Posted on 09/06/2003 5:18:08 PM PDT by shrinkermd
One morning in the middle of July, in front of the federal courthouse in Charlotte, N.C., the Rev. Flip Benham summoned about 50 of his followers to hold the Supreme Court of the United States in contempt of the Court of Jesus Christ. Benham, the head of the militant anti-abortion group Operation Rescue, is not an admirer of the Supreme Court, and after its decision in June in Lawrence v. Texas, which struck down every sodomy law in America, he was especially displeased.
On the steps of the courthouse, Benham's followers arranged six coffins, each inscribed with the name of a Supreme Court decision that represented a defeat for social conservatives in the moral and political clashes known as the culture wars. The coffins began with the decisions in the 1960's that outlawed school prayer, moved on from Roe v. Wade in 1973 to the decision in 1980 that banned the posting of the Ten Commandments in public schools and ended with Lawrence in 2003.
As one of his supporters sounded an earsplitting blast on a shofar, Benham sentenced the decisions to be burned. Small children in anti-abortion T-shirts tore up copies of the decisions and placed the fragments in a large metal urn. As Benham set them on fire, officers from the Charlotte Police Department swooped down, opened their fire extinguishers and put out the tiny flames. ''That's not going to work in hell, I tell you!'' Benham shouted. The police officers, backed up by federal marshals, descended from the plaza, handcuffed Benham and led him into the courthouse to be arraigned for unlawful burning.
It was not surprising to see Benham and his followers exercised by the court's decision in Lawrence, nor was it surprising to see them embrace their defeat as an opportunity to rally the faithful. Dramatic resistance to the court, after all, is their reason for being. But in the months since Lawrence, what has been startling is how many social conservative leaders with larger constituencies have also come to view Lawrence as an unexpected and welcome political opportunity. It was four years ago, after the Senate refused to convict President Clinton of high crimes and misdemeanors, that Paul M. Weyrich, one of the leading conservative strategists in America, sent a letter to his supporters conceding defeat in the culture wars and advising them to ''tune out'' of the modern world. With Lawrence, however, social conservatives are suddenly talking as if they've been given a chance to tune back in. As the Rev. Richard John Neuhaus, the editor of the religious journal First Things, told me, ''People really think that on this one they have a winner.''
The Supreme Court in Lawrence did far more than strike down an extreme and discriminatory Texas law that forbade sodomy by homosexuals but not heterosexuals. Justice Anthony Kennedy's opinion for the court also overruled Bowers v. Hardwick, a 1986 opinion holding that moral disapproval was a legitimate reason for states to regulate intimate behavior. By ruling out moral disapproval as a permissible basis for legislation, Kennedy, in the eyes of liberal activists and social conservatives alike, made it more likely that lower courts will come to recognize a constitutional right to gay marriage. If this happens -- the Massachusetts Supreme Court may have already ruled on the question of gay marriage by the time this article appears -- conservative activists hope and expect that many Americans will finally be roused to take political action.
''I think the Supreme Court decision will serve to awaken the sleeping giant of the majority of conservative Americans who believe in the traditional institution of marriage to get involved in the culture wars again to preserve traditional marriage and culture in this country,'' Mathew D. Staver, the head of the conservative Liberty Counsel, told me.
This optimism has some historical support. During the past decade, on those occasions when a lower court has recognized a broad right of gay marriage, the decision has provoked a political backlash. When the Supreme Court of Hawaii implied in 1993 that gays and lesbians had a constitutional right to marry in that state, 34 states passed laws declaring that they wouldn't recognize same-sex marriage, and Congress passed the Defense of Marriage Act, which announced that those laws were constitutional. The voters of Hawaii promptly amended their state Constitution to prohibit same-sex marriages. In Alaska in 1998, voters adopted a similar amendment by a similarly overwhelming margin months after a lower court declared a right to same-sex marriage.
Conservatives also point to recent polls as an indication that even in a country that has grown more accepting of gays and lesbians, a significant number of people were not prepared for the breadth of Kennedy's opinion. After the Supreme Court decision, the number of Americans who said sexual relations between homosexuals should be legal fell from 60 percent in May to 48 percent in July, the lowest number since 1996. Polls taken after Lawrence also revealed a sudden drop in the number of Americans who said they would support civil unions for gays and lesbians, from 49 percent in May to 37 percent in August. Weyrich told me that as a result of these shifts, he has been having second thoughts about the need for conservatives to concede defeat in the culture wars. ''I have never seen people so energized and activated, even more so than at the time of Roe v. Wade,'' he said.
The outcome of the next phase of the culture wars is far from certain. But if social conservative leaders are able to convert the ambivalence of the country as a whole about gay marriage into active resistance, then Lawrence could have the paradoxical effect of setting back the cause of gay and lesbian equality at a moment when greater acceptance of gay life had seemed inevitable. This would be an unfortunate paradox, but hardly an unprecedented one.
Liberals who came of age in the postwar era like to think of the Supreme Court as a heroic check on the tyranny of the majority, and Lawrence has been heralded in this vein. But it's not clear that this picture of the court's role in the culture wars is historically accurate. In the decades after World War II, it was political agitation -- in particular, the efforts of the civil rights and women rights movements -- rather than the Supreme Court that was primarily responsible for the expansion of equality in America and the steady growth of a libertarian national consensus. On those occasions when the Supreme Court ruled in favor of expanding rights, it was typically reflecting a change in public opinion, not marching as an advance guard. For most of Earl Warren's tenure as chief justice, the court's decisions were remarkably popular with a majority of Americans. The court's decision in 1963 to ban the Lord's Prayer and the reading of Bible verses in school was supported by mainstream Protestants as well as Catholics. In the late 1960's, the court's decisions liberalizing pornography also provoked no significant backlash. As the pill, the sexual revolution and the women's movement were transforming American sexual mores, the court's opinions inspired resistance only among small groups of social conservatives, mostly evangelicals in the South.
The greatest threat to social conservatives came, as it always has, not from a crusading court but from the relentless American pressures to assimilate. With the expansion of women's equality -- along with an increase in higher education and mobility -- conservatives as well as liberals began to embrace what the sociologist Alan Wolfe has called an ethos of ''moral freedom,'' based on the laissez-faire belief that individuals should decide for themselves what it means to lead a good life. Even within more conservative, God-fearing communities, younger generations increasingly abandoned traditional attitudes, to the point at which their outlook on the importance of personal autonomy no longer differed from those of their secular counterparts. ''There is the distinct possibility,'' the sociologist James Davison Hunter wrote at the end of his authoritative book, ''Culture Wars,'' in 1991, ''that orthodox communities may become so assimilated to a progressive political . . . culture that they will not be capable of offering any effective opposition to the worldview that currently plagues them.''
But the court has not always trod carefully in the culture wars. Most notably in 1973 in Roe v. Wade, it ruled with far less restraint. In the cases involving school prayer, obscenity and sex discrimination, the court not only acted in line with a growing national consensus but it also based its decisions on clearly established constitutional law. The school prayer and obscenity decisions were rooted in the First Amendment's protections for free speech and religious freedom; even when social conservatives disagreed about the outcomes of particular cases, they could embrace the principles that supported them.
In Roe v. Wade, however, the court did something very different. It struck down abortion laws in 46 states, and it did so in a freewheeling way that even some scholars and justices who were in favor of abortion rights found constitutionally questionable. In his majority opinion, Justice Harry Blackmun said the Constitution protected the right to choose first trimester abortions, but he failed to specify where in the text or history of the Constitution this right was located.
Moreover, by striking down so many laws rather than just the draconian Texas law before it (which banned abortion in nearly all circumstances), the court largely short-circuited a national debate about abortion. Popular opinion about abortion in the early 70's was becoming more and more liberal. According to abortion rights advocates who are critics of Roe, like Justice Ruth Bader Ginsburg, the state legislatures would have continued to repeal the most extreme laws like the one in Texas. By cutting off that debate, the court in Roe had the effect of giving abortion rights advocates a false and complacent sense of victory; anti-abortion groups, by contrast, were energized -- they suddenly felt like martyrs instead of mere losers. A series of conservative interest groups, from the Concerned Women for America to the Moral Majority, arose in response to Roe in the 1970's and 80's, and they were initially effective. While states had been liberalizing their abortion laws before 1973, they increasingly limited access to abortion after Roe came down. These newly formed interest groups also set out to oppose pornography, gay rights and the E.R.A., to resurrect school prayer and, above all, to appoint Supreme Court justices who would reverse Roe.
Although Roe was reaffirmed in 1992, the decision has continued to distort and polarize our judicial politics long after there was any threat of its being overturned.The conservative judicial movement that arose in response to Roe led to the appointment of two justices -- Antonin Scalia and Clarence Thomas -- who continue to refuse to accept the legitimacy of Roe even after their colleagues have repeatedly reaffirmed it. Thirty years after it was decided, furthermore, Roe continues to define the terms of our nomination battles for the federal courts. In the Reagan and both Bush administrations, lower court and Supreme Court nominees were selected largely because of their perceived opposition to Roe, which was used as a litmus test of judicial virtue. The result is a polarizing gap between the moderate views of the country as a whole on abortion and the radical opposition it continues to inspire among conservative legal elites.
Might Roe serve as a cautionary tale for supporters of Lawrence? If any single Supreme Court decision can reinvigorate the culture wars today, conservatives say, the court has just handed it to them on a silver platter.
''It isn't so much the facts of the case; it's the reasoning of Kennedy's majority opinion that was really very offensive to a lot of people,'' Phyllis Schlafly, the president of the conservative Eagle Forum, told me. In Lawrence, the defendants were prosecuted for having consensual sex with each other under a Texas law that forbade sodomy by homosexuals but not by heterosexuals. Texas is one of only four states in America that banned sodomy only when committed by gays and lesbians, and the court could have struck down these four laws as a violation of the constitutional guarantee of equal protection, as Justice Sandra Day O'Connor recommended. This would have left states free to ban sodomy, as long as they did so in an evenhanded way, treating heterosexuals and homosexuals alike. Libertarian conservatives insist that they would not have objected had the court simply struck down these four discriminatory state laws. Even among evangelical and social conservatives, there is a general sense that the effort to stigmatize consensual sexual behavior as immoral has been lost among the younger generation. ''I don't think sodomy laws could be resurrected, because even most Christians believe that what is done in the privacy of one's home is not the government's business,'' Weyrich says. ''I've had a couple of my own kids say that to me.''
But instead, Kennedy's opinion for the court struck down all 13 state laws in America that ban sodomy whether committed by straight or gay people, and it did so in a particularly expansive way, citing the right to privacy and liberty ''in its spatial and more transcendent dimensions.'' Although as a political matter many Americans may agree with Kennedy's concept of liberty, its roots in the Constitution are not self-evident: the Fourth Amendment explicitly protects the privacy of the home against unreasonable searches, but no provision of the Bill of Rights clearly protects such a sweeping vision of personal autonomy. Taken to its logical conclusion, Kennedy's argument would seem to invalidate all moral restrictions on intimate associations that, it could be said, cause no harm to others -- restrictions on polygamy, for example.
The implications of Kennedy's far-ranging opinion have already begun to trigger a backlash. At a rare press conference at the end of July, President Bush went out of his way to endorse a federal definition of marriage as limited to a man and a woman, and he is facing increasing pressure from social conservatives to endorse a federal marriage amendment to the Constitution, which has been supported by the Senate majority leader, Bill Frist. Whether the marriage amendment is actually proposed and ratified -- a notoriously difficult political feat -- conservatives predict it will frame the debate about gay rights in a way that can only help them and hurt liberals. If the amendment makes it through Congress, the thinking goes, it will provoke a mini-culture war in each of the 50 state legislatures that will force Democrats to choose between alienating their liberal base, which favors gay marriage, or alienating the moderate majority, which, at least for now, appears to oppose it. Even if the amendment fizzles in Congress, social conservatives are counting on other lower-court decisions to energize their supporters by extending Lawrence to strike down restrictions on gay and lesbian behavior in public, like the exclusion of gays and lesbians from the military. ''Anything that is the outgrowth of that decision is going to have the effect of keeping the momentum going,'' Weyrich says.
The outcome of these battles is hard to predict. At the moment, Americans seem to feel differently about gay marriage than about consensual sexual behavior in private. Last June, a Gallup poll indicating that a majority disapproved of laws banning sodomy also found that 55 percent of Americans said they believed that gay marriages ''should not be recognized as valid.'' Although two-thirds of Americans now say they believe that same-sex marriage will be legal within the next hundred years, they don't appear ready for courts to enact this social revolution by judicial fiat.
Of course, attitudes evolve. Unlike the debate about abortion, in which those who believe that life begins at conception may never be persuaded to lay down their arms, there is no obvious victim in a gay marriage. If and when gay marriages become a reality, opposition to them will presumably decline over time. If the ratings for ''Queer Eye for the Straight Guy'' are a harbinger of anything, perhaps it will decline more quickly than conservatives hope.
But the constitutional case for a right to gay marriage is more hotly contested than, for example, the court's opinion in 1967 recognizing a right to interracial marriage, which was based on a solid equal-protection argument that came to be accepted by the majority of the country. Seventy-two percent of Americans opposed interracial marriage one year after the decision, but few could deny the court's conclusion that laws banning interracial marriage were based on the discriminatory belief that blacks weren't fit to marry whites. By contrast, many people who oppose gay marriage but support civil unions for gays and lesbians say they don't believe that gays and lesbians deserve less respect than heterosexuals but that there are differences between gay and straight unions that merit a semantic distinction. The history of the court's interventions in the culture wars suggests that judges should thwart the will of the majority only when the principled constitutional arguments for doing it are so overwhelmingly clear and convincing that they are easily intelligible to those who disagree. Both sides should have learned by now that relying on courts for victories that you are unable to win in the legislatures is not a recipe for enduring success.
Regardless of the fate of the gay-marriage debate, Lawrence has already turned up the heat on judicial nominations. ''This will make it all the more important that the president fulfill his promise to appoint justices like Scalia and Thomas,'' Schlafly says. ''We're tired of being betrayed by Republican presidents.'' Interest groups on both sides are now spoiling for a battle to the death over the next Supreme Court vacancy, which will inspire political passions vastly out of proportion to the actual judicial stakes.
The turn away from politics and toward the courts is almost always a sign of weakness rather than strength. But for both sides in the culture wars, the allure of the courts has proved too powerful to resist. Meanwhile, the fractious political sideshows that Lawrence has set in motion may lead not to greater equality and acceptance for gays and lesbians but to greater recriminations, suspicion and strife.
Jeffrey Rosen teaches law at George Washington University and is the legal affairs editor of The New Republic. He writes regularly for the magazine.
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