Tuesday, July 15, 2003

Righits & Reason: 'Repulsing the right'

Rajeev Goyle, ACLU staff attorney, is glad the Supreme Court affirmed the use of racial preferences in America. In the process, he takes a cheap shot at CAC. In the Baltimore Sun, Goyle wrote:

Thankfully, common sense and mainstream values prevailed in the Supreme Court.

On issues of enormous social importance - most notably decriminalizing the lives of millions of gay Americans and protecting affirmative action in higher education - the court recognized that our nation's commitment to fundamental equality for all Americans cannot, and will not, be turned back.

In doing so, the court confirmed how plainly out of touch social conservatives are with the way most Americans lead their lives. With millions of dollars to shape public perception and litigate relentlessly, a small band of conservative activists have for too long misled the public and the media into believing they represent a much larger constituency than they actually do.

Consider the court's sweeping opinion striking down Texas' discriminatory sodomy law. Most Americans feel the government should not criminalize consensual sex (a May Gallup poll put the number at 60 percent). The last 20 years in particular have seen a steady expansion of social acceptance of homosexuality, as state sodomy laws have fallen like flies and gays have assumed leadership positions nationally. And July 2, Wal-Mart, the nation's largest private employer, adopted policies forbidding discrimination against gay employees.

Yet social conservatives, never reluctant to impose their morality on others, were apoplectic after the decision. Led by Justice Antonin Scalia's spiteful dissent, they predicted the swift legalization of bigamy, prostitution and incest (and most bizarrely, the spread of "man on dog" relationships, as expressed by Republican Sen. Rick Santorum of Pennsylvania three months ago).

The challenge to the University of Michigan's affirmative action policies was perhaps an even more galling example of conservative chutzpah.

The plaintiffs, represented by a small organization called the Center for Individual Rights and backed by an echo chamber of think tank activists, convinced many that mainstream Americans opposed affirmative action. A quick glance at the list of supporters of Michigan's policies puts the lie to that misguided notion.

Dozens of Fortune 500 corporations, virtually all prestigious private and public universities, half the states, countless professional organizations and that bastion of liberal activism, the U.S. military, filed briefs expressing their support for diversity in higher education. Opinion polls reveal a solid majority support "special preferences" for qualified individuals, according to a Pew Charitable Trusts survey in March.

So who, aside from President Bush, supported the plaintiffs? Florida and a handful of organizations such as the Center for the Advancement of Capitalism, an outfit that might have a prickly time at its next board meeting defending its opposition to the Fortune 500.

Lesser-publicized decisions also demonstrated the court's unwillingness to capitulate to the extreme right wing of the conservative movement.

In the face of widespread concern over unfairness in the administration of the death penalty, the court strengthened the requirement that capital defendants receive an effective legal defense. And in upholding the applicability of the Family and Medical Leave Act to state employees, the court recognized that women have long suffered workplace discrimination when deciding between children and a career.

As expected, the right is not going gently into that good night. The New York Times reported that conservative activists reacted with "white-hot fury" to the court's decisions and have pledged to continue their legal assault.

But it is difficult to imagine how they can expect to win given that they failed with this deeply conservative court, which has redefined the standard for judicial activism and results-oriented decision-making (think Bush vs. Gore).

Singed by the bitter disappointment of finally reaching the endgame in their lengthy quest to reverse gains for racial minorities and gays, and then badly losing, these activists are now calling for the heads of Justices Sandra Day O'Connor and Anthony M. Kennedy, who had the temerity to dissent from the reactionary playbook of the conservative right.

The vast majority of Americans are not consumed by the private desires of consenting adults and the mechanics of university admissions. It is time conservative activists realize the game is up. It is also time the rest of us realize that, despite the loud voices and aggressive tactics of those who wish to stop progress in its tracks, mainstream American values are our values.
It is interesting how Goyle switches from condemning “social conservatives” to all conservatives in the space of 700 words. Goyle attempts to make a thin distinction between different positions within the right, but in the end, he treats the right as a monolith that ought to be reflexively opposed. And it’s also interesting how Goyle (rightfully) applauds the protection of the individual rights of gays in the enjoyment of their sexual capacity, but not the individual rights of citizens to be treated equally under the law when seeking access to government educational services. Apparently, as long as you are a member of a group Goyle considers to be maligned, you merit protection, if not outright license to run roughshod over your neighbors.

Goyle’s position is not based on a thoughtful understanding of rights, but a reflection of the same old pressure group tactics that has plagued human relationships from caveman days onward. Only individuals have rights, not maligned groups. Rather than jump for joy about the Court’s decision in the University of Michigan case, Goyle ought to step back and recognize that the Court has just created an arbitrary boondoggle that uses race as a standard in gaining access to government services. That standard ought to repel any honest person on its face.

Yet instead, Goyle coos about opinion polls that justify his support for race-based decision making—and there he reveals his hand—Goyle’s thinking is without principle. Goyle works for an organization that claims to defend civil liberties, but his article in the Sun reveals why the ACLU is utterly inconsistent and unreliable in that mission. What guides them? It does not seem to be the principle of individual rights and equality under the law.

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