FEATURE
Electoral Politics, Queers, and the Tilt-a-Whirl of 2024: Two Starkly Different Pathways for the LGBTQ+ Community Following the Presidential Election
November 5, 2024, will mark a transformative election that has the potential to shift the manner in which the nation is governed for a generation or possibly even longer. The outcome of the Kamala Harris and Donald Trump showdown will usher in starkly different consequences for the LGBTQ+ community in the immediate and long-term future.
October 22, 2024
Harris versus TrumpL 2024 Elections
Current Supreme Court
Harris versus TrumpL 2024 Elections
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By Mike Broemmel
All U.S. presidential elections are occasions of civic significance. Not all U.S. presidential elections are transformative, resulting in generational, or multi-decade, shifts in the manner in which the country is governed, according to Presidential scholar Richard Neustadt and Professor William A.P. Thompson, Jr. of the University of Texas at Dallas. Neustadt was an advisor to Presidents Truman, Kennedy, and Johnson, as well as an ad hoc counselor President Clinton.
November 5, 2024, will mark a transformative election that has the potential to shift the manner in which the nation is governed for a generation or possibly even longer. The outcome of the Kamala Harris and Donald Trump showdown will usher in starkly different consequences for the LGBTQ+ community in the immediate and long-term future.
The impact on the LGBTQ+ community will be ubiquitous. Two key aspects of queer life will be especially impacted depending on which presidential candidate succeeds in this exceptional general election: Marriage equality and LGBTQ+ family life as well as workplace inclusion and queer Americans.
Marriage Equality, Family Life, and the LGBTQ+ Community: Which Bells Toll Following the General Election – Wedding Chimes or a Death Knell
The U.S. Census Bureau reports approximately 1.2 million same-sex couple households in the United States at this time. Of that partnered universe, over 700,000 of these couples are married. According to the agency, this represents approximately 11 percent of all married persons in the country in 2024.
In 2015, the United States Supreme Court ruled in Obergefell v. Hodges that the fundamental right to wed was guaranteed to same sex couples by the U.S. Constitution. As an aside, the majority opinion in Obergefell was written by Justice Anthony Kennedy, an appointee of President Ronald Reagan. A pair of Justice Kennedy’s former law clerks – Neil Gorsuch and Brett Kavanaugh – are now Justices on the Supreme Court. Trump nominees both, neither Gorsuch nor Kavanaugh can be expected to affirm the fundamental right to marry for same sex couples established in Obergefell. Moreover, both of these Justices demonstrated a propensity to scuttle long established Supreme Court precedent (overturning Roe v. Wade) and likely would have no issue dispatching precedent associated with a case not yet a decade old.
Both ultra-conservative Justices Clarence Thomas and Samuel Alito swiped at the Obergefelldecision and marriage equality in their opinion writing during the past couple of terms. A reasoned assessment is that given the opportunity, both Justices would overturn Obergefell (much in the same manner they dispatched Roe.) A fair assessment is that Gorsuch, Kavanaugh, and Justice Amy Coney Barrett will trundle along. Chief Justice John Roberts may position himself to put something of a brake on a full capsizing of the LGBTQ+ marriage rights completely.
Current Supreme Court -Image: Creative Commons
Congress, together with a willing President, can codify the protections enumerated in Obergefell. Some think that occurred in 2022 when Congress passed, and President Biden signed, the Respect for Marriage Act into law. However, that is not the legal reality. Bear in mind that even the Church of Latter-Day Saints supported this legislation because it does not create a federal mandate protecting the ability of a same-sex couple to marry. In simple terms, should Obergefell be overturned – which is a real possibility in the not-too-distant future – absent a law codifying the protections enumerated in that case, a state-by-state unraveling of the right to same-sex marriage in a manner akin to what is happening in regard to abortion will be the order of the day.
A Harris presidency does provide footing upon which an effort to protect the right to same-sex marriage can be founded. Harris has been unequivocal in stating her support for same-sex marriage, noting as recently as August 31, 2024, that “we are not going back” to a ban or prohibition on these types of nuptials. Of course, this protection would be better ensured should the Democrats somehow gain control of both Houses of Congress, which is not thought to be in the cards.
Trump’s position on same-sex marriage is murky. Some political analysts maintain that President Joe Biden and Trump have similar positions on the subject. Others say that is not the case and that Trump does not favor same-sex marriage. The current leadership of the GOP clearly is opposed to same-sex marriage.
The current Speaker of the House, Republican Mike Johnson is also a principal when it comes to protecting or eviscerating same-sex marriage. Johnson has described same-sex marriage as a “dark harbinger of chaos.” Johnson hearkens us back to the 1970s, a time when gay rights viscously were opposed. Johnson suggests that same-sex marriage rights will lead to people marrying dogs. In the long-ago decade, anti-gay rights crusader and frozen orange juice hawker Anita Bryant remarked: “If gays are granted rights, next we'll have to give rights to prostitutes and to people who sleep with St. Bernards and to nail biters.”
Returning to the upcoming general election, Trump is known to switch his positions on issue in short speed. For example, during the last week of August 2024, Trump went from favoring the Florida six-week abortion law to opposing it by Friday. In fairness, both presidential candidates have flip-flopped on various issues. At the moment, the focus is on same-sex marriage and the impact of the 2024 election on those marital rights. Harris has been a consistent supporter of the rights enumerated in Obergefell; Trump has not been.
Workplace Equality and Queer Americans:
Outlook for LBGTQ+ Employment Inclusion and Protections
Misconceptions abound about the protections available to LGBTQ+ Americans in the workplace. Some federal courts have ruled that Title VII of the Civil Rights Act of 1964 extend the same workplace protections afforded to people on the basis of gender to queer workers. Other courts have ruled that no such protections exist. Current federal law, be that as it is, by definition, doesn’t extend to all businesses.
According to the American Civil Liberties Union, the U.S. Supreme Court announced that it will take up three cases that will address the issue of whether or not the Civil Rights Act of 1964 does protect members of the LGBTQ+ community in the workplace. The stark reality is that with the current composition of the Supreme Court, the likely end result of this judiciary trifecta is that in either a 5-4 or 6-3 decision, the Justices will rule that no such workplace protections exist on the federal level for LGBTQ+ persons.
The Supreme Court is not likely to have the judicial oomph to go beyond addressing the efficacy of Title VII in regard to queer workers and overturn state statutes and local ordinances that protect LGBTQ+ Americans in their employment. Currently, a considerable degree of workplace equality for queer people is enumerated through laws on the state and local level across the United States.
Iconic drag performer Christi Layne, who has the off-stage name of Christopher Sloan, was on the front lines of LGBTQ+ rights in the 1970s and then the battle for AIDS and HIV medical care the following decade. “I was fired (from my job) for being gay,” Sloan said explaining his own experiences decades ago.
Sloan was the Grand Marshall for the 50th Annual Denver Pride Parade, a fitting accolade because he was the person who obtained the permit and worked to organize the first ever Pride parade in the Mile High City in 1974. He believes that there are echoes of the 1970s today.
“I see and feel we have come full circle today, Sloan said. “We are again dealing with many of the issues of our youth, the unfinished work of our youth.” According to Sloan, this includes LGBTQ+ workplace equality and inclusion.
U.S. Constitution -Image: Creative Commons
“We have an opportunity now to complete the work started so many years ago, to reclaim and rediscover dreams of a time that some worry may slip away,” Sloan explained. “I’m an old drag queen activist,” he added, noting that queer worker’s rights are in potential jeopardy depending on who is victorious on November 5, referencing a second Trump presidency.
The outcome of the 2024 general election has the potential to lay the groundwork for protecting against erosion of workplace protections for the LGBTQ+ community. A Harris victory would aid in forming an executive branch firewall. Such a barrier could serve to protect the rights of queer workers on the federal level and to prevent a top-down interference with what states and localities do to safeguard LGBTQ+ employment rights. No such presidential commitment to employment equality would flow from a second Trump Administration.
The future of queer employment equality is jeopardized on two other interrelated frons. First, a limb is not walked upon when the statement is made that the person elected President in 2024 will appoint one if not two Supreme Court Justices as the result of the loss of one if not two liberal members. If Harris is elected President, the current judicial disposition of the court will be maintained at six conservatives to three liberals. If the Trump campaign prevails, the makeup of the court could morph to seven or eight conservatives, potentially leaving the Supreme Court with a balance of seven conservatives to one liberal. Bear in mind that if Donald Trump takes the West Wing again, two of the conservative justices on the bench might resign during his term. Such departures would work to cement the conservative stranglehold on the Court beyond the next generation.
Second, if Trump regains the presidency and the GOP takes control of both Houses of Congress, LGBTQ+ workplace equality theoretically if not actually will be further threatened. GOP control of Capitol Hill, coupled with an activist-conservative Supreme Court, jeopardizes queer rights on many fronts, including employment. The risk to LGBTQ+ rights, including employment security, is heightened by a lack of brakes let alone advocates for equality and inclusion within a second Trump West Wing.
On many levels, the 2024 U.S. presidential election is proving historic. Indeed, the uniqueness of this campaign is already the subject of a rapidly growing number of articles and will be the focus of what likely will be a record number of books after the election.
Underpinning the electoral battle remains the prospect for the next presidential administration to be one that fairly can be classified as transformative. Part of that reality will be the nature and extent the LGBTQ+ community will face a heightened assault on rights that have been a long time coming. Rights protecting marriage as well employment equality and security are more immediately at risk no matter the winner of the general election. These rights will be further jeopardized or at least somewhat better protected depending on the electoral pathway selected by that potion of the more than 160 million registered voters that cast their ballots on November 5.
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About the author
Writing and journalism has been at the heart of Mike Broemmel’s life after graduating from college with a degree in political science and journalism and beginning his career in the White House Office of Media Relations and Planning (and then in the Office of the First Lady). A primary focus of his work has been in the realm of political analysis and commentary. Mike is also a playwright with several productions addressing issues of equality, diversity, and inclusion that have been produced internationally.