Alex Blaze

It's not "judicial activism," it's homophobia

Filed By Alex Blaze | March 04, 2009 1:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: California, civil rights movement, gay marriage, gay rights, Jerry Brown, judicial activism, LGBT, marriage equality, Prop. 8, same-sex marriage, states rights

It's becoming more and more vogue outside of conservative circles to say that the reason people oppose same-sex marriage, the reason that there was a back-lash after Hawaii in the 90's, Massachusetts earlier this decade, or in California last year, is because these marriage decisions have been happening in the courts instead of in the legislatures.

This has been a conservative talking point for some time now, but it's been gaining credibility in more respectable circles (the same ones that love to push conservative talking points, of course). A little while back George Will falsely claimed that Prop 8 was a response to the California's supreme court decision on same-sex marriage, which was the same line Ken Starr, who's working for the homophobes in California, was himself pushing.

Now Peter Brown, in the Wall Street Journal, continues to mainstream the conservative revision on history in his column today. He claims:

In essence, gay rights supporters say their rights supersede the public's ability to regulate conduct. This was the argument often used by the courts during the civil rights movement to overturn discriminatory laws. Without a doubt, the use of the courts by civil rights proponents in this way created a political backlash.

This backlash spurred strong resentment among some voters groups with widespread implications for American elections over the past 40 years.

Without a doubt, eh?

The thing is that Peter Brown is, professionally, a pollster. He's the assistant director of Quinnipiac University Polling Institute. So one would assume that he's familiar with the concepts of polling, data, proof, and empiricism. Yet for some reason he doesn't feel he needs to prove the breath-takingly broad and exceedingly counterintuitive claim that the past four decades of backlash politics was based on resentment to those eggheads on the Supreme Court, instead of, say, racism.

The fun of conservative talking points, though, is that there isn't ever really much fact to back them up. And the more mainstream folks like to repeat them because they're simple enough to sound cool.

This particular one is vicious. It implies that the backlash folks (as in the Religious Right and assorted racists on the Republican side of American politics), instead of being kinda racist themselves for whatever reasons, were instead driven to racism by the Supreme Court, because they were legitimately distraught over the lack of voice in integration policies.

It's ridiculous, but it's what Peter Brown is claiming. Next thing you know he'll be saying that the Southern Strategy wasn't about racism, it was about states' rights.

Brown makes a similar claim about reproductive choice when he repeats the right's favorite zombie meme on the topic: they didn't really care about abortion until Roe v. Wade made them mad about judicial activism:

The U.S. Supreme Court's Roe v. Wade decision legalizing abortion also spawned a political movement.

Nope, untrue. Peter Brown's lying.

He also makes the bizarre claim that if the California supreme court decides against Prop 8 that Congress will try to pass FMA:

Should the court overrule the gay marriage ban, that too would likely restart congressional efforts for a federal constitutional amendment banning gay marriage. Many of its opponents have previously argued that each state should be able to decide such things, but if California's courts were to overrule the will of the people, it could provide serious ammunition for the amendment's supporters.

Really? FMA? Republicans were trying that back before Massachusetts or California, when they controlled both the House and the Senate, and they couldn't get it passed. Is he really implying that there's a risk of it passing now that Democrats have overwhelming majorities?

Fortunately, Peter Brown doesn't really even understand what he's saying, so he goes and contradicts himself in the last line:

The decision and the reaction it would provoke could also be major factors if Congress this year takes up the question of allowing gays to serve openly in the military.

I thought they were mad about the judicial activism. If Congress takes on DADT, it won't be in the courts. And conservatives should be happy then. I mean, that's Brown's entire argument, which makes no sense, but why doesn't "The right only opposes same-sex marriage because of judicial activism" mean "If a gay rights measure goes through Congress, they won't have a problem with it"?

I've been saying this for a while on this site: the Right wants to make this about judicial activism because they don't want to be the bad guys. They want to cast themselves as the victims. That's why they lie about this.

What's worse, though, is that this is the new hip, cool, in argument to make about same-sex marriage for establishment political critics. It lets the right off the hook and tries to take out the only means we often have of getting these measures through.

Too bad it's completely wrong. As we saw in California, where same-sex marriage passed the legislature twice, it doesn't matter who does it, the same crew is always going to be against same-sex marriage.

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excellent points. well thought out and mostly supported. thanks for the insights. You're so right.

Mo Rage

I don't agree. Backlash is real, from the horrible crimes after the Civil War to the bigots who flooded into the repub party after Carter stopped tax benefits for their racist schools, etc... Maybe we didn't noticed, but gay marraige was used to get Bush back into office.
In a hick State like CA, the smart move would have been to ask for domestic partnership. But the movement is in love with its own self righteousness and couldn't strategize its way out of a Gucci negligee

Oh, I wasn't saying at all that backlash isn't real. What I was disagreeing with was with the idea that the impetus against same-sex marriage started as a backlash against judicial action.

Which is patently false.

I agree. They'll always try to distract from their real motives. And sometimes it's better that way. A clear look into the right wing soul is a horrifying experience.