Homophobia’s last stand

There will come a time when it will no longer be acceptable to enshrine anti-gay prejudice into law or public policy. We’re clearly a long way from that point, but its inevitability means we must ask, why are some people so determined to enshrine anti-gay bigotry into law?

There are many indicators that show anti-gay prejudice is declining. For example, public opinion polling shows increasing support for LGBT people and our rights, with more and more people expressing impatience that our rights—including the freedom to marry—aren't already law.

Then, there are all the victories. In the time since the Windsor case struck down Section 3 of DOMA, there have been 18 rulings on matters of equality, and our side has won all 18. Twelve of those rulings dealt specifically with marriage-related issues, but six were on other aspects of LGBT equality.

On Valentine’s Day, Slate published a provocatively (though accurately) titled piece by David S. Cohen and Dahlia Lithwick: “It’s Over: Gay Marriage Can’t Lose in the Courts”. They point out how the part of the Windsor ruling that deals with equality has come up again and again, and they note:

“The tally is even starker when you look at the number of judges who have considered the issue. Since Windsor, in these 18 decisions, 32 different judges have considered whether Windsor is merely about the relationship between the state and federal governments or whether it is about equality. And all 32 of them have found for equality. In other words, 32 accomplished, intelligent lawyers, appointed by Democrats and Republicans, whose job it is to read precedent, have ruled for equality. Not a single one has disagreed.”

This is significant because the Supreme Court ruled that laws cannot be based on animus. It's obvious that the laws attempting to prevent marriage equality or the recognition of same-gender marriages have, without exception, been motivated by hostility or ill feelings toward LGBT people generally or same-gender couples specifically. This anti-gay animus is also the motivation for the anti-gay legislation Republicans are pushing in Congress and in state legislatures.

The federal bill, the “State Marriage Defense [sic] Act”, would create precisely the same sort of unconstitutional discrimination against legally married same-gender couples that Windsor struck down. It would create a patchwork of rights and protections and would even take away rights from existing legally married couples. In my view, the backers (or, perhaps, only most of them) know this, and that it can’t pass Congress in an election year, but they're pushing it as a grandstanding stunt, something they can use to rile up the Republican base to help them win elections—and, especially, to raise big piles of money. It is, in other words, cynical nonsense—bigoted cynical nonsense, to be sure, but nonsense all the same.

Of far more concern are the numerous state bills that, if enacted (and some will be), would specifically authorise anti-gay discrimination as long as it was based on someone’s supposedly “sincerely held religious beliefs”. The Supreme Court has already ruled that people do NOT get an exemption from obeying laws simply because of their religious beliefs. Even the far right Justice Antonin Scalia was firm about this. Moreover, states can’t single out a class of people for discrimination—that pesky animus again—so such laws are unconstitutional for that reason, too.

Kansas is going farther than any other state in enshrining the right to discriminate. The version of their anti-gay bill passed by their state House allows discrimination against virtually anybody, again, as long as it’s based on supposedly “sincerely held religious beliefs”. The House version of the bill would even allow discrimination on the basis of gender (like, for example, if a woman sought a job but the owner felt that because of his religious beliefs, it was immoral for a woman to hold such a job).

Despite the anti-gay extremism of the Kansas House, leaders of the state’s Senate have said that the bill won’t progress without major changes. The Kansas Senate President, Susan Wagle (R-Wichita), said, “I believe that when you hire police officers or a fireman that they have no choice in who they serve. They serve anyone who’s vulnerable, any age, any race, any sexual orientation.” Well, duh!! Even if she succeeds in making some changes, Kansas is a heavily Republican state, so what eventually passes will still be bad.

These Republican legislative moves are all motivated by anti-gay animus, sure, but where does that come from? Some of it, as in the Congressional bill, is obviously merely cynical opportunistic pandering to the extremist base of the Republican Party. But there are also “true believers” fighting to enshrine anti-gay bigotry into law, and their motivations go beyond mere prejudice and bigotry: Their real motivation is a sense of entitlement that comes from their privilege.

I wrote about this back in December, when I said:

“We talk of privilege and entitlement most commonly in discussions of race and gender, but increasingly rightwing religionists are acting on their particular sense of entitlement. In the USA, far right ‘Christians’ are demanding special exemptions to human rights laws so they can discriminate against LGBT people (although, based on their logic, there’s no reason they shouldn’t also be able to discriminate based on race, gender, religion and so on). The rigthwing religionists insist that if they’re not free to discriminate against LGBT people, it somehow takes away their ‘religious freedom’.”

The true heart of this Republican extremism, then, is that they’re seeing their privilege challenged and their sense of entitlement leads them to demand extreme measures to restore their privileged position in society. Whether it's because of actual animus or mere cynical opportunism, the cry of “religious freedom”is, as Mark Joseph Stern wrote on Slate earlier this month, a brilliant tactic by the radical right:

“Gay marriage on its own is a winning issue because it has no victims, only cheerful, loving advocates. But toss religious liberty into the mix, and suddenly you’ve found your victims: those earnest, upstanding small-business owners who just want to do the Lord’s work by denying a gay couple a wedding cake.”

In order to justify extremist measures to enshrine their privilege, the rightwing needs to present itself has “victims” of “oppression”, no matter how imaginary it obviously is. I’ve written extensively about this in the context of the rightwing opposition to the freedom to marry as well as their attempts to codify anti-gay animus in law. However, this is only one area where the rightwing does this.

Roger Green wrote about how increasingly white people are claiming to be victims of racism (seriously!). It seems obvious to me that all of this is part of the same sense of privilege that the rightwing has long had: They believe that they alone should be allowed to call the shots in laws and public policy, both of which should benefit and support conservative Christian, heterosexual, white men.

This means that any challenge to their preferred social order—whether racial integration, women having equal rights, including reproductive rights, and LGBT people having the same rights as all other citizens—all these challenges would take away their privileged position in society. It’s little wonder, then, that they fight so hard and introduce blatantly unconstitutional extremist anti-gay legislation, or the less obvious ones, like the various state restrictions on voting designed specifically to keep Blacks and Hispanics from voting.

This fight is a big one, and gets to the very core of what a democratic society should be. Do we allow one small segment to impose its restrictive views on morality and acceptable behaviour on all of society, or do we ensure that all people are treated equally before the law and by government? Because the two are mutually exclusive.

There is no moral or logical reason to allow discrimination against LGBT people because of someone’s supposedly “sincerely held religious beliefs”, but not also allow them to discriminate on the basis of race, gender, political beliefs, religion, eye colour—whatever—as long is the person claims their discrimination is based on their supposedly “sincerely held religious beliefs”. Some on the right, including prominent Republican politicians, have actually argued against anti-discrimination and civil rights laws, so this is a real issue.

This isn't about merely fighting the last gasp of homophobic bigots, nor is it even about LGBT rights, important as they obviously are. Rather, this about securing the blessings of liberty for all citizens. We have a long way to go before we truly reach homophobia’s last stand—after all, racism is still stubbornly persistent 150 years after the US Civil War.

But I think we miss the important reality when we dwell on what’s not yet right. The Black Civil Rights Movement, the Women’s Movement and the LGBT Rights Movement have all moved American society forward toward a more just society. We’re not at our final destination, but the evidence shows that our arrival is inevitable.

Despite the shrill bleating of the rightwing, I remain convinced of one simple truth: There will come a time when it will no longer be acceptable to enshrine any prejudice into law or public policy, and there’s no animus or opportunism that’s strong enough to stop that day from arriving.