I support the Supreme Court’s decision in favor of Westboro Baptist Church’s right to picket funerals and just generally be douchebags.
When I was a junior in high school, I had a math teacher who was a brilliant woman and taught me a lot of what I needed to know about life, if not much about math. The thing she said that stuck with me the most was about free speech–she told me that she, a very liberal Jewish woman, strongly supports a Nazi’s right to stand on a hilltop shouting at the top of his lungs, because that is absolutely the only way she can defend her own rights with a clear conscience.
And let’s face it–this case is free speech gold. These are the most disgusting, reprehensible people you can imagine, people who picket funerals, who absolutely loathe me and want me to die in the most gruesome possible ways, who firmly believe that I deserve to rot in hell for all eternity. This is why queers, liberals, and human rights activists need to stand up and cheer for the Supreme Court on this ruling, and defend Westboro Baptist’s right to tell everyone that God hates fags. If we don’t jump on this case, we have no credibility.
Of course, at the same time, we should absolutely condemn Westboro Baptist’s actions, beliefs, and thoughts using our own free speech right. But you have to pick the right enemy.
I believe that there is a war on free speech in this country, and it’s not being fought in the courts. Initially, it was, but the obscenity laws are in place. The Puritanical, stigmatizing laws, rules, ordinances, and regulations that supposedly are designed to keep children away from sex, drugs, and rock and roll are the real problem. This is how cultural shifts happen, and look where we are now. We’re afraid to say “fuck” in public. We’re afraid to say lesbian in public. Sexual expression is reduced to obscenity, and people who raise children in queer, kinky, polyamorous, sex positive, or radical households are condemned as unfit parents. That’s where we need to turn our energies.
I’ve been writing a seminar paper on the democracy deficit in international law and arguing that the system can be legitimate without democracy because constitutionalism (and some other things) fill the void. I was thinking about the whole California issue last night and it occurred to me that it raises similar questions. Of course, we’re all raised to think that democracy is great and wonderful and special, but it does have its problems. One of those is that internationally, we tend to not accept democracy if it doesn’t get us the “right” leader. We don’t have that problem so much at home, but democracy doesn’t always work so well nonetheless. There’s a tension between “tyranny of the majority” and “tyranny of the minority.” Those of us who are gay or lesbian don’t feel so hot about the majority ruling on our rights, after all. We want to say that no matter what the majority of Californians think, it’s just not right. On the other hand, Californians in favor of the Proposition don’t like the idea of a minority of gay people, and the justices in kahootz with them, deciding what marriage is. As biased as I am, there are points on both sides.
A constitution is supposed to be a document that reflects a society’s fundamental principles. Of course, at the start, it was a democratic instrument, and it can be altered, but we have to sacrifice a teeny bit of the democratic element to protect vulnerable minorities and ensure that certain basic principles aren’t just vetoed. That’s why constitutions are so difficult to amend. There’s an argument coming out now, which I think is a good one, that Prop 8 is invalid because California has two different types of amendment processes and the ballot initiative one isn’t supposed to be used for amendments that fundamentally alter the existing nature of the constitution. I think this is a good idea, because the whole point of a constitution is to protect against temporary political surges. The amendment process is supposed to say “hey, are you sure you want to do this?” A simple majority vote doesn’t quite achieve that.
I understand the whole “judges legislating” argument, but let’s remember one of the key purposes of judges – to uphold individual freedoms. The thing about equality is, it benefits everyone. And this may bug some of us, some of the time. But on the whole, it’s a good principle. It protects straight people, too. Despite what some may think, it wouldn’t be constitutional for schools, for example, to promote gay marriage over straight marriage, or homosexuality over heterosexuality.
Sometimes I’m uncomfortable with my anti-democratic ideas, because a constitution could of course enshrine principles that are oppressive. But I don’t think this is an issue when it comes to equal protection. I think equal protection on the whole, works well, and the discrimination Californians are trying to enshrine in their constitution is based on bare animus towards a politically unpopular group – something the Supreme Court has rejected, and I think most Americans would reject (even Californians, if you put it in general terms). The problem is the cultural moment, and we’ve had many cultural moments in our history like this one, which we’ve eventually gotten past. As one blogger said recently, in 20 years we’re going to be embarrassed about this.