Anti-LGBT Group Changes Tune on Role of Judiciary

[Content Note: Homophobia.]

Founded in 2007, the National Organization for Marriage (NOM) has backed multiple initiatives throughout the United States opposing same-sex marriage, beginning with Proposition 8 in California.

Since the U.S. Supreme Court's 2015 ruling in Obergefell v. Hodges, I have continued reading the organization's blog, primarily to see what direction the organization would go in light of the nationwide legalization of same-sex marriage.

For one, the official line on Obergefell is that the decision was "illegitimate." Consider, for instance, a recent post in which NOM president Brian Brown reminisces about Proposition 8, which he suggests is still valid:

It's hard to believe that the Proposition 8 campaign unfolded ten years ago. NOM played a pivotal role in the success of Prop. 8, helping to organize the signature gathering drive that put it on the ballot. I moved my family to California so I could work fulltime on the campaign. And our national Political Director, Frank Schubert, was the campaign manager for the successful effort. It was a great victory, which makes it all the more important that we reverse the injustice done to the people of California, and all the other states that voted for marriage, to have had that victory illegitimately stolen by the US Supreme Court.

NOM and Brown have long argued that it is uniquely unfair for the judiciary to provide a check on unconstitutional laws, at least insofar as the judiciary strikes down laws written and passed by anti-LGBT citizens. For instance, at a 2015 conservative conference at the Kremlin, Brown was purported to have said, via RightWing Watch:

When the people have been able to have their say, they've stood up for the truth! The problem is that we are now in a position when judges, unelected judges are coming and simply throwing away the votes of all of these millions of Americans! We have to stand up for civil rights, our civil right to have our vote counted!

Secondly, nearly all of the organization's blogposts of late include a plea for donations, perhaps reflecting a political and financial reality in which much of the "grassroots" energy around opposing same-sex marriage has, at least for now, dissipated with fewer and fewer people experiencing the legalization of same-sex marriage as a culture war "loss."

The Obergefell decision was almost three years ago, and it's likely that many straight people have realized that same-sex marriage has had little to no impact on their lives. The public's attitude regarding same-sex marriage has also changed considerably since NOM's founding. In 2007, only 37% of US adults favored same-sex marriage, but by 2016, that number had risen to 62%. A year ago today, that number was at 64%.

Now, with public opinion having turned against them, the organization seems to be banking on "winning" the same-sex marriage fight through... wait for it... the Supreme Court via the very "unelected judges" they've railed against for years. Here's Brian Brown again, in the above-referenced blogpost:

We are just one vote shy of having a pro-marriage majority on the US Supreme Court. If Anthony Kennedy decides to retire this year as many expect, we will have a realistic chance to promote a pro-marriage nominee from President Trump in the mold of Antonin Scalia and Neil Gorsuch.

Yes, this is hypocrisy. In seeking to overturn established law and the will of the people, NOM has become what they have claimed to despise. But, despite some recent attempts to redeem conservatives who might appear less deplorable than Donald Trump, don't we already know that a golden rule of U.S. conservatism is to win by any means?

And yet, I sense a general "it can't happen here" complacency with respect to marriage equality, similar to that prior to the 2016 election.

I say that acknowledging that I will probably never fully be able to let my guard down on this issue. My lived experience with U.S. democracy has been immeasurably influenced by the 2000 election, wherein the loser of the popular vote subsequently got to frame our government's response to 9/11 and appointed two conservatives to the U.S. Supreme Court.

I started blogging in 2007, as political blogging and contention around same-sex marriage were on the rise. I have to remind myself that the Obama years were very good for many (although certainly not all) LGBT rights and that today's 18-year-olds were just being born at the start of George W. Bush's presidency.

Being a queer woman during the Bush II years added layers of horribleness that I can never forget: Watching him use LGBT rights as political footballs for his own gain, his administration paying Maggie Gallagher to promote Bush's marriage agenda, years of being nice and patient with indecent people so they might one day support equality, and a general, constant feeling that the government that purported to represent me was against me in a very fundamental way.

At a certain point during the Obama years, it seemed like some of the things that felt so broken during the Bush II years might be capable of becoming unbroken. Some of them, like marriage equality, actually were.

But now? I'm not sure what else to say here other than that "it" can absolutely happen here. And, what has been most unnerving about our post-2016-election reality is that it seems like "it" can be almost anything terrible we can imagine at all because the man currently leading our nation acts like a sadist who enjoys inspiring mass terror.

The state of our democracy should not feel as though it hinges so tenuously on the health and continued service of one octogenerian within the judiciary branch and yet here we are. If the historically-unpopular man who lost the 2016 popular vote were to appoint a conservative to the U.S. Supreme Court to help overturn a precedent that most Americans support it would be one more dark day for U.S. democracy to add to the ongoing tally.