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.