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December 03, 2002

Why Supremes Should Keep Antigay Ruling

Back in 1986, in a case called Bowers v. Hardwick, the Supreme Court upheld as constitutional a law that made gay sex illegal in Georgia. The Supreme Court has just taken a case that will allow them to overturn that precedent.

I hope that they don't.

Okay, this one is going to generate a lot of the same energy my approval of the Supreme Court school voucher decision did back in June, but it goes to a fundamental argument I have.

Activist decisions by courts rarely help progressives. Judicial activism achieves very little but encourages electoral backlashes that erase far more gains.

The fact is that today, whereas half the states had laws similar to Georgia in 1986, only 13 states still have such laws on the books. This is an issue that is being won legislatively and where the laws are rarely enforced even in most states where the laws are still on the books. In Dade County, where the first major gay civil rights ordinance was voted down back in the 1970s, a similar ordinance was approved at the ballot this past year. Civil unions and benefits for domestic partners are being approved by state legislatures.

The antigay activists are losing their majority at the ballot box and the message is that they are a moral minority.

But if the Court intervenes, the Right will be able to position themselves as "defenders of democratic choice" as if they would prevail but for an undemocratic court decision. And they will benefit from a backlash in attacking other gay issues, where they were losing before.

Look what happened with gay marriage. There was no rightwing legislative agenda to ban it before a Hawaiian Supreme Court upheld it as a constitutional right in that state. Suddenly states across the country rushed to ban something that was not even an active issue previously.

And the fact that the bans were put in state constitutions will make it just that much harder to pass gay marriage when we are able to build majorities to support the idea in coming years, because now we will need to pass new constitutional amendments rather than just majority legislation.

The Hawaii court decision gained little, since there are ways to override court decisions, but the backlash cost the movement probably years in pushing forward full gay marriage.

That all said, there is a more serious issue of equal protection in the Kansas law being looked at by the Court. I wouldn't be deviating from my anti-court activism position if the equal protection violation was not so henious in this particiular case, but it is. However, I never liked the "right to privacy" argument -- either by advocates in Bower or in Roe v. Wade -- but there is a stronger gender equal protection argument where penalties are higher for the same act done with a man rather than a woman.

In the Kansas case, heterosexual oral sex with a minor is given a lower sentence than homosexual oral sex with a minor. Given constitutional equal protection arguments against gender bias, that seems a far better basis to knock out such differential application of criminal laws.

Of course, the unsteady arguments for equal protection based on gender under the Constitution derives from the lack of an Equal Rights Amendment (ERA). And why did the ERA fail? At least one reason is the Supreme Court jumping in with partial (but not full) constitutional protection for women in some early 1970s cases. Once some protection was passed, it lessened the energy supporting the ERA, so a short-term Supreme Court victory because a far larger constitutional defeat. This interference with a mass democratic mobilization around the ERA was not unremarked by the Court members themselves. As Justice Powell argued in his concurrence in a key early 70s case called Frontiero, which established some of the basic protections for women under the Constitution.:

The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States...By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment.
And partly because the Court acted, what looked to be a rapid and overwhelming approval of the ERA became a defeat as the rightwing rallied against what was seen as antidemocratic Court decisions.

Progressives are actually winning on gay rights issues, slowly at times but surely. A Court decision broadly overturning Bowers will actually change little substantively, but could cost progressives politically in a host of ways.

It's hard to turn down a short-term win on a matter of justice through the courts, which is why both Right and Left can't help praising judicial activism that helps them. But it rarely means anything without majoritarian support in the long-term. And if you have majority support for your issues, you don't need the courts.

BTW I think the Court should avoid judicial activism on the affirmative action case before it as well, and leave the democratically approved diversity program in place.

Check out my article from the Bush v. Gore aftermath on impeaching the Supreme Court for more on this general argument.

Posted by Nathan at December 3, 2002 05:35 PM

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Yours is a purely political take on a case that contains a huge civil liberties issue. If you recall the facts of the case, the men were caught in bed because someone filed a "weapons disturbance" complaint to the police, naming their address. The weapons complaint turned out to be totally spurious; the men were set up. If the court doesn't address the specifics of the case as well as the Texas "sodomy" law, it may set a precedent that police can enter anyone's home on any pretext, cast about for something (probably unrelated) to charge them with, and haul them downtown. (Of course, these days, between USA PATRIOT, Homeland Security, IAO etc., it might not make much difference; cops may be able to do that anyway.)

I disagree with your thesis that overturning this law would constitute "activism" by the Court, and I have grave reservations regarding your notion that such activism is always detrimental to a cause, but in this case there are issues quite beyond judicial activism and political strategy. The Court must rightly address the civil liberties issues, never mind the political fallout.

Posted by: Steve Bates at December 3, 2002 07:39 PM

Interesting, Nathan, but I think I disagree. See post here.

Posted by: Sam Heldman at December 4, 2002 07:44 AM

You say:

"The fact is that today, whereas half the states had laws similar to Georgia in 1986, only 13 states still have such laws on the books. This is an issue that is being won legislatively . . . . "

The problem with this argument is that in three quarters of the states which had sodomy laws in 1986 but do not today, the laws were invalidated by state courts, not repealed by the legislature. There has been legislative of repeal of sodomy laws in only three states since the Bowers decision (Arizona, Nevada, and Rhode Island), while state courts have declared that the laws violate the state constitution in nine states (Arkansas, Georgia, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Montana, and

In all, sodomy laws have been invalidated by courts in eleven states (nine since Bowers, plus New York and Pennsylvania in 1980), but there has been no legislative backlash. In none of these states has the sodomy law been reintroduced by the legislature, by initiative, or by constitutional amendment. Your fear that a reversal of Bowers will result in an anti-gay backlash has no basis in history.

Posted by: DCombs at December 6, 2002 01:26 AM

I feel that fear of the right being able to use 'judicial activism' as a weapon against the left is not relevant. The right can always use the phrase 'judicial activism', whatever the left does/does not do. And the right's worldview makes pretty much everything from enforcing the post-civil war amendments up to the present as 'judicial activism'. In Scalia's view, everything from the Renaissance onwards is 'judicial activism'.

Posted by: Barry at December 8, 2002 01:19 PM

Democractically-approved diversity program at UofM? I lived in Michigan and attended the University, and trust me, we never voted on it.

And if you really believe that the law is wrong, then you should encourage the court to overturn it. Accepting an unjust law to help fundraising efforts is a bit cynical. Do you believe we could legalize slavery for a few years to help the NAACP get more sound bites and donations.

Posted by: Grant at December 12, 2002 11:57 AM

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