In my previous post, I told the stories of President Richard Nixon's two failed Supreme Court nominees. Most Gen Xers and Millennials who know Robert Bork and Harriet Miers have never heard of Clement Haynsworth or Harrold Carswell. In 1969 and 1970, these Nixon nominees were rejected in part due to their past support for segregation. Carswell had expressed white supremacist views, while Haynsworth was merely ambivalent (to put it charitably) on civil rights at a crucial time.
A majority of Americans now supports same sex marriage. That majority will grow in the years to come as SSM becomes a legal and political reality in every state. The question is how the majority will regard the minority that continues to believe that marriage is exclusively and by nature between a man and a woman. Ascendant gay rights advocates, bullied and belittled for so long, are now largely of the view that opposition to the movement is not merely a matter of disagreement, but a bigoted moral failing unbecoming of modern men and women.
What will this mean for traditionalists who want to serve in positions of public trust and responsibility?
Is Opposition to Same Sex Marriage Equivalent to Support for Racial Segregation?
Even now, one of President Obama's judicial nominees faces defeat as Democratic senators and interest groups pledge to reject him. Obama nominated Georgia state court judge Michael Boggs to a lifetime post as federal judge. In a Judiciary Committee hearing, Boggs recanted his past support for a law favored by abortion rights opponents. With respect to same sex marriage, Boggs said, "My position may or may not have changed on that over the last decade." Democratic Sens. Richard Blumenthal, Al Franken, and others have said they will oppose Boggs if he comes up for a vote. Senate Democratic leaders are all opposed, meaning Washington is basically waiting for Boggs to withdraw. Evidently, he is rather tenacious. Note that Boggs is a Democrat nominated by a Democratic president and faces votes on a committee and in a chamber that Democrats control.
Just as pro-choice groups have made it virtually impossible for pro-life Democrats to be nominated for judgeships, it seems we have reached the point where support for same sex marriage is so unanimous among Democratic Party leaders and interest groups that Senate Democrats are unlikely to ever again confirm a Democratic judicial nominee who opposes SSM (or offers anything less than enthusiastic support).
What will happen when a Republican president makes judicial nominations? The answer will depend on what party controls the Senate and whether the GOP retakes the White House in 2017 or 2021. By that time, there will be no Senate Democrats who oppose SSM and a growing number of Republican senators who support it.
If even one or two Judiciary Committee Republicans side with the Democrats in rejecting anti-SSM nominees, then the question is essentially moot: We will never again have judges confirmed to the federal bench who do not endorse SSM. To avoid the impasse, a Republican president will simply choose from the fast-growing field of Republican judges who support same sex marriage. Though it will enrage the religious right, it may be be better and safer politics, even for Republican presidents, to avoid nominating anti-SSM judges. Traditionalist nominees can insist in their confirmation hearings that they will uphold the law, but will this be enough?
Should Anti-SSM Views Disqualify People from Public Life?
The parallel to Nixon's failed SCOTUS nominations is clear but imperfect. The operative question is this: Is opposition to same sex marriage now (or soon) as blatantly wrong and politically toxic as support for racial segregation had become by the 1970s?
Though I usually find myself on the liberal side of culture war issues (read: sex issues), I do not insist that everyone who disagrees with me should be shunned and shamed out of public life. Lately I have though deeply about Damon Linker's columns at The Week on the Hobby Lobby decision, liberalism's intolerance, and related subjects. The essence of his argument is that liberals should endorse a robust civic pluralism that makes room for conservatives who hold traditional positions on sexuality issues. I agree. I do not think that people who believe marriage is by its nature between a man and a woman – a group that includes many friends, most of the people who nurtured in in my formative years, and my own self for more than half of my lifetime – are moral monsters who must be silenced and relegated to the margins of society.
How Can SSM Opponents Survive in Public Life?
If people who oppose same sex marriage want to have even a fighting chance of being a respected minority rather than a rightly despised one, I suggest they carefully examine the rest of their positions on an array of issues. If you oppose SSM and you oppose all or most other civil rights protections for people who are gay, your enmity is well deserved. If you oppose civil rights for people who are gay and for other minority groups, maybe you are just a bigot after all.
The best hope for people who oppose SSM is to be robust supporters of civil rights in every arena. That way, they can credibly claim their minority view is legitimately based on their understanding of the nature of marriage and is not just one among many retrograde or pro-privilege views. (This is why I have argued that Southern Baptists and other white evangelicals should vigorously oppose voter suppression laws.) Conservative Protestants note (often with dismay) that the Catholic Church has more social credibility in spite of its traditional views on sex. Maybe this has something to do with the breadth of the Catholic commitment to justice, compassion, and dignity. The religious right must do more than point to the Tea Party agenda and proclaim, "Thus saith the Lord."
By the 1970s, acquiescence to segregation became a political liability in most areas. A few white politicians with checkered histories on race survived, but overt racism was no longer a viable position. We seem to be headed in the same direction with respect to acceptance of homosexuality. Still, progressives should think twice about the limits of their tolerance. And traditionalists should look beyond their defense of marriage and examine the totality of their public witness.