Other than a complementary copy of USA Today that I could pick up at the front desk of our hotel each morning, I was pretty much cut off from my normal avalanche of news consumption during my vacation. For the plane ride home I happened to pick up a copy of the Financial Times which I never read and was pleasantly surprised to find it chock full of interesting and well-written articles.
I found this piece on John Roberts’ Supreme Court nomination to be especially well done. It’s not really about John Roberts so much as it is about the gay rights controversy now before the Supreme Court.
The author of the piece, Patti Waldmeir, talks to two people representing either side of the debate - “Alan Chambers is a former gay evangelist who spends his life trying to persuade homosexuals to turn straight. Phyllis Hunt is a lesbian preacher who ministers to those who are gay and proud of it.” - to set up the article before delving into the political aftermath resulting from the Lawrence vs. Texas decision authored by Justice Anthony Kennedy that struck down Texas’ anti-sodomy laws in 2003.
I have previously outlined my theory on sexual orientation here. I believe that if more people could accept that sexual orientation is largely a matter of biology and not “choice” they would be more accepting of it. In the case of Chambers, it seems clear to me that he would fall into that sub-group of people on the edge between gay and straight, while Hunt likely falls into the middle of the gay/lesbian pool. The sad part of the story is that while Chambers is now married to a woman and has adopted two children, his efforts have helped to deny that same privilege to Mrs. Hunt whose efforts to adopt a child with her partner were stymied by laws preventing gays from adopting children.
To the dismay of many social conservatives, Anthony Kennedy has become a driving force in the move to grant equal rights and protections to gays. His majority opinion in the Lawrence vs. Texas case was sweeping and may have inadvertently fueled the push for gay marriages that followed shortly thereafter.
The Lawrence case to me would seem like a no-brainer. Regardless of your views on homosexuality, who would support giving the police and the government the power to barge into your bedroom and enforce someone else’s code as to how you and any other consenting adult should behave? Kennedy wasn’t being a liberal in his decision, he was being a libertarian.
But the irony of the case was that in striking such a resounding blow for gay rights, the Lawrence case unleashed a series of actions and reactions that very likely helped to put George W. Bush back in the White House in 2004. By rushing out to push for gay marriage in states like California, Massachusetts and Hawaii, the gay community prompted a backlash from social conservatives who placed anti-gay marriage referendums on the ballots designed to draw out their supporters and build up support for Bush and his radical Republican cohorts.
Now we have those same social conservatives suddenly concerned to find that their new knight in shining armor has done pro-bono work on behalf of gay rights groups in the past. Does this mean that Roberts will turn out to be more like Anthony Kennedy than Antonin Scalia? No one can be sure, but it has some on the far-right suddenly nervous. Kennedy is, after all, the one who wrote this infamous phrase in the Lawrence decision:
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life."
Scalia has ridiculed this idea calling it the “sweet-mystery-of-life passage” while Robert Bork complains that it is less an argument than a 1960s oration and an ode to radical personal autonomy.
I find it most disturbing that we have people on the Supreme Court who find personal autonomy to be a radical notion. Those on the right don’t want you to define your own concept of existence because they already have their own neatly constrained definition that they want to shoehorn everyone into. Is Roberts on their side, or not? We may not find out for some time, especially if the Bush administration succeeds in suppressing any more information about Roberts that might prove problematic for his swift approval.