The Texas GOP Still Wants to Criminalize Homosexuality. Good For Them!

Expanding the LGBTQ Conversation
June 6 2014 1:34 PM

The Texas GOP Still Wants to Criminalize Homosexuality. Good For Them!

150990305-people-from-the-texas-delegation-wave-cowboy-hats
Members of the Texas delegation at the 2012 Republican National Convention.

Photo by Mark Wilson/Getty Images

On Wednesday, the Houston Chronicle got hold of the Texas GOP’s revised platform, which—though still in draft form—promises to be one of the most viciously anti-gay political documents of 2014. In addition to wholeheartedly endorsing ex-gay “therapy” for “patients who are seeking escape from the homosexual lifestyle,” the draft clearly re-enforces its 2012 predecessor, which memorably held that “the practice of homosexuality tears at the fabric of society and contributes to the breakdown of the family unit.” Both platforms seem to take dead aim at the legalization of homosexuality, still a sour topic for most state Republican parties.

And you know what? Good for them. Anti-gay intellectuals have recently begun dressing up their animus in a kind of euphemistic moderation: Sure, they say, we oppose gay marriage, but only because marriage is sacred, not because gay people are sinful. But this is really the worst kind of intellectual dishonesty, a crassly opportunistic revision of the tired, insulting arguments that helped push Prop 8 through but collapsed on their own cruel casuistry soon after. Anti-gay holdouts may claim that their only qualm with gay marriage is the marriage part. But they know, deep down, that their true objection lies in state recognition of gay relationships.

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How do I know this is true? Because the people who oppose legalizing gay marriage today were the exact same people who opposed legalizing gay intimacy a decade ago. The goal—obstructing any and all legal protections for gay people—hasn’t changed. What’s changed instead is the rhetoric. As Yale law professor William N. Eskridge wrote, the protean case against gay marriage displays a remarkable “mobility of justification”: Once activists realized their openly anti-gay arguments were failing, they shifted to some vague notion of a “public interest” in barring gay couples from marriage.

This new tactic achieved some success because it seemed to have some logical limiting principle: Suddenly, gay marriage opponents weren’t against gay rights as a whole, but simply one plank of the gay rights platform. This posturing, however, was always a feint designed to make the anti-gay case seem more palatable and less brazenly discriminatory. It’s simply sophistic to insist that the Constitution protects gay people’s right to be in intimate relationships but then draw an arbitrary line at state recognition of such relationships.

Renowned Stanford law professor Pamela Karlan grasped this problem soon after Lawrence v. Texas, the same-sex sodomy case, was announced. If you accept that the 14th Amendment’s guarantees of liberty and equality protect gay people in any way, you’re bound to believe they protect the fundamental liberty to marry. Florida State University law professor Courtney Cahill echoed this idea more recently, astutely noting that Lawrence “stands for the proposition that the state may no longer use the law to treat gays and lesbians in demeaning ways because of [their] conduct.” Once the state recognizes and respects any facet of gay relationships, in other words, the battle is essentially over, and some crudely drawn dividing line between gay intimacy and gay marriage must be recognized as inherently capricious

The next time you hear someone argue against gay marriage, then, just ask them whether they agree with Lawrence that same-sex intimacy cannot constitutionally be criminalized. If they don’t like Lawrence, ask them why—and prepare yourself for the jumble of anti-gay drivel that proceeds to flow forth. Conservative thinkers may try to disguise their animus in lofty euphemisms, but the case against gay marriage will always, at heart, be the case against gays. We shouldn’t criticize the Texas GOP for admitting as much. We should laud them for admitting what their intellectual brethren are too cowardly to say. 

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

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