by New Dealer
The Dragons of Reaction know that they are losing and losing quickly. This is the good news in what appears to be a lot of bad news. The bad news is that we can tell when people know they are entering the losing side of history when they start acting under the guise of massive resistance. It happened in the South after Brown v. Board of Education and the follow-up case of Griffin v. Prince Edward County Island and the passage of the Civil Rights Act of 1964 and the landmark cases of Heart of Atlanta and Ollie’s BBQ. In Prince Edward County, the Supreme Court ruled that school districts could not shut down all public schools to avoid desegregation and Brown v. Board of Ed because it violated the Equal Protection Clause. Heart of Atlanta and Ollie’s BBQ held that Congress had a right to order private businesses to integrate.
We know see that the Dragons of Reaction know that they are on the losing side of history when it comes to equal rights for LGBT people. This is happening fifty years after Congress passed the Civil Rights Act. In November, the citizens of Oregon will vote and will hopefully/probably pass a law that allows gay marriage. There is also an initiative from opponents of gay marriage. Their initiative would give business owners a “right of conscience” to refuse to serve gay customers. The Kansas House of Representatives overwhelmingly passed a bill that allow any individual, group, or business the right to refuse to serve gay couples and possibly gay individuals under the guise of it potentially being “contrary to sincerely held religious beliefs.” The law applies to both private and public sector people, groups, or businesses.
Nothing is set in stone yet. The people of Oregon can vote to allow gay marriage and also defeat the homophobic initiative. The Kansas State Senate can reject the homophobic bill from the House of Representatives or the Governor can come to his senses an veto it. The bill seems to try and present a First Amendment defense of bigotry. This tactic was used during the Civil Rights struggle. In my view, I think the Kansas bill is unconstitutional on its face. It doesn’t even pass a rational basis defense. If Colorado’s homophobic bill was unconstitutional in Romer v. Evans, the Kansas bill is probably unconstitutional as well.
I think these are the actions of people who know that the tide of popular opinion is quickly turning against them and they are doing all they can to keep their side winning for as long as possible. Kansas is clearly reacting to how judges and government officials have been interpreting Windsor including conservative judges. The 9th Circuit ruled that Windsor logically means that laws or government action targeting gay people must receive a heightened scrutiny form of review and Windsor means that lawyers could strike potential jurors because of their sexuality just like women and minorities cannot be struck from juries because of their gender and race. The 9th Circuit decision caused the Attorney General and Governor of Nevada to announce that they would stop fighting for a gay marriage ban in the courts.
The amateur historian in me sees the parallels between the actions of those who oppose gay marriage and those who fought bitterly to keep Jim Crow and Segregation alive. There could be serious backlash. The tyrannical tactics of Bull Connor using fire hoses and police dogs on civil rights demonstrators did help awaken the consciousness of the American people and politicians and turned popular opinion against the South. However, the passage of the Civil Rights act also lead towards George Wallace receiving a few dozen electoral college votes and the election of staunch segregationists like Lester Maddox as the governor of Georgia, it might have also led to the election of Jesse Helms. I can see demagogues on the right trying to run on homophobia but I can’t see them going very far. Lester Maddox only served one term before being succeeded by Jimmy Carter. I don’t see gay marriage leading to the election of homophobes in northern cities like the Civil Rights backlash among white ethnic voters led to the election of racists like Frank Rizzo as mayor of Philadelphia.