Others and Brothers 

Civil rights advance, civil liberties retreat

Thursday, Jul 3 2003

If you’d ignored all the news of the past three years and just read Justice Anthony Kennedy’s decision last Thursday striking down the Texas sodomy law and proclaiming — damn near shouting — that gays and lesbians are “entitled to respect for their private lives,” you might have thought we were living in the heyday of the Warren Court. Speaking as forthrightly as the court once did in Brown v. Board of Education, or the Congress did in enacting the Civil Rights Act of 1964, the Supreme Court returned to a task it had largely ignored for the past quarter- century: expanding the definition of “men” in Thomas Jefferson’s mighty assertion that “all men are created equal.”

In a sense, expanding that definition has been the central challenge to American society from the day that it was written. The Civil War, the civil rights movement, the suffragist struggle, the battle over racial preferences in immigration, the struggle for gay and lesbian rights have all been battles over who exactly is created equal.

In American society, the growing acceptance of gay and lesbian equality has been one of the great transformations — and achievements — of the past several decades. Before 1961, as Justice Kennedy noted, all 50 states had anti-sodomy laws on the books. By 1986, when the court issued its decision in Bowers v. Hardwick upholding those laws, only 24 of those states still had such statutes, and last week the number stood at just 13. The laws were seldom enforced, but that is very different from rendering them unenforceable, which is what five and a half justices (Sandra Day O’Connor straddling yet again) did last week.

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Massachusetts Democratic Congressman Barney Frank — probably the most prominent gay elected official in the country — has opined that the big change was creating an atmosphere in which gays and lesbians felt it was safe to come out to their family members, co-workers and neighbors. “People learned that a lot of people they liked and respected were gay and lesbian,” Frank told writer E.J. Graff in an article in The American Prospect last October. “The average American discovered that he wasn’t homophobic: He just thought he was supposed to be.”

The polling certainly bears Frank out. A 1977 Gallup Poll found the public split down the middle, 43 percent to 43 percent, when asked whether gay sexual relations should be legal. When Gallup asked that question last month, 60 percent said they should be legal, while 35 percent opposed such a move.

Note that the percentage in opposition hasn’t declined that much over a quarter-century, but the level of support has grown markedly. Pre-modern traditionalism — which here, as in the Islamic world, inevitably includes bigotry petrified within religion — is still strong in the white South and a few other Republican bastions. Indeed, the 13 states that still had sodomy statutes all voted for George W. Bush in 2000. (Actually, that total includes Florida, which probably didn’t vote for Bush at all. I mention this because Antonin Scalia, in his outraged dissent last Thursday, accused his colleagues of taking sides in a culture war — as if the Bowers decision, which Kennedy and Co. had just overturned, hadn’t taken sides; as if Scalia, by stopping the vote count in Florida, hadn’t himself taken sides. Scalia also bemoaned that the court was overturning state law — this from the man who told the Florida Supreme Court it had no jurisdiction over the counting of votes in Florida.)

To Americans not bound by the worst of tradition’s chains, however, gays and lesbians have simply ceased to be the Other — a threatening, alien presence among us. When Scalia blamed the majority’s decision on “the law-profession culture” of embracing gay rights, he was blind to the fact that this transformation had actually swept American culture as a whole, including the moderate and libertarian wings of the Republican Party. Three of the justices who overturned Bowers, after all — Kennedy, John Paul Stevens and David Souter — were appointed by Republican presidents. The fact that the administration has said nothing about the decision shows that it understands that it is caught between two opposed wings of its own party. Indeed, much of the so-called culture war in American society takes place entirely within the Republican Party. (Though as the battle lines now shift to such issues as gay marriage, the opposition will include Democrats as well.)


I’d be stunned if John Ashcroft didn’t agree with every line of Scalia’s dissent. Still, the Justice Department went nowhere near this case — doubtless at the direction not merely of the president but of Karl Rove himself. For all we know, even Dick Cheney, the cankered heart of this miserable administration, may have privately welcomed the decision, which, after all, conferred full equality on his lesbian daughter, Mary. Gays and lesbians are daughters, sons, brothers. They’re not Others.

But there is nonetheless a rise in Otherness for which the Bush administration is entirely responsible. The War on Terror, in the wake of 9/11, has allowed Ashcroft to be Ashcroft, with all that embodies in the abridgment of privacy and other personal freedoms. And Ashcroft has outdone himself when it comes to the treatment of noncitizens and non-Anglos. The War on Terror has been so hugely advantageous to the administration politically that Rove determined he’d face losing some Latino votes — reversing his eagerness to naturalize many illegal immigrants — in return for the broader public support the administration would win by cracking down on aliens. Some would be very real threats to public safety; the majority — particularly when you entrust the crackdown to the likes of Ashcroft — would be no threats at all.

But the chief, and intended, victims of the War on Terror are the Democrats, whom Rove made to look soft on same in the 2002 elections. He plans to do it again in 2004. Never mind that the Democrats are actually criticizing Bush for underfunding, say, port security. If they’re weak on fighting Iraq, if the best of them protest Ashcroft’s excesses, then Rove will paint them as weak on terror. And if this administration needs to create an Other — an enemy on whom Democrats aren’t tough enough — well, the administration will create lots of Others. That the court has suddenly created some brothers, too, is momentous, but only momentary evidence that Washington hasn’t gone totally nuts.

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