Next Stage for Gay Rights: Conservative Amnesia

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Demonstrators stand outside the Supreme Court in Washington, Tuesday, March 26, 2013, where the court will hear arguments on California’s voter approved ban on same-sex marriage, Proposition 8.
Photo: Jewel Samad/AFP/Getty Images

It took decades for the civil-rights movement to prevail legally, and decades more for it to embed itself within the political fabric in order to occupy its current position as so obviously correct and noncontroversial that nobody is willing to admit that their side actually opposed it. The gay-rights cause is advancing much more rapidly (in part, perhaps, because the historical precedent of the civil-rights movement looms so large). A welcome, albeit hilarious, side effect is that the cycle is also proceeding at a breakneck pace. Half a century had to pass between the era when National Review’s editor endorsed segregation and its publisher wrote a cover story calling for Republicans to bring southern whites into their fold by attacking civil rights, and the present day, when National Review can pretend none of these things happened.

Republican strategist Rick Wilson is already skipping ahead to the pretend-none-of-this-ever-happened stage, predicting that a favorable legal opinion will stop the nefarious Democratic claim that Republicans are somehow opposed to gay rights:

“It removes the issue from the Democratic playbook of fundraising scare tactics and political demagoguery and breaks their usual messaging dynamic of, ‘You’re a beleaguered minority; let us protect you from the evil GOP — oh, and here’s your absentee ballot,’” said Florida-based Republican consultant Rick Wilson.

“Demagoguery”? “Scare tactics”? Is the whole opposition to gay rights now a partisan figment of the liberal imagination? I feel like I remember it pretty clearly. In fact, I think it’s actually still happening.

It is telling — and, on the whole, a happy development — that Republicans now feel compelled to deny that they have ever actually held straightforwardly anti-gay views. As Jeffrey Toobin notes, the most dramatic moment of yesterday’s Supreme Court arguments occurred when the conservative side was abruptly reminded that anti-gay animus was in fact a motive behind DOMA:

About midway through the argument, Paul Clement, who was representing the House Republicans and defending DOMA, was cruising along. He was portraying DOMA as almost a kind of housekeeping measure, designed to keep federal law consistent across all fifty states. As Clement told it, there was almost no ideological content to the law at all.

Then Justice Elena Kagan swiftly and elegantly lowered the boom on him. She said, “Well, is what happened in 1996—and I’m going to quote from the House Report here—is that ‘Congress decided … to express moral disapproval of homosexuality.’”

Of course nobody would have even thought to deny this in 1996. In 1998, the GOP Senate blocked a Clinton appointee for an ambassadorship because he was gay. Of course they disapproved of homosexuality.

It’s worth revisiting Antonin Scalia’s furious dissent in Lawrence v. Texas, which struck down laws forbidding “sodomy.” Scalia argued that the law did not discriminate against gays, since it prohibited gays and straights alike from engaging in gay sex. (“On its face §21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex.”) Scalia clearly found the entire notion of protecting gays from discrimination in any form noxious:

Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”…

Scalia, it apparently bears noting, is still a member of the Supreme Court.

In 2000, George W. Bush defined his stance on gay rights in a presidential debate as favoring “equal rights but not special rights for people.” He privately told social conservatives he would not appoint an openly gay person to his administration, though his campaign waffled about this in public.

Both parties have moved left on marriage and other gay-rights issues. But the ordering of the shift has been consistent, with Republicans on the right and Democrats on the left. That was the situation when Republicans pushed the Defense of Marriage Act in 1996 and campaigned against gay marriage in 2004. In every case, the Republican position was that gay rights had gone far enough or too far.

You can reasonably implicate Democrats in anti-gay-rights policies, but you can’t reasonably equate the stance of the two parties. I’d argue that Clinton had enough political leeway that he should have refused to support DOMA, but that Kerry could not have reasonably been expected to endorse gay marriage in 2004 (or Obama in 2008), especially since, unlike Clinton, their stance carried no substantive policy weight. Your mileage may vary. What’s beyond dispute is that, in every instance, Republicans exploited opposition to gay rights as an offensive political strategy, and Democrats responded defensively.

It would be nice if Republicans had the decency to wait for their party to actually stop fighting against gay rights before they begin denying that they posed any threat to gay rights. But hypocrisy is the tribute vice pays to virtue, and in this case it is a marker of the transformation of gay rights from the one to the other.