Palm Springs Law Blog

Thursday, November 10, 2016

2016 Election Analysis for LGBT Issues

Many of my LGBT clients have reached out to me in a panic wondering how the election of Donald Trump will impact their families, benefits, marriages, and other legal issues.  My advice….breathe, try to relax and let’s take a look at what the election MAY mean in the future.

In my opinion, the biggest issue is the future of the Supreme Court.    There is one vacancy that will now be filled by President-elect Trump.  It’s very likely that the nominee will be pro-life, likely anti-LGBT rights, and more in the mold of Justice Scalia.  That would basically keep the court maintaining the same balance as it did before Justice Scalia’s death.  However, the troubling impact of this election is that it is likely that President-elect Trump will appoint another 2 - 3 justices, which would dramatically shift the court to the right for a generation.  The impact to the LGBT community could be grave if marriage equality comes before the Supreme Court again, but I will address that a little later.  Some other negative impacts would be the so-called “Religious Freedom Restoration Acts”, similar to the law that Vice President-elect Pence signed in Indiana, and North Carolina’s HB2 (Public Facilities Privacy & Security Act).  When these cases reach the Supreme Court in the coming years, it’s more likely that the laws will be upheld, and possibly spur similar laws in other states, or Congress.  This would have grave consequences for the LGBT community.

Additionally, President Obama’s executive orders to force government contractors, and hospitals that accept federal funds to not discriminate against LGBT people would likely be rescinded.  Legislation in Congress to protect LGBT citizens will not move forward.  And, to look at the GOP’s incredibly anti-LGBT platform is particularly disturbing.

Another grave concern is women’s reproductive rights, and the overturning of Roe v. Wade.  It is quite possible that a far-right leaning court would overturn Roe v. Wade, or at a minimum uphold many of the laws passed to make women’s access to reproductive healthcare more difficult, or non-existent.  It’s likely that this issue will revert back to a state by state implementation, resulting in women having to travel to other states to seek treatment, or even worse, reverting back to before Roe v. Wade where women were forced to make dangerous choices.

But what about marriage equality many of you have asked?  For now, it is still the law of the land.  All same-sex marriages that were valid before the election are still valid now.  Nothing has changed.  There’s nothing for you to do, or worry about in the immediate future.  But, what about after that?  The Supreme Court has ruled that marriage equality is a fundamental right under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.   There are only two avenues for this fundamental right to be taken away.  First, another case could come before a far-right Supreme Court and they could reverse their position.  I find this unlikely, since the Supreme Court usually does not overturn prior rulings, especially ones that are recent.  Additionally, off the top of my head I can think of no prior Supreme Court decision that took away a fundamental right from a minority group.  The closest case I can think of is Korematsu v. United States, which upheld President Roosevelt’s executive order authorizing the internment of Japanese-Americans.  The US Government and Supreme Court have acknowledged that the decision was abhorrent.

Second, the only way outside of a Supreme Court opinion overturning same-sex marriage is a constitutional amendment.  We currently have 27 amendments to the US Constitution.  Amending the Constitution is a difficult process.  While there are two processes to amend the Constitution, historically only one process has ever been used.  An amendment would be introduced in Congress and would require 2/3 majorities of both houses.  Thereafter, it is sent to the states which requires ¾ of the states to ratify it.    If you do the math of the members of Congress, and red states versus blue states, you can see that this would never pass.  So for now, I believe marriage equality is safe and sound.

My advice to my LGBT clients is to stay aware, be involved, support LGBT friendly candidates and causes, and continue to fight for your rights to be full citizens.

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