H Howell Williams. New Political Science. Volume 40, Issue 2. June 2018.
Introduction
On the issue of gay rights, today’s social conservatives are more likely to describe their opposition as a matter of religious freedom or personal conscience as opposed to a belief that gays and lesbians represent an existential threat to the traditional family. But how new is this contemporary argument, and how different is it from the family values politics of the previous era? This article develops what Victoria Hattam and Joseph Lowndes call “associative chains” from two important moments in anti-gay politics: Anita Bryant’s Save Our Children campaign and Kim Davis’s decision to not issue gay marriage licenses in Rowan County, KY. On one level, these moments reveal competing roles of the state in the lives of its citizens. Family values politics authorized an interventionist state for the protection of children, while religious freedom defenders promote a zone of personal conscience impervious to the state. On another level, however, these moments reveal the mutability of social conservative opposition to gay rights. Calls for protecting religious freedom preserve a heterosexism derived from antecedent family values politics. The novelty of religious freedom as a defense for homophobia obscures a persistent social conservative commitment to using the state to enshrine the heteronuclear family.
Conservative opponents of gay rights found a champion in Kim Davis, an unassuming county clerk from Kentucky. Davis became the paragon of anti-gay conservatism when she was briefly jailed for refusing to issue marriage licenses to gay couples after the 2015 Supreme Court decision in Obergefell v. Hodges, which legalized same-sex marriage. Davis justified her decision through references to her religious beliefs. To her defenders, Davis being put behind bars was evidence of a tyrannical government that infringed on the religious rights of its citizens to enforce a decision handed down by five unelected judges.[ 1] The episode demonstrated a change in social conservative opposition to gay rights, however. In a previous era, social conservatives justified their position by portraying gays and lesbians as threats to children and the nuclear family. Perhaps more than any other activist, Anita Bryant epitomizes the social conservative depiction of gays and lesbians as anti-family. Bryant’s 1977 Save Our Children campaign sought to remove protections for homosexuals in Dade County, Florida, by portraying those protected by these laws as an existential threat to children and families. Whereas previous conservatives like Bryant were chiefly concerned with promoting “family values,” today’s anti-gay conservatives like Davis are more likely to stress protecting religious freedom.
The discursive shift from family values to religious freedom provides a useful metric for comprehending change in contemporary conservatism and determining just how “new” the defense of religious freedom actually is.[ 2] In what follows, I develop what Victoria Hattam and Joseph Lowndes call “associative chains,” or “the linkages or associations at work within the discursive field,” from these two moments of opposition to gay rights.[ 3] Bryant’s 1977 Save Our Children Campaign and Davis’s 2015 refusal to issue gay marriage licenses in Rowan County, KY, provide analytical leverage on the ideological content of conservative politics. By unraveling the elements of conservative discourse, I argue that the recent embrace of religious freedom rests on a narrow conception of liberty as noninterference for a particular ideal unit of citizenship: the Christian heterosexual family.[ 4] Thus, despite its appeal to universality, the discursive shift from family values to religious liberty belies an enduring conservative commitment to the “traditional family” and its attendant norms of gender and (hetero)sexuality.
Both of these moments prefigured tectonic shifts in American electoral politics: Bryant and the 1980 election of Ronald Reagan, Davis and the 2016 election of Donald Trump. These episodes provide what sociologist Bent Flyvbjerg calls “paradigmatic cases,” or “cases that highlight more general characteristics” of American conservatism.[ 5] The conservative activism inspired by Bryant and Davis “operate[d] as a metaphor and … function[ed] as a focal point for the founding” of iterations of social conservative ideology.[ 6] As we will see, comparing these cases complicates the observation that religious freedom arguments are merely a new iteration of family values discourse. Conservatives during these moments rearticulated formulations of freedom and the appropriate role of the state. Family values champions demanded proactive government intervention on behalf of innocent children, whereas defenders of religious liberty argued for a zone of personal freedom cordoned from government intervention. These claims represent opposing governing imperatives, echoing Isaiah Berlin’s famous distinction between positive and negative liberty.[ 7]
For Berlin, people are free in a negative sense when they can act without impediment from others. Negative liberty refers to an “area within which a man can act unobstructed by others” cordoned by “a frontier … drawn between the area of private life and that of public authority.”[ 8] This spatial definition is illustrative, as defenders of negative freedom criticize actions that breach a person’s inviolable zone of freedom. Whereas negative freedom is a statement about the rights and responsibilities of others, positive liberty refers to rights and responsibilities of the self, that is, the desire for self-government, or “the wish on the part of the individual to be his own master.”[ 9] Impediments to self-mastery abound, however, preventing the individual from recognizing her “true” interests. For this reason, the pursuit of positive liberty authorizes some degree of intervention into the private realm of the individual in order to “coerce men in the name of some goal … which they would, if they were more enlightened, themselves pursue.”[ 10] As a governing imperative, positive liberty provides justification for the state to intercede into the lives of its citizens to improve their capacity for self-government. Negative liberty, by contrast, establishes a personal zone of freedom in which the state must not act, regardless of the consequences on the individual. In the context of anti-gay discourse, Anita Bryant’s Save Our Children campaign seeks an activist state that will intervene into the lives of gays and lesbians in the name of protecting children. Kim Davis and her defense of personal conscience recalls negative liberty’s defense of a zone free from coercion.
In spite of these analytical differences rooted in competing claims about the role of the state, the shift from family to freedom belies an enduring commitment to the preservation of the heteronuclear family at the expense of gays and lesbians. Nancy Hirschmann’s feminist analysis of freedom is useful for thinking critically about the ways that defenses of negative liberty tend to leave existing power structures uninterrogated. “Because all meaning requires context,” Hirschmann writes, “and because contexts are created through social interaction and not individual will, negative liberty’s ‘individualistic’ approach implicitly requires a dependence on existing patriarchal contexts.”[ 11] Rather than cut from a new cloth, contemporary anti-gay arguments for protecting religious freedom are conditioned by earlier family values politics. Gay rights advocates successfully pushed back against family values arguments by portraying gays and lesbians as members of families in their own right. As a result of this successful reconfiguration, social conservative depictions of gay people as afamilial lost political salience. Placed on the back foot by warming public opinion on gay rights, social conservatives modified family values politics into an argument about the sanctity of religious freedom.
Sexuality and/in American Political Development
The Bryant/Davis comparison highlights the role of sexuality in conservative ideological development, contributing to a burgeoning and diverse literature on the relationship between feminism, family, and the state.[ 12] Despite what Barry L. Tadlock and Jami K. Taylor describe as an “explosion in lesbian, gay, bisexual, transgender, and queer (LGBTQ)-related political science research,” much of this scholarship remains clustered in a handful of disciplinary areas such as public opinion, legal studies, and public policy.[ 13] In the study of American political development (APD), discussions of sexual identity are often folded into larger analyses of shifts in norms of family life, especially in the second half of the twentieth century. Gwendoline Alphonso argues that over the past four decades the family “has become the very policy subject through which the boundaries of state and society are established,” and political historians have recently begun exploring the specific influence of fears of familial breakdown on the development of late twentieth-century American conservatism.[ 14] By the late 1990s, Seth Dowland writes, family values was an umbrella term comprising “opposition to abortion, gay rights, and major feminist objectives.”[ 15] While analytically expedient, such collapsing of sexuality into a larger thesis of conservative backlash obscures changes in the particular discursive registers through which conservatives have articulated anti-gay sentiment over time. As conservatives increasingly frame their opposition as religious freedom, focusing solely on family becomes insufficient for conceptualizing contemporary anti-gay thinking.
The Bryant and Davis episodes represent different associative chains in a “discursive regime” of anti-gay social conservatism.[ 16] The production of associative chains entails an act of political creativity, as discursive regimes rely on associative chains constructed from cultural elements. Ernesto Laclau and Chantal Mouffe portray discursive change as the combination of disparate components to create new meanings and alter the meanings of the components as well, a “practice establishing a relation among elements such that their identity is modified” in the process.[ 17] In this way, discourse is rarely constituted from entirely new elements. The task is to revisit moments of what Laclau and Mouffe call “articulation” in order to understand how social phenomena acquire relatively stable identities and how the components’ meanings are altered in the process.[ 18] The ostensible coherence of a given discursive frame belies the agential work of suturing necessary for the production and maintenance of associative chains. Hattam and Lowndes observe that “agency and formative change lie in [acts] of recombination, in the rearrangement of often disparate social and ideational fragments into vital associative chains.”[ 19] A discursive regime presents a given political problem in a particular way by forging coherence out of the raw material of existing cultural components. In order for a regime to endure, it must adapt to a changing political environment, oftentimes by updating discursive associations or enacting new associative chains that can be “naturalized through widespread circulation.”[ 20] A regime reconfigures elements already at play in the general discursive repertoire as it seeks to publicize its goals, maintain political relevance, and win public favor. In order to understand the nature of a given discursive regime, we must attend to the components of that regime’s associative chains at particular moments in time. In the case of anti-gay discourse, family values and religious freedom represent different associative chains that are responsive to specific political moments. In this way, defenses of religious freedom are simultaneously distinct from and redolent of earlier family values politics.
Revisiting the moments when concepts achieve cultural coherence allows us to “denaturalize the prevailing associations” between political concepts.[ 21] The bulk of existing scholarship on associative chains uses race as its primary analytic. For example, Hattam uses associative chains to analyze moments of political creativity around racial and ethnic identities.[ 22] Lowndes’s work concerns the role of race in the formation of the New Right.[ 23] I share an interest with Lowndes and legal scholar Ken Kersch, who analyzes conservative narratives about the constitution, in denaturalizing conservative associative chains; but I depart from and contribute to their work by focusing on the role of sexuality in the development of American conservatism.[ 24] Constructing associative chains from conservative opposition to gay rights demystifies concepts like “family” and “freedom,” an essential task for making sense of contemporary conservatism. By decoupling and historicizing the constitutive links of these anti-gay associative chains, we can identify novelty and recurrence-indeed, novelty through recurrence-in conservative anti-gay politics.
“Homosexuals Cannot Reproduce—So They Must Recruit”: Anita Bryant’s “Crusade”
The associative chains linking the Republican Party and the traditional family have roots in mid-twentieth-century grassroots activism.[ 25] Public anger against government programs meant to address school segregation and gender inequality found a home in a Republican Party primed since the 1920s to be the receptacle of a certain brand of populist anger.[ 26] Along with issues of race and gender, sexuality was also an important aspect of the message of familial protection for the Republican Party in advance of the pivotal 1980 election.[ 27] The Stonewall riots in 1969 animated New York City’s gay community to fight back against police repression and make itself public. When, in the same year, National Organization for Women (NOW) president Betty Friedan described lesbians as a “lavender menace,” lesbians began to push for liberation beyond the terms offered by the women’s movement.[ 28] Gay men and lesbians became more public and politically engaged on their own terms, demanding cultural recognition and “taking delight in frightening staid America in the early 1970s.”[ 29] In contrast to future struggles that would be national in scope (such as raising awareness on HIV/AIDS or promoting same-sex marriage), gay rights campaigns tended to be predominantly local affairs; organizers sought to end discrimination by the police, overturn local anti-gay ordinances, and raise the visibility of gay communities in predominantly urban spaces.
Anita Bryant, a former beauty queen and corporate spokesperson turned anti-gay crusader, changed this localized dynamic by converting a Miami-Dade County bill to prevent discrimination against gays and lesbians into a national call-to-arms for evangelical Christians against the advance of gay rights. The Dade County (Florida) Council enacted a provision that would protect gays and lesbians from discrimination in housing, public accommodation, and employment in 1977. Bryant and other parents began mobilizing for a countywide referendum on the bill to eliminate “special privileges” for “known homosexuals.”[ 30] Buoyed by her national recognition as the face of the Florida Citrus Commission, Bryant became the spokesperson of the Save Our Children (SOC) organization, appearing on national talk shows and evangelical programs like The 700 Club and The PTL Club in order to spread her belief that gays and lesbians represented an insidious threat to the American way of life.[ 31]
Bryant wrote a letter to the county commissioners expressing her disapproval. “As a concerned mother of four children … I am definitely against this ordinance amendment,” she wrote. She continued:
[I]f this ordinance amendment is allowed to become law, you will, in fact, be infringing upon my rights as and discriminating against me as a citizen and a mother to teach my children and set examples and to point to others as examples of God’s moral code as stated in the Holy Scriptures. Also, you would be discriminating against my children’s right to grow up in a healthy, decent community that we’re proud to be a part of. If Almighty God is not the authority on morality, then who is?[ 32]
Bryant’s letter was emblematic of the anti-gay variant of family values discourse. First, Bryant centers her concern for “our children,” a racialized characterization with roots in efforts to resist bussing desegregation.[ 33] Conjuring the plight of children—or what Lauren Berlant calls “infantile citizenship”-is a persistent element in American political discourse.[ 34] The figure of the child provides a metaphor for the future, and by shunning reproduction, gay sexuality stands in opposition to this child-as-future paradigm.[ 35] Bryant’s references to children thus have a double meaning: a concern for her own children and an observation that gay people pose a more existential threat to the longevity of the American political project. Bryant telegraphed her rights as a citizen through her relationship as a mother, folding disdain for gay people into the care work of motherhood.
Second, and relatedly, Bryant petitioned the government for children’s protection. SOC utilized the figure of children as helpless victims of the sexual revolution. Activists spoke as concerned parents, and Bryant herself felt called upon to protect her own children as well as those in her community.[ 36] Bryant claimed that gays explicitly posed a threat because they sought to force children to adopt a homosexual “lifestyle.” “Homosexuals cannot reproduce—so they must recruit,” Bryant reasoned. “And to freshen their ranks, they must recruit the youth of America.”[ 37] In a pamphlet distributed to voters in advance of the referendum, SOC included newspaper headlines that demonstrated the depths of homosexual depravity: “Teacher Accused of Sex Acts with Boy Students”; “Why a 13-Year-Old Is Selling His Body”; “Homosexuals Used Scout Troop.” The cover of the pamphlet asked, “Are Homosexuals Trying to Recruit Our Children?”[ 38] This framing reinforced the sanctity of the family and promoted parenthood as a source of political agency.[ 39] Homosexuals posed an indirect threat to children, as well. Activists warned that gay teachers would both expose children to bad role models and put innocent children in the hands of pedophiles. The pamphlet warned: “If [a homosexual male teacher] were to show up in the classroom wearing a dress, that transvestite sexual behavior could not even be reprimanded by the school principal—because such a reprimand would violate the teacher’s ‘sexual or affectional preference!’”[ 40] Such a protectionist orientation leverages the figure of child-as-future to authorize state repression of gays and lesbians, recalling positive liberty’s justification of punitive force by the state in order to promote the common good. Berlin writes that positive liberty authorizes the state to “bully, oppress, torture [its citizens] in the name, and on behalf, of their ‘real’ selves[.]”[ 41] Rather than calling for a withdrawal of the state, family values conservatives pursued an expansion of state power in the realm of personal privacy via the figure of the innocent child in need of protection.[ 42]
Third, Bryant describes religion as a public calling to bring about God’s will, reflecting larger trends in evangelicalism in the 1970s. This evangelical discourse imbued the SOC campaign with a conception of religion as public duty. “The only way this terrible tide can be turned is if parents …. who feel that the fabric of society is being torn to shreds, will rise up and defend the moral principles we believe in,” Bryant believed.[ 43] In the letter to county commissioners protesting the ordinance, she wrote, “[God] provided His Word, not only as a guide to eternal life, but to everyday life as well. He tells us to raise our children in the nurture and admonition of the Lord. He tells our children to obey their parents and uphold the law of the land!”[ 44] For Bryant, religion serves a fundamentally public role rather than as narrowly as a guide for individual piety. This formulation reflects an outward-looking post-millennialist orientation prevalent among evangelical activists during this time period.[ 45] According to Moral Majority leader Jerry Falwell, the problems plaguing American society could not be solved by evangelicals remaining on the sidelines of American society. “Now is the time,” Falwell wrote in 1980, “to begin calling America back to God, back to the Bible, back to morality!”[ 46] This post-millenialist orientation imbues believers with a sense of divine calling. Bryant characterized her movement as a “crusade” that would spread to the highest levels of power in American politics.[ 47] Such a maximal concept of religion in the public sphere is consistent with the view among evangelicals at the time who saw expanding faith into politics as the key to correcting rampant cultural turpitude, a view of religion that effectively negates public reasonableness as a liberal virtue.[ 48]
Finally, Bryant articulates a defense of the traditional heteronuclear family as a zone of parental autonomy. Bryant’s portrayal of the ordinance as an affront to maternal prerogative depicts an image of parental autonomy wherein government action superseded familial autonomy, replacing parental prerogative with secular governmental will. Gwendoline Alphonso has shown how this religio-political view of autonomy reinforced the ideological constructions of the traditional family in an ascendant Republican Party.[ 49] Religious observations about the sanctity of the family recalled arguments against the tyranny of the federal government that had formed the backbone of Republican Party thinking for decades. Since the 1920s, Republican ideology embraced a view of the federal government as tyrannical, expansionist, and antithetical to the value of individual freedom.[ 50] In the context of SOC, the opposition to state interference also had roots in battles over school desegregation. Gillian Frank argues that Bryant’s discourse of parental autonomy resulted from a “migration of conservative ideas and activists from race-based conflicts to gender- and sexual-based conflicts.”[ 51] As actors like Bryant made the case for defending racially coded “traditional” values, they found influence in a Republican Party receptive to white resentment and supportive of the moralizing power of non-state institutions.
Political factors also played a role in connecting anti-gay activism and the moral imperative to protect the traditional family with the Republican Party. National delegates at the 1977 International Women’s Year (IWY) conference—a conference organized with federal taxpayer money—elected a platform that contained language supporting the right to sexual preference. This fusion of gay rights with women’s rights confirmed conservative critics’ accusation that the women’s movement was a veiled attempt to undo traditional gender roles.[ 52] The view that gays sought special treatment coalesced with other social conservative arguments, including opposition to the Equal Rights Amendment and the protection of prayer in schools, into a “pro-family” movement, a movement that the Republican Party courted in advance of the presidential election of 1980. Whereas the Democratic Party’s platform expressed governmental support for the family “in all its diverse forms,”[ 53] Republicans seized on conservative outrage over gay rights and the Equal Rights Amendment. Embedding their opposition to the recognition of gay rights in references to the IWY conference, the GOP platform expressed “support for legislation protecting and defending the traditional American family against the ongoing erosion of its base in our society.”[ 54]
Anita Bryant’s SOC campaign discursively linked child protectionism, post-millennial evangelicalism, and support for the traditional family in its articulation of anti-gay discourse (Table 1). This particular version of conservatism abhorred government action only to the extent that the state intervened in the parenting practices of white Christian families. Bryant and others embraced the Berlinian rationale for state intrusion into the lives of gay people in order to promote the positive liberty of families and children. In this way, the Bryant campaign dovetailed with other movements like Schlafly’s Eagle Forum and Falwell’s Moral Majority whose defense of the “traditional” family utilized a historical construction of familial relations rooted in patriarchal conceptions of authority.[ 55] By portraying gays and lesbians as threats to children, however, SOC argued that gays and lesbians were inherently unworthy of both state protection and familial love. In 1977, Bryant sent her supporters a newsletter in which she wrote, “I want to help [the homosexuals] find the love of Jesus in their own hearts and return to God’s moral law. But I insist they leave my children and your children alone. We must not give them the legal right to destroy the moral fiber of our families.”[ 56] The 1980 GOP platform’s references to a defense of the “traditional American family” were redolent of Bryant’s description of gays and lesbians as threats to the “moral fiber of our families.”
Table 1, Anti-Gay Discourse in Save Our Children.
| Children as ideal subjects of political intervention |
| Protection as policy objective |
| Postmillennialist conception of public role of religion |
| The traditional family as the legacy of the past |
Gay Families, Eroticized Freedom
Gays and lesbians confronted the challenge of homophobic campaigns like SOC by engaging in their own debates about the relationship between freedom and family. In so doing, activists reformulated anti-gay conservative family values in order to “enact more durable shifts in meaning” that would “reverberate through political identifications and alliances” around gay rights for a generation.[ 57] The Dade County Coalition for the Humanistic Rights of Gays called for a boycott of Florida orange juice, a boycott supported by national gay activists around the country. National gay newspaper The Advocate as well as local papers like the “Bay Area Reporter” and Boston’s “Gay Community News” frequently featured stories about Bryant in the spring and summer of 1977 and warned that the events in Miami could happen elsewhere.[ 58] Local paper “The Lesbian News” described the August 1977 Los Angeles gay pride parade as having more explicitly political overtones and drawing larger crowds than years prior.[ 59] A Human Rights Rally called in opposition to Anita Bryant in Houston drew 10,000 participants.[ 60] Lesbians challenged the heteronormativity of the women’s movement by offering up their own version of family values rhetoric. At the 1977 IWY conference in Houston, lesbians sought greater inclusion for gay rights into the conference platform. Carrying signs proclaiming “Lesbian mothers are pro-family” and balloons stating “we are everywhere,” activists pushed back against the assumption that gays and lesbians are deviant and portrayed homosexuality as consistent with, rather than antithetical to, family.
Unified opposition to SOC belied tensions among activists over appropriate forms of state recognition of same-sex relationships. For almost a decade after Stonewall, Gay Liberation pursued an eroticized conception of freedom as an end to sexual repression. Carl Wittman’s “A Gay Manifesto” described “imperatives for gay liberation,” among them “free ourselves: come out everywhere; initiate self defense and political activity; initiate counter community institutions” and “free the homosexual in everyone: we’ll be getting a good bit of shit from threatened latents: be gentle, and keep talking & acting free.”[ 61] Freedom required moving beyond those institutions that perpetrated heterosexism, chief among them the family.[ 62] As gays and lesbians became more assimilated into mainstream society, the meaning of gay rights changed.[ 63] The AIDS epidemic in the early 1980s, and the government’s willful ignorance toward victims of the disease, gave the debate about state recognition deadly urgency. Rights groups like Lambda Legal Defense and Education Fund (LLDEF) remained split on whether family recognition was a desirable goal for the movement, however. LLDEF Executive Director Thomas B. Stoddard believed that “[g]ay relationships will continue to be accorded a subsidiary status until the day that gay couples have exactly the same rights as their heterosexual counterparts.”[ 64] Bringing gay and lesbian couples into the institution of marriage would “necessarily transform it into something new.”[ 65] LLDEF Legal Director Paula L. Ettelbrick disagreed. “[A]ttaining the right to marry will not transform our society from one that makes narrow, but dramatic, distinctions between those who are married and those who are not married to one that respects and encourages choice of relationships and family diversity,” Ettelbrick responded.[ 66] Gay rights was about challenging norms of family life according to Ettelbrick, not asking for permission to enter into the institutions that perpetuate inequality.
Defenders of gay marriage developed other, more decidedly conservative justifications of their cause by portraying the family as a necessary corrective to promiscuity among gay men. Proponents of this civilizing viewpoint argued that the AIDS epidemic demonstrated the need for greater responsibility within the gay community. The time had come, according to the title of one book, for gays to move “from sexual liberty to civilized commitment.”[ 67] Writing for New Republic, Andrew Sullivan became a prominent advocate for the civilizing power of marriage, and his writings effectively confirmed social conservative claims about the family as a traditional institution. “Marriage,” Sullivan wrote in 1989, “provides an anchor, if an arbitrary and weak one, in the chaos of sex and relationships to which we are all prone.”[ 68] He argued against domestic partnerships in favor of “old-style marriage for gays,” which “harnesses to an already established social convention the yearnings for stability and acceptance among a fast-maturing gay community.”[ 69] Rights organizations such as Human Rights Campaign agreed that the traditional family’s stabilizing force made it a desirable goal for gay couples.[ 70] Rather than offer marriage as an alternative to conservative family values, Sullivan argued, same-sex marriage is “an extension of them.”[ 71]
Whereas a previous generation of activists framed gay liberation as a matter of erotic freedom, rights advocates increasingly described gays and lesbians as members of families. This formulation constructed new associative chains linking sexuality and family as complementary rather than opposing social phenomena. In the process, advocates achieved what Deva Woodly calls “political acceptance,” that is, they convinced the public that recognition of gay familial rights were an appropriate subject for deliberation.[ 72] Gays and lesbians publicized their cause through frames that were resonant among the general public, including the importance of equality as a virtue and shifting public attitudes toward homosexuality.[ 73] Woodly identifies the most resonant frame in positive media coverage during this time as “all kinds of families,” which refers to variations on the general theme that “families are made in all kinds of ways and should not be disrespected because adult partners are the same sex.”[ 74]
Crucially, advocates seeking to win public favor to their cause used familial frames that refuted earlier conservative associations of gays as anti-family. Public opinion data from this time period reflect reception to this framing. For example, Andrew Flores’s analysis of opinion on anti-sodomy laws indicates increasing public reception of the view that gay couples deserve some protection from the state.[ 75] Opinion was relatively split on the question of whether gay sex should be illegal in the late seventies and early eighties. After the Supreme Court’s 1986 ruling Bowers v Hardwick that anti-sodomy laws are constitutional, almost fifty-five percent of respondents supported criminalizing gay sex.[ 76] However, this would prove to be the high point of public support for sodomy bans. Flores finds that “support for sodomy laws decreased throughout the 1990s, and the public entered the 2000s with a strong majority supportive of legalizing same-sex sexual relations.”[ 77] On the issue of gay marriage, opposition remained high (>sixty percent) throughout the 1990s. From 2004, however, opinion changed rapidly, with a majority of Americans supporting same-sex marriages by 2012.[ 78] Opinion on the rights of gays and lesbians to adopt children advanced sooner than marriage, with sixty-three percent of Americans registering approval by 2008.[ 79] The trajectory of opinion on government recognition of same-sex relationships follows a pattern: general disapproval through the mid-1990s, with steady increases in support since the mid-2000s.[ 80] While it is unclear whether the family framing of marriage advocates caused this change in public opinion, the presence of the argument for familial recognition of gay relationships coupled with greater public recognition of gay families as deserving protection kept anti-gay social conservatives from continuing to promote the view of homosexuality as an existential threat to the family.[ 81]
In its decision legalizing marriage equality across the country, the Supreme Court legitimated same-sex couples and their children as families before the law. In the process, the Court affirmed a discursive shift away from gays and lesbians as threats to the family. In the Bowers decision, the Court drew a clear distinction between gays and lesbians and legitimate family relationships, invalidating gay relationships as inherently afamilial.[ 82] In Obergefell v. Hodges, by contrast, the Court established that gays and lesbians should be allowed to join into families and that those families should be recognized by the state. Writing for the majority, Justice Anthony Kennedy recognized the impact legal marriage would have on children. He wrote:
Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.[ 83]
Kennedy’s opinion represented a shift in the state’s opinion on the relationship between gays and lesbians and the family. In an earlier era, children needed to be protected from gays and lesbians. Gay rights advocates confronted this discursive regime with an alternative discourse linking gay people and the family. The Supreme Court sided with the latter argument in justifying legally sanctioned gay relationships as a method of protecting children. This re-articulation came at the expense of the eroticized claims for freedom promoted by gay liberation. As a result, Katherine Franke writes, “[s]ex that is not potentially reproductive in nature, but is rather engaged in for pleasure, comfort, or elaborating the self in complex ways … has lost ground in the cause to secure marriage rights for same-sex couples.”[ 84]
“Under God’s Authority”: Kim Davis and the Politics of Religious Freedom
The Kim Davis episode should be understood in the context of evolving associative chains around sexuality. On Monday July 6, 2015, just days after the Obergefell decision, Rowan County, Kentucky Clerk Kim Davis refused to issue a marriage license to partners David V. Moore and David Ermold.[ 85] Weeks later, Ermold and Moore returned to the clerk’s office with a phalanx of national media cameras. “We are not issuing marriage licenses today,” Davis told the couple and the dozens of assembled spectators and journalists. When asked on whose authority she refused to issue marriage licenses, Davis replied, “Under God’s authority.”[ 86] US District Judge David L. Bunning held Davis in contempt of court for refusing to comply with the Supreme Court ruling and ordered her to jail. Once behind bars, Davis became cause célèbre among religious conservatives, indicating a potential new chapter in conservative anti-gay discourse.
Conservatives framed their outrage at Davis’s treatment using a new repertoire of discursive associations that were inflected by and modified earlier family values arguments. Responses to both Anita Bryant and Kim Davis represent facially similar arguments: both originate out of religious conviction, both make claims about the traditional family, and both describe government as infringing on rights. Bryant and Davis, along with their supporters, ultimately sought to counteract the rights claims of lesbians and gay men. In spite of these similarities, we can detect discursive differences between the associative chains in operation during each moment of anti-gay activism (Table 2). First, whereas conservatives of an earlier era spoke of the need to protect America’s children, the Davis incident was more a matter of the private beliefs of adults. By presenting gays and lesbians as parents during debates about gay rights over the 1990s and 2000s, rights advocates made it difficult for conservatives to continue to argue that queer people pose a threat to children. Kim Davis demonstrated how far conservative rhetoric had moved away from the innocence of children in an interview with Fox News after her release. Host Megyn Kelly asked Davis if she would issue a marriage license to one of her children if they were gay. “I wouldn’t write them a marriage license! No way! I would love them, because I love all people, but I would not write them a marriage license,” Davis responded.[ 87] Whereas for Bryant, children were the central figure in preventing the advance of gay rights, for Davis, faith in God and a religiously determined heteronormative understanding of marriage come before even her regard for the happiness of her children.
Table 2, Comparison of Anti-Gay Rhetoric: 1977-2015.
| Anita Bryant/SOC 1977 | Kim Davis 2015 | |
| Children | Subjects of political intervention | Adults |
| Protection | Policy objective | Accommodation |
| Postmillennialist, outward-looking | Role of religion in public life | Personal conscience |
| Postwar traditional family | Legacy of the past | American revolution |
Second, absent the figure of the innocent child, Davis’s defenders spoke less of protection and more in the language of religious accommodation. According to Davis, accommodation entails a relation of fairness between the federal government and American Christians. “It just comes back to: they can accommodate for all sorts of issues, and we ask for one simple accommodation, and we cannot receive it,” Davis told Fox News.[ 88] At the Republican presidential primary debate on September 16, 2015, former Arkansas Governor Mike Huckabee made accommodation a major theme in his full-throated defense of Davis:
We made accommodation to the Fort Hood shooter to let him grow a beard. We made accommodations to the detainees at Gitmo. I’ve been to Gitmo and I’ve seen the accommodations that we made to the Muslim detainees who killed Americans. You’re telling me that you can’t make an accommodation for … [a] County Clerk from Rowan County, Kentucky?[ 89]
For Davis and Huckabee, state recognition of gay rights poses challenges to the negative liberties afforded by the First Amendment’s free exercise protections, protections that legal scholar Michael McConnell locates in the writings of James Madison. “[I]f the claims of civil society are subordinate to the claims of religious freedom,” McConnell writes, “it would seem to follow that the dictates of religious faith must take precedence over the laws of the state[.]”[ 90] For social conservatives, the case of Kim Davis is an example of the federal government treating Christians less fairly than other religious observers. On closer inspection, however, social conservatives are asking for the provision of protection as a state good. Vincent Phillip Muñoz argues that a true Madisonian reading of the free exercise clause would “deny the government the authority to make laws or exemptions singling out a religion or religion generally for favorable treatment under the law.”[ 91] Rather than asking the state to remain “blind to religion as such,” that is protect against religious influence, Huckabee and Davis argue that the state must make a special case.[ 92]
A related set of claims against gay rights portray anti-gay feeling as a constitutionally protected matter of personal conscience. On this point, present-day conservative discourse differs somewhat from the more vocal post-millennialist orientation of family values politics. Bryant stressed the fundamentally public purpose of religion in bringing Americans to the ways of God and protecting the moral fabric of society. Contemporary conservatives, by comparison, posit religious objection to gay rights as a personal conscience issue. After her release from jail, Kim Davis told Megyn Kelly that she has “religious objections [and] moral conflicts with” gay marriage. Davis claimed she was not trying to push her religion onto others. Instead, she was merely observing her own faith without acting in a way that would jeopardize her standing in the eyes of God. Davis described the decision not to grant marriage licenses to same-sex couples as a “heaven or hell issue.”[ 93] Davis’s description of the personal nature of her objection to same-sex marriage recalls Berlin’s spatial definition of negative freedom as a zone cordoned from government interference. In his defense of personal conscience as a zone of negative freedom impervious to state coercion, John Locke argues that a citizen can “abstain from the actions that he judges unlawful” because ultimately God is “the only judge in this case, who will retribute unto every one at the last day according to his deserts[.]”[ 94] Davis echoes Locke’s prioritization of individual conscience over the will of the state, imbuing negative liberty’s insistence on an inviolable zone of freedom with apocalyptic references to God’s final judgment.
Finally, Davis and her defenders used the language of tyranny to connect their cause to America’s revolutionary tradition. For religious conservatives, Bunning’s decision to send Davis to jail indicated a tyrannical federal government placing value on defending gays and lesbians at the expense of the personal conscience of Christian Americans. Davis’s mugshot provided visual evidence that the federal government was criminalizing faith and acting without regard for the rights of citizens or the provisions of the US Constitution.[ 95] Just hours after Davis was sent to jail, Huckabee tweeted “We must defend #ReligiousLiberty & never surrender to judicial tyranny!; At the rally for her release, Huckabee riled the crowd against the “judicial tyranny” represented by the Supreme Court’s decision handed down by “five unelected lawyers.”[ 97] Texas Senator Ted Cruz, at the time a presidential candidate for president, posted a letter to his supporters on his campaign website. “Today, judicial lawlessness crossed into judicial tyranny,” the letter read. “Today, for the first time ever, the government arrested a Christian woman for living according to her faith. This is wrong. This is not America.”[ 98] For presidential hopefuls like Cruz and Huckabee, Davis’s situation provided demonstrable proof that Christians in America were under attack.
Whereas earlier social conservatives supported positive liberty’s expansive state power in policing the lives of sexual minorities, the Kim Davis episode confirmed the dangers of an activist state. The differences between the distinct governing imperatives implied by positive and negative liberty claims break down under closer inspection, however. As the language of accommodation indicates, the defense of negative liberty proffered by Davis and her supporters actually seeks special recognition for Christians, a position at odds with Madisonian religious freedom. As Nancy Hirschmann’s constructivist account of liberty makes clear, distinguishing between positive and negative liberty reifies the distinction it seeks to comprehend.[ 99] Selective arguments for the negative freedoms of some people leave structures of domination that privilege those individuals, like the heteronuclear family, intact. Today’s social conservatives defend their freedom against state interference as though denying state recognition and cultural acceptance to gays and lesbians were merely a private belief without larger repercussions in the political realm.
Conclusion
The election of Donald Trump demonstrates change afoot in American conservatism and the Republican Party. One site of political reaffiliation seems to be discursive fealty to the traditional family.[ 100] In 2016 the Grand Ole Party selected a candidate—and the nation selected a president—that does not easily fit the mold of the traditional family man. Thrice married and on record making vulgar comments about women that defend sexual assault, Mr. Trump represents a politics stylistically different from George W. Bush’s “compassionate conservatism.” Nonetheless, Trump garnered the support of prominent evangelical figures like Franklin Graham, and he won a larger percentage of the evangelical vote than either Mitt Romney or John McCain.[ 101] As president, Trump has rewarded evangelical voters with judicial nominees sympathetic to their cause, and he has made protecting Christians’ religious liberty a hallmark issue for his administration.[ 102] Though Trump said that he was “fine” with gay marriage early in his presidency, his Justice Department filed an amicus brief defending the right of a Colorado baker to discriminate against a gay couple seeking a wedding cake.[ 103] The question in that case, Masterpiece v. Colorado Civil Rights Commission, was whether the baker can be forced to use his talents as a baker to endorse gay marriages, which he opposes on religious grounds.[ 104] Consistent with the shift from family values to religious freedom, Masterpiece demonstrates how social conservative opposition to gay rights has evolved over the past four decades.
Culturally speaking, America has witnessed a sea change in the visibility of gays and lesbians since the late 1970s. Changes in family composition and demographics correspond to seismic shifts in a Republican Party that has spent the last decade lurching rightward to accommodate insurgencies like the Tea Party and the Donald Trump candidacy. Reagan’s observation that it’s morning again in America has been replaced with conservative activists’ revolutionary anger and Boston Tea Party symbolism. As scholars have shown, however, the Tea Party’s arguments against creeping socialism were the old wine of religious conservatism in new bottles of economic discourse.[ 105] Tea Party activism was only the latest iteration of “long-standing conservative claims about government, social programs, and hot-button social issues.”[ 106] Opposition to federal spending contributed to an anti-establishment mood within the Republican Party and precipitated the unexpected political success of Trump, who embraced those who saw the political system as “rigged” in favor of “special interests.”[ 107] By the close of the 2016 campaign, Trump had harnessed the anti-tyranny message, claiming Election Day to be “our independence day.”[ 108] Despite his comments that the Obergefell decision was settled, the selection of socially conservative Mike Pence as Vice President or Jefferson Sessions as Attorney General, the inclusion of ambiguous language advocating gay conversion therapy in the 2016 GOP platform, and the amicus filed by the Justice Department in Masterpiece portend ominous things to come.[ 109]
The comparison between Anita Bryant’s campaign and conservative’s defense of Kim Davis confirms Kathleen Thelen and James Mahoney’s observation that institutional losers are often agents of political change “precisely because they benefit from such change.”[ 110] Late twentieth- and early twenty-first-century conservative anti-gay discourse has, for the most part, moved away from offensive portrayals of gays and lesbians as pedophiles or threats to children.[ 111] As gay people became more socially visible, this discourse became politically fraught, and conservatives began to speak more frequently of religious freedom and personal conscience. This dynamic recalls the trajectory of race discourse from decades earlier. In his intellectual history of conservatism, Corey Robin describes how in the late 1960s strategists “understood that after the rights revolutions of the sixties they could no longer make simple appeals to white racism”; explicitly racist defenses of Jim Crow segregation gave way to furtive dog whistles like “forced bussing” and “states’ rights.” As Ian Haney López argues, the danger in such discursive sleight of hand lies in the reception among people to whom explicit messages of racial resentment seem abhorrent. “For these voters,” Haney López writes, “the cloaked language hides-even from themselves-the racial character of the overture,” allowing them to endorse racist policies while absolving themselves of racism. To be sure, facile comparisons between the pursuit of racial justice and state recognition of sexual minorities are often oversimplified. Equating race with sexuality elides important differences among and intersections between histories of heterosexism and white supremacy, thereby collapsing sexuality into whiteness. Nonetheless, the relationship between racism and late twentieth-century conservatism is instructive for the preceding analysis of the shift from family values to religious freedom. Changing public mood made explicit appeals to white voters less politically feasible, so conservatives enacted new associative chains comprised of more ambiguous phrases. Similarly, increasing visibility of gays and lesbians as members of families hampered the viability of homophobic appeals depicting queer people as inimical toward families. When public opinion renders a discursive frame untenable, its proponents seem more willing to pursue alternative associative chains than to revise their thinking.