Anyone who thinks that marriage equality is “settled law” needs to think again.
Since the election in November, religious conservative zealots have been giddy ― super-emboldened in their battle against LGBT rights. Through various avenues now coming into view they are hellbent on making same-sex marriage into second-class marriage. And they could very well succeed.
Donald Trump courted evangelicals studiously and under the radar during the election. He wink-winked and nudge-nudged to them while being hailed as gay-supportive by the above-the-radar media, which would help keep him from alienating other voters. It worked. He won. And anti-LGBTQ hate groups like the Family Research Council, Focus on the Family and others are once again feeling as if they can accomplish anything.
The Trump administration, at the groups’ behest, decided last week not to fight in court for transgender students, letting a judge’s ruling stand against President Obama’s directive from 2016. Neil Gorsuch, Trump’s Supreme Court nominee, is beloved by religious conservatives, an example of “success and access” they now believe they have, as a New York Times headline put it. They’re encouraged that he rejected arguments by a transgender prison inmate seeking medically necessary hormone treatment, and backed religious exemptions in the Hobby Lobby case. In the states, bathroom bills (and other anti-equality bills) are still abounding, even after North Carolina proved with HB2 they could lead to the downfall of a governor.
And a concerted effort is also well underway to chip away at marriage equality. I’ve been writing about this long-term plan for several years, actually, going back to a panel I sat in on at the 2014 Values Voter Summit in which the mastermind of the Proposition 8 campaign, Frank Schubert, had said conservatives would have to find a gay “version” of “partial birth abortion” if they lost on marriage equality at the Supreme Court (which of course they did in 2015 on the Obergefell case).
It sounds crazy and bizarre but what he meant was they’d have to grab onto a term or an idea, and both exploit misunderstandings and emotions while engaging in distortion. This is one way they’ve chipped away at abortion rights since Roe v. Wade. There is no such thing as “partial birth” abortion, just a late term surgical procedure known as Intact D&E, that’s used after late term miscarriages and, very rarely, in late term abortions, mostly when the life of the mother is in jeopardy. In 2000, it accounted for .17 percent of abortions. Nonetheless, re-branding this procedure as “partial birth” abortion tapped into people’s emotions around an issue about which some may be uncomfortable and know little about, even if they lean toward a pro-choice position. That helped religious conservatives in passing the “Partial Birth Abortion Ban Act” in 2003, which was upheld by the Supreme Court in a 5-4 decision in 2007.
We’ve seen an effort to do this regarding marriage equality with “religious liberty” bills in the states, allowing for business owners or government workers to turn away gay or lesbian couples if gay marriage offends their faith, attempting to play on fears that religious individuals are being discriminated against. Several of these bills were beaten back in the Obama era (though some passed, in Arkansas, Mississippi and North Carolina, for example), even as some polling showed the strategy could work nationally.