A small-state lesson in hope.

Are progressives leaving money on the table when it comes to winning elections?

It is easy to feel hopeless right now. I get it. Trump has been vicious, stupid, and destructive. Any POTUS carries a big stick and this one came out swinging for the bleacher seats. So, why do I still feel hope?

I came out as gay in a place (Billings, Montana) and time (1984) when having sex in my own bedroom could land me jail. When I could have been fired or evicted, with no legal recourse, had my boss or landlord discovered I am a homo. When nearly the only public representation of gay men, much less anyone else in the LGBTQ+ communities, was Paul Lynde sneaking secret laugh lines about us into the Hollywood Squares game show, or Corporal Klinger wearing drag on M*A*S*H. When gay marriage was a punch line about “who wears the dress,” and there was that earlier pandemic going on. The one where your lovers died covered in spots while Reagan’s staff laughed at us from the White House.

Things have changed since those days. More than just a little. So I hope I may be forgiven for still believing hope and change are possible. Just like I did back when the act of making love was a felony, for some of us.

Has anything changed since the 1980s?

Lawrence v. Texas (2003) revoked all sodomy laws. Obergefell v. Hodges (2015) gave same-sex couples access to the huge bundle of property rights, privacy rights, and tax breaks known as marriage. Rights more recently cemented by the Respect for Marriage Act (2022). Bostock v. Clayton County (2020) determined that “sex,” for the purpose of anti-discrimination laws, means not just your reproductive organs, but also the sex to whom you are attracted (aka, sexual orientation) and the sex with which you identify (aka, gender identity). Which means LGBTQ+ people can no longer be legally fired or evicted for who we are.

“But, but, but … all of those cases can be overturned just like Roe v. Wade!”
- A fearful quote by nearly everyone

This is true. It is also unlikely. LGBTQ+ folks are nowhere near as unpopular as Cheeto Mussolini and his Evangelical swing choir seem to think. He is only into politics because his daddy called him weak and turned him into a bully. There is little left for him to gain by continuing to bash us, now that he has emitted his long-promised “Dictator on Day One” thunders. Many of which are already blocked in court by the eighty-one lawsuits filed against his administrative actions, so far.

So, let’s talk about the courts, from a local frame out here in Montana.

Montana just ruled that our constitution protects Trans people. WTF … Montana?

Evangelical lobbyists and their legislators spent the past two years trying to scratch intersex, transgender, and Native American Two Spirit people out of the Montana legal code. Republicans have dominated our state house since the 1990s, and Evangelicals dominate the Republicans.

The top-tier Evangelicals in our state include the governor, Greg Gianforte. He is an enormously wealthy software executive from New Jersey who moved here and bought his way into office. He once body-slammed a reporter on camera for asking a question he did not like.

Evangelicals have a highly selective take on Christian faith. One which tends to ignore difficult parts of the bible like “blessed are the peacemakers (Mt. 5:9),” and “do not mistreat or oppress a foreigner, for you were foreigners in Egypt (Ex. 22:21).” People like him are best referred to as Christians In Name Only (ChINOs).

Two years back, Montana Senate Bill 458 (2023) was passed by the legislature and quickly signed it into law by Governor ChINO. Like a Flat Earth map, this law imposes a “there are only two sexes because we say so” view of humanity. It hamfistedly rewrites the definition of “sex” across the whole Montana Code in strictly black and white terms, based on whatever gonads happen to be seen at birth. It ignores sexual and reproductive science. This, despite the medical fact that intersex and transgender people objectively exist. It also ignores American Indian cultural history around gender and sexuality. This, despite the cultural and historical fact that Native American Two Spirit people objectively exist, and have since long before us white folks showed up with cows and guns.

This fundamentally silly law was enjoined by the courts nearly immediately. Then, led by Montana nonprofit law firm Upper Seven Law, this past week it was declared facially unconstitutional, for violating the privacy rights guaranteed by the constitution of our notoriously “mind your own damned business” state. And, for violating the fundamental principle that all Montanans are entitled to equal protection under the law.

Rights belong to all, not just some.

The groups this law targets are numerically small. But, as the judicial branch noted in its final Order in Edwards v. Montana, constitutional rights are not the special property of large groups. Constitutional rights belong to us all. That is quite literally why they are in the constitution: so that bullies cannot take them away.

The Republican state attorney general will fight this ruling, of course. He is a well-known bully, beholden to the Evangelicals. Beyond just that, both our state and the national Republican parties have turned hostile towards the separation of powers and rule of law. They are targeting the Judiciary across the country, because this branch of government is specifically responsible for checking extremism by upholding constitutional limits and preventing overreach by the other two branches, when they get too big for their britches.

When the Attorney General does appeal, and he will, a permanent injunction will be immediately sought based on the Judicial opinion issued in Edwards v. Montana. We are very likely to win, again. Just because a politician ignores the constitution when drafting a new law does not change it or make it go away. And, like judges, law enforcement and military officers are sworn to uphold the constitution, not politicians, regardless of any politician’s rank or role.

Montana just amended our constitution to guarantee the right to abortion. Yes, Montana.

We did something else highly legally and politically significant in Montana last November. We passed Constitutional Initiative 128, which guarantees a woman’s right to choose as a matter of constitutional law. We voted to literally write the word “a-b-o-r-t-i-o-n” into our fundamental law. This amendment passed by a vote of 58% to 42%, in the middle of an election that otherwise went for Trump and threw our last Democrat out of statewide office. Please read the prior sentence one more time. It will be codified this summer as Article 2 Section 36 of the Declaration of Rights in the Montana Constitution.

Is this surprising? Does it seem a bit weird and unexpected that a sparsely populated “flyover state” like Montana, with far more cows and guns than voters, has invoked our constitutional right to privacy to protect both a woman’s ability to make medical decisions about her body, as well as an intersex, transgender, or Two Spirit person’s ability to legally exist while accessing gender-affirming care and expressing their culture?

Common ground wins elections.

There is a very specific lesson available in these two victories: people who need medical privacy have common ground with traditional conservatives.

No, not with Neocons, and certainly not with MAGAs. Absolutely not with Evangelical ChINOs. But, we do with the traditional, “small c” conservatives who once led the Republicans and are now lost within it. The ones who quietly scream at Trump for exploding the national debt with his insanely irresponsible tax cuts. For his betrayal of Amerca’s allies in service to his personal business allies. This political faction may be smaller than it once was, but it is still large enough to flip votes when working in coalition with moderate and progressive Democrats. Moderate, traditionally conservative Republicans have already rebelled against Evangelicals in the current Montana legislative session, to partner with our Democratic minority.

Why are some conservatives quiet LGBTQ+ allies? They instinctively “get it” when it comes to privacy. These people live and breathe their property rights. They want to know what is theirs, that it will remain theirs, and that they can do as they choose with it, without anyone else telling them how. These folks are my neighbors. These folks are my family. This is how they think.

These traditional conservatives also instinctively know that their body is their property. Don’t believe this? Ask one of them if you can stick a vaccine needle in their arm. Be sure to duck. Since Covid, “keep your laws off my body” has become a huge plot of under-utilized political landscape. I have seen lightbulbs click on in conservative eyes, once medical privacy and bodily autonomy are framed by relating vaccine mandates to forcing a woman to carry a fetus to term against her will. Both are invasions of bodily privacy. Principled conservatives understand that legislation and state power have no place inside a human body, no matter what others may wish to do to it.

Which is why CI-128 won in Montana last November, even though Trump did too.

Privacy is an easier win than equality.

The LGBTQ+ movement lost something when we back-burnered our legal and political drives for free speech, privacy, and equal protection, in favor of lofty but legally vague notions of “pride” and “equity.” Neither of which terms exist in constitutional law, while the first three do, backed by a vast body of legal precedent. Free speech is how we were first able to publish stories of our lives without prosecution, and how we put on public drag shows to this day. Privacy is how we got rid of sodomy laws that made us felons for making love. Equal Protection is how we landed the vast bundle of property rights called marriage.

Equality is a far harder legal and political argument to win, though, compared to privacy or free speech. When you tell someone “I am your equal,” it triggers a comparison, and often a defensive “you think you’re equal to me? Prove it.” Yes, we eventually did, because we are. We won marriage equality. It was a long and difficult victory borne on the back of sympathy and awareness which arose in the aftermath of AIDS, as well as the issue’s close legal relationship to laws against interracial marriage, overturned in Loving vs. Virginia (1967). Gay marriage is an equality-based victory that could still be undone by those who think same-sex couples are not their equals. Who think that marriage rights belong to them alone. The same folks who were laughing in the Reagan White House as many of us died of a very ugly disease.

On the other hand, if you tell someone to “respect my privacy,” it triggers a shared desire for the same. Ask for privacy and most will respond “sure, so long as you respect mine, too” instead of “equal to me? Prove it.” Unlike equality-based arguments, privacy-based arguments point towards common ground, not comparison. Enough common ground to win a vote enshrining abortion rights in a rural state constitution, in the middle of Trump’s re-election.

Privacy wins by nurturing common ground. Digital privacy protects everyone from commercial and political surveillance. Property privacy keeps cops out of everyone’s homes and cars without a warrant. Property privacy lets everyone of every sexual orientation make love as we choose out of the public eye. Medical privacy protects trans and intersex people seeking gender-affirming care. Medical privacy protects women seeking reproductive choice. Medical privacy protects families wanting the best care for their children experiencing gender dysphoria. Medical privacy urges building owners to invest in individually locking bathroom stalls and changing rooms.

And yes, medical privacy also tells us to keep our vaccine needles to ourselves unless and until someone asks. Sticking needles in our bodies is a choice, too. If we want others to keep their laws off our bodies, then we need to treat their bodies with the same deference. Principled common ground is like that. It is either common all around, or it is not. Coalition can be hard.

So, again, there is a lesson to be found here by people who keep losing elections outside of their coastal bubbles. I hope these folks begin to “get it.”

“You gotta give ‘em hope.” - Harvey Milk

All this said, it is true we may already be in an unstoppable fascist slide. It is easy enough to find people in the chattering and meme-slinging classes saying so (Niemöller, again?). Fascists attack courts and degrade the rule of law. Check. Public bullying is a hallmark of fascism. Check. It also true that the classic and social media Billionaires make their billions by selling fear. It is also true that the perception of political power is the essence of actual political power.

So, if we choose to see Trump & Company as scary and powerful, then both he and the Billionaires win. We can also laugh at them and keep organizing.

To wrap this up, I am sitting here noticing that I wrote most of everything above while sitting twenty feet from the man I legally married in 2016, after having lived and loved and hoped together with him since we first met in 1998.

Marriage to the man I love is something I could not have even imagined when I came out in 1984. Imagination is hard when things are dark.

The Reagan/AIDS era was very dark. A lot of us didn’t make it. It was also a very different era. Reagan could not take away rights LGBTQ+ people never had in the first place. Trump could, though, and he did, by rescinding Biden’s executive orders with a vicious stroke of a pen. He is a bastard and a clown. But, he cannot rescind Acts of Congress. He cannot rescind Supreme Court rulings.

Billionaires are the new Kings. Our 249 year old system of government was quite literally designed to drive off a King and to prevent one from ever returning. It has not failed. Yet. It will if we sit back and let it. Hope is always an option and there are endless way to get organized.

If we can win in Montana … well, what’s your excuse?