Women as a civil rights group received heightened scrutiny protection in Craig v. Boren (1976). The ACLU lawyer in that case, Ruth Bader Ginsberg, who now sits on the Supreme Court of the United States, recently commented that feminism as a movement would not be over until the Supreme Court had nine female justices.
The feminist movement’s concept of gender went hand in hand with the sexual revolution, which Marcuse said was essential for a political revolution: “The New Left should develop the political implications of the moral and sexual rebellion of the youth…. [W]e should try to transform the sexual and moral rebellion into a political movement.” Because, as some noted, feminism crusades to end the constraints of “femaleness,” it advocates one’s right to claim any gender without discrimination.
While numerous works in the 1960s had sensationalized the “homosexual underworld,” Gore Vidal’s works gave it a human face. In The City and the Pillar (1948), he wished to show the “‘naturalness’ of homosexual relations, as well as [make] the point that there is of course no such thing as a homosexual…. [T]he word is an adjective describing a sexual action, not a noun describing a recognizable type. All human beings are bisexual.”
The 1969 Stonewall Riots, in which homosexuals fought New York City police, is frequently labeled the beginning of the gay rights movement. It was commemorated the following year in the first gay pride marches in Los Angeles, Chicago, and New York. In 1969, Paul Goodman wrote “The Politics of Being Queer,” which identified homosexuals as another civil rights group that is politically repressed and oppressed. He begins, “In essential ways, my homosexual needs have made me a nigger.” Gay, lesbian, and transgendered rights were recognized as an issue of radical solidarity. In a 1970 open letter, Black Panther Huey Newton promoted an alliance between black revolutionaries and “the Women’s Liberation and Gay Liberation Movements.” Sexual minorities began to crusade for civil liberties and civil rights.
The Supreme Court carved out an entirely new realm of civil liberties under the “right to privacy.” Under Ninth Amendment police powers, states had passed laws to uphold what Chief Justice Warren Burger called the “Judeo–Christian moral and ethical standards” of “Western civilization.” Following the cultural shift, between 1965 and 1977, the Court replaced this “Judeo–Christian” morality with the new progressive morality.
According to the Court, the “autonomy of the person” is constitutionally respected in “decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Sexually, the Court recognized new rights for married adults, single adults, and minors to buy contraception. So too was the old Judeo–Christian notion of the “person concept” replaced with the Court’s recognition of a woman’s right to an abortion. The Court finally overturned sodomy laws as an unconstitutional violation of the privacy rights of consenting adults.
The Court has not altogether rejected a role for moral legislation: Sadistic acts, Justice Anthony Kennedy has recognized, deserve no constitutional protection, for they constitute “moral depravity.” However, Justice Kennedy repeated the new morality, which extends individual autonomy to “consensual sexual relations conducted in private.” Such acts constitute “private conduct not harmful to others.”
Sexual minorities have also been recognized as groups that require civil rights protection under the Equal Protection Clause. In 1996, the Court overturned a Colorado law banning special protections for gays and lesbians because it “named as a solitary class persons who were homosexuals, lesbians, or bisexual either by ‘orientation, conduct, practices or relationships’…and deprived them of protection under state antidiscrimination laws.” The Court recognized the motive as sadism “born of animosity toward the class of persons affected,” hence with no “rational relation to a legitimate governmental purpose.” This year, the Obama Administration filed a brief arguing that California’s ban on same-sex marriage “violates the fundamental constitutional guarantee of equal protection.”
When asked in 1974 whether the New Left had succeeded, Herbert Marcuse said that it had “changed the consciousness of broad sectors of the population.” He was right: Over the past 50 years, neo-progressives have successfully implemented Reich’s sexual revolution and Mills’s identity politics. Race, class, and gender studies are the core of the modern liberal curriculum at public schools and universities. Today, the New Left not only controls the Democratic Party, but also has taken root broadly in upper-middle-class American culture.
Neo-progressives assent to an underlying logic for the good life and the good society, but that logic is radically different from the previous liberal morality. The cultural shift has granted all Americans unprecedented individual freedoms in sexual expression. So too has it erected a new politically correct morality along with an official narrative that highlights the West as the engine of oppression and repression.
Conservatives and old liberals who seek to oppose these changes must return to where they lost the battle: the intellectual arena. They should first begin with a genealogy of neo-progressivism to weaken the myths that sustain it. They should also take a lesson from Mills, who begged his readers to ask:
What varieties of men and women now prevail in this society and in this period?… In what ways are they selected and formed, liberated and repressed, made sensitive and blunted? What kinds of “human nature” are revealed in the conduct and character we observe in this society in this period.
On such an intellectual foundation, they might successfully engage, as Mills also wrote, in the “struggles over the types of human beings that will eventually prevail.”