On yesterday’s This Week with George Stephanopoulos, former Speaker of the House Newt Gingrich responded to questions regarding the recent advances for the legalization of same-sex marriage. “It’s very dangerous for the country to have the judiciary become the chief agent of social change,” he said.
I wasn’t surprised to hear what he had to say. If anything, Gingrich has been a consistent representative of the most mainstream “conservative” viewpoint. If you have been anywhere near a state that has been confronting the issue of same-sex rights in the past decade, you’ve heard the rhetoric already. The “assault” on “traditional marriage” has been led by a cabal of “activist judges.” Leave it up to the masses, they say, or else we are walking down an “anti-democratic” road.
Sadly, this analysis is not a new one. You might think this strand of judicial skepticism within “conservative” thought is the result of Roe v. Wade, the Supreme Court case making abortion legal. It’s not. This argument stretches back to the Brown v. Board decision almost two decades earlier, as well as to a host of federal circuit court decisions relating to civil rights which were adjudicated in the years immediately after WWII.
As the courts increasingly recognized the disparity between the Constitution and “real life”–a material condition which included legalized segregation, discrimination, and bold political disenfranchisement–they were persuaded to side with the parties fighting for equal rights. They did not see their work as that of “activists.” The opinions they issued were framed according to their interpretation of what the law required. In fact, in a host of cases before and after 1954, judges did EXACTLY WHAT IT WAS THEIR JOB TO DO: make decisions about the law apart from whether or not those decisions were popular or whether or not people wanted them.
It is significant to note that a clear majority of the U.S. public disagreed with the Supreme Court’s decision in Brown v. Board. Whether or not they agreed with school segregation is a matter of debate, but they clearly did not agree with compulsory desegregation. Apart from arguments we would see as “racist” from today’s perspective, many people just thought the courts couldn’t change people’s hearts. The only way for racist practices like school segregation to end, these “progressives” argued, would be when people felt differently and realized the error of their ways. Sound familiar?
If you want to read the most famous reply to this kind of thinking, read Dr. Martin Luther King Jr.’s “Letter from a Birmingham Jail.”
The anti-same-sex marriage movement uses its critique of “activist judges” to suggest the quest for equal rights is the work of people not following the rule of law. They imply these judges are engaged in a form of social engineering where they disrespect the “will of the people” and the “democratic tradition.” More than anything, that analysis is political spin.
The “will of the people” has a historic tradition of racism, sexism, and other forms of widely recognized unjust practices. Would these “conservatives” have left them in tact because of public support? Do they believe any law is a just and moral law simply by its existence? What about laws that contradict the Constitution? What about laws that contradict other laws? What about capricious laws? What about those Republicans who sound off anytime somebody encroaches on the Second Amendment?
There are too many contradictions in their line of argumentation to deal with here, and this is why is use the term “conservative” so cautiously. The same “conservative” mainstream using the “activist judges” arguments are also the old guard when it comes to the “law and order” and “Constitutional rights” arguments. The reason they see no conflict here is that none of these positions is about philosophy or ideology as much as it is about political expediency. The “conservatives” in question don’t want to see LGBT people get married, and they are willing to use rhetoric that spits in the face of principles they claim to uphold because it suits their purpose.
Most perspectives in this world depend on the position from which you are viewing a given issue. The “suicide bombers” who constituted the “terrorists” who “attacked” the United States on September 11, 2001, are “heroes” and “freedom fighters” to others in the world. Timothy McVeigh, the man who committed a “terrorist attack” on the U.S. is seen by others as a “hero” and a “patriot.” The list goes on and on.
Many who support the cause of obstructionism and stand opposed to same-sex unions are people who deeply believe in their stance. They see queer folk the way others saw people of color forty years ago–living in ways that challenge the “norm.” Of course, their norm is hell for the rest of us. While they long for a time that never really existed, and try to stop the tide of change that takes them further and further away from their mythical “America,” they bypass contradiction because some things become more important than others in the big scheme of things.
The Republican spin doctors who help mobilize them, however, are conscious in their work. They are out in full force right now doing what they have done for decades, digging in their heels to try and preserve a power imbalance that the force of social conscience and the rule of law are both disabling. They do so for many reasons, not the least of which is that change brings with it the loss of a tool to mobilize for their causes. A half century after civil rights became a household word, people have to work a lot harder to use racial fears in the work of politics. Make a wrong step, and even people sympathetic to your cause may flee out of a sense of guilt and morality. The Republicans in question recognize same-sex marriage will go the same route if they don’t do something about it. And they are doing their best to spin their way to success.
But, eventually, they’re just going to get dizzy. . . or dizzier.