Earlier this week I wrote a post entitled "John McCain promises to re-criminalize homosexuality" here at TBP. I emailed a few listserves I'm on about it, it got a few links, and I cross-posted it to a few other non-LGBT centered blogs. The reactions were interesting.
In general, the comments in the LGBT forums I posted it in agreed, and those in non-LGBT forums thought it was overly fear-mongering. Here's a typical example:
those are just the four most liberal justices.
those four voted the right way in a lot of cases that fundamentalists do not like, including Lawrence.
so I don't think it was a dog whistle about sodomy, abortion, or any other specific issue.
he just wants to get rid of one or two of those four to create a conservative majority on the court.
Of course he's promising a conservative majority. But to what end?
"Judicial activism" is, at this point, code in the right for sexual freedom, mostly related to homosexuality and reproductive rights. The most common cases to get mentioned as judicial activism are Griswold (which was the first Supreme Court case to acknowledge the right to privacy, used to protect a person's right to birth control), Roe, and Lawrence, as well as, more recently, Goodridge and the California marriage cases.
FOTF defines "judicial activism":
Judicial activism is the term used to describe the actions of judges who go beyond their constitutionally prescribed duties of applying law to the facts of individual cases, and "legislate" from the bench. These judges create new constitutional rights, amend existing ones, or create or amend existing legislation to fit their own notions of societal needs.
For example, when a court "finds" a "right of privacy" hidden in the "penumbras" and "emanations" of the Constitution,1 and later expands this "right of privacy" into the right to abortion;2 that's judicial activism. Here are some other examples:
* When a court rules that the First Amendment ("Congress shall make no law ... ") suddenly means that "the states shall make no law" and creates a new constitutional "wall of separation" between church and state;3
* When a court rules that "evolving constitutional standards" mandates a right to same-sex marriage, contravening 200 years of state law and centuries of tradition.4
Conservapedia provides three, and only three, examples of judicial activism in their entry about it:
* Griswold v. Connecticut - 1965 Supreme Court ruling establishing a constitututional right to posess, distribute and use contraception.
* Roe v. Wade - 1973 Supreme Court ruling establishing a constitutional right to abortion.
* Lawrence v. Texas - 2003 Supreme Court ruling establishing a constitutional right to sodomy.
Antonin Scalia, pretending like he's in a position to chide others when it comes to legislating from the bench, dissents in Lawrence with the standard-issue judicial activism argument:
One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. 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"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts-or, for that matter, display any moral disapprobation of them-than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.[...]
The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.
(Notice the lack of "respectfully" in between "I" and "dissent." Yes, these people were pissed off at Lawrence because they understood the implications of that decision in terms of broader discrimination.)
I could go on and on with examples, but I think the point is clear: Lawrence is one of the first things that comes to mind when these people talk about judicial activism. They don't want a conservative court that just sits there and does nothing, they want one that'll overturn every case they don't like, and McCain was promising them just that.
Which gets me to a bigger point: will anyone ask McCain about this? Someone on an LGBT listserve I'm on responded with this:
I would love to have a reporter ask McCain:
"Do you favor overturning Roe v Wade and Lawrence v Texas?"
Simple question....would any reporter dare ask it?
Indeed, they love to ask about hot-button issues, and getting his opinion on court cases is relevant since he'll be in charge of hiring the people who'll be deciding them.
There's some reticence among many, both in the community and among journalists, to go back to that decision because the US was one of the last Western countries to get rid of its sodomy laws, and so many people think that those laws are just an awful, prehistoric relic, so the decision had an air of finality around it.
But I wouldn't put it past the sorts of people McCain's been promising to appoint to revisit and overturn this case. There are still a lot of people who can't get their minds off butt-sex (seriously, reread Scalia's decision and the paragraph after paragraph after paragraph in which he discusses the non-existence of a "fundamental right to sodomy"), and there are a lot of people who think that homosexuality is straight-up wrong and should be banned. Waymon's post from last night about the ridiculously homophobic David Davis becoming a local hero for his attempts to banish homosexuality from his high school is just one example.
This issue is very much alive and John McCain's talking about it, even if he doesn't use the words "sodomy laws" or "Lawrence." Will someone ask him where he stands on the issue?
I doubt we'd get a straight answer. There's a reason he's speaking in code instead of directly talking about sodomy laws - it's simply the least fashionable form of discrimination against queer people that there is out there. That doesn't mean that his base doesn't want it, it just means he's going to have to show how far he's willing to go in pandering to the Religious Right to win.
My guess would be that he's willing to go quite far.