Respect and the Supreme Court

By the time this column is printed, the stunning Supreme Court decision in Lawrence v. Texas will be over six weeks old, and the implications will just be sinking in.

By the time this column is printed, the stunning Supreme Court decision in Lawrence v. Texas will be over six weeks old, and the implications will just be sinking in.

In the immediate aftermath of the decision, in a column for another publication, I wrote that the case addressed broader issues than gay rights.  

“On the one hand are those who believe that the Bill of Rights limits the power of government and protects individuals from the “passions of the majority” that so worried the Founders. They believe that our legal system was never intended to constrain private behaviors that do not harm others, and that protecting individual liberty was a primary purpose of the Bill of Rights—a purpose encompassed by the 14th Amendment’s Due Process Clause.

On the other hand are those like Justice Scalia, who believe that government can adopt the majority’s definitions of moral behavior and arrest you for not behaving accordingly. This is not limited to homosexual behavior; he quotes approvingly from a case holding that people have no right to engage in intercourse outside of marriage.”  

While I absolutely believe that this more expansive reading of the case is correct, I worry that all of the elation in the gay community, all of the quotes suggesting that Lawrence has opened the door to same-sex marriage, will infuriate and mobilize those on the far right. Like many others, I have worried about the extent of that mobilization, and its probable outcomes: will the House majority leader, Bill Frist, make good on his threat to introduce a constitutional amendment defining marriage as the union of a man and woman? Will George Bush become even more determined to fill the federal courts with judges in Scalia’s image?

Because of these concerns, I read with great interest a recent web post by Jacob Levy. Levy cited a Wall Street Journal editorial predicting that the Supreme Court’s alleged willingness to "take a side in the culture war" would inflame passions about gay rights—that a possible reaction to what Journal editors called “judicial overreach” might be the “energization of political opposition to the decision.” Levy thinks otherwise. He says in part
Lawrence will not be Roe. It will not energize or excite the Christian right base any more than it is already energized or excited. It will not, crucially, bring anyone new into politics on the side of the Christian right who isn’t already there. Roe helped to wake the sleeping giant of fundamentalist and evangelical southern white Protestant politics…. It helped give birth to the Moral Majority, to the Falwells and Robertsons as political forces. It also contributed a great deal to the (largely temporary) Reagan Democrat phenomenon, bringing urban white ethnic Catholics out of their traditionally entrenched attachment to the Democratic Party…Lawrence will not replicate any part of this, for a couple of reasons. First, there is no sleeping giant to wake. The reactivation of southern white Protestant politics has happened already; and that politics hasn’t gone back into hibernation. Indeed, it’s become an apparently permanent political industry, the Republicans’ counter to organized labor. Lawrence will serve as confirmation for the narrative of social liberalism, permissiveness, decadence, and judicial imperialism that is already told within that political community. But providing such confirmation, on a monthly basis in direct-mail fundraisers and newsletters, is what the political professionals who make their living on the Christian right do anyways. If it weren’t Lawrence, it would be Will and Grace, or Mark Raciot meeting with the Human Rights Campaign, or W being insufficiently supportive of Rick ‘man on dog’ Santorum– or it would just be the latest monthly count of abortions.”
Levy asserts that sodomy as an issue is unlikely to attract moderates to social conservatism, that “the number of people who feel deep moral horror or revulsion at its legality is much, much smaller than the number who feel that way about abortion.”
I think this logic is persuasive—at least, it helps me sleep at night! Nevertheless, now that the first excitement over the decision is ebbing, it seems to me that the some cautions are indicated. I offer two.
First, this was an immensely helpful, important case. But it will generate a backlash, whatever the dimensions of that backlash may be. Now is the time to be especially active politically—time to work for codification of gay civil rights—not a time to rest. The Court has disposed of one barrier to full equality, but there are plenty left. 
Second, while there were no Supreme Court retirements this term, there will be—and relatively soon. This is an old Court. Anyone who cares about gay equality needs to read Scalia’s dissent in Lawrence—the dissent of George W. Bush’s “favorite Justice.” Another term for Bush will give him two to three vacancies to fill, and he has made it clear that he will nominate Scalia clones. If the Lawrence decision illuminates anything, it is the importance of defeating Bush in 2004.
In the meantime, it might be appropriate to raise a glass to Justice Kennedy (no relation!), who authored the majority decisions in both Lawrence and Romer v. Evans (the case striking down Colorado’s infamous, anti-gay Amendment Two). May his tribe increase!