Bullies

The Alliance Defense Fund is fighting for its life.

It's current case — defending the constitutionality of California's anti-gay marriage Proposition 8 — cuts to the heart and soul of this organization and, indeed, to the core and essence of the religious right groups who came together to create it.

The ADF was founded as a sectarian, conservative response to the ACLU.* Where the American Civil Liberties Union exists to protect the rights of minorities from being denied or eroded by the majority, the ADF took on the opposite mission. It was founded to defend the majority's privilege, to ensure that the rights of minorities are not regarded as equal to the rights of those who outnumber them, and that these minority rights not be allowed to deny or erode the hegemony of the majority perspective.

The defense of Prop 8 is therefore the archetypal ADF case. It gives their legal team the opportunity to argue, in court, that the constitutional guarantee of the rights of minorities must not be interpreted as overriding traditionally practiced limitations of those rights and that majority rule must never be made subservient to the rule of law.

And to be clear, the ADF is arguing exactly that. Explicitly that. That is their case in the case of Perry v. Schwarzenegger. Here is ADF lawyer Austin Nimocks:

"The fundamental issue here is whether or not in America we respect and should uphold the right of a free people to make social policy choices through the democratic process."

The particulars of Perry and Prop 8 are almost incidental. What is at stake here for ADF is their entire rationale and the whole agenda of the religious right. Everything the "moral majority" has been fighting for in every aspect of the "culture wars" is at stake in this case: public school curriculums reflecting the views of the majority sect, official sectarian prayers and holiday displays, the legitimacy of laws requiring all citizens to abide by the majority sect's notion of private morality. Ultimately, the very notion of America as a holy, sectarian nation as decreed by Jefferson, Franklin, Madison, Paine and the rest of the Founding Fathers.

For the ADF and the religious right, "the right of a free people to make social policy choices through the democratic process" means this and only this: the majority of American citizens are Christians and thus that majority has the right to pass laws expressly and exclusively based on their Christian beliefs.

This is what the ADF is for — both in the sense that this is what the group favors and advocates and in the sense that this is the group's purpose. As long as Christians — real, true Christians — constitute the majority, the religious right has no interest in the competing claims of minority rights. It's more or less the pre-Vatican II, pre-John Courtney Murray position of the Roman Catholic Church, which advocated state-sponsored religion in Catholic-majority countries and secular pluralism in nations where Catholics were in the minority.

In the particular case in California, the ADF is vehemently arguing that the Constitution doesn't mind that the heterosexual majority has voted to restrict the rights of the non-heterosexual minority. Contrary to what Mr. Nimocks might like to think, that is not "the democratic process." The technical term for a majority voting to give itself rights while denying those same rights to the minority is "mob rule." Which is different.

Nimocks is saying that the majority has the right to be a bully. Such bullying is not simply an incidental tactic of the religious right, it is it's raison d'etre. And like many bullies, the ADF and the religious right tend to crumble when anyone stands up to their bullying. Like many bullies, they like to pretend that they are the victims — hence the incoherent Persecuted Hegemon phenomenon that characterizes so much of the religious right (not to mention the pathetic spectacle of the ADF bullies crying and running away when faced with the prospect of cameras in the courtroom).

It's not easy to draw the best and the brightest when your law firm was founded to rail against "intellectual elites," so the Alliance Defense Fund usually allies itself with some outside attorney to do the heavy legal lifting. In the case of Perry v. Schwarzenegger, that turns out to be Washington attorney Charles Cooper. Realizing that the ADF's mob-rule hegemony argument is about as utterly unconstitutional as an argument can be (constitutions exist to prevent exactly what the ADF is arguing — the mere fact that we have a Constitution refutes their argument), Cooper has glommed onto an argument based less on the law than on what might be called papal sociology**:

"We say that the central and the defining purpose of marriage is to channel naturally procreative sexual activity between men and women into stable, enduring unions for the sake of begetting, nurturing and raising the next generation. Plaintiffs say that the central and constitutionally mandated purpose of marriage is simply to provide formal government recognition to loving, committed relationships."

Unfortunately for Cooper, as opposing attorney Ted Olson (yes, that Ted Olson — I know, right?) notes, the Supreme Court has tended to view marriage through the lens of the Constitution and not from the perspective of Humane Vitae, so they have clearly and repeatedly stated that marriage is "an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity."

(The quotations here are from Margaret Talbot's excellent New Yorker article, "A Risky Proposal: Is it too soon to petition the Supreme Court on gay marriage?" I also highly recommend listening to Talbot's discussion of the case with NPR's Terry Gross — transcript here.)

Even more unfortunately for Cooper and the ADF, this exclusively procreative definition of marriage forced the judge hearing this case, Vaughn Walker, to recall the last marriage ceremony he performed:

"The last marriage that I performed, Mr. Cooper, involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity."

Ahem.

Walker is a Bush 41 appointee, and has been described as a conservative with a libertarian streak. I'm not sure that matters — the question of Equal Protection here is so stark, and the arguments defending Proposition 8 so insubstantial and incoherent, that this case ought to be a no-brainer.

But as Talbot points out, this case will almost certainly not settle the matter until it works its way through the courts all the way to the Supreme Court of the United States. And as we were powerfully reminded yesterday, the 5-justice conservative majority on that court doesn't always concern itself with stark matters of law or rejecting incoherent and insubstantial arguments. The constitutional question of Equal Protection is crystal clear, but for the partisan faction of Alito, Roberts, Scalia and Thomas, Humanae Vitae will likely still prove to be the guiding document.

In his dissent in Lawrence v. Texas, Justice Anton
in Scalia wrote:

“Many A
mericans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

This is, of course, factually accurate. Many Americans do hold the views Scalia describes. Scalia himself seems to hold them. But why he or any other justice, judge or lawyer should think that such views have even the slightest bearing on the rights guaranteed by the Constitution is baffling.

So we will likely be left with Justice Kennedy as the potential swing vote. On the bright side, Kennedy has a long history of agreeing with Ted Olson. On the down side, Kennedy has a long history of agreeing with Ted Olson.

When this case reaches the Supreme Court, the justices may — likely will — rule in favor of Proposition 8. But they won't be able to argue in favor of it any more than Cooper or the ADF are able to. Legal arguments in support of tyrannical mob rule cannot be found. Nor can they be sustained.

Perry v. Schwarzenegger may not settle the question of marriage equality in the short term, but it has demonstrated for all to see that in the long term there is only one outcome constitutionally possible. Once the bullies have been revealed as nothing more than that, the rest is inevitable.

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* The ADF's primary purpose is sanctified bullying — arguing that the establishment of sectarian hegemony is somehow not in conflict with the First Amendment prohibition against the establishment of religion. The group also takes up a great many cases where it — more defensibly and constitutionally — argues for Christians' right to the free exercise of religion. In most of those free exercise cases, awkwardly, the lead attorneys tend to be people from the ACLU. Where the ADF has its firmest legal standing, in other words, it tends to be redundant — not so much the "conservative" counterpart of the ACLU as its sectarian sidekick.

** This primacy of procreation is uniquely Catholic and, theologically, a bit bizarre. It's not just extra-biblical but contra-biblical. Opponents of same-sex marriage like to cite the "normative" biblical passages on marriage. See if you can find any of those that can be reconciled with the Catholic idea of marriage as primarily for procreation. That's nowhere to be found in, say, Genesis 2.

Apart from theology, it's also not easy in the entire history of human storytelling, poetry and drama to find examples of lovers coming together for "the defining purpose of channeling naturally procreative sexual activity into stable, enduring unions for the sake of begetting, nurturing and raising the next generation." Cooper defines marriage without any reference to, or need for, love. I don't mean romantic, soap-opera passion, I mean love — devotion, affection, fidelity, abiding care, etc. Cooper is arguing for marriage as something wholly apart from that. That's just deeply weird. It's not just unconstitutional, it's inhuman.