The Office for the Advancement of Research, as part of our Public Scholarship Initiative, actively solicits blog entries from John Jay faculty, staff, and external scholars working on issues of key contemporary and historical significance. We promote these entries on social media, including Facebook and Twitter, as well as within the university through a partnership with our Marketing and Development Office. If you wish to contribute an entry, please contact Director of Research Operations Daniel Stageman at email@example.com with a brief (1-2 sentence) summary of your proposed entry.
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The Trump Administration and LGBT Rights
Our latest blog entry comes from Professor of Political Science Daniel Pinello. Professor Pinello is also author of America's War on Same-Sex Couples and their Families: And How the Courts Rescued.
By: Daniel Pinello, 2/7/2017
Shortly after the November 2016 presidential election, the New York Times published the headline “Trump Win Seen as ‘Devastating Loss’ for Gay and Transgender People.” Offering reasons from the President-Elect’s business and personal histories to believe he himself lacked animosity toward lesbian, gay, bisexual, and transgendered folks, the article nonetheless emphasized the overt hostility to LGBT rights evident in the Republican Party’s national platform (including the GOP’s advocacy of parents’ requiring their gay and transgender kids to go into “conversion therapy” to alter their sexual orientation or gender identity). Moreover, Donald Trump’s choice of Governor Mike Pence as Vice President especially distressed the queer community. The Indianan promoted public funding of conversion therapy, voted in Congress against bills prohibiting sexual-orientation and gender-identity discrimination and against the repeal of the military’s Don’t Ask, Don’t Tell policy, and signed a state law allowing businesses the “religious freedom” not to serve gay and lesbian people.
Trump’s cabinet picks also sent tremors through LGBT groups. Declining to sing at the inauguration, for instance, Jennifer Holliday observed that the incoming federal regime was “a who’s who of homophobia.” Notable among the Trump nominees were Jeff Sessions as Attorney General and Rex Tillerson as Secretary of State. As an Alabama senator, Sessions supported amending the Federal Constitution to outlaw same-sex marriage, voted against queer people’s open service in the American military, and objected to bills protecting against sexual-orientation and gender-identity discrimination in the workplace. When Tillerson became chief executive of Exxon Mobil in 2006, the oil company’s score on the Human Rights Campaign’s Corporate Equality Index was 0 percent. Exxon Mobil didn’t formally adopt anti-discrimination policies regarding sexual orientation and gender identity until 2015, a year after the Obama Administration mandated that businesses under contract with the federal government protect LGBT workers. By 2017, the oil company’s HRC score was 85 percent, conspicuously behind 514 other enterprises (like Apple, Chevron, and Walmart) with 100 percent ratings.
So what damage can the Trump Administration do to LGBT rights? A comprehensive answer first requires recognition that our American system of federalism provides states with most of the powers important to the daily lives of queer folk. Legal relationship recognition (whether between coupled partners or the minor children they’re raising), the ownership and distribution of property within families, protections against discrimination in the workplace, housing, and public accommodations – all these vital issues and more are primarily regulated at the state level. Thus, LGBT rights that exist pursuant to state law (such as to marry or adopt children or not to be fired from a job for being gay or transgender) cannot be directly affected by the President or Congress. So queer people living in progressive places like California, Massachusetts, and New York have little to fear immediately from Republicans in Washington, DC.
Rather, LGBT individuals living in the 28 jurisdictions (Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming) without statewide legal-protections against sexual-orientation or gender-identity discrimination have better reason to feel insecure. For years, bills that would add sexual orientation and/or gender identity to the personal-attribute categories protected from discrimination under federal law have languished in Congress. And that lacuna in national legal safeguards for queer folk isn’t likely to be filled while the White House or either congressional branch is under GOP control. Accordingly, had Hillary Clinton won the Electoral College in addition to the popular vote, the Republican-dominated House of Representatives would still have blocked progress in federal statutory protections. So Trump’s ascendancy isn’t decisive for the logjam in such prospective national legislation.
However, the new president can revoke his predecessor’s executive orders regarding policies of concern to the LGBT community or issue new decrees antagonistic to queer rights. For example, in 2010, Barack Obama’s Department of Health and Human Services promulgated regulations requiring hospitals receiving Medicare or Medicaid funding to extend the visitation rights of patients to include their same-sex partners. A subsequent directive allowed married lesbian and gay couples to take family and medical leave. In all, more than 100 executive actions and regulatory changes by the Obama Administration improved the daily lives of queer Americans in sundry ways. Trump has the power to annul all such improvements, including the aforementioned discrimination ban on federal contractors.
Of course, whether he’ll do so is an open question. With regard to workplace protections in particular, American public opinion overwhelmingly supports such guarantees. While just 59 percent of national respondents told the Gallup Organization in 1982 that they thought homosexuals should have equal rights in terms of job opportunities, the proportion who supported equality in the workplace had increased to 89 percent by as long ago as 2006. Hence, Trump, who came into office with the lowest public approval ratings of any president in the modern era, would threaten alienating even more Americans by gratuitously countermanding Obama Administration benchmarks of LGBT-rights progress.
Indeed, on January 30th, the White House announced that the President would not disturb Obama’s 2014 directive prohibiting federal contractors from discriminating against LGBT employees or job applicants. But just two days later, on February 1st, a draft executive order circulated within the Trump Administration which would have provided broad protections for employers and service providers that, based on religious objections, deny jobs or services to LGBT workers or customers, similar to the bill Vice President Pence signed into law as governor of Indiana. By February 4th, the New York Times reported that Ivanka Trump and her husband Jared Kushner were instrumental in scuttling the proposed “religious-liberty”-based rollback of queer rights. Hence, what the new president ostensibly gave on a Monday with one hand – preserving Obama’s executive order of three years ago – he almost took away with the other hand on Wednesday, but for the intervention of social liberals within the President’s immediate family.
If Trump himself has any genuinely reliable political instincts, he’s likely not to tamper extensively with rights policies affecting queer people. In a January 12thNew York Times profile, for instance, Peter Thiel, the billionaire venture capitalist who was a member of the Trump transition team and who is openly gay, averred that “Trump is very good on gay rights. I don’t think he will reverse anything.”
Even diehard right-wing congressional Republicans have seen the political writing on the wall with regard to marriage equality, which the Pew Research Center found 55 percent of Americans supported in 2016. After the U.S. Supreme Court nationalized the right of same-sex couples to marry in Obergefell v. Hodges of June 2015, no organized effort emerged in the GOP-dominated 114th Congress to amend the Constitution for the purpose of toppling that judicial ruling. Although House Republicans threw abundant red meat to constituents by passing numerous symbolic repeals of the Affordable Care Act, GOP lawmakers didn’t even attempt one congressional vote to overturn Obergefell.
The venue in which President Trump may have the most consequential detrimental effects on the everyday lives of queer folk is in his judicial appointments, because federal courts will continue to address disputes affecting LGBT litigants. Last October, for example, the Supreme Court announced it would review whether a U.S. Department of Education regulation – requiring that "When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity" – appropriately implemented Title IX, a 1972 law banning discrimination “on the basis of sex” in schools receiving federal money. Also last October, the Court of Appeals for the 7th Circuit, in Chicago, granted an unusual discretionary rehearing by that full judicial bench on whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation, as held in a 2015 Equal Employment Opportunity Commission decision.
Judge Neil Gorsuch, President Trump’s nominee to replace Supreme Court Justice Antonin Scalia (who died almost exactly a year ago), is likely to be as unsympathetic to queer litigants as his predecessor, who never voted in support of an LGBT-rights claim. Yet substituting Gorsuch for Scalia on the high tribunal would not immediately change its 5-to-4-vote equilibrium in favor of due process and equal protection for all Americans, regardless of their sexual orientation or gender identity. The real threat to the Supreme Court’s balance toward fairness for all would come in the event either Justice Ruth Bader Ginsburg (who turns 84 in March of this year) or Justice Anthony Kennedy (who will be 81 in July 2017) leaves office. A replacement of either of them by someone in the mold of Gorsuch, Scalia, or Justice Clarence Thomas could be disastrous to future LGBT-rights claims in the federal judicial arena.
With that real threat on the horizon, however, I don’t think there’s likely to be substantial retrenchment on constitutional rights already established by existing precedents such as Lawrence v. Texas (the 2003 invalidation of state consensual-sodomy statutes), United States v. Windsor (the 2013 upending of the federal Defense of Marriage Act), and Obergefell v. Hodges. The reasons for my optimism are several.
First, consider federal judicial voting trends on LGBT-rights claims. My 2003 book Gay Rights and American Law analyzed how federal and state appellate courts treated the civil rights claims of lesbians and gay men between 1981 and 2000 through an examination of 1,439 votes by 849 appellate judges in 398 decisions and opinions from 87 courts in all federal jurisdictions and 47 states. The volume’s concluding chapter made this observation:
Federal judges selected by Democratic presidents, compared with Republican appointees, positively determined an astonishing 40.5 percent of the probability “space” between complete success and utter failure of lesbian and gay rights claims in federal appellate courts. Among 45 federal cases in the study not influenced by controlling precedent, only 26.7 percent of 116 votes by judges nominated by Republican presidents were favorable to sexual minorities, while 60.2 percent of 83 votes by Democratic appointees supported homosexuals – a difference of 125 percent! Indeed, presidential party predicted case outcome far better than any other personal attribute [such as age, gender, race/ethnicity, or religious affiliation] of federal judges in the investigation.
My 2016 book America’s War on Same-Sex Couples and Their Families - And How the Courts Rescued Them – which counted the votes between 2013 and 2015 in all lower-federal-court decisions adjudicating disputes over the constitutionality of state same-sex-marriage bans – revealed a remarkable change from what the 2003 volume found:
[T]he (admittedly smaller) sample of federal judges in this survey had even more astonishing voting patterns based on the political party of the presidents who selected them. Among both the sixteen district-court and nine circuit-court judges who were Democratic appointees, 100 percent of their votes – every last one – went in favor of marriage equality, representing a 66-percent improvement over the 1981-2000 Democratic-nominee voting record. Whereas, with regard to the jurists chosen by Republican presidents, four of their six circuit votes, or 67 percent, went against the right of civil marriage for same-sex pairs, while just one of five trial-court decisions, or 20 percent, did so. In total, six of eleven Republican appointees, or 55 percent, embraced marriage equality. Hence, although the gap established by presidential party wasn’t as dramatic in 2013-2014 – at 82 percent – as it was in the last two decades of the twentieth century (125 percent), the disparity, nonetheless, was still substantial.
In other words, the rates at which both Democratic and Republican appointees to the federal bench backed the civil rights claims of LGBT litigants increased steadily, even dramatically, over time. The frequency of support from judges selected by Democratic presidents rose by two-thirds (from 60.2 percent to 100 percent) between 1981-2000 and 2013-2015, while the increment for Republican designees was more than double (from 26.7 percent to 54.5 percent). These enhanced levels of judicial protection mirrored the kinds of advances in American public opinion regarding queer rights referenced earlier. Accordingly, the voting trends of both Democratic and Republican nominees generally bode well for continued support of LGBT rights in federal court.
A second reason for optimism that landmark decisions like Lawrence, Windsor, and Obergefell won’t be jeopardized by Trump judicial appointments is the legal doctrine of stare decisis, which is central to traditional jurisprudential explanations of decision making in American courts. In brief, adjudged cases furnish examples or authority for analogous future fact patterns or similar questions of law. Adherence to established precedents provides security and certainty, mandating established legal principles under which rights may accrue, be recognized, and be followed. Stare decisis facilitates a predictable legal system.
From a macro perspective, the U.S. Supreme Court’s own commitment to honoring precedents is revealed by the statistic that less than .002 percent of all of the high court’s opinions have ever been formally overruled by the Court itself. At the micro level, consider the remarkable endurance of Roe v. Wade. I remember well, for instance, how, after the April 1992 oral argument in Planned Parenthood of Southeastern Pennsylvania v. Casey, all well-informed court observers predicted that, as a result of President George H. W. Bush’s replacement of the liberal lions William Brennan and Thurgood Marshall with David Souter and Clarence Thomas, Roe v. Wade would finally be toast. But, just as the New York Times forecasted with 84-percent certainty last November 7th that Hillary Clinton would be the 45th president, the 1992 conventional wisdom was also wrong. Roe’s core holding prevailed as a precedent in Casey.
Equally important as these general observations about the crucial role of stare decisis in the American legal system, Chapter 5 of Gay Rights and American Law conducted an empirical test of the impact of precedent in the LGBT-rights context. My investigation first identified the votes of judges who were likely predisposed (because of their age, gender, party affiliation, race/ethnicity, religion, and a variety of other factors) not to support the legal claims of queer litigants. The study then compared the computed probabilities of how jurists would vote with their actual behavior deciding cases. I discovered that over one-third (36.4 percent) of the judges on courts of last resort (both state supreme courts and the U.S. Supreme Court) who were otherwise inclined not to endorse LGBT rights nonetheless did so when a binding precedent in favor of such claims was involved in the adjudication. And the proportion of conservative-minded judges on intermediate appellate courts (such as the U.S. Courts of Appeals) who followed relevant liberal precedents was especially striking: 78.6 percent.
Hence, there are good reasons for cautious optimism that President Donald Trump’s impact on LGBT rights in the United States won’t be significantly detrimental.
Local police and immigration enforcement under the Trump administration
Our latest blog entry comes from Dan Stageman, PhD, Director of Research Operations for the Office for the Advancement of Research at John Jay College.
By: Dan Stageman, 1/26/17
I began drafting a speculative blog entry about the Trump Administration’s likely actions on immigration enforcement before I caught the news of yesterday’s executive orders on the subject. That entry began with some thoughts on the uncertainty and unpredictability of the new administration’s actions in the immigration arena or any other. Just 24 hours later, those introductory paragraphs read like clueless optimism – the sort of hopeful, best-case-scenario thinking that many of us have continued to indulge in defiance of all evidence to the contrary.
As of January 25th, I’m ready to declare myself officially done trying to find silver linings. What is left for advocates and others concerned with the well-being of America’s immigrant communities is to gird for a long and bitter fight. As I begin to shape my own part in this fight, the anxiety around where to get the most return on investment for my limited time, energy, and expertise is profound. I don’t think there are any easy answers to this dilemma, but the time-honored exhortation to “think globally, act locally” has particular relevance in the context of an immigration enforcement regime that looks set to outdo all prior efforts to involve local law enforcement agencies as a “force multiplier.” Trump’s “deportation force” – an accurate-enough label for the planned trebling of the ranks of Immigration and Customs Enforcement (ICE) agents, a glaring exception to an overall federal hiring freeze – will take considerable time to implement. In the meantime, he has clearly signaled his intention to rely on local law enforcement agencies to quickly ramp up deportation efforts, to a level that will likely make the record-setting pace of expulsions reached under President Obama’s first term seem humane by comparison.
In my last essay on this topic, I speculated that the Trump Administration might choose to take the broadest possible interpretation of section 287g of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, allowing it to ‘deputize’ any interested local law enforcement agency by signing a memorandum of agreement including the bare minimum of training and oversight. Trump’s January 25th executive order in fact goes much further, making a blanket declaration empowering local and state police to “perform the functions of immigration officers in relation to the investigation, apprehension, or detention” of undocumented or deportable immigrants, “under section 287(g) of the INA, or otherwise.”
It remains to be seen how the Trump administration and potential local partners will interpret these provisions, just as it remains to be seen where and how they will be challenged by states and localities, in practice or in court. My own prior work on local immigration enforcement partnerships leads me to believe that local enforcement will be restarted (or ramped up, where it has been ongoing under 287g “jail enforcement” agreements signed with the Obama Administration) first – and with the most significant impact and potential harm to immigrant communities – in jurisdictions that fit a few key criteria. First, these “early adopter” jurisdictions will be headed by the same chief executives (most commonly elected county sheriffs) who signed 287g memorandums of agreement in the past. Second, they will be jurisdictions that started deportation proceedings for significant numbers of immigrant arrestees under these programs in the past. And third, they will be jurisdictions that have clear incentive(s) for directly involving their personnel in immigration enforcement at the local level. These incentives can be politically cynical or ideologically symbolic, but they are often straightforwardly financial: many of the same jurisdictions that have held 287g enforcement agreements in the past also host private/for-profit immigrant detention facilities to which they maintain close ties, or detain immigrants themselves under potentially lucrative Intergovernmental Service Agreements (IGSAs) under which ICE pays the jurisdiction a set per-day fee for each immigrant detained.
Using these and other characteristics, I believe we can anticipate with some accuracy the first round of jurisdictions that will move forward with local immigration enforcement efforts under cooperative agreements with the Trump Administration. We can also make informed judgements about the potential harm these agreements will pose to immigrant communities residing within the jurisdictions in question – and the potential for legislative, legal, political, or practical challenges brought by advocates to mitigate this harm.
In an effort to help advocates better focus their limited resources on effective and broadly impactful challenges to the Trump Administration’s local immigration enforcement efforts, I have begun pulling together the relevant data that I believe will help us make these judgements. This is the first entry in a series I have planned to highlight “five jurisdictions to watch” under the Trump administration’s local enforcement partnership efforts.
There are of course many more than five jurisdictions where ramped up local enforcement efforts are likely to harm immigrant communities, and even the most comprehensive statistical analysis would be limited in the predictive power it could provide. The purpose of organizing this series as a “listicle” is an acquiescence both to blogging culture and to the limits of my own time. It is not my intention, however, to promote an academic project, or protect and withhold privileged academic data. On the contrary, I plan to post the database as a public data tool, and I hope that sharing it in this and other forums helps to generate discussion on ways to make it more useful as a tool for advocates. Please contact me (or contribute a public comment) if you have any thoughts on how to do that.
Each jurisdiction profile will include the full list of facts and figures that justify its inclusion, along with a discussion of its previous involvement in immigration enforcement, its local political and state legislative context, its immigrant communities, and thoughts on what advocates could do (in many cases what they are already doing) to challenge or mitigate the potential harm of local enforcement. The five jurisdictions that I will profile are:
- Orange County, California (Sheriff Sandra Hutchens)
- Etowah County, Alabama (Sheriff Todd Entrekin)
- Frederick County, Maryland (Sheriff Charles Jenkins)
- Alamance County, North Carolina (Sheriff Terry S. Johnson)
- Gwinett County, Georgia (Sheriff Butch Conway)
Time permitting, I will also include “(dis)honorable mention” profiles of Monmouth County, New Jersey (Sheriff Shaun Golden) and Butler County, Ohio (Sheriff Richard K. Jones). Note that these jurisdictions do not simply represent the top jurisdictions in terms of likelihood or likely harm of local immigration enforcement; as noted above, they are included based on my own best judgement of the available data. I’ve also made an effort to include jurisdictions from across a broad regional spectrum, to highlight the reality that this phenomenon is not exclusive to any given region – and the equally important fact that federal-state tensions on immigration are reflected in parallel state-local tensions. Thus our first profile will focus on Orange County, the lone 287g holdout in what is arguably the most pro-immigrant state in the nation.
Those who are interested should watch this space. I will post these profiles as I complete them, singly or in multiples as time permits. In the meantime, please don’t hesitate to comment or contact me with any thoughts, questions, or requests.
Daniel L. Stageman, PhD is Director of Research Operations at CUNY John Jay College of Criminal Justice. He is also a criminologist whose scholarship focuses on making sense of America’s punitive approach to immigrants. He can be contacted at dstageman(at)jjay.cuny.edu
To view our archived research blog posts, please visit here.