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Jurisdictions to watch on local enforcement, part three: Frederick County, Maryland

This entry is the third in a series on the involvement of local law enforcement agencies in immigration enforcement under the Trump Administration’s January 25th executive orders. Please see the January 26th introductory entry and prior entries on Orange County, California and Etowah County, Alabama for context.

Moving forward with the process of profiling jurisdictions that are current 287g agreement holders, it’s essential to acknowledge how quickly policy on interior and border immigration enforcement is moving. What I had originally envisioned as a set of “jurisdictions to watch” is fast becoming a set of templates for imagining the range of possible approaches to enforcement under the proliferation of new 287g agreements that seems likely to arise under the DHS’ stated intention to pursue them aggressively. DHS Secretary John Kelly’s leaked February 17th enforcement memo (released officially today) contains a great deal to unpack, primarily around the agency’s specific plans for implementing the broad strokes of Trump’s January 25th executive orders. While less sensational than the earlier leaked memo detailing plans to utilize National Guard troops to support enforcement activity in a handful of Western states, its contents have the potential to be every bit as momentous – if not more so, given the relative ease of putting them into effect.

Perhaps the most momentous statement in the memo (and the competition for that distinction is indeed sharp) comes early on, in the first sentence under Section A.:

The President has determined that the lawful detention of aliens arriving in the United States or otherwise described in section 235(b) of the Immigration and Nationality Act (INA) pending a final determination of whether to order them removed, including determining eligibility for immigration relief, is the most efficient means by which to enforce the immigration laws at our borders.

Hiding within this seemingly innocuous statement is an explicit mandate for an unprecedented expansion of the nation’s detention infrastructure, an expansion likely to bring back online every prison bed (and then some) emptied in the painstaking nationwide efforts to reduce mass incarceration, and likely to have even more profound effects on nascent parallel efforts to reduce jail populations as well. This effect may well be most keenly felt at and near the U.S.-Mexico border, where the ending of Customs and Border Protection’s longstanding “catch and release” policy will result in the immediate introduction of an entirely new population into detention. It remains to be seen how much additional bed space will be required in short order to make these new policies a reality, but we can safely make a few assumptions: (1) that the vocally pro-enforcement ranks of front-line ICE agents (and their CBP colleagues) will begin enforcement of these policies with a zeal in marked contrast to the resistance with which they met the Obama-era discretion policies that the Kelly memo rescinds in their entirety; (2) that the budgetary requirements of this immediate expansion of detention space will require congressional attention (whether in the overall annual budgetary process or an emergency allocation specific to the administration’s immigration enforcement priorities); and (3) that the expansion will result in a bonanza for private/for-profit detention providers and administration-friendly local jail authorities alike.

Numerous commentators have observed the importance of local authorities like elected prosecutors to maintaining the momentum of criminal justice reform efforts in the Trump era, and the importance of elected county sheriffs to the future of immigration enforcement is an important parallel. Frederick County, Maryland may be a bellweather in this regard, based on the recent history of the jurisdiction and its outspoken longtime sheriff, Charles A. “Chuck” Jenkins. A random sampling of recent news reports on Jenkins, the Frederick County Sheriff’s Office, and its approach to immigration enforcement could seemingly give the casual observer highly contrasting ideas about the purpose and effects of its 287g participation, depending on whether one turned up the news of the department’s recent outreach to Hispanic community groups, or the criticisms of some of those same community groups regarding its patterns of enforcement.

A more systematic examination of Sheriff Jenkins’ public statements on immigration, however, reveals him to be an immigration ideologue – in particular his April 19, 2016 public testimony before the House Judiciary Committee:

The effectiveness and value of local law enforcement partnering or at least simply cooperating with ICE is beyond measure to local public safety. Failure to cooperate and detain known criminal aliens for ICE has lead to American citizens being killed, wounded, injured, and sexually victimized in jurisdictions everywhere. […] It is my belief that if this Congress and the next President do not take action to close and secure the border with Mexico and simply enforce the federal immigration laws that exist, every county in America will become a border county. [emphasis added]

In sharp contrast to the more measured, evidence-based, public safety-oriented approach position outlined by Sheriff Todd Entrekin of Etowah County, Alabama (as profiled in my last entry), Jenkins chooses to align his public stance with the absolutist language (“everywhere”, “every county”) deployed by President Trump throughout his campaign, constructing the narrative of an immigrant crime-wave wholly unsupported by evidence, but signaling a commitment to nativist ideology and the policy priorities that accompany it. This contrast adds important context to the key characteristics that qualify Frederick County for inclusion in this series:

1) “Jurisdictions to watch” have operated consistently under the same chief executive since before the Obama administration’s efforts to reform 287g. In most cases, this means that the same individual who signed the jurisdiction’s first 287g memorandum of agreement is still making the relevant executive decisions about involvement in immigration enforcement moving forward.

2) They are (with few exceptions) county law enforcement agencies headed by elected sheriffs.

3) They have started deportation proceedings for significant numbers of immigrant arrestees under their 287g programs in the past.

4) They have clear incentives for directly involving their officers in immigration enforcement. While these incentives are often political, they are often financial as well, with direct income and/or indirect ‘economic activity’ arising from close ties to private/for-profit immigrant detention facilities located within the jurisdiction, and/or Intergovernmental Service Agreements (IGSAs) under which ICE pays the jurisdiction a per-day fee to detain immigrants in the local jail.

Frederick County fulfills all four of these criteria, even while posting 287g processing numbers that appear moderate next to some of the larger, more immigrant-heavy jurisdictions under review. Frederick County is a potentially important jurisdiction for immigrant advocates because of the possibilities that it raises for working with other levers of local political power to keep in check the worst impulses of a sheriff who is apparently approaching 287g enforcement under the assumptions of nativist ideology. Frederick County, while leaning Republican, is not necessarily an ideological stronghold, and Sheriff Jenkins’ support there, while widespread, is not universal. Perhaps more importantly, Frederick County transitioned in 2014 to a County Charter Government, meaning an elected County Executive – currently Democrat Jan H. Gardner – holds approval power over his budget.


SHERIFF: Charles A. Jenkins.

Jenkins, a Republican and public supporter of the far right Tea Party movement, was first elected sheriff in 2006 – in part on the strength of campaign promises to ‘crack down’ on unauthorized immigrants – following the retirement of his predecessor James W. Hagy. Jenkins followed through on those promises with the signing of Frederick County’s first 287g agreement in 2008, and has since won reelection twice, in 2010 and 2014. An early supporter of Trump’s presidential campaign, Jenkins has been a frequent commenter since the election on the 287g program, local law enforcement detainer policies, and the Trump administration’s approach to ‘sanctuary cities’. Thus far, he has been careful to distinguish his department’s jail-enforcement agreement from the street-based, task-force agreements rescinded by the Obama administration in 2012, stressing that his officers do not engage in ‘show me your papers’ style enforcement; it will be interesting to know if his rhetoric on this distinction changes once the renewal of 287g task-force agreements is a matter of public DHS policy.

ARRESTEES PROCESSED FOR DEPORTATION UNDER 287G: 138 in 2012 – a number just into three figures and lower than many other 287g counties but proportionately significant for Frederick County’s population of 245 thousand (8.7% of whom Hispanic or Latino). Also of particular note is the statistic in the Frederick County Sheriff’s Office 2012 Annual Report stating that, of the 1,136 detainers lodged in the program’s history up to that point, only 9.5% (108) were “encountered and arrested for felony offenses” – a statistic that throws into question Sheriff Jenkins’ repeated statements about not engaging in street arrests on the basis of immigration status.

ACTIVE IMMIGRANT DETENTION FACILITIES: The Frederick County Detention Center appears to be a purely administrative distinction applied to immigrants detained in the Frederick County Jail, among its general population bed capacity of 348. It’s ADP of 54 immigrants would thus account for some 16% of the jail’s general population, or 12% of its total population of 439.

AVERAGE DAILY POPULATION (ADP) OF IMMIGRANT DETAINEES: The Frederick County Jail held an average of 54 immigrants on any given day throughout 2012. Per diem/per detainee compensation was $83 in 2007 – Assuming 3% annual increase and consistent ADP, a conservative estimate of 2016 gross receipts for detention in Frederick County would be ($112 * 54 detainees * 365 days) = $2.2 million. A significant proportion of this total – about $930 thousand ($112 * 138 processed for deportation * 60 day average stay), or around 42% –  could potentially be attributed to enforcement activity under 287g.

HISTORY OF 287G IN FREDERICK COUNTY, MARYLAND: As detailed above, Frederick County entered into its current 287g enforcement agreement in 2008, in fulfillment of Sheriff Jenkins’ campaign promise to do so. Assuming its growing population of immigrants from Mexico and Central America features a proportionately growing undocumented community, the political/ideological value of Jenkins’ vocal anti-immigrant stance could well be rooted in the anxieties of the county’s core voting demographic of longtime white residents in reaction to the changing character (rural to suburban, agricultural to residential, growing diversity) of the community. Jenkins’ 63% 2014 reelection victory, despite the controversies dogging his department in prior years, would seem to bear out this view – indeed, Jenkins himself attributed his victory to “old Frederick”.

CONTEXT AROUND CONTINUED IMMIGRATION ENFORCEMENT UNDER 287G IN FREDERICK COUNTY, MARYLAND: Frederick County bears a very different demographic profile from the overwhelmingly white, overwhelmingly Republican Etowah County, making it impossible for Sheriff Jenkins to pursue an aggressive approach to 287g enforcement in a vacuum. The vocal support the Sheriff’s immigration enforcement activities received from the prior County Commissioner have not been matched by the current elected County Executive, and if immigrant detention in the Frederick County Jail has significant budgetary implications for the Sheriff’s Office and the County overall, so do the liability concerns raised by enforcement activity rooted in profiling. Jenkins has not signaled a willingness to take on the perspective of a law enforcement professional to discuss the evidence-based merits of immigration enforcement as a public safety tool; thus the levers available for preventing or mitigating the harm likely to be caused by a ramped-up approach to 287g enforcement in Frederick County are distinct from the kinds of approaches that might bear fruit with a less ideological actor like Entrekin. These approaches are legal and political, and reliant on the reality that Jenkins is not a fully independent decision-maker in his role as Frederick County’s chief public safety officer. Consistent pressure on Frederick County’s budget, and the political fortunes of its elected decision-makers, may serve to rein in the darker impulses of an ideologue like Jenkins, who would otherwise appear likely to take the freest possible hand allowable under the Trump administration’s new approach to local immigration enforcement.

Daniel L. Stageman, PhD is Director of Research Operations at CUNY John Jay College of Criminal Justice. He is also a criminologist whose scholarship focuses on making sense of America’s punitive approach to immigrants. He can be contacted at dstageman(at)jjay.cuny.edu. This has been the second in his series of profiles of “jurisdictions to watch” on local immigration enforcement under the new policies promulgated by President Trump’s January 25th executive orders. Next up: Alamance County, North Carolina.

Jurisdictions to watch on local enforcement, part two: Etowah County, Alabama

This entry is the third in a series on the involvement of local law enforcement agencies in immigration enforcement under the Trump Administration’s January 25th executive orders. Please see the January 26th introductory entry and January 30th entry on Orange County, California for context.

Since I introduced my ongoing database project on January 26th, focus on the Trump administration’s immigration policy has shifted precipitously – in the whiplash fashion that has become typical of the administration’s first days in office – to the travel ban affecting the nationals of seven predominantly Muslim countries. As the legal battle over this executive order begins to look (at least temporarily) like a rare high-profile victory for the opposition, media attention has again begun to turn back to the administration’s developing approach to internal immigration enforcement. Conflicting reports of large-scale raids by ICE agents over the weekend follow closely on the heels of Trump’s Wednesday February 8th ‘roundtable’ with county sheriffs, a collection of supporters and ideologues culled largely from the leadership of the National Sheriffs’ Association. As an early endorser of the Trump campaign, the association and its membership rolls of elected sheriffs from largely rural counties across the nation have made highly visible efforts to align themselves with the new administration, putting them in the company of rank-and-file police unions like the Fraternal Order of Police and at odds (on several issues including immigration) with police leadership organizations like the Major Cities Chiefs Association and International Association of Chiefs of Police.

While I have yet to see a comprehensive list of the Sheriffs who attended Wednesday’s White House roundtable, none of the ten sheriffs named in the official transcript oversee jurisdictions with current 287g agreements. Two of the sheriffs mentioned in the lead-up to the event – Sandra Hutchens of Orange County, California (profiled in my last entry) and Daron Hall of Davidson County, Tennessee – do hold current 287g agreements. Regardless of whether Hutchens was present at the Sheriffs roundtable or not, Trump made a point of thanking her by name in his remarks to the Major Cities Chiefs Association earlier in the day.

Maintaining close ties with loyal supporters at different levels of government appears to be a characteristic feature of Trump’s approach to governance, so it will be important to watch closely the implications for immigration enforcement where these political connections are mirrored by administrative links like 287g. Etowah County has held contractual relationships with ICE (and its predecessor the INS) dating back to its first detention agreement in 1998; its 287g agreement, though a more recent endeavor, dates back at least until 2008. These administrative links do not, however, appear to be mirrored by political ones: Etowah County Sheriff Todd Entrekin was in fact an early supporter of (relative) immigration moderate Marco Rubio. So why is Etowah County being profiled? It may help for me to quickly reiterate the key characteristics for inclusion in this series:

1) “Jurisdictions to watch” have operated consistently under the same chief executive since before the Obama administration’s efforts to reform 287g. In most cases, this means that the same individual who signed the jurisdiction’s first 287g memorandum of agreement is still making the relevant executive decisions about involvement in immigration enforcement moving forward.

2) They are (with few exceptions) county law enforcement agencies headed by elected sheriffs.

3) They have started deportation proceedings for significant numbers of immigrant arrestees under their 287g programs in the past.

4) They have clear incentives for directly involving their officers in immigration enforcement. While these incentives are often political, they are often financial as well, with direct income and/or indirect ‘economic activity’ arising from close ties to private/for-profit immigrant detention facilities located within the jurisdiction, and/or Intergovernmental Service Agreements (IGSAs) under which ICE pays the jurisdiction a per-day fee to detain immigrants in the local jail.

Etowah County in fact fulfills only three out of these four criteria, in that it does not appear to have started deportation proceedings for a significant number of immigrant arrestees under its 287g program, though it has arguably processed large numbers in proportion to its small overall population and even smaller immigrant population. Etowah County is an important jurisdiction for immigrant advocates because of this exception rather than in spite of it, because it presents an opportunity for engagement on issues of public safety that is unusual in 287g jurisdictions nationwide. Sheriff Entrekin, while a Republican serving what appears to be a highly conservative Alabama constituency, does not appear to be an ideologue; rather, his decision-making regarding immigration enforcement appears to be a pragmatic outgrowth of his agency’s long standing as an immigrant detention provider. The available evidence suggests that Entrekin recognizes the importance of open communication between immigrant communities and law enforcement, suggesting a public-safety orientation more typical of law enforcement executives in larger cities than elected sheriffs.


SHERIFF: Todd Entrekin.

Entrekin, a Republican, was first appointed Sheriff by then Alabama Governor Bob Riley in 2007, following the death of his elected predecessor, James Hayes. Entrekin has since won reelection twice, in 2010 and 2014. He has been an outspoken supporter of both 287g and Secure Communities, testifying before congress in support of both programs in 2011. This support does not appear to extend to the nativist political posturing adopted by some elected sheriffs, however: in his testimony regarding Alabama’s restrictive anti-immigrant 2011 state legislation, HB 56: Entrekin testified that the law “would not only burden local law enforcement in a negative fashion, it would burden other social services as well.”

ARRESTEES PROCESSED FOR DEPORTATION UNDER 287G: 63 in 2012 – a number considerably smaller than the thousands processed in many other 287g counties but proportionately significant for Etowah County’s low population (about 104 thousand residents, 3.3% of whom Hispanic or Latino).

ACTIVE IMMIGRANT DETENTION FACILITIES: The Etowah County Detention Center, with a capacity of 357, occupies an $8 million wing of the Etowah County Jail. The then Immigration and Naturalization Service (INS) funded this expansion directly in 2003, in order to outfit the facility to house long-term detainees. Despite this investment, conditions at the facility have long been considered problematic, sufficiently so that ICE announced the facility’s closure in 2010 (an effort that was halted by the political intervention of local representatives) and it was featured by the Detention Watch Network in its 2012 Expose & Close series as one of the “worst in the country.”

AVERAGE DAILY POPULATION (ADP) OF IMMIGRANT DETAINEES: The Etowah County Jail held an average of 341 immigrants on any given day throughout 2012. Per diem/per detainee compensation was $45 in 2015 – consistent with rates at other Alabama facilities but among the lowest in the nation overall. Gross receipts for detention in Etowah thus exceed $5 million ($45 * 341 detainees * 365 days = $5.6 million); however, Etowah’s IGSA details compensation for additional services such as transportation that have the potential to add significantly to this total. A very small proportion of this total – about $170 thousand ($45 * 63 processed for deportation * 60 day average stay), or around 3% – could potentially be attributed to enforcement activity under 287g.

HISTORY OF 287G IN ETOWAH COUNTY, ALABAMA: As detailed above, 287g enforcement in Etowah County appears largely to be an outgrowth of the relationship established in 1998 with a detention contract, possibly reflecting a desire at the time of its original signing for closer ties to shore up the deteriorating status of the troubled Etowah County Detention Center. Having neither a significant undocumented immigrant community, nor (as one of the smallest and most densely populated counties in Alabama) a significant agricultural economy that might attract non-resident immigrant laborers, Etowah’s 287g program would be equally difficult to justify as a response to a clearly defined crime problem within an immigrant community, or postulate as a cynical attempt to increase detention numbers.

CONTEXT AROUND CONTINUED IMMIGRATION ENFORCEMENT UNDER 287G IN ETOWAH COUNTY, ALABAMA: Etowah County’s approach to 287g enforcement raises essential questions about the tools that advocates have at their disposal to directly address the relationship between federal immigration enforcement and local law enforcement agencies nationwide. The clearly problematic conditions for long-term detainees in the Etowah County Detention Center are an issue for another context; setting them aside, we can perhaps recognize Sheriff Entrekin as a pragmatic decision-maker, managing an inherited relationship with significant budgetary implications for his agency and jurisdiction overall. It is important for advocates to recognize the potential presented by a pragmatic sheriff who appears to prize evidence-based public safety concerns over ideological posturing. Credible messengers in a position to promote evidence-based public safety policy among elected county sheriffs are few and far between. This is in sharp contrast to law enforcement leadership from major cities: while it remains to be seen what impact the outspoken support for evidence-based public safety policy among the latter will have on federal law enforcement policy, they have at least set a precedent for engaging directly and publicly with the Trump administration on its law enforcement agenda.

To date, there is no parallel engagement effort on the part of elected county sheriffs; indeed, the National Sheriffs’ Association appears more interested in treating the administration’s first 100 days as a prolonged victory lap than engaging on general or specific issues related to an evidence based public safety agenda. How will 287g enforcement play out in a jurisdiction like Etowah given this context? Will it reflect the kind of outreach Sheriff Entrekin has recently made to the immigrant community in his jurisdiction, and if so, does this indicate the potential for direct engagement with Entrekin around the public safety implications of the Trump administration’s intended approach? For some pro-immigrant advocacy organizations, any goal short of ending local police involvement with immigration enforcement will be insufficient; nevertheless, the value of any ‘credible messenger’ within the ranks of the nation’s county sheriffs can hardly be overstated, especially one who might make a case for setting prudent limits around the use of immigration enforcement as a public safety tool. Whether Sheriff Entrekin has this potential remains to be seen, preferably through the lens of a more thorough local investigation.

Daniel L. Stageman, PhD is Director of Research Operations at CUNY John Jay College of Criminal Justice. He is also a criminologist whose scholarship focuses on making sense of America’s punitive approach to immigrants. He can be contacted at dstageman(at)jjay.cuny.edu. This has been the second in his series of profiles of “jurisdictions to watch” on local immigration enforcement under the new policies promulgated by President Trump’s January 25th executive orders. Next up: Frederick County, Maryland.

The Trump Administration and LGBT Rights

Our latest blog entry comes from Professor of Political Science Daniel Pinello. Professor Pinello is also author ofAmerica’s War on Same-Sex Couples and their Families: And How the Courts Rescued

By:  Daniel Pinello, 2/7/2017

Shortly after the November 2016 presidential election, the New York Times published the headline “Trump Win Seen as ‘Devastating Loss’ for Gay and Transgender People.” Offering reasons from the President-Elect’s business and personal histories to believe he himself lacked animosity toward lesbian, gay, bisexual, and transgendered folks, the article nonetheless emphasized the overt hostility to LGBT rights evident in the Republican Party’s national platform (including the GOP’s advocacy of parents’ requiring their gay and transgender kids to go into “conversion therapy” to alter their sexual orientation or gender identity). Moreover, Donald Trump’s choice of Governor Mike Pence as Vice President especially distressed the queer community. The Indianan promoted public funding of conversion therapy, voted in Congress against bills prohibiting sexual-orientation and gender-identity discrimination and against the repeal of the military’s Don’t Ask, Don’t Tell policy, and signed a state law allowing businesses the “religious freedom” not to serve gay and lesbian people.

Trump’s cabinet picks also sent tremors through LGBT groups. Declining to sing at the inauguration, for instance, Jennifer Holliday observed that the incoming federal regime was “a who’s who of homophobia.” Notable among the Trump nominees were Jeff Sessions as Attorney General and Rex Tillerson as Secretary of State. As an Alabama senator, Sessions supported amending the Federal Constitution to outlaw same-sex marriage, voted against queer people’s open service in the American military, and objected to bills protecting against sexual-orientation and gender-identity discrimination in the workplace. When Tillerson became chief executive of Exxon Mobil in 2006, the oil company’s score on the Human Rights Campaign’s Corporate Equality Index was 0 percent. Exxon Mobil didn’t formally adopt anti-discrimination policies regarding sexual orientation and gender identity until 2015, a year after the Obama Administration mandated that businesses under contract with the federal government protect LGBT workers. By 2017, the oil company’s HRC score was 85 percent, conspicuously behind 514 other enterprises (like Apple, Chevron, and Walmart) with 100 percent ratings.

So what damage can the Trump Administration do to LGBT rights? A comprehensive answer first requires recognition that our American system of federalism provides states with most of the powers important to the daily lives of queer folk. Legal relationship recognition (whether between coupled partners or the minor children they’re raising), the ownership and distribution of property within families, protections against discrimination in the workplace, housing, and public accommodations – all these vital issues and more are primarily regulated at the state level. Thus, LGBT rights that exist pursuant to state law (such as to marry or adopt children or not to be fired from a job for being gay or transgender) cannot be directly affected by the President or Congress. So queer people living in progressive places like California, Massachusetts, and New York have little to fear immediately from Republicans in Washington, DC.

Rather, LGBT individuals living in the 28 jurisdictions (Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming) without statewide legal-protections against sexual-orientation or gender-identity discrimination have better reason to feel insecure. For years, bills that would add sexual orientation and/or gender identity to the personal-attribute categories protected from discrimination under federal law have languished in Congress. And that lacuna in national legal safeguards for queer folk isn’t likely to be filled while the White House or either congressional branch is under GOP control. Accordingly, had Hillary Clinton won the Electoral College in addition to the popular vote, the Republican-dominated House of Representatives would still have blocked progress in federal statutory protections. So Trump’s ascendancy isn’t decisive for the logjam in such prospective national legislation.

However, the new president can revoke his predecessor’s executive orders regarding policies of concern to the LGBT community or issue new decrees antagonistic to queer rights. For example, in 2010, Barack Obama’s Department of Health and Human Services promulgated regulations requiring hospitals receiving Medicare or Medicaid funding to extend the visitation rights of patients to include their same-sex partners. A subsequent directive allowed married lesbian and gay couples to take family and medical leave. In all, more than 100 executive actions and regulatory changes by the Obama Administration improved the daily lives of queer Americans in sundry ways. Trump has the power to annul all such improvements, including the aforementioned discrimination ban on federal contractors.

Of course, whether he’ll do so is an open question. With regard to workplace protections in particular, American public opinion overwhelmingly supports such guarantees. While just 59 percent of national respondents told the Gallup Organization in 1982 that they thought homosexuals should have equal rights in terms of job opportunities, the proportion who supported equality in the workplace had increased to 89 percent by as long ago as 2006. Hence, Trump, who came into office with the lowest public approval ratings of any president in the modern era, would threaten alienating even more Americans by gratuitously countermanding Obama Administration benchmarks of LGBT-rights progress.

Indeed, on January 30th, the White House announced that the President would not disturb Obama’s 2014 directive prohibiting federal contractors from discriminating against LGBT employees or job applicants. But just two days later, on February 1st, a draft executive order circulated within the Trump Administration which would have provided broad protections for employers and service providers that, based on religious objections, deny jobs or services to LGBT workers or customers, similar to the bill Vice President Pence signed into law as governor of Indiana. By February 4th, the New York Times reported that Ivanka Trump and her husband Jared Kushner were instrumental in scuttling the proposed “religious-liberty”-based rollback of queer rights. Hence, what the new president ostensibly gave on a Monday with one hand – preserving Obama’s executive order of three years ago – he almost took away with the other hand on Wednesday, but for the intervention of social liberals within the President’s immediate family.

If Trump himself has any genuinely reliable political instincts, he’s likely not to tamper extensively with rights policies affecting queer people. In a January 12thNew York Times profile, for instance, Peter Thiel, the billionaire venture capitalist who was a member of the Trump transition team and who is openly gay, averred that “Trump is very good on gay rights. I don’t think he will reverse anything.”

Even diehard right-wing congressional Republicans have seen the political writing on the wall with regard to marriage equality, which the Pew Research Center found 55 percent of Americans supported in 2016. After the U.S. Supreme Court nationalized the right of same-sex couples to marry in Obergefell v. Hodges of June 2015, no organized effort emerged in the GOP-dominated 114th Congress to amend the Constitution for the purpose of toppling that judicial ruling. Although House Republicans threw abundant red meat to constituents by passing numerous symbolic repeals of the Affordable Care Act, GOP lawmakers didn’t even attempt one congressional vote to overturn Obergefell.

The venue in which President Trump may have the most consequential detrimental effects on the everyday lives of queer folk is in his judicial appointments, because federal courts will continue to address disputes affecting LGBT litigants. Last October, for example, the Supreme Court announced it would review whether a U.S. Department of Education regulation – requiring that “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity” – appropriately implemented Title IX, a 1972 law banning discrimination “on the basis of sex” in schools receiving federal money. Also last October, the Court of Appeals for the 7th Circuit, in Chicago, granted an unusual discretionary rehearing by that full judicial bench on whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation, as held in a 2015 Equal Employment Opportunity Commission decision.

Judge Neil Gorsuch, President Trump’s nominee to replace Supreme Court Justice Antonin Scalia (who died almost exactly a year ago), is likely to be as unsympathetic to queer litigants as his predecessor, who never voted in support of an LGBT-rights claim. Yet substituting Gorsuch for Scalia on the high tribunal would not immediately change its 5-to-4-vote equilibrium in favor of due process and equal protection for all Americans, regardless of their sexual orientation or gender identity. The real threat to the Supreme Court’s balance toward fairness for all would come in the event either Justice Ruth Bader Ginsburg (who turns 84 in March of this year) or Justice Anthony Kennedy (who will be 81 in July 2017) leaves office. A replacement of either of them by someone in the mold of Gorsuch, Scalia, or Justice Clarence Thomas could be disastrous to future LGBT-rights claims in the federal judicial arena.

With that real threat on the horizon, however, I don’t think there’s likely to be substantial retrenchment on constitutional rights already established by existing precedents such as Lawrence v. Texas (the 2003 invalidation of state consensual-sodomy statutes), United States v. Windsor (the 2013 upending of the federal Defense of Marriage Act), and Obergefell v. Hodges. The reasons for my optimism are several.

First, consider federal judicial voting trends on LGBT-rights claims. My 2003 book Gay Rights and American Law analyzed how federal and state appellate courts treated the civil rights claims of lesbians and gay men between 1981 and 2000 through an examination of 1,439 votes by 849 appellate judges in 398 decisions and opinions from 87 courts in all federal jurisdictions and 47 states. The volume’s concluding chapter made this observation:

Federal judges selected by Democratic presidents, compared with Republican appointees, positively determined an astonishing 40.5 percent of the probability “space” between complete success and utter failure of lesbian and gay rights claims in federal appellate courts. Among 45 federal cases in the study not influenced by controlling precedent, only 26.7 percent of 116 votes by judges nominated by Republican presidents were favorable to sexual minorities, while 60.2 percent of 83 votes by Democratic appointees supported homosexuals – a difference of 125 percent! Indeed, presidential party predicted case outcome far better than any other personal attribute [such as age, gender, race/ethnicity, or religious affiliation] of federal judges in the investigation.

My 2016 book America’s War on Same-Sex Couples and Their Families – And How the Courts Rescued Them – which counted the votes between 2013 and 2015 in all lower-federal-court decisions adjudicating disputes over the constitutionality of state same-sex-marriage bans – revealed a remarkable change from what the 2003 volume found:

[T]he (admittedly smaller) sample of federal judges in this survey had even more astonishing voting patterns based on the political party of the presidents who selected them. Among both the sixteen district-court and nine circuit-court judges who were Democratic appointees, 100 percent of their votes – every last one – went in favor of marriage equality, representing a 66-percent improvement over the 1981-2000 Democratic-nominee voting record. Whereas, with regard to the jurists chosen by Republican presidents, four of their six circuit votes, or 67 percent, went against the right of civil marriage for same-sex pairs, while just one of five trial-court decisions, or 20 percent, did so. In total, six of eleven Republican appointees, or 55 percent, embraced marriage equality. Hence, although the gap established by presidential party wasn’t as dramatic in 2013-2014 – at 82 percent – as it was in the last two decades of the twentieth century (125 percent), the disparity, nonetheless, was still substantial.

In other words, the rates at which both Democratic and Republican appointees to the federal bench backed the civil rights claims of LGBT litigants increased steadily, even dramatically, over time. The frequency of support from judges selected by Democratic presidents rose by two-thirds (from 60.2 percent to 100 percent) between 1981-2000 and 2013-2015, while the increment for Republican designees was more than double (from 26.7 percent to 54.5 percent). These enhanced levels of judicial protection mirrored the kinds of advances in American public opinion regarding queer rights referenced earlier. Accordingly, the voting trends of both Democratic and Republican nominees generally bode well for continued support of LGBT rights in federal court.

A second reason for optimism that landmark decisions like Lawrence, Windsor, and Obergefell won’t be jeopardized by Trump judicial appointments is the legal doctrine of stare decisis, which is central to traditional jurisprudential explanations of decision making in American courts. In brief, adjudged cases furnish examples or authority for analogous future fact patterns or similar questions of law. Adherence to established precedents provides security and certainty, mandating established legal principles under which rights may accrue, be recognized, and be followed. Stare decisis facilitates a predictable legal system.

From a macro perspective, the U.S. Supreme Court’s own commitment to honoring precedents is revealed by the statistic that less than .002 percent of all of the high court’s opinions have ever been formally overruled by the Court itself. At the micro level, consider the remarkable endurance of Roe v. Wade. I remember well, for instance, how, after the April 1992 oral argument in Planned Parenthood of Southeastern Pennsylvania v. Casey, all well-informed court observers predicted that, as a result of President George H. W. Bush’s replacement of the liberal lions William Brennan and Thurgood Marshall with David Souter and Clarence Thomas, Roe v. Wade would finally be toast. But, just as the New York Times forecasted with 84-percent certainty last November 7th that Hillary Clinton would be the 45th president, the 1992 conventional wisdom was also wrong. Roe’s core holding prevailed as a precedent in Casey.

Equally important as these general observations about the crucial role of stare decisis in the American legal system, Chapter 5 of Gay Rights and American Law conducted an empirical test of the impact of precedent in the LGBT-rights context. My investigation first identified the votes of judges who were likely predisposed (because of their age, gender, party affiliation, race/ethnicity, religion, and a variety of other factors) not to support the legal claims of queer litigants. The study then compared the computed probabilities of how jurists would vote with their actual behavior deciding cases. I discovered that over one-third (36.4 percent) of the judges on courts of last resort (both state supreme courts and the U.S. Supreme Court) who were otherwise inclined not to endorse LGBT rights nonetheless did so when a binding precedent in favor of such claims was involved in the adjudication. And the proportion of conservative-minded judges on intermediate appellate courts (such as the U.S. Courts of Appeals) who followed relevant liberal precedents was especially striking: 78.6 percent.

Hence, there are good reasons for cautious optimism that President Donald Trump’s impact on LGBT rights in the United States won’t be significantly detrimental.

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