Katherine Kersten writes in her article 'Tolerance should be extended to all': "Today, Bachmann is probably the most demonized politician in Minnesota."



Katherine Kersten recently wrote an article claiming that tolerance should be extended to all, including people like Michelle Bachmann who preach discrimination against gay, lesbian, and transgender people. Mrs. Kersten clearly does not understand what real tolerance is. Real tolerance includes a fundamental respect for every individual to the enjoyment of the freedom to define their sexual and romantic relations and who to marry.



It is ironic that the Rep. Bachmann and her ilk continue to cast the defense of “traditional” marriage act in a false light. It is not "activist" judges, as they pretend, which seek to define marriages in favor of gays and lesbians. Quite the contrary, it is the political and legal system which prevents them from enjoying these benefits. The state of Minnesota has a marriage statute which prevents the marriage of gays and lesbians.



Moreover, the Supreme Court did not extend protections to homosexuals in its landmark case of Bowers v. Hardwick 478 U.S. 168 (1986). In that case, the court held it was acceptable to criminalize private consensual sodomy. To understand just how unfriendly the courts are to homosexuals, one only needs look at Chief Justice Burger’s concurring decision. There he writes:



“Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality [478 U.S. 186, 197] and the Western Christian Tradition 70-81 (1975). During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”



This does not exactly paint the picture of "activist" judges lurking in the wings waiting to overthrow the institution of marriage or all of Western civilization as Bachmann and other conservative activists would have you believe.



The dissent in Bowers is very powerful and is quite a departure from the arguments you hear today. The dissent in Bowers did not frame the question in terms of equality, which is a hallmark of the current debate, but in terms of the freedom of the individual.



The dissent, authored by Justice Blackmun, first addressed the issue of ‘tradition’ and it noted:



“Like Justice Holmes, I believe that "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).”



It then noted, rather conservatively if you will, that some decisions were beyond the power of the state to regulate:



“Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government." Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986).”



Finally, it noted with little hesitancy, that we do not protect the individual rights to privacy, marriage, and child-bearing because of utilitarian or religious concerns, but because we respect the liberty of the individual and recognize that happiness in a diverse nation, can take shape in a plethora of diverse relationships, all of which may be "right". Blackmun wrote:



“We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life. "[T]he concept of privacy embodies the `moral fact that a person belongs to himself and not others nor to society as a whole.'" Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S., at 777 , n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub. Affairs 288-289 (1977). And so we protect the decision whether to [478 U.S. 186, 205] marry precisely because marriage "is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects." Griswold v. Connecticut, 381 U.S., at 486 . We protect the decision whether to have a child because parenthood alters so dramatically an individual's self-definition, not because of demographic considerations or the Bible's command to be fruitful and multiply. Cf. Thornburgh v. American College of Obstetricians & Gynecologists, supra, at 777, n. 6 (STEVENS, J., concurring). And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households. Cf. Moore v. East Cleveland, 431 U.S., at 500 -506 (plurality opinion). The Court recognized in Roberts, 468 U.S., at 619 , that the "ability independently to define one's identity that is central to any concept of liberty" cannot truly be exercised in a vacuum; we all depend on the "emotional enrichment from close ties with others." Ibid.

Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality," Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973); see also Carey v. Population Services International, 431 U.S. 678, 685 (1977). The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. See Karst, The Freedom of Intimate Association, 89 Yale L. J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Roe v. Wade, 410 U.S., at 153 .”



I can only conclude that Katherine Kersten is disingenuous in regards to her defense of Michelle Bachmann under the guise of tolerance. Further, I note that Michelle Bachmann is willfully blind in obscuring the fact that "sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.”



People who take liberty seriously will not let the government decide: who you marry, whether you have children, how many children you have, whether you can or can not engage in private consensual sexual activity with a consenting adult and what that sexual activity might be, or more fundamentally who you are.



As a final note, I can only add that in my education I was taught to tolerate everything- except fascism. Sorry Kersten.



Update: Many people have contacted me regarding the Lawrence case, so I should include that information. From Perrspectives':



"In the 2003 Lawrence v Texas case, the Court in a 6-3 decision invalidated the prosecution of two men under a Texas sodomy statute and reversed Bowers altogether. Again writing for the majority, Justice Kennedy overturned Bowers on both privacy and due process grounds:



Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled."