Changes following the U.S. Supreme Court legalizing of same-
sex marriage (aka gay
marriage) across the U.S. in its ruling of
Obergefell v. Hodges case from Kentucky, Michigan, Ohio,
A video interview on gay marriage
with President-elect Donald Trump.
We use the term "gay marriage."to represent the marriage of two persons of
the same sex.
We prefer "Same-sex marriage," a more inclusive term that
includes spouses with a bisexual sexual orientation, but it would make this web
site harder to find because most search engines cannot handle synonyms well.
"LGBT" refers to lesbians, gays, bisexuals, transgender persons and transsexuals.
"LGB" refers to lesbians, gays, and bisexuals.
2016-NOV-13: President-elect Trump discussed whether marriages will continue to be available to same-sex couples in the U.S.:
On 2016-NOV-13, shortly after president-elect Donald Trump lost the popular vote but gained the electoral college vote. He appeared on the CBS TV program "60 minutes." The episode is titled "The 45th President." Lesley Stahl was the interviewer. 1 Unfortunately, CBS does not permit embedding the video on this or any other web site other than their own. So, we are unable to show it here.
The video has a subtitle that reads:
"What can we expect from a Trump presidency? 60 Minutes' Lesley Stahl finds some of his campaign issues were not meant to be taken literally, but as opening bids for negotiation." 1
That makes sense. Presidents can make executive decisions in some cases that change the way the Executive Branch of the federal government acts. However, presidents cannot change existing federal laws.
- Changing a federal law requires a bill containing the revision to be sponsored by one or more members of Congress. It must then be approved by both the House of Representatives and the Senate, and finally be signed into law by the President. So, we can expect that any changes in federal law that Trump proposed during the campaign may have to be extensively modified in order to pass successfully through Congress and become law.
- An indirect mechanism by which the President can effect change is by nominating new Justices to the U.S. Supreme Court that match his political philosophy.
Justices tend to fall into one of two groups:
- Strict constructionists, a.k.a. originalists, who interpret the U.S. Constitution and past laws according to the perceived original intent of the politicians who wrote and passed the documents -- sometimes centuries ago, and
- Liberals who view the Constitution and past laws as "living documents" whose meaning and interpretation changes as the American culture evolves.
Needless to say, decisions by these two groups of Justices tend to be very different.
The High Court has the authority to overturn state and federal laws by declaring them unconstitutional. This has sometimes caused major changes to the culture nationwide. Some important examples in the past five decades which changed personal rights across the United States include:
By successfully nominating new Justices to the High Court, the President can greatly change future decisions by that body. The effects of personnel changes can last for generations, since Justices are appointed for life, or until they personally decide to retire.
Candidates must be ratified by the Senate Judiciary Committee, and later by the full U. S. Senate. Only then can the a candidate actually become a Justice on the High Court.
Early during his term as president, Trump was expected to appoint one Justice to replace Justice Antonin Scalia who died in 2016-FEB. This will bring the Court up to its full complement of nine Justices. President Obama had nominated Merrick Garland back in 2016-MAR for the post, but, as of 2016-NOV-27, Republican Senators have violated at least the spirit of the U.S. Constitution by refusing to schedule Garland's hearing.
Cristian Farias, writing for the Huffington Post, said that in 1916:
Louis Brandeis, one of the greatest justices to ever live ... endured the largest gap between nomination and confirmation of any Supreme Court nominee: 125 days."
On 2017-JAN-31, after Merick Garland had been waiting for 321 days for his nomination to be considered by the Senate, President Trump nominated Neil Gorsuch as his choice to replace the late Justice Scalia. On 2017-MAR-07, the Senate quickly confirmed Trump's choice by a voice vote. 5
Other appointments will probably be needed during Trump's first term from 2017-JAN to 2021-JAN as individual Justices retire due to health or death. As of late 2016, three of the eight Justices are 77 years-of-age or older. 3 Over time, the President -- with the cooperation of the Senate -- can greatly change the philosophy of the court in either a more strict constructionist or more liberal direction.
It is quite possible for the High Court to revisit and reverse past decisions. During his candidacy, Trump has extensively discussed the possibility of the Court reversing Roe v. Wade and Obergefell v. Hodges. Such changes could throw control over personal decisions
to seek and abortion or to marry one's same-sex partner back to the individual states. There is a principle in law called "stare decisis" which makes courts very reluctant to reverse settled law. So, the longer that a court decision has remained in place, the less likely a court is to reverse that decision. Yet during his candidacy, Trump strongly promoted the belief that the High Court might reverse its 43-year-old abortion ruling. However, during the 60 Minutes interview, he curiously maintained that last year's same-sex marriage ruling was settled law. He also said that he was happy to leave the 2015 decision in place.
A transcript extracted from the program that deals with marriage by same-sex couples:
Lesley Stahl: I want to ask you all about something that’s going on right now around the country. A lot of people are afraid. They’re really afraid. African Americans think there’s a target on their back. Muslims are terrified.
Donald Trump: I think it’s horrible if that’s happening. I think it’s built up by the press because, frankly, they’ll take every single little incident that they can find in this country, which could’ve been there before. If I weren’t even around doing this, and they’ll make into an event because that’s the way the press is.
Lesley Stahl: Do any of you want to say anything about this fear that’s out there?
Donald Trump, Jr.: I-- I think the fears, you know, while they may be there, some fabricated, some not-- are totally unfounded.
Lesley Stahl: One of the groups that’s expressing fear are the LGBTQ group. You--
Donald Trump: And yet I mentioned them at the Republican National Convention. And--
Lesley Stahl: You did.
Donald Trump: Everybody said, “That was so great.” I have been, you know, I’ve been a supporter.
Lesley Stahl: Well, I guess the issue for them is marriage equality. Do you support marriage equality?
Donald Trump: It -- it’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done.
Lesley Stahl: So even if you appoint a judge that--
Donald Trump: It’s done. It -- you have-- these cases have gone to the Supreme Court. They’ve been settled. And, I’m fine with that. 1
At this point, Leslie Stahl switched topics to discuss recent suggestions that Trump's temperament makes him unsuitable for the Presidency.
President-elect Trump's shifting statements about LGBT equality:
Trump has apparently never held a consistent position for long on whether same-sex couples should be allowed to marry across the U.S., subject to the same age and genetic closeness requirements that opposite-sex couples must meet. The Human Rights Campaign (HRC) states:
"He said that he opposed it because he was a “traditional” guy, choosing to support domestic partnership benefits instead.
Trump later reversed himself and said he also opposed civil unions. Despite a brief flirtation with “evolving” in 2013, Trump has consistently maintained his opposition to marriage equality, sometimes by citing polling and making an analogy to his dislike of long golf putters. After the Supreme Court  ruling, Trump said the court had made its decision and, although he disagreed with the ruling, he did not support a constitutional amendment that would allow states to re-ban marriage equality. He later said he would appoint Supreme Court judges who would be committed to overturning the ruling. 6
So, President-elect Trump's current and future position(s) on gay marriage is anyone's guess. It will probably not reappear in the news until a new Jusice is appointed due to a death or resnation by an existing Justice.
2017-JUL-24: The current status of gay marriages throughout the U.S.:
Over two years have passed since the U.S. Supreme court issued its ruling in Obergefell v. Hodges to legalize gay marriages throughout the U.S. There were a number of counties in a few southern states in which clerks refused to provide marriage licenses to same-sex couples. However, there do not appear to be any recent news items about their continuing refusals. We suspect that marriage equality has expanded to include all of the counties in the 50 states, DC, and five of the six territories.
One exception are some tribal jurisdictions in the U.S. mainland. Approximately 38 jurisdictions do recognize gay marriages, although some of these require such marriages to be entered into elsewhere. 91 nations have ambiguously worded legislation. Only nine nations unambiguously refuse to recognize same-sex marriages; most of them are in Oklahoma. 4
American Samoa is another exception. People there are mostly American residents, not American citizens. Thus, rulings by the U.S. Supreme Court do not necessarily apply there. The government is taking no action to attain marriage equality.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "60 Minutes interview: President-elect Donald Trump," CBS News, 2016-NOV-13, at: http://www.cbsnews.com/
- Cristian Farias, "Obama’s Supreme Court Nominee Makes History For Waiting The Longest For Confirmation," Huffington Post, 2016-JUL-19, at: http://www.huffingtonpost.com/
- Leah Jessen, "Next President Could Stack the Deck as Supreme Court Justices Near Retirement," The Daily Signal, 2016-FEB-17, at: http://dailysignal.com/
- "Same-sex marriage under United States tribal jurisdictions," Wikipedia, as on 2017-JUL-21,
- "Who is Neil Gorsuch, Trump's First Pick For The Supreme Court?," NPR, 2017-JAN-31, at: https://www.npr.org/
- "Donald Trump: Opposes Nationwide Marriage Equality," Human Rights Campaign, 2016, at: https://www.hrc.org/
How you may have arrived here:
Copyright © 2016 & 2017 by Ontario Consultants on Religious Tolerance.
First posted: 2015-NOV-26
Latest update: 2017-NOV-28
Author: B.A. Robinson