Supreme Court Decisions on LGBTQ Rights and Immigration:

“Bumps in the Road” for the Fascist Regime, the Need for Continued Fierce Struggle

June 22, 2020 | revcom.us

 

The U.S. Supreme Court is the highest court in the U.S., at the apex of the judicial system, one of the co-equal branches of the U.S. government. In the last few decades, as the fascist section of the ruling class has become more powerful, it has been able to dominate the Court with a majority of conservative or outright fascist justices who have approved outrage after outrage, which in the Trump-Pence years include the ban on Muslims entering the U.S., the overturning of the Voting Rights Act, and upholding the “right” of businesses to refuse service to gay people or to deny birth control coverage to women as part of their health insurance coverage.

This background explains why there was widespread surprise—and celebration—as the Supreme Court issued three rulings this week, each against the fascist Trump/Pence regime.

The rulings were:

One. Bostock v. Clayton County—The Court ruled that LGBTQ people are (in most cases) protected against employment discrimination under the provisions of the 1964 Civil Rights Act. With this ruling, people cannot be fired or otherwise punished on the job, for being in a gay relationship, “acting gay,” for identifying as a gender other than the one they were assigned at birth, etc. This matters—as fear of losing (or not being unable to get) a job has been one of the main ways in which millions of LGBTQ people have been terrorized into staying “in the closet” or severely punished if they “came out.” So this ruling is definitely cause for celebration, even while there are loopholes for small businesses, religious institutions, etc.

It is a blow to the Trump/Pence regime, which has been waging war on LGBTQ people since it came to power, with dozens of new rules and laws that either removed existing protections from LGBTQ people, or pro-actively encouraged or ordered discrimination. Transgender people have been especially targeted by moves such as Trump’s decision to bar transgender people from the U.S. military, or the huge outcry right-wing religious forces kicked up about trans people being able to use the bathroom of the gender that they identify as. On the anniversary of the 2016 massacre of gay people at the Pulse nightclub in Florida, and in the midst of Gay Pride Month—the Trump regime announced that it had finalized a regulation that, according to the New York Times, “will erase protections for transgender patients against discrimination by doctors, hospitals and health insurance companies.” The Christian fascists in particular, led by Vice President Mike Pence (about whom Trump once “joked,” referring to gay people, that Pence “wants to hang them all”) will persevere in their anti-LGBTQ agenda, which is a key part of enforcing “traditional Christian values.”

This ruling appears to refute the legal basis not only of employment discrimination, but potentially applies to a wide range of anti-LGBTQ measures that the regime has been or is attempting to implement.

Two: The “DACA (Deferred Action for Childhood Arrivals) decision”—The Court ruled against Trump’s Department of Homeland Security (DHS), which in 2017 issued a memo “rescinding” (abolishing) the DACA program.¹ This rescission memo would have opened up 700,000 young immigrants (often known as “Dreamers”) to immediate deportation.

These youths—who were brought to the U.S. by their parents when they were still children and have grown up here—have been living on the knife’s edge for years, never knowing if or when their lives, families, friendships, education, and careers might be ripped apart, when they could be forcibly removed to their countries of birth, about which they knew little or nothing, sometimes not even the language. The ruling seems likely to set this deportation effort back by many months at least.

It’s important to understand both how limited and fragile DACA was and is, and how limited is the “protection” provided by this Court decision. The ruling class “logic” under which Obama issued the DACA executive order in 2012 was that “since we can’t deport all 11 million undocumented people at once, we’re going to let these young people stay here for now, while we target other people who are a ‘bigger problem.’” And Obama did target other people, deporting more immigrants than any president before him and earning the nickname “Deporter-in-Chief.”

So DACA was temporary from the start—action was being “deferred” (put off) until the indefinite future. And the Court has not ruled that Trump couldn’t abolish DACA. It just ruled that DHS hadn’t followed the proper procedures that past court rulings have established for overturning an existing order.² And there is now debate among legal scholars about just how significant and robust this ruling is, and whether it can be easily reversed with the correct “paperwork,” as the Trump regime has claimed, or not.

The fascists will certainly continue to wage vicious and genocidal attacks on immigrants, and this will likely include the DACA youths; nevertheless this ruling is a roadblock for the time being.

Three: United States v. California—The Court refused to hear the Trump regime’s challenge to California’s “sanctuary city” policy, which protects some immigrants in state detention from being turned over to federal officers for possible deportation.

Many states and cities in the U.S. have established various kinds of “sanctuary” policies that provide different types of very limited protection to undocumented immigrants who are being hunted by the predatory federal Immigration and Customs Enforcement (ICE) agency. (These “sanctuary” laws in turn reflect differences in the views and interests of different sections of the ruling class about how to deal with the immigrant population.) Trump has railed against these limited protections endlessly on Twitter and at his “rallies,” and he has sought to have them overturned in the courts.

Again, the Court deciding not to hear this is not the same as hearing the challenge and rejecting it — potentially the California law could still be overturned by the Court. Nevertheless, the Court’s (non) action at the least seems to show a lack of eagerness to act as point man and pit bull for the regime at this particular time, and it does leave in effect measures (and others like it elsewhere) which do impose some limited restraints on ICE.

What Does It Mean:

Trump’s tweets³ in response to these decisions were a reminder that there is still a Christian fascist regime in power, whose program is reinforced with white supremacy, misogyny, and American chauvinism, and which will continue its relentless assault on the oppressed. While these rulings were positive, and the one on LGBTQ rights seems to be particularly significant, none of these rulings provides more than very partial and potentially very temporary protection against increasingly brutal attacks by both the state and by fascist thugs in Trump’s thrall.

But it is worth noting this somewhat surprising series of rulings comes from a Court that is dominated by right-wing or outright fascist justices who have previously greenlighted a number of extremely bad and dangerous moves by the fascist regime and forces in society. The LGBTQ decision was authored by Justice Neil Gorsuch (who an NBC Opinion piece once labeled “the most religiously motivated” of the justices), joined by Chief Justice Roberts.

There is lots of discussion of the significance of this among activists and legal experts. This brings us to the extremely important insight of Bob Avakian:

... interpretation of the law, particularly by the dominant judicial institutions—above all, in the U.S., the Supreme Court—interpretation which itself will fundamentally reflect and serve the prevailing social relations (and, above all, the production relations) and the interests and needs of the ruling class, interpretation which may change with changes in the particular ways those relations and interests find expression and are understood by various representatives of the ruling class—always, however, within the basic framework of this system of exploitation and its underlying dynamics. (From Constitution, Law and Rights—in capitalist society and the future socialist society, p. 3)

How this gets applied and interpreted by different sections and representatives of the ruling class with their worldview and programs is very much conditioned by the context of what is happening in society, and what challenges the ruling class is currently facing. Well, what is going on right now? A fascist regime is racing to shatter the existing norms of U.S. society and establish a theocratic fascist state. A pandemic is raging which the anti-science fascist regime is not only not effectively combating, but seems to be actively promoting! A major economic crisis looms, and rivalry with other world powers is escalating.

AND, most significantly, there are many hundreds of thousands of people of all nationalities in the streets, for 25 days straight, fired with determination to put an end once and for all to the savage murders of Black and Brown people at the hands of the police, and at least seriously interrogating the underlying history, and social and political relations of this country that give rise to this murder and terror. This has a potentially significant impact, influencing changing assessments of the political terrain and the mood of the people. This forms part of the context in which the Court decides.

As some legal scholars have noted, it is possible Chief Justice Roberts, joined by Gorsuch in the LGBTQ case, feels the Court should not at this time be pushing these volatile social fault lines (like the persecution of LGBTQ people and of immigrants) to the breaking point as part of the fascist program—or that it is necessary to underscore the separation of powers, of checks and balances in the U.S. Constitution, so that the fascist regime does not “take it for granted.”⁴ It is too early to say, especially with major decisions due in the next few weeks on abortion, religion, and the Electoral College, among other cases. The Christian fascists have their sights set on overturning the 1973 Roe v. Wade decision that recognized women’s right to abortion, and short of that, sharply limiting it. Stripping women of this right is the linchpin of the Christian fascist agenda.

The challenge overall is to step up what the masses of people are doing right, to fight like hell for the just demands of today, with the added concrete goal that the Trump/Pence fascist regime #OutNow, that it be driven from power through mass nonviolent sustained mobilization, and organizing for an ACTUAL revolution that will do away not only with this horrific regime but with the deeply rotten system and society that has given rise to it—at the soonest possible time. And with whatever degree of potentially sharp divisions among the powers that be, it is even more important to recognize the significance of this, especially the need for fierce continued struggle “from below,” of the masses and masses of people who hate Trump:

The Democrats, along with the New York Times and the Washington Post, etc., are seeking to resolve the crisis with the Trump presidency on the terms of this system, and in the interests of the ruling class of this system, which they represent. We, the masses of people, must go all out, and mobilize ourselves in the millions, to resolve this in our interests, in the interests of humanity, which are fundamentally different from and opposed to those of the ruling class.

This, of course, does not mean that the struggle among the powers that be is irrelevant or unimportant; rather, the way to understand and approach this (and this is a point that must also be repeatedly driven home to people, including through necessary struggle, waged well) is in terms of how it relates to, and what openings it can provide for, “the struggle from below”—for the mobilization of masses of people around the demand that the whole regime must go, because of its fascist nature and actions and what the stakes are for humanity.⁵

 

1. The DACA program was set up under an executive order by President Obama in 2012. It “deferred” (i.e., put off for the time being) deportation of immigrants who had been brought to the U.S. as minors by parents who did not have legal documentation. So while the parents remained “illegal” in the eyes of this system, the children had a sort of quasi-legal status as long as they met certain other criteria. And with this new legal status, and in the six years since, these youths were able to “come out of the shadows,” enroll in college, start careers, buy homes and generally become part of the broader U.S. society. [back]

2. An executive order like the one that established DACA is not like a law passed by Congress—it can be overturned by the next president, in this case Trump. But over time the judicial branch has ruled that if the executive overturns an existing rule, it has to address the impact this will have on all the people and institutions that “relied” on this rule; these are known as “reliance interest.” So in this case there are employers who hired DACA youths who will now be deported; there are those who sold homes to DACA kids; there are families that were started, etc. The recent U.S. Supreme Court ruling held that the Trump administration’s “rescission memo” had not addressed any of this. But the Supreme Court made clear that “DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests.” In other words, the Court held that DHS can overrule all the damage and disruption to people’s lives and deport them, but it can’t simply ignore these things. [back]

3. For instance, on June 18 Trump tweeted: “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!” [back]

4. See, for instance, Linda Greenhouse, “Roberts to Trump: Don’t Take the Supreme Court for Granted,” New York Times, June 19, 2019. [back]

5. From recom.us. [back]

DACA was and is very fragile and the “protection” provided by this SCOTUS decision is very limited. Fascists will continue to wage vicious and genocidal attacks on immigrants. DACA students protest at ICE headquarters in Arizona after the decision. (Photo: AP)

At the June 20 protest called for by Refuse Fascism, marchers raise the demand: "Close the Camps Now." (Photo: Special to revcom.us)

It is widely believed that the Supreme Court majority has its sights set on overturning or sharply limiting the 1973 Roe v. Wade decision that recognized women’s right to abortion. Here, handmaids protest for abortion rights at the Ohio Statehouse, June 2020. (Photo: Jackie Borchard)