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The Right's New Sound Bite

By Dr. John D'Emilio Director, NGLTF Policy Institute

Homophobia is an everchanging foe. It shifts its form as society changes and as our movement progresses. Forty years ago, homophobia expressed itself through massive police harassment. Raids of lesbian and gay bars were common fare in U.S. cities; sometimes hundreds of folks were arrested on a single night in a single city. Today, police harassment hasn't stopped, but it is no longer the primary way we experience a lack of personal safety. Instead, homophobia displays itself through hate-motivated violence randomly directed at gay, lesbian, bisexual, and transgendered people.

Similarly, the content of political homophobia shifts with the changing political landscape. In the first half of the 1990s, the right wing coined the message of "special rights" as a way of rousing their forces and creating confusion among the many well-meaning Americans who ought to be our allies. "Special rights" was employed in support of antigay ballot measures in Colorado, Oregon, and Maine. It was used to drive a wedge between our movement and the African-American civil rights community. It played upon irrational fears of a powerful "homosexual lobby" trying to win extra privileges for itself.

"Special rights" hasn't vanished entirely, but the failure of the ballot initiative tactic, especially in the wake of the Romer decision, has weakened its effectiveness. But not to worry. Right-wing ideologues are hard at work refining new slogans designed to confuse Americans and inflame the passions of their constituents.

What's their newest one? "Judicial tyranny."

I started noticing it a year ago as the political campaign season was beginning. Republican candidates, from Dole to Buchanan, threw out the phrase now and then. But in the wake of Judge Kevin Chang's historic ruling in the Hawaii same-gender marriage case, the slogan has become a mantra. In a recent debate on CNN about the decision, Andrea Sheldon of the Traditional Values Coalition repeated it again and again. Each time her arguments were successfully challenged, she came back with "judicial tyranny." I expect we'll be hearing more of it.

As used by the right wing, "judicial tyranny" is an especially dangerous political idea. It is much more than a weapon of homophobia. It attacks the very foundations of our political system, threatening the democratic rights and freedoms that make dissent possible.

The U.S. Constitution rests on a system of checks and balances. Three branches of government--a legislature, executive, and judiciary--are each given different powers, so that no one part of the government can amass too much power. The federal system has been copied by each of the fifty states.

Why did the framers of the Constitution do it this way? For two reasons. First, they had just fought a war against colonial rule, in which they felt themselves subject to tyrannical rule at the hands of the King's appointed officials. So, they wanted to make sure that power was spread between an executive and an elected legislature. Second, they worried about the destructive effects of popular passions. They created checks and balances, and especially a judiciary designed to comment on the constitutionality of laws, because they were most concerned about the tyranny of the majority!

In other words, the judiciary exists precisely as a check against the will of the majority, when the majority threatens constitutional rights and privileges. Its role, in part, is to make sure that the rights of unpopular minorities are not trampled upon by a majority whose prejudices have been inflamed. So, when judges do something like overturning a law or a ballot measure supported by the majority of voters or elected officials, they are not behaving like tyrants. They are doing their jobs.

"Judicial tyranny" as a concept is insidious. It creates a climate of hostility toward the proper workings of our Constitution. It makes judges the target of popular anger, and indirectly attempts to intimidate them. It builds support for efforts at the state level--and even nationally--to call a constitutional convention or recklessly amend the constitution which, in the context of the extremist right's current power, is truly frightening.

"Judicial tyranny" is politically shrewd. It has the power to weld together religious extremists and political conservatives; it speaks to resentments about race, gender, and sexual identity; it appeals to a business community annoyed by judicial decisions that protect the environment.

The slogan "judicial tyranny" is also hypocritical and cynical. Right-wing conservatives claim to speak in defense of tradition. But there is hardly anything more traditional in the United States than the independence of our judiciary.

So, when you hear the phrase, don't let it slip by. Recognize it and expose it for what it is: the latest right-wing sound bite, designed to confuse, manipulate, and mobilize.

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