This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
It is the best of times for Utah's LGBT community; it is also the most uncertain of times.
Never before has the humanity of LGBT Americans been more embraced by society, as will be shown this weekend when the U.S. Soccer Men's National Team visits Sandy and celebrates Utah Pride by wearing uniforms with rainbow-colored numbers.
Throughout the United States as here in Utah, there is an unnerving tension between the social progress of recent years versus potential future perils due to the current presidential administration, whose vice president and appointees appear poised to push the moral arc of America away from justice for LGBT citizens.
Notwithstanding this looming threat, this weekend's Utah Pride Festival will celebrate this year's triumph over the last vestige of Utah's anti-gay laws. Last October, with the support of the National Center for Lesbian Rights, Equality Utah filed a pioneering lawsuit challenging an educational statute that prohibited the "advocacy of homosexuality" in public school curriculum.
This anti-gay educational law was indefensible morally as well as constitutionally because it fostered in public schools a climate of fear and ignorance about homosexuality while rendering LGBT students invisible and consigning them to second-class status. Hopefully because of some enlightenment and kindness towards LGBT students, the Utah Legislature yielded and repealed the law.
A generation of conversations amongst neighbors, friends and families has helped Utahns to better appreciate what it means to be gay or lesbian. This knowledge and understanding has enabled the Legislature and the courts in the last five years to apply the Constitution and dismantle an entire system of laws that had expressly discriminated against LGBT Utahns.
Progress in courtrooms here and across the country relied on the jurisprudence of Justice Anthony Kennedy, a Reagan appointee. Over the course of two decades, Justice Kennedy wrote the Supreme Court's key decisions recognizing the legal equality of LGBT Americans under the U.S. Constitution.
In 1996, with Kennedy writing for the majority in Romer v. Evans, the Supreme Court struck down a Colorado law that diminished the political rights and opportunities of gay citizens.
The most recent two decisions resulted from 5-4 votes of the Supreme Court.
Political allies of the president pine for the resignation of Kennedy or the departure of any of the five justices who have sustained the equality and fundamental rights of LGBT citizens.
The morning after the election, the National Organization for Marriage announced "The Plan": "We will work with President Trump to nominate conservative judges to the U.S. Supreme Court ... Such justices will inevitably reverse the anti-constitutional ruling of the Supreme Court imposing same-sex 'marriage' on the nation in the Obergefell decision."
Already the Senate confirmed President Donald Trump's replacement for anti-gay Justice Antonin Scalia. Enemies of LGBT equality fervently pray that a Republican president might have the chance to make another appointment to install an anti-gay majority on the Supreme Court.
The fate of LGBT equality in America has long hinged on the decisions of Justice Kennedy. It is now possible that Kennedy's legacy and the continued legal equality of LGBT Americans may hinge on the identity of his eventual replacement.
"All progress," Martin Luther King Jr., once said, "is precarious." While this weekend's Pride Festival offers a time to celebrate the tangible progress of recent years, the sobering truth is that LGBT equality remains a precarious proposition.
Attorneys Paul C. Burke, John W. Mackay and Brett L. Tolman have represented the Utah Pride Center, Equality Utah, the Campaign for Southern Equality and the Equality Federation.