Before he was purged from the bench, former Alabama Supreme Court
Chief Justice Roy Moore made a remarkable and lamentably
unappreciated contribution to American jurisprudence.
Concurring in the 2002 case of
Ex Parte H.H., a custody dispute involving a lesbian
mother, Moore demonstrated that homosexuality had no protected
status in the Anglo-American common-law tradition, that indeed
such behavior had been proscribed for centuries as “a crime
against nature,” and that Alabama courts had consistently
condemned homosexual acts as “illegal under the laws of this
state and immoral in the eyes of most of its citizens.”
One does not have to share this abhorrence of homosexuality to
agree that Moore’s concurrence — copiously studded with court
precedents and citations of Blackstone’s Commentaries,
16th-century British jurist Sir Christopher Wray and even the
Justinian Code — accurately summarized the legal foundation of
the case against gay rights.
Moore’s 7,000-word treatise came to mind last week when gay
activists began targeting sponsors of Proposition
8, the successful ballot initiative that amended the
California state constitution to prohibit same-sex marriage.
Taking to the streets in furious indignation, activists created
an “enemies list” of those who had contributed to support the
measure, targeting them for boycotts and protests.
The elderly co-owner of a Mexican restaurant, who had given $100
to support the referendum, was
driven to tears as she confronted “60 members of Los Angeles’
LGBT community” who demanded an apology and an equal contribution
to a proposed effort to repeal the referendum.
That incident reminded Diana
West of the Soviet show trials of the 1930s, but it reminded
me of Roy Moore, because of the angry insistence of gay activists
that opponents of same-sex marriage are depriving them of their
rights — “rights” that Moore showed to be utterly alien to our
nation’s legal tradition.
One activist who helped compile the enemies list
told Time magazine: “My goal was to make it socially
unacceptable to give huge amounts of money to take away the
rights of one particular group, a minority group.” Of course, the
restaurant owner’s $100 contribution to the “Yes on 8” cause was
not “huge,” but the principle is the same.
As the California activists spewed their fury — allegedly
vandalizing
Mormon temples, making terroristic threats
toward Catholics, and hurling racial
epithets at African-Americans (who voted 3-to-1 in favor of
Prop 8, according to exit
polls) — their vitriolic rage highlighted how the
progressive rhetoric of “rights” undermines and destabilizes
political consensus.
The late historian Christopher Lasch was the first to identify
(and Harvard Law professor
Mary Ann Glendon later examined in depth) how “rights talk”
insinuated itself into American culture as a dominant mode of
political discourse in the decades following World War II.
Because Americans are taught to think of “rights” as something
sacred in our civic religion, those accused of violating “rights”
are easily demonized, while those who advocate “rights” are
sanctified.
Seizing on the triumphant narrative of the black civil-rights
movement, liberals adopted the habit of framing political debates
in terms of minority “rights” versus majority “discrimination.”
That this tactic involves a species of moral and emotional
blackmail should be obvious. To disagree with a liberal, to
oppose his latest policy proposal, is to invite comparisons to
Bull Connor and Orval Faubus, so long as the liberal can make
“rights” the basis of his argument. (Witness, for example, how
Keith
Olbermann addressed himself to Proposition 8 supporters,
casting their position as morally equivalent to segregation and
slavery.)
“Rights talk” allowed liberals a means of preemptively
delegitimizing their opponents and thereby to avoid arguing about
policy in terms of necessity, utility and efficacy. If all legal
and political conflicts are about “rights,” there is no need to
argue about the specific consequences of laws and policies.
Merely determine which side of the controversy represents
“rights” and the debate ends there.
The gay rage in California can be traced directly to the Supreme
Court’s 2003 Lawrence v. Texas decision,
which voided a Texas sodomy law because, as Justice Anthony
Kennedy declared, “our laws and traditions in the past half
century…show an emerging awareness that liberty gives substantial
protection to adult persons in deciding how to conduct their
private lives in matters pertaining to sex.”
The Lawrence ruling was the culmination of what Justice
Antonin Scalia called “a 17-year crusade” to overturn the 1986
Bowers v. Hardwick decision (which had upheld Georgia’s
sodomy statute) and, as Scalia noted in his dissent,
the Court’s “emerging awareness” argument was a disingenuous way
to avoid actually declaring a “fundamental right” to sodomy. The
legal effect was the same, however, and Lawrence was
repeatedly cited in the Massachusetts Supreme Judicial Court’s
decision five months later mandating the legalization of gay
marriage in that state.
If homosexuality is a right, and denying legal recognition to
same-sex marriage is a violation of that right, then the rage of
gay activists against their opponents is entirely justified.
Proposition 8 does not deny tolerance, safety and freedom to gays
and lesbians, whose right to “life, liberty and the pursuit of
happiness” is as secure in California as anywhere in the world.
Tolerance, safety and freedom are not the same as
equality, however, and equality is the freight that
liberals seek to smuggle into arguments via “rights talk.” Gay
activists do not construe their “rights” in terms of liberty, but
in terms of radical and absolute equality. They insist that
same-sex relationships are identical to — entirely analogous to
and fungible with — traditional marriage.
Common sense resists this assertion, perceiving something
fundamentally false in the gay marriage argument. Yet it seems
common-sense resistance can only be justified by resort to
religious faith, through the understanding that men are “endowed
by their Creator” with rights. Eliminate the Creator from
discussion, and it becomes impossible to refute the activists’
indignant demand for equality.
Roy Moore was removed
from the Alabama Supreme Court in November 2003, five months
after the Lawrence decision and four days before the
ruling that legalized same-sex marriage in Massachusetts. Moore
was charged with an ethics violation for his stubborn insistence
that man’s law must acknowledge the Creator.
Last week’s news from California was, in some sense, a
vindication of Moore’s view. The antinomian rage of the activists
— who reportedly defaced houses of worship and mailed mysterious
white powders to a religious fraternity — is an inevitable
result of America’s attempt to substitute “rights talk” for faith
in the Creator. And what Justice Kennedy called our “emerging
awareness” looks more and more like encroaching darkness.
