The midterm election results were a disaster for LGBTs. The incoming Congress will be headed by Republicans in the House and Senate and, while the results weren't surprising, the reality is sobering.
The plain truth is that the Republican Party remains largely anti-LGBT. Sure, there are some individual House members and senators who have voted for LGBT bills, but institutionally, the support is not there. Voters in San Diego and Massachusetts had an opportunity to elect gay Republican congressional candidates, but neither man won, showing that while election night was a red wave, it wasn't enough to bring gay GOP candidates along. (All six current Democratic LGB members of Congress were re-elected.)
The expected House and Senate leadership – Speaker John Boehner (Ohio) and Mitch McConnell (Kentucky) – will not move forward any LGBT-friendly legislation. Starting in January when the new Congress convenes, the Employment Non-Discrimination Act would have to be re-introduced and, while that may happen, it's not likely to come up for a vote in either chamber. (That may not be a bad thing; the religious exemption language that was debated this year as an amendment to the version passed by the Senate would render much of the bill meaningless and allow business owners to use their faith as a basis to discriminate.) Similarly, don't look for legislative action to allow transgender people to serve openly in the military.
More importantly, the election results have emboldened Republicans who don't want to pass comprehensive immigration reform. That's a bad move on their part, but they don't see it that way. Rather, they look at the election results, in which Republicans won Senate seats that Democrats held in Colorado, Iowa, and North Carolina, and trot out "the people have spoken" canard without acknowledging that this midterm election had the lowest voter turnout since World War II.
Yet it's that abysmal voter turnout that has helped land us in this morass of congressional inaction. Congress has 11 percent approval ratings, and people want their representatives to get to work, but the reality is that 99 percent of members were re-elected and Congress will be just as gridlocked next year as it is now. People in many parts of the country simply did not vote in their best interests. Working class white voters in the South and Midwest will not see their lives improved by the Republican takeover. Far from it. Millions of people have health insurance under the Affordable Care Act, but congressional Republicans will still want to repeal the law. (They might even get an assist from the U.S. Supreme Court, which last week agreed to hear another health care case this term – even though the justices upheld Obamacare in 2012.) The small government mantra of tea party Republicans does not bode well for action on infrastructure improvements or climate change, two initiatives that would spur job growth.
Moreover, elections have consequences and we found that out two days later, when the 6th U.S. Circuit Court of Appeal reversed six pro-marriage lower court rulings out of Kentucky, Michigan, Ohio, and Tennessee. In the 2-1 decision, the majority opinion said that it wasn't the court's role to define marriage and that the decision should be left to voters. That's a red herring that has been struck down in courts across the country as judges have found that, in fact, state constitutional bans against same-sex marriage do discriminate and are unconstitutional. Just because voters support discrimination doesn't mean it's constitutional. A standard of our justice system is predicated on protecting minority rights. But the 6th Circuit decision now sets up a conflict between it and the other circuits that have ruled in favor of marriage equality, meaning that the Supreme Court may take up the issue. Given the conservative tilt of the justices, it's certainly no slam dunk that the high court will issue a decision granting marriage equality in all 50 states. We saw the justices sidestep that option last year with the decision to invalidate Proposition 8, California's same-sex marriage ban, on a technicality.
The upcoming lame duck congressional session will offer a glimpse into what's in store for the country. Four years ago, Congress acted boldly during that lame duck session by repealing "Don't Ask, Don't Tell." Such historic matters aren't on the agenda this year, but the administration has appointees awaiting confirmation, and it needs to pass a spending bill to keep the government operating.
In the end, the fight for equality will shift to the states in the next couple years, like the marijuana legalization movement that saw victories in Oregon, Alaska, and Washington, D.C. last week and efforts to raise the minimum wage, which also passed in several states and cities like San Francisco and Oakland. It is by building coalitions locally that we progress, while we wait for a friendlier climate on Capitol Hill for the passage of federal protections. It's not fair, but it's the new reality.