Although decisive battles over same-sex behavior and marriage are past, the conflict continues to be a problem, because it continues to threaten both religious and personal liberty. The outcome of these battles was largely foreordained by court decisions over which the public has no control, and thus it is worth revisiting the Supreme Court decision that opened this era, namely the Romer vs. Evans decision in 1996.
This decision provided a basis in constitutional law for what are understood as “gay rights,” and now “transgender rights,” and people need to clearly understand the problems with the decision to understand what is wrong with “gay” or “transgender” rights.
The Supreme Court by a 5 to 4 vote, with Anthony Kennedy casting the deciding vote and authoring the decision, declared unconstitutional Amendment 2 to Colorado’s state constitution, which prohibited local homosexual rights ordinances. The amendment had been approved in a state-wide referendum. Although the court had upheld state sodomy laws only a decade earlier, and although the state of Colorado appealed to the religious freedom of private citizens who might be required to facilitate homosexual behavior as a result of such local ordinances, the court ruled the amendment unconstitutional because it was based on the voters’ “animus” against homosexuals as a class.
The decision was audacious, and unsurprisingly, has led to no end of conflict. The first thing to notice from the standpoint of classical liberalism is that the court impugned democracy by attacking the motives of the voters. The essence of democracy is majority rule, and the decision said that voters were wrong to make the decision they did. One can argue against majority rule, but the only alternative is rule by some kind of elite — religious, ideological, aristocratic, or other minority.
Secondly, “animus,” which served as the basis for the decision, is inseparable from politics. Political controversy involves enormous hostility. Inescapably, this involves a degree of hostility toward the people on the other side as well as their ideas and proposals. Whatever one thinks of that, it simply has to be accepted as part of democratic politics.
It might be observed as well, as this writer did shortly after the Windsor decision (2013) voiding the Defense of Marriage Act (DOMA), that to taint ideas (in this case, the sinfulness or evil of homosexuality) as oppressive, and then to police society against them, is characteristic of totalitarian states. The official names of communist countries (i.e., the German Democratic Republic, the People’s Republic of China, etc.) all testify to a society carefully monitored, at all levels, and in both public and private spheres, to ensure that no oppressive ideas affect it.
As Justice Scalia noted in his dissent, Amendment 2 did not authorize general discrimination against homosexuals, they remained fully protected by all laws, civil rights and otherwise, that protect all citizens, it simply prohibited using homosexuality as a category for immunity from public and private discrimination. Colorado’s Amendment 2 was declared unconstitutional because homosexuals were disadvantaged by it just as any other group might be disadvantaged by state law, such as relatives of local government officials seeking municipal contracts. If state law cannot bind local law because some group objects to a benefit or disadvantage conferred by state law, multilevel government would be practically impossible, he observed.
The real justification for voiding Amendment 2 was that it is irrational to use homosexuality as a criterion for disadvantage. But this is a matter of one’s viewpoint — many Americans believe (and a majority of Colorado voters thought) that homosexuals as a class should not be immune from public and private judgment, which is what protected civil rights status confers. The religious freedom of private citizens engaging the public who might be required to facilitate homosexual behavior was cited to justify the law. But five U.S. Supreme Court justices thought that the voters were wrong, and imposed their will, charging the voters with “animus.”
To use “animus,” the court in fact had to incorporate behavior and inclination into personal identity, and in that way claimed that behavior and inclination are due equal protection. As Scalia also noted, courts had disputed as to what classes a person as homosexual, and indeed it could be added, homosexual persons are not really an objectively identifiable group, having no immutable characteristic. Past controversy over a genetic basis for homosexuality ignores the fact those involved in the movement for homosexual liberation surely would not want any objective basis, as it might restrict what any given person has the right to do. Only behavior and sexual inclination really class a person as homosexual, and personal behavior obviously cannot be given liberty or equality. To do so would make the vilest crimes legal. Nor can civil rights for personal behavior be restricted to sexual behavior, if we define our own realities. In that case we don’t know what sex is. We see the consistent extension of self-defined reality with transgenderism. In essence anything that someone defines as “sexual” becomes immune from legal restraint, even adverse private judgment (i.e., private discrimination). This leaves society (that’s us, everybody except the person wanting his/her own way) defenseless.
If we inquire as to why sexual matters should be immune from public judgment, as the earlier Griswold (1965) and Eisenstadt (1972) decisions began directing the courts to do, the answer given by the Supreme Court in those decisions was the extremely personal, private nature of sexual reality. This fails because people vary in what they think is extremely private, personal, and important. Some may consider sex most important, others (surely millions of Americans) would consider religion most important. The Romer decision is a gross distortion of constitutional freedoms, because the Constitution clearly mandates that “religious exercise” is to be protected – indeed it is the first freedom protected – but says nothing about sex. Indeed, it says nothing about marriage and the family, which was left to state law.
The claim in the Griswold decision that freedom for marital contraception (later extended in subsequent decisions to non-marital contraception, abortion, and homosexual behavior) is “older than the Bill of Rights” (and presumably the Constitution) was based on nothing more than the moral intuition of seven justices that personal sexual decisions are more important than anything else. By this logic, the court in Griswold and subsequent sexual revolution decisions is maintaining that not even a constitutional amendment could alter the sexual rights it decrees. But courts have no competency to know moral truth binding the Constitution, and the authors of the Bill of Rights and the Fourteenth Amendment would have been horrified to think that any right to sexual activity outside of the traditional marriage of man and woman was being guaranteed by their legislation.
Businesspeople, professionals, and young people generally are being educated to accept “gay rights.” The very term immediately puts any opponent in the wrong, implying that people are being denied equal rights if their personal behavior and inclinations are not privileged by the law and society. Yet the belief that homosexual inclination and/or behavior ought to be accepted as proper is only a viewpoint, radically at odds with the past and still widely contested, which courts have essentially adopted by incorporating behavior and inclination into personal identity, and thus into “equal rights.”
The Romer decision explicitly addressed the very issue of the religious freedom of private citizens engaging the public in business relations in situations that might involve facilitating homosexuality, about which there is now intense conflict. It did so by dismissing Amendment 2 as too broad a remedy for the concern. Now we still struggle with Romer, two decades later, because the original objective of Amendment 2 was indeed to protect religious freedom, not to engage in general discrimination against homosexually inclined or active persons.
While law, public opinion, and social practice change, and our very language may incorporate terms that include falsehoods, the natural rights on which liberal society is based simply cannot consistently include personal behaviors and inclinations and still be workable, nor does the duty of Christians to obey God regardless of the law of the state change. We must continually point this out going forward, regardless of social approval or consequences.Google+