All 3 Branches at Stake in November

Published in: September-October 2016 issue.


AS I GET OLDER, I am losing hope that I will outlive the need for an article about the impact a forthcoming election will have on GLBT people. At some point our right to be protected against bigotry will not only be established, but will no longer depend on electoral outcomes. But we are not there yet, and my reason for doubting that I will be celebrating its arrival is based not on my health—which is fine—but on the undiminished hostility to our achieving full legal equality that continues to dominate the Republican Party.

The country as a whole has been moving steadily in favor of our right to be treated fairly. And while that trend includes some decrease in anti-GLBT sentiment among Republican voters—though less here than in the electorate as a whole and much less than among self-identified Democrats, where our support is approaching unanimity—this has not had any noticeable effect on the behavior of Republicans in office.

I know that it is fashionable to decry partisanship and to proclaim one’s practice of ignoring party affiliation in the voting booth. But in today’s real world, there is no issue on which the difference between Democrats and Republicans is greater than on GLBT rights. When Republicans control any branch of government, they not only oppose any official act that extends our protection against bias, but do everything within their power to undo supportive actions that have been taken by others. Consequently, indifference to party is incompatible with a strong commitment to ending discrimination based on sexual orientation or gender identity.

Exhibit A is of course the presidency. It is true that in the course of his characteristically semi-coherent, inconsistent discussion of our issues, Donald Trump has occasionally been positive—most commendably in disagreeing with his fellow Republicans’ bathroom fetish. But on the critical questions of how his official actions would affect us, his positions are wholly negative.

The Supreme Court has been the strongest source of support for our efforts to secure legal equality. A Trump presidency would not only end this; it would mean certain weakening and possible reversing of the gains we have made in this forum. The numbers tell the story: 5-3, 4-4, 81, 84, and 87.

Five to three is the division of the current Court membership in favor of recognizing our Constitutional claim to be treated equally. Four to four is the split on how expansively to frame the right to invoke one’s religious views as a legal defense against recognizing the rights of others. The last three numbers are the ages that Justices Stephen Breyer, Anthony Kennedy, and Ruth Bader Ginsburg will have reached when the next president’s first term expires.

Trump has committed to filling the Court vacancy with a justice who will vote against us on both issues. Significantly, this pledge was made as part of his effort to reassure Republicans that they can rely on him to conform to their agenda. He did so by releasing a list of names from which he promises to pick his nominee, explaining that his model is the late, homophobic Antonin Scalia. The list was welcomed by the conservative commentators who count the Court’s decisions on DOMA and same-sex marriage as among its worst mistakes.

Hillary Clinton’s nominee will be as strong a supporter of GLBT rights as Bill Clinton’s appointees Breyer and Ginsburg and Barack Obama’s appointees Sonia Sotomayor and Elena Kagan have been. To be explicit, of those appointed to the Court by Presidents George H. W. Bush, Clinton, George H. Bush, and Obama, the five Republican appointees have been strongly against us on every issue, while the four nominated by Democrats have been our equally firm supporters. The only exception to this pattern is Justice Kennedy, a Reagan appointee, chosen more than thirty years ago when our legal issues had much less prominence.

Now the math. Support for GLBT legal protections would retain a five to four majority even if Trump were able to replace Scalia. But three of the five would be between 81 and 87 when their term expired. So the appointment of one replacement from his list puts us back in the minority. Resting our hopes for continued support for our rights on the health of three octogenarians in a high-stress job seems an unnecessary risk, given the alternative of a certain six to three pro-GLBT alignment that would result from a Clinton presidency.

There is one important issue pending on which Justice Kennedy’s position is unknown. That is whether individuals may invoke their religious beliefs to ignore laws that protect us. Kennedy was one of the five voting to allow Hobby Lobby to ignore the part of the Affordable Care Act requiring that birth control—not abortion—be included in a company’s health care plan. True, this was not a GLBT case. But the Constitutional right to birth control is long established and non-controversial. Having voted here to let religious belief allow the nullification of one right that he recognizes, there is no basis for confidence that Kennedy would refuse to vote the same way when those seeking protection were the spouses in a same-sex marriage. And of course, even if he did, that would very probably only delay, not forestall, a Supreme Court majority subordinating our rights to those with religious objections to them.

This is not the only Clinton-Trump difference directly affecting us. President Obama has used his power to issue executive orders in our defense. Most recently, he forbade those with federal contracts from discriminating against us in their expenditure of federal money. Trump will abrogate these, while Clinton will firmly enforce them.

Clinton’s record as Secretary of State in the vigorous, creative use of her authority to advance fairness for GLBT people is one of the reasons she has the nearly unanimous support of the leaders in the fight for gay rights nationwide, including every openly GLBT member of Congress. When she was told of the difficulty transgender individuals faced in conforming their passports to their gender identity, she swiftly made sure of their right to do so. Implementing her declaration that gay rights are human rights, she has established in the State Department offices that provide strong support to GLBT people and groups abroad. On a recent trip to Asia, my husband Jim and I met several times with the employees of our foreign aid agency, usaid, who work on this issue with great skill and commitment. And while Clinton was no quicker to explicitly support same-sex marriage than other liberal Democrats seeking the presidency—including Obama and John Kerry—she was, like them, a strong opponent of Republican efforts to amend the U.S. Constitution to overturn the Massachusetts decision that was our first success.

The case for GLBT people and supporters to vote Democratic in November extends with equal force to other elections. In Congress and at the state level, Republicans not only overwhelmingly oppose measures to extend protection of our rights, they use their power to undo pro-GLBT actions by others as occurred when the government of North Carolina overturned protections enacted by the city of Charlotte.

While state legislative efforts to empower people to invoke their religious views to discriminate against us for exercising our right to marry are well known, it is too rarely noted that this is an entirely partisan battle. Not every state under Republican control has tried this, but neither has it been done in any state where Republicans do not control both legislative bodies and the governorship. Democrats have been outspoken in their resistance. In two cases where Republican governors responded to the urging of their business leaders to veto the bills, it was the Democratic minorities that prevented their being overridden. And note that in those Southern states where these efforts have been most frequent, our support has come in large numbers from the African-Americans, who dominate Democratic delegations in those places.

North Carolina Republicans—including a governor once described as moderate—earned their own special place in the annals of official opposition to our rights by not only canceling Charlotte’s ordinance protecting transgender people, but also, apparently, by frightening other cities that might try to ban anti-GLBT discrimination from so acting. The forceful opposition to this law from North Carolina Democrats is led by their candidate for governor, the current attorney general, who has made it a campaign issue—an encouraging sign of progress in a state represented in recent memory by the hyper-bigoted Jesse Helms. This is also another area where the Obama Administration has come to our defense, a stance whose continuation depends on a Clinton victory. Predictably, all of the states that have joined North Carolina in suing the federal government to nullify this action have Republican governors.

The last example of the Republican crusade to stamp out pro-GLBT official acts is both the most egregious and the most compelling in making the case for voting Democratic. That is the unrelenting insistence of the House Republicans on using their majority to overrule Obama’s executive order prohibiting federal contractors from discriminating against GLBT people in the expenditure of federal funds.

The word egregious also describes their tactics. First, they put the nullification in a bill authorizing military spending and applied the House rules to prevent the Democrats from putting it to a vote. Next, Representative Sean Patrick Maloney, in a move that demonstrates the importance of having openly gay members, especially those who have mastered the parliamentary intricacies, caught them in an unguarded moment and offered an amendment to a separate military spending bill that undid their anti-GLBT provision. When the time usually allotted for members to vote expired, Maloney’s tactical skill appeared to have paid off. A majority composed of 182 Democrats and 35 Republicans supported his motion, outvoting 206 Republicans who opposed it.

However, in an illustration of how their anti-GLBT zeal outweighs their respect for what is called in the House “the regular order,” the Republican leadership delayed announcing the vote so they could apply all of their political muscle on those of their members who had voted yes until they succeeded in persuading six to change their votes to no, reversing the outcome. Finally, having once had their official homophobia threatened by a vote, the Republican leadership has successfully enforced party discipline to adopt procedures to prevent any further votes on the subject. And, more than incidentally, this refusal to allow politically inconvenient amendments to be offered was the decision of Speaker Paul Ryan, indistinguishable here from Tom Delay and Newt Gingrich in his willingness to sacrifice democratic procedures in the House to his ideological agenda.

There are two lessons to be drawn from this, one more obvious than the other. The first is that as long as Republicans have a House majority, we will be hard-pressed to prevent rollbacks of rights won elsewhere, much less making any gains.

The second comes from the behavior, not of the explicitly anti-GLBT House Republicans, but of the less than ten percent who profess some support for us. Very few even of these will be there when we need them. I am referring here not only to those who switched their votes on Maloney’s amendment—and no one doubts that there were more Republicans prepared to abandon us on that vote if their leadership needed them. What has enabled Speaker Ryan to stave off any further assaults on his anti-GLBT provision is the willingness of even genuinely pro-GLBT Republicans to stick with him on what are called “procedural votes,” i.e., resolutions that ban inconvenient amendments from pro-GLBT Democrats. If your intention is to vote for a representative who will help in our fight, don’t pick one who will loyally follow the party line when it keeps us from even getting into the ring.

In a normal year, this would be the end. But in this very abnormal one, a last point is necessary. Bernie Sanders’ endorsement of Hillary Clinton obviously diminishes much of the unjustified resistance to her on the left, but we have a role to play here as well. It is to point out—emphatically—to left-wing critics that failing to support Hillary Clinton against Donald Trump means wholly disregarding GLBT rights. We should not tolerate claims to superior political morality from people whose exclusive focus on economic issues leads them to ignore the needs of the millions of GLBT people who still lack full legal protection against damaging discrimination.


Barney Frank was a U.S. Congressman from Massachusetts from 1981 to 2013, chairing the House Financial Services Committee, 2007 to 2011.