A Sincere Thank-You To Bigots
This may sound strange. I’ve always commented on marriage equality from a very pro-equality point of view and I really hate the bigots who support second-class citizenship for people because of sexual orientation or gender identity or expression. One might expect me to offer those bigots nothing but the back of my hand. But for the next year or so, the most important thing I can say to the bigots is, “keep it up. Keep running your mouths.”
The reason is because we’re all (as Dahlia Lithwick put it) sort of reading over Justice Kennedy’s shoulder.
While the Obama administration remains unwilling to spend political capital on any of the big-ticket GLBT issues, the courts are getting the job done. In addition to Judge Walker’s Prop 8 case, cases have struck all or part of DOMA, and there are two significant challenges to DADT working their way through, and probably more that are not on my radar.
I think we all know that Antonin Scalia is driven almost to distraction by the extension of GLBT rights. During oral argument in Lawrence, which struck sodomy laws, he basically took over arguing for sodomy prosecutions from counsel — so much so that the Chief Justice tried to rein him in. Thomas is, like Scalia, a reliably anti-gay vote and joined Scalia’s nasty dissent in Lawrence. Alito and Roberts came to the Court after Lawrence, but I think we all correctly assume that they’re against GLBT rights when the rubber meets the road. (I will not ignore that Thomas, Scalia, Alito and Roberts are all traditionalist Catholics. The Catholic Church seems to have back-burnered everything else to make its major issues opposing reproductive freedom and GLBT rights, which may have something to do with the masses of U.S.-born Catholics — more than one third — leaving the church.)
On the other wing of the Court, Ginsburg and Breyer are socially liberal and were in the majority on Lawrence, and does anyone think that Kagan or Sotomayor are going the wrong way on these issues?
So that leaves one swing vote. Kennedy is part of the conservative wing, but on GLBT issues he has broken sharply with the conservatives. He’s not just with the majority on GLBT cases. He’s authored the jurisprudence. A big part of his legacy is that he wrote for the Court in Romer (shocking everyone at the time), and he wrote for the Court in Lawrence. He may really be a Ted Olson on this issue, that rare person who has somehow come to the right conclusion through a principled conservatism and is willing to stand up for that view.
Maybe. But it’s never easy to stick a thumb in the eye of one’s allies, and it takes a highly oppositional personality to take joy in it. Kennedy is in a jam. History will judge him on these cases more than any others. So far, he has a legacy that I think he’s proud of. If he starts voting with the bigots, that all goes away and he’ll be viewed as something of a tragic figure who found but then lost the courage of his convictions. But the social and personal pressure to conform, the conservative screaming, will be very, very loud. The devil on Kennedy’s shoulder will offer him ways to do the wrong thing that he can make intellectual peace with; ways to tell himself and future biographers that it wasn’t really an issue of civil rights versus bigotry.
That’s where the bigots come in. Just like the Tea Party has members who cannot resist the urge to break the veneer and say that this “tyranny” stuff is really their refusal to accept that this country has a black President, the anti-gay bigots can’t keep their coalition together to stick to the veneer of civilized argument. When they think nobody’s looking, they grow fangs and drool on themselves.
When Kennedy sits at this desk reading his clerk’s draft, he’ll have an angel on his shoulder telling him that he will be the conservative who will stand on the right side of history and save his ideological comrades from the historical taint of bigotry. The devil will tell him he can do what other conservatives demand if he makes the right, polite arguments. And the angel will tell him it’s all bullshit, and he knows it bullshit, and he won’t be able to look himself in the mirror, and that there’s no polite way to stand with the bigots. And we need the bigots to make sure that he knows the angel is right.