Would the right accept a gay Supreme Court justice?

Conservative groups say sexuality wouldn't, by itself, be a reason to oppose a nominee.

By Alex Koppelman

Published May 8, 2009 6:20PM (EDT)

There appears to be a real possibility that President Obama's first nominee to the Supreme Court could, if confirmed, be the court's first openly gay justice. (For the record, given the administration's hesitation about moving forward on repealing Don't Ask, Don't Tell, and its reluctance to exacerbate what could already be a bruising fight, I'm not sure it's that likely, but it's at least possible.)

So a lot of people are asking social conservatives whether they'd oppose a nominee solely for their sexuality, and there's a big deal being made out of the most common answer: No. Peter Sprigg of the Family Research Council, for instance, told Greg Sargent that homosexuality should not be a "determinant" in deciding whether to oppose a nominee, and said, "We don’t think that the process of selecting a Supreme Court justice should include asking questions about a person’s personal sex life. But if a person does publicly identify as gay or lesbian, or particularly if a person has been involved with homosexual rights activism at any level, then there would have to be serious questions asked about whether he or she would impose a pro-gay ideology on the court.”

That does appear to represent a slight shift in the FRC's position. In 2006, Sprigg told USA Today, "We don't accept that homosexuality is any kind of cultural identity that should be sought in a judge. We think it's a behavior, not something that should be held up as a role model."

Still, I'm not sure why people are so surprised that conservative groups are taking this position publicly, and I don't think it's that significant. Yes, it might be a sign of Americans' increasing tolerance towards homosexuality, but that's not that recent of a development. And even when there was less acceptance, taking a public stance against a nominee solely because of their sexual orientation wouldn't have been a good move. Americans generally like to believe we're less intolerant as a country than we actually are, and never respond well to outright bigotry, even when they might otherwise sympathize with the prejudices being expressed.

Besides, as Sargent himself observes, there's little chance that social conservative groups will back anyone Obama chooses, regardless of their sexuality. So there's good reason to stake out this position now -- that way, if the eventual nominee is gay, they can say their opposition isn't solely about who they are as a person but the way they'd perform on the bench.

Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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