We go now to Houston, Texas, where a referendum on a piece of anti-discrimination legislation resulted in the bill’s being defeated nearly 2-1 to by voters. The law, dubbed “HERO” (Houston Equal Rights Ordinance), was written to create broad sweeping mandates for all businesses, housing, and public accommodations pertaining to gender identity and sexual orientation. Under the law, for example, a business or a school could not prohibit a transgendered woman (born biologically male but identifying as female) from entering a women’s restroom.
The law’s critics complained–quite reasonably– that such a far-reaching act would 1) undermine the conscience rights of business owners and other individuals who had objections to such practices and 2) potentially create vulnerable situations that could be exploited by predators, particularly when it came to younger children in schools. The first concern was pretty blatantly justified last October when the city’s mayor, Annise Parker, subpoenaed sermons and other communiqué from local clergy who had criticized the law. Parker was sharply rebuked in many corners for the audacious move (she soon backed off), and in hindsight, one could probably infer the controversy played a significant role in solidifying opposition to the mayor’s bill.
But that’s not a satisfying explanation to editorial board of The New York Times. In a blistering, furiously angry editorial, the Times condemned Houston’s voters as “haters” and warned that “the bigots are destined to lose,” further predicting that the politicians opposed to the bill, including governor Greg Abbot, would be “remembered as latter-day Jim Crow elders.” Other progressive publications echoed the Times sentiments (though none that I saw achieved the theocratic sanctimony that the Times did).
Now what’s fascinating about all of this is that we are seeing, clearer than ever before, the kind of intense internal transformation that has happened inside American progressivism. It’s no small thing for The New York Times to call a plurality of Houston’s voters bigots and modern day segregationists if the city were refusing to sign marriage certificates for same-sex couples. But nothing like that is happening. Instead, the Times calls down fire from heaven because the city doesn’t see the benefit of a far-reaching, dubiously enforced bill that potentially eliminates any and all meaningful public distinctions between the sexes; not to mention that nearly identical laws elsewhere have been used to strip florists and bakers of their businesses.
Houston’s ERO clearly legislated a specific, very progressive sexual morality, a morality that goes far above and beyond the United States’ admitted leftward pilgrimage on issues like homosexuality and same-sex marriage. There are many liberally-minded people in the country, friendly to the idea that a man or a woman should be able to marry whomever they desire, who nonetheless balk at the idea that restrooms and public showers should take no opinion on a patron’s genitalia.
The failure of the current generation of liberals to recognize the existence and validity of this middle ground is a remarkable shift for American progressivism. It’s remarkable because it is precisely the opposite of the argument that the architects of Obergefell, like Andrew Sullivan, pioneered. Sullivan’s “conservative case for gay marriage” was not predicated on the idea that gender is ultimately an issue of self-determination and that culture must acquisese or become oppressive. Rather, Sullivan’s case was the opposite: People are born with affection and desire for people of the opposite sex or their own sex, and in either case, marriage is a stabilizing, socially constructive outlet for that desire in a way that promotes the family unit.
Now of course, I didn’t and don’t find Sullivan’s conservative case for same-sex marriage compelling. But its truthfulness is beside the point. The point is that we are hardly a decade separated from an articulation of liberal sexual ideology that assumed the very concepts of cultural permanence and cross-political values that today’s progressives decry.
To put it another way: In the span of two presidential terms, liberalism has been transformed from a fight to widen the margins of culture to a fight to close them up. It’s particularly sobering to see the transformation in light of what justice Anthony Kennedy said in the majority opinion of Lawrence vs Texas, the landmark 2003 case that ruled state sodomy laws were unconstitutional. Kennedy’s words are remarkable:
The condemnation [of homosexual behavior] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code…”
The question for today’s liberals is simple: Does Justice Kennedy’s articulation of liberty for all apply to those outside the Obergefell/ERO arc of history, or does it not? Are people who believe things about marriage, sexuality, and gender that President Barack Obama said only five years ago he believed entitled to meaningful public protection from current majoritarian values, or are they not? When Lawrence and Texas have switched places in the courtroom, what happens?
It’s difficult to see what the long term result of this radical evolution of American liberalism will be. There’s evidence of solidarity and strength, and the leftward leaps of the Democratic Party have helped smoothen liberalism’s ride. On the other hand, the debacle that seems to be unfolding on the campuses of American universities suggests that this new progressivism has some self-destructive tendencies. It may be that in the quest to finally stamp out the remnant opposition to the Sexual Revolution, liberalism will end up biting the hands that feed it.