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Stop bearing false witness against Justice Kennedy, 'values' crowd!

by Jeremy Hooper

I can't tell you how many times in the past two weeks I've heard a conservative commentator, from the mainstream to the fringe, claim that Supreme Court Justice Anthony Kennedy (a Reagan appointee) used the "bigot" label to describe those who put laws like DOMA into the books. Here's one new instance from the Liberty Counsel's Mat Staver:

Writing for the majority, Justice Anthony Kennedy labeled those who oppose same-sex “marriage” as oppressors and selfish bigots. Are you willing to be called a “bigot” for believing that God’s law defines marriage as the union of one man and one woman? Are you willing to be accused of a “hate crime” for speaking out in favor of natural marriage?
MORE: Are you willing to be called a “bigot”? (LCAction)

Only thing? Justice Kennedy, writing for the majority in the DOMA opinion, did not use the word "bigot" even once. Not once. In fact, in the whole body of language that makes up the SCOTUS DOMA opinion, the word "bigot" was only used once, with the word "bigotry" gaining one additional mention —both of them from Justice Alito, writing for the dissent.

What did Kennedy say? Well, he said that the "avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States." He said that "under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways." He said that DOMA "humiliates tens of thousands of children now being raised by same-sex couples." Oh, and he noted the 1996, GOP-led House's own conclusion "that DOMA expresses 'both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.'” That is the bulk of what people like Mat Staver are using to say that Justice Kennedy called them "bigots" (or that Maggie Gallagher is using to say that Kennedy declared a "fatwa").

I'm not the least bit surprised by this. I have been doing this work for 9+ years, and have written millions of words about marriage and related subjects. I have challenged every last thing that the "culture warriors" have done to make life harder for me, my friends, and, my family. However, in all of that time, I have never used the word "bigot" as a label to describe an oppositional figure's motivations. Like Justice Kennedy in his majority opinion, I focus my writing on the tangible words, deeds, and actions, and what that collected work can do to LGBT people's welfare, psyches, and tangible rights. I never delve deep into what brings an oppositional figure to the fight or get into some deep level of character assassination, instead focusing on the harsh views, votes, or policies that are up for discussion. For me, it comes down to the difference between "bigotry" and "being a bigot." I care deeply about the former, but I don't really care if the latter necessarily drives it.

But that doesn't matter to my opposition. While many on the other side have shown appreciation to me on an off-record and anecdotal level (usually accompanied with a line about how if I ever say so publicly, they will adamantly deny that they gave me a compliment), they never note the distinction publicly. I am just one of those mean gays who wants to go around calling them "bigots." It never matters to them that I focus on the deeds rather than the individual motivations.

This is of course because they want to be the victims. They need to be the victims. Their strategy demands they be the victims. And since it is patently obvious to anyone who has paid attention to the last fifty years of gay rights debates that LGBT people are the true victims of cruel persecution, unfair policies, and outright hostilities, the paid professionals who fight us on the other side have had to work overtime making their movement seem like the persecuted one.

Thus the logic leap in terms of Kennedy and what he actually wrote for the majority. All the Justice did was what his role on the court tasked him with doing: he gauged whether or not animus was a motivation behind DOMA. Let me remind you that DOMA was crafted and written by the Family Research Council, one of the most overtly (and proudly) hostile groups working against LGBT rights. OF COURSE IT WAS MOTIVATED BY ANIMUS! It doesn't matter if it was motivated by animus for the individual LGBT person—it was clearly motivated by animus for the idea that LGBT people deserve equal rights! Just go back and look at some of the archived testimony that FRC used to support DOMA. Proud foe of the 'mos Peter LaBarbera was involved. Robert Knight was a key mastermind. Oh, and they used all kinds of "ex-gays" (the late Anthony Falzarrano chief among them) to not only say that gays are undeserving of equal rights, but that we are instead intended to "change" our sexual orientations. If anything, the Supreme Court failed to delve deeply enough into the crystal clear animus at DOMA's root!

And folks like Mat Staver know this. This man, who has on multiple occasions teased the idea that increasingly LGBT rights might (should?) spark a revolutionary war, knows that DOMA was the product of his movement's overplayed hand, and he knows that DOMA's demise is a direct repudiation of that very same effort to turn America into an overtly anti-LGBT nation. He and his fellows could take the opportunity to note the distinction between bigotry and "bigot" and tell the public why they might support certain policies but they do not personally hold ill will in their hearts. But they are not doing that. Instead, they are doing what they always do: finding someone else to scapegoat and miscasting themselves into the supposedly poor and downtrodden roles.

It's unfair to Justice Kennedy and the SCOTUS majority, but I'm more than confident in these learned justices coping skills. I'm much more concerned about what this aggressive attempt to create victims will mean for the everyday LGBT people (especially in smaller, red state towns) whose civil rights are now being personified and cast as unfair character assassins. In being so untruthful, Staver and his allies are deliberately stirring the pot. But at the end of the day, who will really get burned?

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