In a matter of months, the U.S. Supreme Court may make same-sex marriages legal in every state.
But as social conservatives lose ground in courts, their red-state legislatures and governor’s mansions are increasingly cracking down on the LGBT community in every way they legally can.
Sam Brownback, the governor of Kansas, recently rescinded an executive order that prevented state employees from being fired for their sexual orientation or gender identity.
Arkansas went a step further and banned any local government in the state from protecting LGBT citizens from discrimination in the workplace.
Florida is considering a bill that would formally define gender as binary and, in the process, dramatically set back transgender protections within the state by denying the existence of anything needing protection.
And let’s not forget the Arizona bill that nearly passed last year that would have allowed businesses to deny services to gays.
While the recent crackdowns are petty attempts to bully citizens for political reasons, the bigger issue is that most red states don’t even have any protections to rescind. When the Employment Non-Discrimination Act, a Senate bill that would have banned discrimination based on orientation or gender identity, was killed in the House of Representatives, a majority of states in the country did not have the protections ENDA would have imposed.
Basically, the best scenario for LGBT citizens living in red states is that, one day soon, they will be able to be married — and then they could immediately be fired for it. To make matters worse, a not-insignificant swath of the broader LGBT community doesn’t necessarily benefit from same-sex marriage but is hurt by legal discrimination. So the “victory” is particularly hollow.
The problem is that the Supreme Court really can’t invent a law that would prevent this. Congress could, but with the House as gerrymandered in favor of Republicans as it is, Democrats won’t be able to retake it until at least the next census. Even if everything goes perfectly for Democrats, a nondiscrimination bill is still at least eight years away unless the Republicans begin to cave on the issue.
It’s unclear how likely that is. Some Republicans have condemned Gov. Brownback’s actions, a Republican governor vetoed the Arizona bill, and some prominent Republicans (including John McCain) voted for ENDA in the Senate. Half of likely Republican primary voters hold neutral or worse views of a hypothetical candidate against gay marriage. But at the same time, none of their major 2016 presidential candidates — not even the relatively libertarian Rand Paul -— publicly support gay marriage.
The likelihood of actually being fired for being gay is also uncertain. Most major businesses would shudder at the risk of controversy and boycotts and are even displaying an increasing willingness to show gay couples in high-profile ad campaigns. A few, such as Hobby Lobby and Chick-fil-A, have decided to turn social conservatism into a marketing strategy, but for the most part, formal employment discrimination would be limited to small businesses and the most tea-drenched local and state governments.
Even so, that’s enough to make any victory in the courtroom bittersweet.