I don’t normally discuss political things and there’s nothing sexy about this post at all – I may end up deleting it. I’ll try not to sound too alarmist here but with the recent decision from the Supreme Court overturning Roe v Wade, and a more hard-right turn that the country seems to be taking, I do wonder about the future of things like same-sex marriage, public crossdressing, and online porn. I totally get it that abortion is a highly emotional issue and that some of you reading this blog likely are in favor of the Court’s decision. My own opinion on abortion isn’t the point here, though it’s probably not hard to guess. And I’m not here to change anyone else’s opinion, which is a fool’s undertaking anyway. But I do wonder what’s next.
Following Roe, same-sex marriage is the right that seems most at risk. Clarence Thomas has already said that he’d like to revisit those rights that fall under the so-called “Substantive Due Process” principle – same-sex marriage, sodomy laws, contraception and so on. Tellingly, as many have pointed out, he left out interracial marriage, which also would fall under that same principle. It wouldn’t surprise me at all if gay marriage gets overturned in the next few years, maybe even as soon as next year. In fact, if the issue were revisited, I would expect it to be overturned unless Brett Kavanaugh doesn’t vote with the conservative bloc on the Court. I wouldn’t put any faith in that prospect, though he has been a little quieter apparently than some of the other Justices on the issue.
If same-sex marriage goes, and even if it doesn’t, there will almost certainly be a greater increase in gay bashing and violence against LGBTQ people, which is already on the rise. And it also wouldn’t surprise me at all if some more conservative states try to pass bans on public crossdressing under the pretext of “protecting the children.” I’m in California so unless things dramatically fall apart that’s not going to happen here. As crazy as it sounds, an attempted ban on public crossdressing would be a great issue to stir up the outrage machine which powers so much of our politics today. And it would just make sense to go after the trannies if you’re an uber conservative politician or member of a state legislature – it would play into the culture wars and there would be no downside to it. Obviously, such a ban would be a nightmare for trans and gender non-conforming people and for human rights in general. It would be a crazy idea, but it wouldn’t surprise me in our current climate.
And finally, online porn seems like another inevitable target if you’re in a conservative state. An outright ban would be very tough considering the First Amendment’s right to Free Speech, but it’s an idea that always has some traction. There is a story – and I honestly don’t know how accurate it is – about a big anti-porn push that the George W. Bush administration was going to introduce, set to be announced on September 11, 2001. Of course history had other plans.
The easiest way to target online porn is to put pressure on the credit card companies to drop porn websites under whatever pretext. It’s what happened to the old Insex.com website, where the Department of Homeland Security apparently talked to their billing company and said they suspected that Insex was involved in money laundering for terrorists, which was of course total bullshit. But they shut ’em down just like that.
Again, with me being in California it’s unlikely that a website like mine would ever be targeted but again it’s an issue that I always keep an eye out for. I hope that everything I’m saying is just alarmism and that none of this will come to pass, though at the same time many many people thought that Roe would never be overturned, that it was “settled law,” as many of the Justices who voted against it said themselves. We shall see.
I never dreamed I’d see an erosion of liberties like this in my lifetime, but the religious right has been driving this agenda since Regan. They’re playing a long game, and they are relentless, an implacable foe that more progressive people can’t seem to generate the angst needed to fight. We just want to live and have choices, one group wants to control what people do and think. It’s always been that way, and if you look at our history it’s been much worse. It also goes in cycles, but again, they’re long cycles and we might be in for a long, ugly bump here.
Justice Thomas was not calling for wholesale overruling of the rights listed in the blog. In his concurrence he renewed a criticism of the court’s reliance on the “due process” clauses of the Fifth and Fourteenth Amendments in declaring substantive rights. He has called it oxymoronic to find such rights in clauses requiring procedural regularity. Thomas believes and argues that substantive rights emanate from substantive provisions of the Constitution, to wit: the privileges or immunities clause. The result in the listed cases would come out the same only the methodology changes.