Biden's vow to pass the Equality Act, protecting LGBTQ people, in 100 days

Terrific. But will require winning the Senate, ending the filibuster, and, if it's to survive, expanding the Supreme Court

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In an email interview with pioneering journalist and publisher Mark Segal of the Philadelphia Gay News this week, Joe Biden vowed, if elected president, to pass the Equality Act within his first 100 days. This is a terrific promise and follows up on Biden’s support for LGBTQ rights.

Like many Democrats, Biden evolved over many years and became a force in the Obama administration urging President Obama to move forward on supporting marriage equality. At a recent town hall he said he will sign executive orders undoing discrimination that Donald Trump signed harming transgender people. (Though he didn’t refer to the horrendous ban on transgender people serving in the military which Trump put in place, we assume he means that as well.)

But getting the Equality Act, a broad civil rights bill that seeks to ban discrimination on the federal level in housing, employment, public accommodations, banking, education and other areas, passed and signed into law will require a lot of things to happen. Currently, more than half the states don’t have full protections for LGBTQ people. In many states, people can get married one day and thrown out of their apartments by a landlord the next.

In a major win at the Supreme Court this year, the court ruled that gay, lesbian, bisexual and transgender people are protected against discrimination in employment under the 1964 Civil Rights Act. But Justice Neal Gorsuch, who wrote the majority opinion, left open the probability of such protections being limited by religious exemptions. He himself has long been a “religious liberty” zealot, and voted to allow employers to ban contraception under Obamacare in the infamous Hobby Lobby case while he was on the 10th Circuit Court of Appeals.

And that leads us to what will be necessary if Biden is to sign the Equality Act, which would be amended to the 1964 Civil Rights Act and which was passed by the House in 2019, sent to Mitch McConnell’s graveyard of bills not taken up in the Republican-controlled Senate, and slammed by Donald Trump, bowing to religious conservatives. In order to move the Equality Act forward, Democrats must win back the Senate, which they are favored — though not guaranteed — to do in this election.

Then Democrats would have to end the filibuster — which allows the GOP to block passage of any bills by bringing them to a 60-vote threshold — something many Democrats have, over recent months, gotten behind, and which even President Obama urged in his eulogy at the great civil rights leader John Lewis’s funeral.

But even if passed, the Equality Act would be immediately challenged by anti-LGBTQ extremists and then likely gutted at the Supreme Court — unless Democrats expand the court, an idea that’s gotten much more traction among Democrats in the wake of the Amy Coney Barrett sham installation on the court, but which by no means is a done deal yet among Democratic leaders.

Going by Barrett’s record as well as by Gorsuch’s and the other conservatives’ on the court, challenges to the Equality Act that demand religious exemptions would almost certainly be upheld by the court. Businesses, doctors, hospitals, landlords and others could be allowed to turn away LGBTQ people based on their religious beliefs. We’ve already seen attempts to hollow out marriage equality — make it a kind of second-class marriage — in cases like Masterpiece Cakeshop, which the Supreme Court ultimately punted on but will surely take another crack at when a new case comes up.

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The first big case with the new 6-3 conservative majority on the Supreme Court that could in fact strip rights of same-sex couples is coming to the court this month:

This November, the Supreme Court will hear arguments on Fulton v. City of Philadelphia, which will decide whether foster and adoption placement agencies have the right to use their religious beliefs as an excuse not to comply with nondiscrimination protections.

It’s another example in which religious conservatives want an an exemption based on their religious beliefs — even as the adoption and foster agencies take federal and state money — to treat gay and lesbian married coupled differently from heterosexual ones. And those are the ways the court will make same-sex marriage into second class marriage.

There’s little question about where Barrett, Gorsuch, Samuel Alito, Clarence Thomas and Brett Kavanaugh stand on these issues around same-sex marriage, and I wrote about that at great length when Barrett’s nomination was announced. The same will happen with the Equality Act, as “religious liberty” is used to gut it.

Biden told “60 Minutes” last week that, if elected, he would create a bipartisan commission that would look at expanding the court and other court reforms. That was good to hear considering he’d previously been opposed to expanding the court, while later saying he was open to it. It shows evolution. But any commission that goes on for months and kicks the can down toward the next election, when lawmakers might get skittish, could make it harder to pass a bill that adds justices to the court.

If Biden wins the presidency and if Democrats win the Senate — and we have to fight hard over the next four days to make that happen — we’ll have to push to get this done as soon as possible, because Republicans will be organizing fiercely to make sure it doesn’t happen.