COLORADO SPRINGS, Colo. — When officials unfurled a 25-foot-long rainbow flag in front of Colorado Springs City Hall this week, people who gathered to mourn the victims of a mass shooting at a popular gay club couldn’t help but reflect on how such a display of support would have been unthinkable just days earlier.
With a growing and diversifying population, the Colorado city nestled at the foothills of the Rockies is a patchwork of disparate social and cultural fabrics. It’s a place full of art shops and breweries, megachurches and military bases, a liberal arts college and the Air Force Academy. For years, it’s marketed itself as an outdoorsy boomtown with a population set to top Denver’s by 2050.But last weekend’s shooting has raised uneasy questions about the lasting legacy of cultural conflicts that caught fire decades ago and gave Colorado Springs a reputation as a center of religion-infused conservatism, where LGBTQ people didn’t fit in with the most vocal community leaders’ idea of family values.
For some, merely seeing police being careful to refer to the victims using their correct pronouns this week signaled a seismic change. For others, the shocking act of violence in a space considered an LGBTQ refuge shattered a sense of optimism that had spread from the city’s revitalized downtown to the sprawling subdivisions on its outskirts.
“It feels like the city is kind of at this tipping point,” said Candace Woods, a queer minister and chaplain who has called Colorado Springs home for 18 years. “It feels interesting and strange, like there’s this tension: How are we going to decide how we want to move forward as a community?”
* The cause of gay rights is thus just another arena on which the anointed prosecute their long war against the benighted. Dissenting in Romer v. Evans—invalidating on equal protection grounds an amendment to Colorado’s state constitution (“Amendment 2”) that would have barred municipalities from enacting pro-gay anti-discrimination ordinances—Justice Scalia observes:
“When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins – and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court’s Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation’s law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant’s homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member-schools to exact from job interviewers: “assurance of the employer’s willingness” to hire homosexuals…..This law-school view of what “prejudices” must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws.”
The real “equal protection” question raised by Romer was not whether gays are to enjoy equality with heterosexuals notwithstanding the prejudices of Coloradans, but whether the prejudices of the villeins, or ordinary Americans, are to enjoy equality with the prejudices of the Templars, the liberal elites. And the Court answered this question in the negative. The elites purport to stand for equality, but they stand for inequality inasmuch as they are privileged to shield their own prejudices from the scrutiny they routinely mete out to traditionalists. The Templars routinely avail themselves of the right to base their employment decisions on “irrational” factors like appearance, demeanor, or personality. These are not directly germane to job performance narrowly construed but are highly relevant to maintaining a workplace environment that reflects the Templars’ sensibilities and self-image. Yet this is a privilege they reserve for themselves alone. They believe themselves more tolerant than the villeins, but Justice Scalia was arguing that the Templars’ support for gay causes is an easy outlet for moral preening, not an expression of principled cosmopolitanism. For the cosmopolitanism is nowhere to be found where it would conflict with the Templars’ own prejudices.
Where liberals see a standoff between Enlightenment and dark intolerance, conservative claimants of cultural oppression see only a clash of prejudices. Where liberals argue that Amendment 2 placed a unique burden on homosexuals that was not suffered by heterosexuals, the claimants retort that the invalidation of Amendment 2 placed a unique burden on the villein culture that was not suffered by the Templar culture. Since “we are all liberals now,” the issue is not whether equality is preferable to inequality but how equality is to be applied. Liberalism is always pushed through indeterminate abstractions like equality, but the equality’s concrete implementation must always engender new forms of inequality. Liberals are blind to the self-righteous censoriousness that conservatives detect in them because they will not recognize that inequality will always be conserved in some shape or form and that they have merely chosen to conserve it in their own favor and then labeled this “progress.”
* As we observed in Chapter 2, Justice Scalia argued in Romer v. Evans that the Court’s decision to invalidate Colorado’s Amendment 2—designed to preempt local laws prohibiting anti-gay discrimination—betrayed the “law-school view of what ‘prejudices’ must be stamped out.” For it ratified a state of affairs in which the “Templars,” or liberal elites, can indulge their own arbitrary prejudices in employment decisions while preventing the “villeins,” or ordinary Americans, from doing the same. Seen in this light, the equal protection problem posed by Romer wasn’t between gays and straights, but between Templars and villeins. It concerned, not protection against prejudice, but protection of the right to indulge prejudice. I shall designate this the meta-equal protection problem, addressing as it does not the victims of prejudice but its bearers, the prejudicial privileging of some prejudices over others. And the meta-equal protection violation discerned in conservative claims of cultural oppression is that liberals can wield the power of the state and other powerful social institutions to attack other people’s illiberal hierarchies while their own remain hidden from view, insulated from what would be analogous forms of criticism, regulation, and interference.
This is the actual difference between “modern” liberals and “pre-modern” conservatives, the essential core of the liberal privilege that aggrieves the latter. Nietzsche writes that “[a]lmost everything we call ‘higher culture’ is based on the spiritualization of cruelty, on its becoming more profound.”146 Cruelty has merely “become more refined,” for while its older forms “offend the new taste,” the “art of wounding and torturing others with words and looks reaches its supreme development in times of corruption.”147 Liberalism is such a “higher culture,” and this is what permits liberals to sublimate, intellectualize, and etherealize the authoritarian impulses that conservatives must express more crudely, in ways more visible to the naked eye. Borrowing from anthropologist Robert Lowrie, Becker notes that while “primitive man was a natural peacock, so open was he in self-display and self-glorification,” we “play the same game, only not as openly.”148 Liberals and conservatives also “play the same game.” If conservatives are somehow “primitive,” as liberals indeed believe, this is because their hero-systems are less subtle, and therefore less disguised, than those of the Left. For this disguising is precisely what the ethos of disengaged self-control and self-reflexivity enables liberals to do. It allows them to spiritualize all the impulses they would prefer to associate with conservatives and thereby indulge them under a veneer of cultural, political, and historical sophistication.
* The liberal perspective is at its most plausible when it comes to something like the constitutional nullification of anti-homosexual sodomy statutes, as in Lawrence v. Texas. That nullification may be formally hegemonic with respect to those who wish to monitor other people’s bedroom activities, because it now prevents them from doing so. But substantively, the ruling upholds democracy, autonomy, and tolerance, because it is not endorsing any particular view of what should be happening in those bedrooms. However, the question becomes more complicated in other contexts, such as Romer v. Evans. As we saw in earlier chapters, this decision nullified Colorado’s “Amendment 2” on equal protection grounds. Promoted in reaction to municipal ordinances prohibiting anti-gay discrimination in the liberal havens of Boulder, Aspen, and Denver, Amendment 2 would have repealed those ordinances and prohibited the enactment of similar ones in the future. While the measure was defended on traditional conservative grounds, as an expression of the citizenry’s moral disapproval of homosexuality, it was also defended on libertarian ones, as upholding associational freedom, the right of Colorado’s citizens to express their own personal moral disapproval of homosexuality through their employment and rental decisions. Amendment 2 was therefore defended as creating a substantively anti-hegemonic domain, and its defenders viewed the liberals who succeeded in overturning it as agents of hegemony working to curb the autonomous self-expression of Colorado citizens. While anti-gay opponents of Lawrence v. Texas are easily dismissed as meddlesome moralists, Romer v. Evans provided conservatives with an opportunity to cast liberals in that role, to argue that censoriousness has merely been replaced by meta-censoriousness.
In this section, I will 1) examine the basic structure of the disagreement dividing the Romer majority from those like Justice Scalia who believed Amendment 2 to be constitutional, 2) contextualize that disagreement within the mutation counter-narrative, and 3) argue that Romer embodies what I have designated as the meta-equal protection problem, an iniquitous cultural dispensation that provides the hero-systems of the Left with protections and immunities that are withheld from the hero-systems of the Right. Here as elsewhere, the conservative outlook derives its resonance from an under-theorized
understanding of the mutation counter-narrative, which here too reveals a pragmatic contradiction between liberalism as a set of universal ideals and liberalism as a hero-system.
The Court’s central justification for invalidating Amendment 2 as a violation of the Equal Protection Clause was that it imposed a broad political disability upon an entire class of persons. Amendment 2 ran afoul of the Equal Protection Clause because it “identifies persons by a single trait and then denies them protection across the board,” and because “[t]he resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.”62 Amendment 2 would have required gays and lesbians to seek political redress through the state’s
procedures for amending its constitution—that is, only through another constitutional amendment. By contrast, other groups unaffected by that law could continue to pursue their aims through ordinary political channels, perhaps at the municipal level where the anti-discrimination ordinances had originally been enacted. But “[i]t is not within our constitutional tradition to enact laws of this sort,” held the Court, because “[c]entral both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”63 The central issue, then, was not the rights conferred by Amendment 2, the right to discriminate against gays and lesbians with legal impunity, but the rights withheld by it, the right of gays and lesbians to rescind the rights conferred, which the Court judged had been unfairly burdened.
Moreover, Colorado had not demonstrated the existence of any state interests which could justify this burden. The rationality of Amendment 2—which was all the state was charged with proving under rational basis review—was defended along a number of lines, including the state’s legitimate interest in conserving resources, preserving its traditional morality, and safeguarding the associational freedom of its citizens. But the Court was unpersuaded. While it did not address the broader question of whether moral disapproval can qualify as a rational state interest, it did refuse to credit this motivation in the case before it. The Court determined that Amendment 2’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects.”
With the state’s purported interests having been dismissed as mere pretexts for animus, it was a foregone conclusion that Amendment 2 could bear no rational relationship to any legitimate state interests. Dissenting, Justice Scalia argued that the Court’s entire line of reasoning was contrived and without legal precedent:
“The central thesis of the Court’s reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court’s opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can
function under such a principle.”
The Court’s holding, argued Scalia, was incompatible with what we all recognize to be a state’s power to pass laws prohibiting the award of municipal contracts to the relatives of city officials.66 And it is refuted “every time a state law prohibiting or disfavoring certain conduct is passed, because such a law prevents the adversely affected group — whether drug addicts, or smokers, or gun owners, or motorcyclists — from changing the policy thus established in ‘each of [the] parts of the State.’”67 In other words, gays and lesbians would be in no worse shape under Amendment 2 than would be smokers who discovered that they had to travel to their state capital rather than to city hall in order to loosen any newly-imposed
statewide restrictions on cigarettes or smoking. Any kind of constitutional right places special barriers before those who oppose that right, and there was nothing special about this case. Given his judgment that Amendment 2 was unremarkable as a law, Justice Scalia concluded that the Court’s imputation of “animus” was without legal or empirical foundation. The Court’s conclusion that Amendment 2 was inspired by “a bare…desire to harm a politically unpopular group” was “nothing short of insulting,”68 just an expression of the “law-school view of what ‘prejudices’ must be stamped out.” The Court had simply
taken sides in the culture wars, taking upon itself the responsibility of extirpating cultural values that did not resonate with the lawyer class from which its own members are drawn. The charge of animus was just the cultural imperialism of the “Templars,” or liberal elites, who will indulge their own “prejudices” in their own hiring decisions but then deny this right to the “villeins,” or ordinary Americans, whose tastes and values do not enjoy the same legitimacy.
The crux of the issue seems to be as follows: We do not normally think of laws that regulate smoking or gun ownership, let alone the receipt of municipal contracts, as implicating what the Court describes as a “single trait” of “persons” or a “class of individuals.” The target of such regulations appear to be activities or discrete benefits, rather than persons as such. Relatives of city officials who seek out municipal contracts are, logically speaking, a “class of individuals,” but they do not view themselves, and are not viewed by others, as a class in the same way that gays and lesbians do and are. But then the objection to Romer is not that the broad principles announced by the Court are inherently unworkable, but that these principles underdetermined the Court’s conclusions. The additional premise was that the desires to smoke, own a firearm, ride a motorcycle, or be the recipient of a municipal contract are just ordinary dispositions whose frustration we may resent, but which do not go to the core of personhood and therefore define a social group, as sexual orientation does. This is why they do not implicate constitutional interests of the same order. If the Court inserted a particular cultural outlook into the legal mix, it was at precisely this point, because it is precisely this distinction that can forestall Justice Scalia’s
ad absurdum reasoning.
But conservatives see nothing compelling in this outlook. Why not instead view laws that implicate smoking, gun ownership, and motorcycle riding as targeting particular classes of individuals and single traits of persons and view laws that implicate homosexuality as targeting behaviors and only derivatively those who undertake them? There are, after all, plenty of gun owners who see gun ownership as integral to their identities, a source of human dignity no less important that the right to have an abortion or marry a member of the same sex. If the Court would not adopt this perspective, this is because
those kinds of identities are not compatible with the buffered distance. For it was the buffered distance that allowed the Court to treat indeterminate broad principles as determinate. It was this that established the lines which the Court drew between what goes to the core of our personhood and what is just an ordinary disposition, and so explains the distinctions that are implicit in its argument. If the Court’s reasoning would not be applied to any statewide regulations of firearms, this is because firearms are relics of our “’barbarian past,” the province of “other, less fortunate peoples,” symbols of the violence which the disciplinary society seeks to extirpate.
