Sunday, July 03, 2005

How The Courts’ Timing Has Helped The GOP

If you had asked Karl Rove and other Republican political strategists for their No. 1 wish leading up to the 2004 Presidential Election, they couldn’t have come up with anything better than the Massachusetts Supreme Court ruling legalizing gay marriage. Two recent cases may once again help them out.

Overnight, the Massachusetts decision created the “culture war” issue that the right had been searching for, and this case of “extremist judicial activism” occurred in none other than John Kerry’s home state. It was the perfect case with the perfect cover. Democrats everywhere were immediately put on the defensive, and prejudice against gays was quickly lost amidst the larger issue of “protecting marriage.” Republicans didn’t want to be seen as intolerant of gays (although the majority of religious groups that support the GOP are -- just peruse their websites), but here was an example of liberal judges in the most liberal state forcing gay marriage on the rest of us (even though they had no jurisdiction in the other 49 states). Although I am sure that most Democrats in private would tell you that they support gay marriage, they knew this would spell political death, and so they took a stance against it, while proclaiming their desire for civil unions (an issue for another time is why it is that Democrats don’t actually stand up for what they believe in).

Karl Rove and his minions seized on the Massachusetts decision by unleashing a massive grass-roots campaign to mobilize religious communities in opposition to gay marriage, and succeeded in putting discriminatory initiatives on the ballot in 11 states (most of them key swing states) that went way beyond banning gay marriage. Although it is impossible to know what the outcome of the election would’ve been had the Massachusetts Court ruled after November 4, 2005, there is no doubt that the decision greatly helped Bush’s cause. Ohio was one of the 11 states with an anti-gay marriage initiatives, and even though the state was reeling from high unemployment he won by over 178,000 votes. I would not be surprised if the swing of 90,000 votes that would’ve given Kerry the victory could be largely attributed to the gay marriage issue and the mobilization efforts that accompanied it. If you doubt this, I suggest that you seek out the testimonies of people who believe that gay marriage is going to ruin the country; the inensity of their feelings, stoked by fear and charges of sinsiter "liberal"agendas, is mind-boggling.

Of course the election is history, and the GOP now has an even greater lock on the legislative and executive branches of government. With Bush’s foreign policy agenda dominated by the Iraq War and his Social Security proposal going nowhere, Republicans are increasingly looking to the Courts, particularly the Supreme Court, as the arena where Bush can leave his most lasting conservative legacy. With O’Connor’s surprise retirement announcement on Friday, the wheels are in motion for a grueling battle.

Enter two recent Supreme Court cases that left many conservatives fuming, and which will likely assist them in their efforts to appoint far-right justices.

First is the Eminent Domain case in which the Court ruled in a 5-4 decision led by Justice Stevens (a so-called “liberal” justice) that government has the right to take private property even for explicit private development projects. Although the case is subtle and the ruling doesn’t have large implications for government power (refer to the discussion by Becker & Posner, also the Weekly Standard just published an excellent piece on this as well), I predict that conservatives will point to it as an example of liberal overreach and rally people around the defense of private property, always a winning Republican strategy no matter what the context or the merits.

The second case that is sure to rally the conservative faithful is the 5-4 decision, this time led by Justice Breyer (another so-called “liberal”), which states a Ten Commandments monument in a Kentucky courthouse is unconstitutional. Get ready for righteous accusations about liberal judges who hate our “Christian heritage” (despite the fact that there are no references to Christianity anywhere in the Constitution or Bill of Rights) and who want to ban religion from public life.

I strongly support gay rights; I believe that government should be able to limit private property rights for the betterment of the public good; I believe in the separation of church and state. So I have been mostly happy with the Court’s rulings. It is nonetheless true that these victories provide ammunition for those who want to deny gay people their rights, return to the laissez faire capitalism of the pre-WW II era, and impose select tenets of Evangelical Christianity on the rest of us.

J.S.

Update since I wrote this piece: Measures in both the House and Senate to blunt the power of the ruling in the Eminent Domain case got underway on June 30th. Here are a few choice quotes from the session:

"This Congress is not going to just sit by -- idly sit by -- and let an unaccountable judiciary make these kinds of decisions without taking our responsibility and our duty given to us by the Constitution to be a check on the judiciary. And this is an example of doing that." – Tom DeLay

"This decision, in my opinion, has the potential of becoming the Dred Scott decision of the 21st century.” -- House Judiciary Committee Chairman F. Sensenbrenner (R) referring to the 1857 ruling that affirmed slaves as property without the rights of citizens, and was overturned when the 14th amendment was ratified in 1868.

Update #2: Here’s what Gary Bauer, president of American Values, had to say in an email alert to his members:

"The public is increasingly disturbed by a Supreme Court that says it is okay to seize private property; that issues contradictory opinions on the Ten Commandments…”

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