First the good news

This is clearly the big story of the day, not to mention one of the largest milestones in the long journey of gays and lesbians on the road to full rights and protection as American citizens. Combined with the recent Canadian legalization of same-sex marriage, 2003 is turning out to be a banner year for progress among Western democracies to get over themselves and get out of the bedrooms of their citizens. Which is good, given the fact that our entire civilization is under attack from fundamentalists here and abroad; basically, the democracies seem to realize they have bigger fish to fry.

But it is not democracies that must get over themselves if we are to enjoy rights and protections in practice that comport with judicial theories of the way the world should work. The past fifty years have shown that social justice and equal rights granted through legislative or judicial process can be held hostage by relatively small minorities who focus obsessively on the issues at hand, minorities who in their fervor blunt the actual practice of freedom and chain true liberty with fear and shame. The state of the debate over Roe v. Wade is the best example of this, but surely the affirmative action debate offers another. So my question is: is today’s victory one we can trust and build on, or will it become the battle whose symbolic ramifications do more to enliven the opponents of equality than the decision does to guarantee our freedom?

I do not mean to downplay or question the courage and rightness of the majority decision (or Justice O’Connor’s concurring opinion that recognizes the real flaw in Lawrence v. Texas is the Texas law’s violates the fundamental equal protection clause of the 14th Amendment). How could I not rejoice at Justice Kennedy’s statement that gay people “are entitled to respect for their private lives”? How could it not be a major victory to have the majority of the Court agree that “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime”?

To answer my own question, I can because of the time I spent at Planned Parenthood. Like Roe, this decision only recognizes a set of realities about human beahvior and seeks to square Constitutional interpretation with these realities. People will have abortions and anal sex whatever the law says; the Roe and Lawrence decisions stated that government needed to vacate the territory it had claimed over these acts. It is less about protecting a right than deflecting the government’s irresistable force from the plain face of that great immovable object, human nature.

But as Frost says, something there is that loves a wall. Something there is, particularly in the dark Calvinist heart of America, that loves the sound of human flesh slapped full across its face by the not-so-invisible hand of government. Freedom for me and thee, but none for those beyond the pale. (This is not, loud assertions aside, a sentimental, aesthetic, ethical, or moral consideration; the increase of freedom is quite simply a threat to the continuing power of those who have traditionally enjoyed the freedom to wield power on their terms.)

The love of this brutal sound echoes in the sound of protesters at the doors of the abortion clinic, the sound of Fred Phelps cheering the funerals of gays at the church door. Unfortunately for us, these voices are only made louder when judicial action waters these brittle causes with fresh outrage. The thought that this decision could embolden the anti-gay right in the same way that Roe whipped up the anti-woman and anti-choice movement is literally terrifying to me–thirty years from now, we could still be fighting for the rights we “won” today, and more opponents willing to resort to murder when the legislative and judiciary fail to bend to their will. My only real hope in our ability to avoid this is that the culture has far enough outpaced the law in the case of gays that the collective “so what” will provide little tender to the spark of protest.

So I’ll try not to do what the German proverb calls “painting the devil on the wall.” I will try to look on the bright side and celebrate this decision for what I hope it can be: an unalloyed good and the foundation for the right to marry, to serve in the military, or to adopt children freely should one choose.

So to close, a personal story. Tonight, I am having dinner with my friend Jonathan. He was in his early twenties, working for GMHC as AIDS was ravaging New York, and deeply in love. Then one morning, his partner Xavier’s employer gave him two weeks notice to return to France. With no recourse to marriage, and no sure way to negotiate the legal complexities of a life together in any country, they parted. Jonathan navigated the shoals of loss, heartbreak, uncertainty, and risk admirably. But to look at his face is to see the mark of that blow, to register a great “what if” on his behalf. Loving myself a man who has been just months away from a green card for months, I can’t help but shudder thinking about this story. So I will raise my glass to his and say a toast and speak a prayer that this decision will be a true and lasting victory.

I think we all have some work to do to make this true, though I’m not certain what effort will have the most impact. What I do know is that the friends and families who love us have to speak up when they hear us hated, and not be afraid to shout down the people who believe we are less than citizens, less than humans. Because that is what the Rhenquist rant boils down to: a cry to keep our backs for drums and lungs for bellows in that awful music of a dark American nightmare.