Note: This is the first in a series of articles detailing The Battle for Measure 9 and its significance in the history of the culture war.
The Battle for Measure 9. The Historical and Cultural Context, Part One.
Thirty years ago, on Nov. 3,1992 (the day Bill Clinton was elected president), the people of Oregon voted on Ballot Measure 9, the “No Special Rights Act,” which would have amended the Oregon constitution to prohibit the state from adding “sexual orientation” as a basis for civil rights minority status and prevent homosexuals from illegitimately gaining the legal, political and social entitlements that came with it.
Measure 9 was a world-class political slug-fest and the first truly major battle of the LGBT culture war following the Bowers v. Hardwick ruling of the U.S. Supreme Court (SCOTUS) in 1986. Bowers had affirmed the constitutional right and power of states to regulate sexual conduct in the public interest, specifically homosexual sodomy. That was a massive setback for the “gay liberation” movement because Bowers represented the culmination of a nearly four-decade-long LGBT strategy to gain constitutional protection for homosexual conduct as a “privacy right” under the Due Process clause of the 14th Amendment.
SCOTUS had long before interpreted the 14th Amendment to prevent state governments from infringing on “fundamental rights” and had expanded what constituted “fundamental rights” beyond those enumerated in the Constitution to include other “rights,” such as “privacy,” IF they could be shown to be “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”
The “father” of the “right to privacy” was Justice Louis Brandeis, the secularized Jewish Marxist son of “heretical Sabbatean” Frankist (anti-Torah) parents who believed their religious duty was to “transgress as many moral boundaries as possible.” Brandeis co-authored an 1890 article in Harvard Law Review “widely regarded as the first publication in the United States to advocate a right to privacy, articulating that right primarily as a ‘right to be let alone.'” And he was made an associate justice of the Supreme Court by Woodrow Wilson in 1916 where he advocated relentlessly for its adoption as constitutional law.
While there are many aspects of the right to privacy that promote and affirm benign and civilization-enhancing human rights, there was a darker side that reflected the Frankist mindset. When finally it was embraced intellectually by SCOTUS as a fundamental right, “privacy” became the primary vehicle for advancing a Frankist and Marxist “social justice” agenda pursuing sexual anarchy through judicial activism, most famously in the landmark case first adopting the “right to privacy” as law: the 1965 Griswold v. Connecticut case (contraception on demand for married couples). It was dramatically expanded in the recently overturned 1973 Roe v. Wade decision (judicially legislating abortion on demand).
But the political driving force behind the “right to privacy” as a vehicle for social engineering had since at least the 1940s been the “gay liberation” movement led by the first lasting homosexual rights organization in America, The (Marxist) Mattachine Society (founded in 1950 by Marxist pederast Harry Hay). It’s goal and vision, as articulated by early Mattachine leader Dale Jennings was, tellingly, to promote “the right to be left alone.”
That in a nutshell is the legal and historical background of how and why Bowers came before the court in the 1980s.
However, Justice Byron White’s 5-4 majority opinion in Bowers soundly slammed the door on the LGBT “right to privacy” strategy. White, a Catholic JFK appointee and perhaps the last truly conservative Democrat on the court, left no room for doubt, declaring emphatically “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” A strong concurring opinion by Chief Justice Warren Burger cited the “ancient roots” of prohibitions against homosexual sex, quoting William Blackstone’s description of homosexual sex as an “infamous crime against nature,” worse than rape, and “a crime not fit to be named.” Burger concluded: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
Devastated, the armies of homosexual and Marxist activists retreated to their war rooms. After Bowers, they needed an entirely new strategy. They pivoted quickly from Due Process to their best alternative legal track and political theme: that homosexuals should be constitutionally protected as a civil rights minority under the Equal Protection clause of the 14th Amendment.
That juridical path had been opened in the Eisenstadt v. Baird (1971) case, granting to single people an access to contraception on demand which had been limited to married couples in Griswold. Importantly, by basing this new “right” in “equal protection” instead of “privacy,” the court didn’t just create a separate path to “gay liberation,” it utterly demolished the legal and moral distinction between sex in marriage vs. fornication. It was perhaps the first and most consequential example of false equivalence in the reasoning of the court on sexual issues.
But this separate path faced separate hurdles. To be granted special civil rights protections and benefits under the Equal Protection clause, a group had to be formally recognized as a “suspect class,” which category included only “discrete and insular minorities” determined by “a variety of factors, including but not limited to whether the person has an inherent trait, whether the person has a trait that is highly visible, whether the person is part of a class which has been disadvantaged historically, and whether the person is part of a group that has historically lacked effective representation in the political process.”
In practice, it boiled down to a three-part test: 1) a history of social discrimination, 2) an immutable condition, and 3) political powerlessness.
The post-Bowers strategy thus centered on a national propaganda and social engineering campaign that was outlined by key LGBT strategists in an astonishingly frank 1987 Guide Magazine article titled “The Overhauling of Straight America” – which was later re-framed and rephrased in a more typical euphemistic style in the book “After the Ball: How America Will Conquer Its Fear and Hatred of Gays in the 90’s” (1990).
Neither the elements of the legal test nor the ultimate goal of eventual legal victory at SCOTUS were mentioned in the article, but the campaign it launched was designed to convince lawmakers and the public that homosexuals met the elements of the test.
The cornerstone of the new strategy was the “born gay” hoax, which I will address in my next installment: The Born Gay Hoax.