Yesterday, George W. Bush-appointed Judge Robert Jones upheld Nevada’s practice of denying marriage equality to gay couples. Like a similar decision by a Reagan-appointed judge in Hawai’i, Judge Jones goes out of his way to resolve any uncertainties in the law in the light most unfavorable to equality — although, in fairness to Jones, his hands were at least somewhat tied by a 22 year old anti-gay precedent.
Precedent aside, however, Jones’ opinion will be very difficult to defend on appeal. He attacks gay rights in ways that undermine basic protections for racial minorities and women; and he displays an almost quaint naïveté about how politicians present their sexuality to the public. By the end of the opinion, the reader is not simply left with the impression that Judge Jones has never actually met an openly gay person, but that Jones does not spend much time observing heterosexual relationships either.
The most dangerous part of Jones’ reasoning is a section where he claims that, because gay people made significant cultural and political progress in recent years, this somehow deprives them of their ability to seek the full protection of the Constitution:
Today, unlike in 1990, the public media are flooded with editorial, commercial, and artistic messages urging the acceptance of homosexuals. Anti-homosexual messages are rare in the national informational and entertainment media, except that anti-homosexual characters are occasionally used as foils for pro-homosexual viewpoints in entertainment media. Homosexuals serve openly in federal and state political offices. The President of the United States has announced his personal acceptance of the concept of same-sex marriage, and the announcement was widely applauded in the national media. Not only has the President expressed his moral support, he has directed the Attorney General not to defend against legal challenges to the Defense of Marriage Act (“DOMA”), a federal law denying recognition to same-sex marriages at the federal level. It is exceedingly rare that a president refuses in his official capacity to defend a democratically enacted federal law in court based upon his personal political disagreements. That the homosexual-rights lobby has achieved this indicates that the group has great political power. The State of Nevada has itself outlawed sexual-orientation based discrimination as a general matter. Congress has not included the category under Title VII’s protections, however. In 2012 America, anti-homosexual viewpoints are widely regarded as uncouth.
Though it is true that Supreme Court precedents accord greater constitutional protection to groups “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process,” it simply cannot be the case that a group loses its power to invoke the Constitution’s guarantee of “equal protection of the laws” once they start to gain rights and recognition through the ordinary political process. If this were true, neither African-Americans nor women could seek shelter under the Constitution, as both race and gender equality enjoys far greater protection under federal law that the rights of LGBT Americans.
Later in the opinion, Judge Jones dismisses the significance of the fact that LGBT people are underrepresented in legislatures and other elected positions, claiming that this could be attributed to nothing more than a universal desire among politicians to keep their sexuality in the closet:
[T]he “seemingly” small number of open homosexuals in positions of power or authority may be largely attributable to neither exclusion nor sexual-orientation-based shame that discourages them from identifying themselves, but rather to the fact that people as a general matter—and especially people in positions of power and prestige—tend not to draw attention to their sexual practices or preferences, whatever they may be, for social, career, and economic reasons. This natural disinclination of public figures to announce their sexual practices or preferences does not necessarily transform into passive oppression simply because the sexual practices or preferences of a particular subset of persons also happens to be a matter of special social controversy.
One has to wonder whether Jones has ever heard of Michelle Obama. Or Laura Bush. Or Hillary Clinton. Or, for that matter, Monica Lewinsky. The idea that straight elected officials “tend not to draw attention to their sexual practices or preferences” by not even revealing to the nation that they are heterosexual is self-evidently absurd. The closet is the product of years of animus directed at LGBT people, not some kind of Victorian desire to keep private lives private.