Others and Brothers
Civil rights advance, civil liberties retreat
LA
Weekly, July 4-10, 2003
P.O. Box 4315, Los Angeles, CA 90078-9810
Fax: 213/465-0044
Email: LAWeekly@laweekly.com
http://www.laweekly.com/ink/03/33/powerlines-meyerson.php
By Harold Meyerson
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.
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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