Court heard arguments Tuesday in three benchmark cases concerning employer discrimination against LGBTQ people – convincing evidence that while the culture war in the U.S. may be all but won on this issue, the legal battle is very much in play.

With august LGBTQ hero Anthony Kennedy departed from the SCOTUS, replaced by pugilistic conservative Brett Kavanaugh, nothing is settled. It is not farfetched that a generation of LGBTQ Americans could face a future in which they are broadly accepted in secular and even non-secular society, but may still be terminated from their jobs with impunity.

As CBS News noted Tuesday, there are an estimated 8.1 million LGBTQ employees in the U.S. and most states, like North Carolina, do not offer explicit workplace protections. Indeed, North Carolina’s lawmakers have gone a step farther, temporarily forbidding local non-discrimination ordinances in HB2’s semi-repeal – another reminder that the estimated 250,000 LGBTQ adults in North Carolina are governed by leaders who, like U.S. Vice President Mike Pence, are subtly or openly hostile.   

Hostile like North Carolina’s Lt. Gov. Dan Forest, one of the most powerful Republicans in the state, who last week bemoaned our fast-changing times to attendees at a Christian right gathering in Charlotte

“I went into politics 10 years ago,” Forest declared. “This was before this notion of ‘is a man a man?’ and ‘is a woman a woman?’” 

Complaining about American culture change is a favorite pastime in this crowd, a generation of evangelicals that may have lost sway in large portions of the U.S., but still wields a fraying power in the Bible Belt. 

“I went into politics 10 years ago,” N.C.’s Lt. Gov. Dan Forest declared. “This was before this notion of ‘is a man a man?’ and ‘is a woman a woman?’”

Although President Trump has been somewhat less belligerent in his antipathy toward LGBTQ people, his administration joined employers in the pending SCOTUS cases, claiming the nation’s civil rights laws offer no shield for sexual orientation or gender identity.

It is notoriously difficult to predict the Supreme Court, but – even if, as Kirchick argued in June, the number of LGBTQ people being discriminated against in the workplace is dwindling – the impact of America’s highest court sanctioning such shameful conduct cannot be understated. 

“We can’t deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly,” Justice Sonia Sotomayor reportedly asserted during arguments Tuesday. 

Her more conservative colleagues on the Court were more nebulous. Justice Neil Gorsuch offered up a suggestion that the matter was best left to Congress – “It’s a question of judicial modesty,” he claimed – and Kavanaugh asked just one question of the lawyers representing employers.

The high court’s decision in these cases, which is expected to arrive in the summer heat of the 2020 presidential election cycle, should be another reminder that, for all of the myriad advances of this movement since Stonewall, there is a sizable minority of anti-gay, religious conservatives in this country that holds an outsized slice of power in government and the courts.

You may denounce them as backwards, which they are. You may call them bigots, which on this issue, they are. And you may say that their viewpoint is doomed in the U.S. 

(There is actually ample evidence Americans who became adults after 1990 – those reared during the era of the Christian right’s most repugnant stands against LGBTQ equality – have rejected their elders’ philosophy and theology.) 

The gay rights movement has not won; it is winning – and the difference between those two ideas may be painfully clear when the Supreme Court rules in 2020. 

But, with Justices Gorsuch and Kavanaugh, Trump appointees, weighing the future of LGBTQ protections in this very moment, you cannot say that they are irrelevant.

The gay rights movement has not won; it is winning – and the difference between those two ideas may be painfully clear when the Supreme Court rules in 2020.