THE BLOG

Life After Scalia: A True Revolution Can Now Begin

I got a chance to meet Justice Antonin Scalia, the most homophobic force on the Supreme Court for more than a quarter of a century, last year. It was just a few days before the historic arguments in the Obergefell case that would bring marriage equality to the entire nation.

And it was pretty brilliant.

Why? Because Justice Scalia, upon being introduced to me by a colleague at the annual White House Correspondents Dinner, connected with me on our shared Italian heritage. He repeated my name several times, with the proper Italian pronunciation, singing it out loud with a smile. And then, I told him that I am gay.

Actually, I first said that that coming Tuesday, the day of the arguments in the "gay marriage case," was a "big day."

He just shrugged, though kept his smile as we posed for a photo (above).

Then I said, "I'm a gay journalist and I'll be in the courtroom" and I told him that I hoped he'd "do right by the gays."

That didn't get a response of any kind. I didn't for a minute think I'd influence Scalia's thinking on the case, of course, but I thought it was important to come out to him, not to cover in that moment. I firmly believe those kinds of interactions add up over time, revealing humanity to those who make decisions affecting millions. Scalia needed to know that this guy with whom he tangentially bonded was one of the very people he'd written blistering opinions against and said defamatory things about.

Now he's gone from the court. And our options are much bigger than revealing ourselves to him in public. Already, as of this moment, a right-wing, conservative, homophobic, racist, misogynistic grip that held the court tightly for decades has been released. With many current cases soon to be resulting in 4-4 decisions, the much more liberal lower court rulings will prevail.

And it can only get better from there if Scalia is replaced by a Democratic president, ushering in a dramatic transformation in our world. There's been so much talk of revolution in the Democratic campaign for the presidency. But the real revolution can now take place.

Neither Bernie Sanders nor Hillary Clinton will get much of anything done through Congress, no matter how hopeful or pragmatic they sound. And any campaign supporters claiming a coat-tails effect by either candidate which will turn the House to the Democrats are fantasizing. The GOP has put the fix in via gerrymandering for a long time to come.

But the seats at stake indicate the Senate is likely to switch back to Democratic control. Outrageously but not surprisingly, Republicans are intent on keeping President Obama from putting anyone on the court to replace Scalia. They're threatening no hearings and not allowing any vote. We can argue with them until we're blue in the face, and they will likely even hurt themselves by engaging in this reckless action, as they have the past. No matter: Their base will demand it, and it will be done.

The next president could be the one making the appointment, and if that person is a Democrat with a Democratic Senate, there's not much the GOP can do for long. The stakes are enormous. We could secure abortion rights for a long time to come if not once and for all, not worrying about Roe being in peril. Labor unions, affirmative action, the death penalty, global climate change, campaign finance, Wall Street reform, immigration and so many other issues can all be affected in dramatically positive and fundamental ways.

And for LGBT rights it's a watershed moment. While some GOP presidential candidates have claimed they'll work to overturn the marriage equality decision, that would be pretty difficult. The real threat to blocking LGBT rights is the "religious freedom" argument being made to prevent much-needed state and federal laws against all kinds of discrimination or to give exemptions to people like Kim Davis or the Oregon bakers. All these kinds of cases will reach the Supreme Court eventually, and with a 5-4 conservative grip it's always been a treacherous reality after Hobby Lobby.

More than that, getting The Equality Act, which was introduced by Democrats in Congress last year, passed in the current Congress or any Congress in which the GOP has a hold on the House (which could be for a decade) is impossible unless a significant number of GOP politicians' minds are changed. That law would add gay, lesbian, bisexual and transgender people to the 1964 Civil Rights Act, securing protections in employment, housing, public accommodations, education and credit.

But the Supreme Court could rule that LGBT people are actually already protected in the 1964 act under most of those categories, because that law protects against sex discrimination. Already, transgender people won those protections in 2012 regarding employment via a ruling from the Equal Employment Opportunity Commission (EEOC), which now investigates discrimination against transgender people as sex discrimination. That decision eventually needs to go up to the Supreme Court, too. And cases arguing that sex discrimination covers not just gender and gender identity but sexual orientation, too, are working their way through. Just last week the EEOC asked the Eleventh Circuit Court of Appeals to rule that sexual orientation discrimination is covered under protections for sex discrimination in employment under Tittle VII of the Civil Rights Act.

Of course, we still need federal legislation that secures rights explicitly in law in all areas for gay, bisexual and transgender people, not just court rulings. And, amazingly, the Civil Rights Act doesn't protect against sex discrimination in public accommodations -- something the Equality Act aims to fix, too -- so that is an issue to deal with as well via legislation. But no doubt, huge avenues are opened by changing the balance of the Supreme Court.

Republican voters have always been motivated to turn out for elections based on securing the Supreme Court. It's a fundamental issue that drives anti-abortion evangelicals, to use just one example, to the polls. Scalia's death will only energize the base, and it could even make GOP voters more pragmatic than they've been in recent months. Let's not forget that, after all the naysaying, evangelicals in the end got behind Mitt Romney, a Mormon, in 2012 because they ultimately believed that among other things he'd secure the high court.

Democrats and progressives of every constituency have a lot of organizing to do, and decision-making to focus on, regarding the upcoming election and the choices we make. And we've got to be energized to turn out in even greater numbers. Perhaps the most consequential thing a new Democratic president may do is replace Scalia. That's when the status quo for decades ends, and the real revolution begins.