Obama vs. McCain

How would federal LGBT rights law differ after a term of John McCain or Barack Obama?

Same-Sex Marriage: Both McCain and Obama oppose both same-sex marriage and the Federal Marriage Amendment, so it is unlikely that the state of same-sex marriage, at least on the federal level, would be affected by the outcome of the presidential election.

Employment Discrimination: Barack Obama supports the Employment Non-Discrimination Act (ENDA), a piece of legislation that would add sexual orientation and gender identity to the Civil Rights Act and prohibit employment discrimination based on same. At present time, it is perfectly legal under federal law for any employer to fire, punish, or refuse to hire an employee on the basis of sexual orientation or transgender status. John McCain opposes the ENDA. It is extremely likely that the Democratic Congress will pass the ENDA at some point within the next two years, but it is extremely unlikely that they will be able to do so with a veto-proof two-thirds majority. Therefore, employment discrimination against lesbian, gay, bisexual, and transgender persons will most likely become a violation of civil rights law under an Obama administration, but will most likely remain completely legal under a McCain administration.

"Don't Ask, Don't Tell": Under current law, lesbian, gay, bisexual, or transgender military personnel may be fired at any time on the basis of sexual orientation. This has resulted in the discharge of thousands of lesbian and gay military personnel, including some (such as Arabic translators) who are in high demand and whose absence has tangibly weakened the U.S. military. John McCain has vowed to keep the policy intact despite its military consequences, arguing that the presence of lesbian and gay service members poses a "grave risk" to the United States. Barack Obama supports overturning the policy and allowing lesbian and gay service members to serve.

Criminalization: Prior to the U.S. Supreme Court's 6-3 decision in Lawrence v. Texas (2003), 13 states had laws on the books allowing police to arrest lesbian and gay couples for simple sexual intercourse. Since Lawrence, one of the justices in the 6-3 majority has retired and been replaced by a conservative justice who would likely side with the three-justice minority. Justice John Paul Stevens, who would turn 92 in 2012, was also part of the 6-3 majority and is likely to retire during the next four years. If Stevens is replaced by another conservative justice, then it is entirely likely that the Court may revisit Lawrence and allow states to recriminalize homosexuality.

Hate Crimes: Current federal hate crime legislation includes bias-motivated crimes based on a number of factors, but sexual orientation and gender identity are not among them. Barack Obama supports adding these two categories to the list; John McCain opposes classifying bias-motivated crimes targeting lesbian, gay, bisexual, and transgender Americans as hate crimes.