JB

There has been considerable discussion about Justice Scalia's accusation that the Lawrence majority had signed on to "the so-called homosexual agenda." I believe what has irked some people is that the expression "the homosexual agenda" has a history. It is a form of code often used by Jesse Helms and other social conservative politicians to whip up resentment against moderates and liberals who support gay rights. The use of the term "homosexual agenda" has been a shrewd way of intimating without overtly stating that people who supported gay rights were somehow disloyal to the country (like the hidden communist agenda) because they were assisting in the destruction of America by destroying its moral fibre, or extremist, because they supported a deeper, hidden agenda whose real goals cannot be openly announced and are instead disguised in the plausible sounding garb of equal rights.

Here's a representative quote from Sen. Helms in support of a bill he introduced to roll back President Clinton's executive order prohibiting discrimination against gays in federal employment:

Mr. President, for many years the homosexual community has engaged in a well-organized, concerted campaign to force Americans to accept, and even legitimize, an immoral lifestyle. This bill is designed to prevent President Clinton from advancing the homosexual agenda at the expense of both the proper legislative role and the free speech rights of Federal workers.

From the standpoint of constitutional theory, what is interesting here is the extent to which such rhetorical appeals have any place in a Supreme Court decision. If Justice Scalia began speaking in code in a case involving race relations, one assumes he would be roundly condemned. But the social movement for gay rights has not won out in the same way that the Civil Rights Movement has. (As Trent Lott recently learned. Remember that Lott also said that gays were mentally ill like kleptomaniacs, and he wasn't thrown out of the Senate Majority Leader's position for saying *that.*).

If, as I suspect, in the long run, homosexuals are going to gain legal protection by legislatures and courts from most forms of discrimination, Scalia's accusation that the Court is marching to the tune of the homosexual agenda and Lott's equation of homosexuality with kleptomania will take on a very different cast for future generations. In the meantime, however, my prediction is that we are going to see a lot more code talk about gay rights in the future precisely because gays are gradually winning the battle for equal rights, and so the most overt forms of name calling and hate mongering won't be permitted. It will no longer be permissible to call Barney Frank "Barney Fag," as former House Majority Leader Dick Armey once did. Rather politicians will have to say that Representative Frank has worked all his life to promote the radical homosexual agenda that is slowly destroying America from the inside.

Finally, although many people are quite annoyed at Scalia's reference, my own view of what Scalia was doing is that he was simultaneously using this form of code and distancing himself from it through irony. He is well aware of what the words "homosexual agenda" mean when they are invoked by social conservatives. That is why I think he used the prefix "so-called."