06/19/2010 05:12 am ET Updated May 25, 2011

Kagan, Gays, and the Bogus Right Wing Ideas Factory

As Elena Kagan has emerged a frontrunner for President Obama's nomination to the Supreme Court, the right wing's opposition playbook has not been updated in decades. But the world has changed around it. This creates a test to see if the rest of us--those who live in the real world and try hard to play by an honest rule book--can hold our highly disingenuous opponents accountable to the rules of a world that seems increasingly to overtax the intellectual luddites in our midst.

As usual, the belief that a person in power could be either a lesbian or sympathetic to lesbian and gay rights has conservatives fuming. And part of the reason is they feel constrained in their ability to say, in polite company, that they dislike gay people and wish to block their rights even when doing so creates unnecessary human suffering. So they use thinly veiled code phrases that sidestep their real angst. Peter Sprigg of the Family Research Council, for instance, called granting hospital visitation rights to gay partners a case of "pandering to a radical special interest group" because he is too cowardly to admit that his peculiar practice of Christianity would have him leave gay people to die alone. And in yesterday's Washington Post, Ed Whelan of the Ethics and Public Policy Center accused Kagan of using "strikingly extreme rhetoric" simply for calling the military's "don't ask, don't tell" policy "a moral injustice of the first order."

In a profoundly offensive and dishonest set of remarks to the oddly-receptive Washington Post, Whelan said Kagan's charge that "don't ask, don't tell" was a moral injustice "would seem fit for something like the Holocaust." What Whelan is actually doing is exploiting the Holocaust to bar legitimate criticism of any other discrimination. This from an ethics think tank that claims to defend "respect for the inherent dignity of the human person."

Whelan said that Kagan's thinking is "biased" because she opposes anti-gay discrimination ("This is one issue that provides some jurisprudential clues as to how much her reading of the law will be biased by her policy views," he told the Post) and that her position makes her too far left of the current Supreme Court to join them--this because the Court ruled 8-0 that the government could punish universities for blocking recruiters who discriminate against gays and lesbians. What's so dishonest about this assertion is that, as an experienced lawyer and political appointee, Whelan is perfectly aware that opposing a law as bad policy is not the same as calling it unconstitutional, and yet he uses Kagan's disagreement with the law to imply she would have forced military recruiters off campus as a legal matter.

His claims are also strikingly disingenuous. As the Post explains, Kagan was hardly a leader in the movement to block the military from recruiting on campus. Under her leadership, Harvard actually capitulated voluntarily to the military's recruiters, and chose not to join a group of law schools that sued the government over it. It is important to realize also that the law schools were not blocking recruiters to make a political statement about "don't ask, don't tell"; rather, the military policy violates the anti-discrimination rules already on the books at these schools, and they were obliged by their own policies, and frequently by external policies such as those set by the American Association of Law Schools, to limit employer access to those who did not discriminate in their recruiting.

Meanwhile, three quarters of Americans agree with Kagan that "don't ask, don't tell" should go, including majorities of conservatives and Republicans. How can opposition to a military policy that most Americans, most conservatives, and even the military's top leaders themselves, also oppose, be cast as outside the mainstream? Eliminating "don't ask, don't tell"--a massive government intrusion that micromanages aspects of personal identity, thwarts the freedoms of private universities, and wastes hundreds of millions of taxpayer money--should be at the top of the tea party list, and perhaps it would be if the partiers were intellectually consistent and not tinged with homophobia and resentment of difference.

But intellectual and moral consistency is increasingly absent from the conservative ideas factory. Whelan's Ethics and Public Policy Center is "dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy." While the group boldly admits this on its website, its writers frequently pretend that their religious-based intolerance is not the true basis of their anti-gay positions. EPPC is the outfit that brought us James Bowman's unhinged assertions that the presence of gays in the military would somehow undercut nineteenth-century notions of all-male, straight-only honor that, he believes, still motivate twenty-first century warriors to fight. This even though gays and women already serve in the military, and no evidence has linked their presence to undercutting the mission.

EPPC is also proud to call both Rick Santorum, and Stanley Kurtz senior fellows. Santorum famously linked gay relationships to "man on dog" action. And Kurtz is the scholar behind early efforts to claim that same-sex marriage killed marriage in 1990s Europe. Kurtz's research was badly flawed in that it assumed a causal link between gay acceptance and a weakening of marriage and it also rested on his assertion that, "In the early nineties, gay marriage came to the Nordic countries," when in fact the first country to legalize gay marriage (The Netherlands) didn't do so until 2001.

EPPC's board is vice-chaired by Robert George, the Princeton professor who is leading efforts to base anti-gay policy on "natural law" to skirt what is really religious-based intolerance. George, who penned the anti-gay document, "The Manhattan Declaration," believes the moral superiority of heterosexuality is "natural" and "self-evident." His arguments about natural law are as ungrounded and inane as John Locke's were in 1689, yet he is revered and turned to by top social and religious conservatives for his ability to use ivy league credentials to make homophobia seem respectable.

The problem with these right wing think tanks is they're not about doing actual research. (Family Research Council even admitted they didn't do research according to a book by my colleague, Chris Bull, about gays and the religious right.) They are well-funded perches for the venom and disinformation of conservatives who have mastered the art of repeating nonsense until it assumes, among their base, the ring of truth.

Legal discrimination against gay troops is not the Holocaust. But years of actual research have shown that it is unnecessary and not genuinely based on military necessity, leaving its rationale bereft of anything but prejudice. Kagan is right that the gay ban is a "profound wrong" and a "moral injustice of the first order." For this, she will stand on the right side of history, and those on the wrong side should be held to account.