Why the LGBTQ+ Community is Concerned About SCOTUS (Plus Civics 101)
The night of November 8th, 2016, and every moment of time thereafter, have been a hot mess. I remember where I was when the votes came in that fateful evening. I remember chugging an entire bottle of wine while my friends made I Can’t Believe This Happened™ posts on social media. The best part (worst part?) is how the heart-break-scenarios that played out in November 2016 have been on repeat like a bad melodrama on TNT.
There have been many moments these past two years that I have felt hysterical. Reading headlines like LGBT Parents Face Bias In US Adoption Process and Trump Says Transgender Ban Is a ‘Great Favor’ for the Military made my This-Is-Fucked meter go berserk (and we’ve been in a Code Red on the meter since this new administration stepped in.) My absolute favorite part of all of this is how some of my straight friends and family are expressing doubt that things couldn’t possibly get any worse, that Trump can’t do all that he wants to do, that we have a system of government in place that has Checks and Balances.
Being told that my fears were invalid by a couple of straight people only frightened me more—because if they aren’t aware of the threat, if they don’t prepare for it, how will they recognize it when it’s happening? Additionally, this supposed system of Checks and Balances has been sabotaged for years now by the Republican Party. But perhaps I’m jumping ahead, and we need a brief Civics 101 lesson (because tbh, hot damn this entire country needs one.)
Checks and Balances refers to the system in place in the United States government that keeps one branch of government from getting too powerful. Let’s remember real quick that the USA has three branches:
The Legislative Branch: This is made up of the House of Representatives and the Senate. The job of this branch of government is to make and pass laws. All members of both bodies are voted in by US citizens, but the number of members in the House is based on state population, so there are currently 435 seats in the House. The representatives in the House are meant to represent the voices of the people who voted them into their position. The Senate gets two seats for every State—meaning there are 100 Senate members at any given time. The difference between the House and the Senate is that the Senate represents the interests of States, rather than the people.
The Executive Branch: This branch is not only made up of the President of the United States (POTUS), but also the Vice President and the Cabinet. The Cabinet is the collection of all the Department Heads—departments being Department of Homeland Security and Department of Education. The Executive Branch is supposed to enforce the laws of the land and recommend new ones, as well as vetoing laws and dealing with other countries.
The Judicial Branch: This is headed by the Supreme Court of the United States (SCOTUS). The job of this branch is to interpret the Constitution, review laws, and decide cases that make it to the federal level. There are currently nine Justices in the SCOTUS. Four of the Justices lean towards the Left (Democrats) and four Justices lean towards the Right (Republicans). One of the Justices—Kennedy—is a Moderate, meaning he leans both ways, depending on the case. Justice Kennedy is an important guy, so keep him in mind for later.
Now that we’ve got that out of the way, let’s dive right in to why my This-Is-Fucked meter is off the charts, beginning with the hot mess that was Justice Antonin Scalia’s death in 2016.
When a justice dies or retires, the standing president recommends a new justice to the Legislative Branch. At the time of Scalia’s death, and the year following, President Barack Obama was the man in office. Now, the US Constitution obligates that justices be chosen in a timely manner. The Executive Branch and the Legislative Branch are supposed to work together to choose a new Justice, kind of in the way that someone suggests a restaurant for dinner and the group debates if that’s the place to go.
But, here’s the thing: Instead of everyone choosing where to go to dinner in a timely fashion, with suggestions or thoughts or concerns, everyone just shot down the person making the suggestions and decided to sit on the concrete or whatever, saying they’ll decide later. The person who made the suggestion is like “But, we’re hungry now?” and everyone else is like “That’s nice, but the restaurant we want doesn’t open for a few more months.”
This is basically what happened in 2016 with Obama’s nomination of Merrick Garland. The Senate was controlled by the Republicans, meaning they could shut down any of Obama’s nominees. Mitch McConnell, A.K.A. The Turtle in A Poor Fitting Man Suit, led the charge against choosing a Justice to fill Scalia’s seat until after the next Inauguration.
Before I get into why this brings the Fuckery-Meter up a few notches, let’s drop back into our Civics 101 briefing and talk about the Supreme Court and what they actually do over there besides wear fancy collars (though I am ALL ABOUT RBG’s dissenting collar), and talk Legal-ese.
To really paint a picture as to how the mysterious SCOTUS works, we will bring up a famous case: Obergefell vs. Hodges, the case that legalized gay marriage across the United States. This landmark case was originally six separate cases from the states of Michigan, Ohio, Kentucky, and Tennessee. See, when there is a federal case, it does not immediately go to the Supreme Court all the way in DC. First it goes to a district court, which is the lowest court on the federal level. All of the cases that eventually made up Obergefell vs. Hodges started at a district court.
Now, once a ruling passes on a federal case (that means when the judge says “Ok this is what I think fam,”) it is not necessarily game-over. For the cases that eventually made up Obergefell, the judges ruled that not honoring marriage licenses from other states, or denying spousal rights after death of a partner, was unconstitutional. And us queers were pleased for a short time, because having rights is AWESOME. However, the people who lost the case (so the states of Michigan, Ohio, Kentucky, and Tennessee) were able to make an appeal.
An appeal means that they were not happy with the outcome of the case, and it can therefore go to the next level of the federal court system: The Circuit Court of Appeals. It was at this level that the six separate cases became one. It was also at this level where the Circuit Court judges reversed the decisions made by the lower courts, claiming that no constitutional rights were violated. Kind of like how it would be totally fine if straight people couldn’t marry and therefore not have spousal rights—oh, wait!
So at this point, us queers are no longer happy, and the Obergefell half of the case, not keen on the fact that the court determined them to be second-class citizens with no more rights than a rock with a smiley face painted on it, disputed the case, taking it to the next level: The Supreme Court.
(An aside: There is some speculation over why the Circuit Court of Appeals overturned the decisions made at the District Court level. One judge dissented the decision to reverse the previous ruling, because he knew that meant the case could go to the Supreme Court and establish across the United States that gay marriage was a constitutional right—therefore taking the power away from individual states to determine whether or not us queers can marry. So it’s all good and gravy it went to the Supreme Court, because it turned out in the favor of the families and the LGBTQ+ community across the country, instead of keeping us in the weird limbo where it was A-OK in some states but not others.)
So, we finally made it. The Supreme Court of the United States. After months and years of legal battles, the case is at the epitome of the US legal system. The Supreme Court gets to pick and choose which cases to hear (and they don’t see more than half of the ones that try to get in,) and Obergefell vs. Hodges made the cut. After hearing both sides of the case and much debate, the Justices on the court voted for their decision. For Obergefell, that decision was a 5-4 in the favor of “Give-The-Gays-Their-Rights-For-Fuckssake-It-Is-2015.” And there was much rejoicing and rainbow explosions everywhere. And that is how a case can work its way through the federal court system.
Even though “Love Wins,” it is still a bit concerning that the SCOTUS—the Court of the Land—barely voted to make gay marriage viable across the entire country. 5-4 isn’t a landslide win. I mean, I’m gonna take what I can get, and a win is a win, but my criticism of how it wasn’t a unanimous decision in favor of gay rights ties in to why this current administration scares the shit out of me and makes my Fuckery-Meter go up a few more notches.
I mentioned before how, after the election, some people did not feel a sense of dread, that some people thought myself and others were over reacting. I wonder if I was overreacting when Trump nominated Neil Gorsuch to fill the justice seat left by Scalia’s death. I swear they must have dredged the pond for some scum, mushed it all together, and created this guy, because Gorsuch’s record as a federal judge proves he is not a friend to the LGBTQ+ community.
After Gorsuch was confirmed, the court remained at it’s 4-1-4 split. To review: that is four Conservative Justices, 4 Liberal Justices, and 1 Moderate Justice. That Moderate Justice goes by the name of Anthony Kennedy, who was nominated by President Reagan and confirmed in 1988. Reagan, guys. You know, the president that many conservative swoon over? Yeah, he nominated the guy that cast the determining vote on the Obergefell vs Hodges case. Kennedy is important, because his presence on the court keeps it from becoming bipartisan—and the Supreme Court should never be bipartisan.
Kennedy is retiring (and the speculation behind why he is retiring is sketchy af.) Remember what I said earlier, about how the President gets to recommend someone to fill the Justice seat? Remember how Trump replaced Conservative Scalia with Conservative Gorsuch? Now Trump gets to replace Moderate Kennedy with another Conservative. Say goodbye to that 4-1-4 split on the Court, because now it’s looking like a 5-4. Bad, bad news, because Trump is surrounded by people who hate the LGBTQ+ community. Take Mike Pence, our Vice President: he has a history of voting for legislation that allows discrimination against LGBTQ+ persons. Trump and Pence are just the tip of the anti-Gay iceberg, because a majority of Trump’s cabinet is opposed to LGBTQ+ rights.
Trump recently nominated a commissioner who had minimal understanding of federal rules and criminal procedure. After that fell through, Trump nominated Brett M. Kavanaugh, who is set to have his hearings this September. Kavanaugh’s past decisions as a judge are right-leaning, and with his confirmation, we will have a predominately conservative Supreme Court of the United States. And remember, the current conservatives in office hate the LGBTQ+ Community.
These are the reasons why I chugged an entire bottle of wine on November 8th, 2016. This is why I got angry when people told me not to worry, because there is plenty of reason to worry, especially when my rights and the rights of my loved ones are being threatened. As much as I would have liked for my straight friends to have been right, as much as I would have loved to live in a world where Trump wasn’t trying to infringe on my right to live my life as equally as the next person, it is just not a reality anymore.
My This-is-Fuckery meter wants to retire—hell, I want to retire, hide under a rock and wait for this to all be over. But, it’s probably best not to. In fact, there are a couple things we can still do. In order for Kavanaugh to be confirmed by the Senate, he needs to pass a majority vote. Our Senate is currently 47 Democrats, 51 Republicans, and 2 Independents. The Independents usually vote on the Democrat side, so the vote could potentially be 49-51, favor for Republicans. We only need TWO Republican Senators to vote against Kavanaugh’s confirmation. Only. Two.
So, call your state senators, leave them a message. Tell them how you feel about making the court bipartisan, because it is always worth it to try and make your voice heard.
Especially when your voice is in danger of being silenced.