The Fight for Gay Rights Is Not Over

When the Supreme Court ruled in Oberge­fell v. Hodges that mar­riage is a fun­da­men­tal right for LGBT Amer­i­cans, many pun­dits expressed relief that the bat­tle for gay rights was, essen­tial­ly, over. This was an obvi­ous fic­tion — in 28 states, employ­ers have the right to sum­mar­i­ly ter­mi­nate an employ­ee because of their sex­u­al iden­ti­ty — but nev­er­the­less, gay activists are told, demand­ing an end to dis­crim­i­na­tion makes them aggres­sors, an insult to the “nat­ur­al fam­i­ly.”

Equal­i­ty for gay peo­ple, in oth­er words, is not a set­tled issue in Amer­i­ca. For these same “tra­di­tion­al­ists” (loose­ly defined, as their con­cep­tion of what a “tra­di­tion­al” fam­i­ly actu­al­ly is changes over time) also dom­i­nate the Repub­li­can Par­ty. From George W. Bush’s cyn­i­cal and dis­gust­ing push for a Fed­er­al Mar­riage Amend­ment in 2004 to the Indi­ana “Reli­gious Free­dom Restora­tion Act” passed by Vice Pres­i­dent Mike Pence in 2014 (one of many such bills across the coun­try), the Repub­li­cans have been on a long quest to tar­get LGBT Amer­i­cans for dis­en­fran­chise­ment and mar­gin­al­iza­tion — most recent­ly, under the trans­par­ent­ly cyn­i­cal cov­er of “reli­gious lib­er­ty.”

Here is the thing with these laws — like the one just passed in Mis­sis­sip­pi – that cre­ate spe­cif­ic, legal space to dis­crim­i­nate against LGBT peo­ple: they are com­plete­ly unnec­es­sary. Just as peo­ple have learned to be racist toward minori­ties with­out say­ing they are doing so, most peo­ple who choose to be big­ot­ed toward peo­ple like me are sub­tle and don’t need broad legal space to do so. A law like “Pro­tect­ing Free­dom of Con­science from Gov­ern­ment Dis­crim­i­na­tion” tries to coopt the lan­guage of civ­il rights, but instead reveals just how hol­low such an attempt real­ly is — there is no per­se­cu­tion of Chris­tians in Amer­i­ca, and if the con­ser­v­a­tive Chris­t­ian move­ment choos­es to define “not being a big­ot” as “per­se­cu­tion” then that is their prob­lem, no any­one else’s.

Even still, the Repub­li­can Par­ty cyn­i­cal­ly manip­u­lates this fear. There is a rea­son Mike Pence was tapped to run with Don­ald Trump — he is the exem­plar of jus­ti­fy­ing his big­to­ry as if the Bible says, any­where, that Chris­tians must mis­treat gay peo­ple. To be fair to the Repub­li­cans, they have been suc­cess­ful — most Amer­i­cans false­ly think LGBT peo­ple have equal rights, when we do not, and when there is an active effort to tar­get us for dis­crim­i­na­tion.

Indi­vid­ual issues like mar­riage have had space carved out through spe­cif­ic chal­lenges in the courts — and in every case, the court has ruled that dis­crim­i­na­tion vio­lates the 14th Amend­ment. But while you could argue that for­mal­ly adding LGBT peo­ple to Civ­il Rights law through an act like ENDA (or the ERA, if we’re talk­ing about woman) is unnec­es­sary because of the 14th Amend­ment, the courts have refused to do so because they want a spe­cif­ic pro­vi­sion grant­i­ng equal pro­tec­tion from dis­crim­i­na­tion.  At the same time, the same peo­ple who argue that cur­rent laws are enough (such as Chief Jus­tice John Roberts), also argue vocif­er­ous­ly that the 14th amend­ment was about racial dis­crim­i­na­tion only and should not be applied broad­ly. When placed next to these laws designed specif­i­cal­ly to allow dis­crim­i­na­tion, it is shown to be a hol­low and disin­gen­u­ous argu­ment.

Big­otry is the only expla­na­tion for such laws. When­ev­er they are passed, like in North Car­oli­na and Indi­ana, the state los­es jobs and invest­ment because large com­pa­nies know that par­tic­i­pat­ing in dis­crim­i­na­tion is ulti­mate­ly a loss for them. It does noth­ing to pro­tect big­ot­ed Chris­t­ian busi­ness own­ers, who want to dis­crim­i­nate against peo­ple — rather it turns them into the tar­gets of broad boy­cotts and they ulti­mate­ly lose rev­enue as straight allies join the boy­cott against their state.

This is pure nihilis­tic destruc­tion. It defends no reli­gion (nowhere in the Bible does God or Jesus com­mand His fol­low­ers to deny ser­vice to homo­sex­u­als), and it eco­nom­i­cal­ly hurts the com­mu­ni­ties that pass it. But it per­sists because, all the pearl-clutch­ing aside, it is big­otry. Big­otry has no ratio­nal basis, even if it des­per­ate­ly tries to find a ratio­nal argu­ment to sup­port itself.

What this means is that the fight for equal­i­ty is not over. Pres­i­dent Trump’s cab­i­net is full of anti-gay big­ots, and his Vice Pres­i­dent is famous­ly homo­pho­bic. They promise to restrict our abil­i­ty to adopt chil­dren, to be safe from prej­u­di­cial dis­crim­i­na­tion at work, even — poten­tial­ly — to rein­state the hor­rif­ic Don’t Ask Don’t Tell reg­u­la­tion on the mil­i­tary. It is a com­pre­hen­sive threat to LGBT Amer­i­cans on every front except the right to get mar­ried.

The Repub­li­can par­ty is los­ing demog­ra­phy on this issue: young peo­ple of all races and polit­i­cal ide­olo­gies over­whelm­ing­ly sup­port equal rights for LGBT Amer­i­cans. The Geron­toc­ra­cy cur­rent­ly stran­gling the GOP are stand­ing against every trend in this coun­try shout­ing stop — but they are also in charge of the Con­gress and the White House, and are set to stack every lev­el of court with their cohorts who share their regres­sive big­otries toward peo­ple like me. While the impli­ca­tions of an unpop­u­lar major­i­ty set­ting an extrem­ist agen­da is a con­ver­sa­tion for a dif­fer­ent time, the more press­ing issue is the com­pla­cen­cy I see in far too many peo­ple over basic, fun­da­men­tal rights. They are not as inalien­able as our most florid pun­dits claim they are — they are under dire, imme­di­ate threat, and it is incum­bent on all of us to stand up for them.

joshua.foust
Joshua Foust used to be a foreign policy maven. Now he helps organizations communicate strategically and build audiences.