May 04, 2004

Disappearing Wolves & Imaginary Hornets

by Chris Geidner

Amazing. I know the story of "the boy who cried wolf," but I've never heard the story of "the man who cried wolf, but then changed his mind and decided it was a sheep (and pretended that he had never earlier called it a wolf), only to point out that he also had found a new wolf."

Well, it turns out The New Republic's Jeffrey Rosen – with some help from Professor Andrew Koppelman – knows the story.

TNR's legal affairs editor, Rosen has been about the most disappointing element in a now-generally-disappointing magazine. Following the Supreme Court's decision in Lawrence v. Texas, Rosen told us on June 30 in his "Sex Appeal" online-only essay that the "most unsettling implication" of the ruling was that "the political backlash against a judicially created right to gay marriage would be so swift and dramatic – at least in the immediate future – that it would set back the cause of gay and lesbian equality rather than advancing it."

Then, he told us in "Immodest Proposal" on Dec. 22 that "the Massachusetts Supreme Judicial Court vindicated the critics' most extravagant fears" about Lawrence. Calling the decision "politically naive," Rosen warned that "the Massachusetts court may set back the cause of gay and lesbian equality rather than advance it."

Now, less than a year later, Rosen writes the tellingly titled "Yawn" about the impending May 17 Massachusetts marriages. In it, Rosen writes of the pro- and anti-marriage equality forces that "both sides' expectations are exaggerated" – without noting that he has been one of the most exaggerated commentators out there.

What happened to the wolves?

Rosen, however, is in good company. His main source for backing up this notion is Northwestern Law School Professor Andrew Koppelman. Koppelman, as I have written before, is a "heterosexual moderate" who argued in the op-ed pages of the Chicago Tribune that the Massachustts Goodridge decision would "almost certainly" permit civil unions to satisfy the court. He was wrong, as the court made clear in its advisory opinion of Feb. 4.

Koppelman, like Rosen, had more than legal theory in mind when he wrote these things. His bottom line was that "it makes sense for gay rights activists to wait" for marriage equality because we shouldn't "kick a hornet's nest" – stirring up anti-gay activity. Now, however, Koppelman tells Rosen, "The earth-shattering thing that's going to happen after May 17 is nothing."

What happened to the hornet's nest?

What happened is that the cries of the heterosexual moderates were wrong.

Thankfully, mayors like Gavin Newsom ignored the heterosexual moderates crying wolf and went forward anyway. As he said on CNN's Late Edition on Feb. 22: "I've got an obligation to stand on principle and not abdicate for another day, not wait another month." And, of course, there was the advisory opinion I already mentioned issued on Feb. 4.

Now, living in the world of those changes, Rosen unsuccessfully attempts to integrate his past statements with the current reality without giving up any ground. Rosen's new position is, to paraphrase, "Massachusetts is no big deal, but if anything else happens then this will really cause a backlash." Here's what he writes:

Perhaps the biggest threat of a post-May 17 train wreck over gay marriage would arise if gay marriage supporters become impatient with fighting state by state and instead ask courts to strike down state laws banning gay marriage as a violation of the federal Constitution. If a court accepted the invitation, it would have the effect of nationalizing the gay marriage debate . . . .

Here we go. Now, "the gay marriage anti-climax" – as the article's headline calls it – in Massachusetts is nothing, but the Apocalypse will arrive if we go any further. In other words, sit back and wait – or else bad things will happen.

Rosen needs to stop crying wolf. Koppelman needs to see the hornet's nest is nearly empty. And the rest of us need to keep seeking full equality.

May 4, 2004 03:06 PM | TrackBack
Comments

I love the "Let's not make any progress for fear of a backlash" arguments. There's going to be a backlash when progress is made no matter what, so why be afraid of it? Usually the backlash is from frightened people on the losing side of an issue. Just when does Rosen think it might be acceptable for progress to be made on this issue? When all possibility of a backlash has disappeared? At that point, the battle will have been won anyway.

Posted by: JGil at May 4, 2004 05:29 PM

Actually there has already been a backlash -- hate crimes are up over 100% in places like New York and Denver (these are just those that are reported). In Virginia two members of the same sex can no longer enter into wills or any other legal contracts. Ohio will likely have an amendment on the ballot that will say the same thing. Amendments will be on the ballot in a slew of states, some swing, that will bring all kinds of lunatics out to vote for Bush and for Republicans in every single race on their ballot. Republicans are doing a masterful job of turning black and to a lesser degree Hispanic voters against Democrats and not-so-subtly causing intraparty splits and "special right" warfare that will likely lead many blacks and Hispanics to start voting Republican or stay home in November (as a black minister told the New York Times: "I would ride alongside the KKK if they went after gays.") Republicans have the ultimate bogeyman that they can use in legislative races for many, many years.

Where I disagree with the hysterics is that Massachusetts was the cause. Scalia caused this, and the media giving so much time to the "now people will hump their pet goat!!/marry their sister!!!" bigots, and the Republican Party. They were going to use this no matter what MA decided. Last summer, Ed Gillepsie told reporters that the GOP would use civil unions as their platform if MA decided against same-sex marriage. Many people believe that the Supreme Court ruled to throw out sodomy laws precisely because they realized the resentment this would create. If so, it was a pretty successful plan.

The main goal here was to over time split the Democrats (happening on a slow but steady level) and to drive up Republican donations and turnout (also happening). Nothing has happened yet because the GOP is keeping this all on a low burner. Check back in November 2004, November 2006, November 2008, before you make up your mind about a backlash. The GOP never expected rioting in the street. I hate them, you hate them, but they know what they are doing on this issue, if on few others.

And don't forget about giving to www.ngltf.org if you care about fighting despicable ballot measures. HRC may care about throwing fancy parties, but NGLTF are not afraid to get their hands dirty, every single time.

Posted by: James at May 5, 2004 02:38 AM

Mr. Geidner,

A few months ago back on the En Banc web log, you argued that it was dangerous to suggest that there might be a backlash from Lawrence vs. Texas because it may in fact trigger a backlash. If I recall correctly, your attacks were somewhat harsh, and Professor Tribe and Professor Volokh were your main targets. In your most recent post, however, you appear to have changed direction: you no longer suggest that such comments may cause a backlash, because there simply isn't going to be a backlash-- "the hornet's nest is nearly empty." The new danger, you appear to be saying, is that the backlash arguments may slow down progress; people will be so unjustifiably concerned about the possibility of a backlash that we won't get to full equality quickly enough.

Maybe I have misunderstood you, then and/or now. If so, my sincere apology. But I wonder, doesn't this sound a bit similar to the shift that you accuse Mr. Rosen of The New Republic of having made? Here's how you started this blog post:

"Amazing. I know the story of "the boy who cried wolf," but I've never heard the story of "the man who cried wolf, but then changed his mind and decided it was a sheep (and pretended that he had never earlier called it a wolf), only to point out that he also had found a new wolf.""

Posted by: Jane Ann at May 5, 2004 11:54 AM

Not at all, Jane.

I think my point has been fairly consistent all along: Equality is equality is equality. Nothing more, nothing less. Each time one of the "don't cause a ruckus" folks speak, I tell them in response that I want equality. As we have gone through this process, we have learned that Rosen is always to find some reason to hold back equality. He hadn't done it three times when I was first writing, so I don't see how I could have foreseen that he would be wrong.

My initial position was, "Equality is the only answer, and you're wrong to be telling us to wait." My current position is, "Equality is the only answer, and you're wrong to be telling us to wait -- just as you have been in the past."

Posted by: Chris Geidner at May 5, 2004 01:12 PM

The Supreme Court ruled the way it did in Lawrence not on the merits of the claim, but to "create resentment"?

Where did you get this idea?

Posted by: Zip at May 6, 2004 12:48 PM

James:

"In Virginia two members of the same sex can no longer enter into wills or any other legal contracts"

You're kidding, right? Setting aside the fact that wills aren't "contracts" and no putative heirs or legatees "enter into" them with the testator (the testator set the terms of the will him/herself), your suggestion that a man can no longer leave property to a son or brother or nephew (or a woman to a daughter, etc.) in Virginia is pretty ludicrous. As for "any other legal contract," what, when I buy my next car, will they have to have a female salesperson sign the contract since I am male? Did some new definitions of "buyer" and "seller" slip into the U.C.C. I'm not yet aware of? Perhaps you are thinking about the "Virginia" on the MOON?

Posted by: cereal at May 6, 2004 03:50 PM
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