Word came out about a month ago: Over three hundred Republicans had signed an amicus brief supporting homosexual "marriage" and asking the Supreme Court to impose it upon the entire country, striking down multiple state marriage amendments. Erick Erickson at Redstate says, "The list reads like a who’s who of political consultants and pundits."
This probably is evidence that I'm not well up on my political consultants and pundits, because I didn't recognize the majority of the names. Among the few I did recognize, some I knew to be long-time cave-ins on issues related to homosexuality (Mary Cheney). Some I knew to be long-time RINOs on pretty much everything, this issue included (Rudy Giuliani). Some surprised me a little. I'm sure I remember once or twice voting for Mike Cox for Attorney General in Michigan, probably on the basis of his endorsement from RTL-Michigan. I never knew he was a traitor at heart on so-con issues. That'll teach me to accept a pro-life endorsement as a stand-in for social conservatism.
But one name stood out and surprised me (and others) quite a bit: Ben Domenech, publisher of The Federalist web site and of The City, a publication of Houston Baptist University.
If this needs to be pointed out to any in my learned audience, the word "federalism" as used in American political discourse means a commitment to limitations on the power of the federal government and a return to something at least somewhat more like the Founders' original vision of states with a great deal of leeway to govern themselves. Conservatives in America have taken this word to themselves and their organizations (the Federalist Society, etc.) to protest the growing and unconstitutional power of the federal government, often but not always exercised by means of lying court decisions such as the infamous Roe v. Wade.
That the publisher of a website allegedly dedicated to federalism, of all things, would join in a brief calling for homosexuals to have their own Roe--a decision that would further lie about the meaning of the Constitution, further centralize power, and tell states that they must recognize homosexual unions as "marriage"--makes no sense whatsoever.
One can imagine a situation in which a social conservative, dedicated to the protection of the unborn, might be tempted to abandon his federalist principles when confronted with a federal law that protects the unborn. One can imagine a constitutional originalist being similarly tempted to bend his originalism if he sees the chance to get the Supreme Court to interpret the Constitution in a fashion that is dubious but would have some good outcome from a conservative policy point of view. Alternatively, one can understand the dilemma and the motives of a staunch originalist and federalist who says that the federal government should not expand its power even for an end he recognizes as good.
But what is this? To ask SCOTUS to lie about the Constitution and the meaning of "equal protection" and "due process" to promote, indeed to require, the celebration and special recognition of homosexual unions makes no sense from any conservative perspective at all--neither procedural nor social, neither federalist nor freedom-loving. It promotes a bad means to a bad end.
Let's look at a series of "tweets" from one Ben Domenech precisely two years ago, in late March, 2013, helpfully archived on a single web site, on the subject of having the federal government impose homosexual "marriage." These tweets have a distinctly libertarian flair and don't show much in the way of substantive support for real marriage (more about that below), but beyond that they show a good deal of, whaddaya know, respect for federalism: (My emphases added.)
Personally, I am a populist on this stuff. I believe in keeping government as close as possible to the people.
So if the neighborhood wants to allow strip clubs, or liquor stores, or gambling, or pornography, let the neighborhood decide.
National government should be as limited as possible in scope and in size, and its intrusion into these areas always ends badly.
States have different definitions of marriage, and continue to do so - age of consent, cousins, etc. - but never to this scale.
And I am particularly unimpressed by the continued reliance on equal protection arguments given the warped nature of that legal arena.
This last one is bitterly ironic, given that the amicus brief expressly tells the Supreme Court that the amici are agreed that state failure to recognize homosexual unions is incompatible with equal protection.
Just as with Roe, if the Court stops the conversation short, there will be unfortunate consequences and a political backlash.
At the end of his 2013 series of tweets, Domenech expressly endorses this implicitly sexually liberal, libertarian article by Walter Russell Mead. Mead beats the drum on "gay marriage is coming, like it or not," he pretty obviously thinks that homosexuality is just ducky (though he pretends not to be taking a stance on it), and he has far more thunderous things to say about how "bigotry and hate must end" with respect to moral traditionalism than with respect to, say, Dan Savage, who epitomizes bigotry and hatred--against Christians. This, I think, is some indication of Domenech's confusions on these matters, which may have been present all along. However, in line with Domenech's own remaining small-government federalism in 2013, Mead ends by saying that "it seems to us overall that the best way to handle these issues is to go slow and to leave room for reflection and compromise," and it should be obvious (though troublingly, Mead doesn't say so) that a SCOTUS decision striking down state laws at a blow is the very opposite.
And then there was this: A prescient comment by Domenech in 2012 to the effect that people are "total numbskulls" if they think that their consciences will be protected once the government gets the bit between its teeth:
Few things bring Catholics and evangelicals together like the appreciation that government has entered into a new and newly regulatory relationship with the church, one that few appreciated at the time. I remember sitting across from the Catholics defending Bart Stupak during the PPACA fight and telling them in no uncertain terms that they were total numbskulls for assuming the conscience protections would in any way defend their institutions. We already saw the potential tax status/property loss fight play out in New Jersey. One wonders what would happen in a similar space with evangelicals and the marriage issue.
Since the amicus brief has come out, Domenech has published a weak-sauce defense in his contribution to the symposium here. The nearest he comes to any statement of why he supports homosexual "marriage" is this,
Most if not all states would have eventually allowed gay marriage, understanding that there is no significant state interest served by barring such unions. Removing the force of government and trusting the people to work it out for themselves is nearly always the best course.
Right, because it was just so "forcing" and "coercive" of state governments not to offer the specially honored status of marriage to homosexual couples.
Instead, the libertarian argument regarding equal protection has prevailed. The issue will be resolved through the courts, and I personally think they are right in their argument, even if the practical result is problematic. State-based federalism would have been a healthier route to the same result, but it has proven legally and constitutionally impossible.
I would love to know: How does something prove constitutionally impossible? What does he mean by saying that the argument regarding equal protection "has prevailed"? Just two years ago Domenech apparently understood that the 14th amendment doesn't require states to recognize homosexual "marriage." Or did he? Did he really have any understanding of constitutional originalism, or did he just feel vaguely uncomfortable with the idea of the federal government's intrusion into this area? If the latter, then I guess he won't see how completely laughable it is to talk vaguely about how, somehow, now it has "proved constitutionally impossible" to refrain from forcing homosexual "marriage" on all states throughout the country. Has the 14th amendment magically changed its meaning in the last two years? Has someone gotten into a time machine and traveled back and convinced its framers and original audience that what it really means is, "All states should celebrate homosexual 'marriage'"? The question answers itself, and the Cato Institute post to which Domenech links is laughable, depending on a sophistical pretense of interpretive continuity rather than on actual constitutional understanding. Here's a sample
Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: states cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.
But Domenech's concerns are pragmatic, so he is not motivated to subject Cato's "argument" to any rigorous examination. Instead, he spends the rest of his post wringing his hands about what he has understood all along--the incompatibility of homosexual "marriage" with freedom for a lot of people.
Without a firm, principled understanding of constitutional interpretation, Domenech has apparently "evolved" to the point that he's willing to accept it when Cato hands him the legally insane conclusion that the 14th amendment supports the imposition of homosexual "marriage" throughout the country.
And what does Domenech have to offer us now?
In the wake of the coming Supreme Court ruling, that debate will turn to a much larger question: can religious liberty survive in an America with gay marriage? I hope the answer is yes, but hoping won’t make it so.
That's so...comforting. Dare I say: You're a total numbskull if you think the answer to that question is "yes."
To be clear: I'm not one to disparage those who use religious liberty arguments to seek freedom, at least for a few, from the effects of unjust laws. John Zmirak puts this well in a brand-new post:
So I think we should support “religious freedom” bills as a last-ditch firewall against gay totalitarianism, though this issue is not just about religion;
So, yes, let's get smart lawyers and defend Barronelle Stutzman and the other victims of the zero-sum game on the basis of religious freedom if and when that is the only basis left open to us.
But if all you have to say about this is that specifically religious people who have these weird beliefs that homosexuality is a "sin" should have freedom not to participate in celebrating it, you are not going to be a reliable ally even on the issue of religious liberty. If anything has shown that, it is Domenech's own open-eyed signing of the amicus brief asking the Court to impose homosexual "marriage," even though he has had a good understanding of the consequences for religious freedom. He hardly deserves a medal for his pointless residual fretting about religious liberty from the social conservatives he just threw under the bus.
From a libertarian point of view, there are about a gazillion more problems with this than the question of whether there will be religious liberty exceptions. I'm not going to try to list most of those problems here, but here is just one: Suppose that you are a photographer of no particularly strong religious persuasion, but you just feel extremely uncomfortable producing artistic glossy photos celebrating homosexual romance. Should you be forced to sell your services to photograph a homosexual "wedding"? If the only thing one supports is a difficult-to-claim religious exemption, then the uncomfortable photographer is out of luck. He won't be able to claim a clearly articulated, sincerely held religious belief. Even if a state had a RFRA, and even if the photographer had firmly held beliefs, it would be up to the court to decide if the many other ducks were in a row for the photographer to get out of offering his services; meanwhile, he has to hire the lawyers and go through the courts, so the process is the punishment. What sort of faux libertarian supports a legal system in which people can go about and drag photographers, any photographers, any florists, any bakers, through the courts for an in-depth examination of their interior motives for refusing to celebrate a substantive point of view on an important moral and cultural issue? To call this a regime of freedom is nothing but a joke, even if a few staunch, articulate religious people with good pro bono lawyers are lucky enough to get off the hook in the end and not be financially ruined in the process.
Zmirak has a pretty clever line at the end of his post:
To put it briefly and starkly: In the fight against gay totalitarianism, we need to get back to critiquing the “gay” part. It’s an easier sell. Too many Americans have a soft spot for totalitarianism.
Ain't that the truth? We have very few, indeed virtually no, ideological libertarians who are going to say, "As a general rule, it doesn't matter if I consider your beliefs, religious or otherwise, to be bizarre and odious. You should have a right to act on them in your business interactions at least as regards discrimination in hiring and service, and I will go to the mat for that." If someone did belong to the tiny minority of Americans who hold that position, and if he weren't a complete fool, he would of course oppose homosexual "marriage" completely. Presumably something like that consideration is the reason why Zmirak himself abandoned (as he says in this recent post) his previous silly position that it would be no problem if various jurisdictions started recognizing homosexual "marriage" provided they simultaneously repealed their laws against "discrimination" on the basis of "sexual orientation."
But more: If someone really thinks that opposition to homosexual acts is bigotry, how motivated is he going to be to stand up for people whose business decisions are motivated by bigotry? Example: I don't like smoking at all. I have libertarian sympathies, but I don't expend a lot of energy opposing the spread of no smoking laws and zones, even though I feel uneasy about their nanny-like intrusion. A person who really thinks that homosexual acts are fine and that those who oppose them are confused at best and bigots at worst is likely to feel about the persecution of sexual traditionalists approximately like I feel about the persecution of smokers--wry, but kinda liking the outcome (that's nice, no cigarette smoke in my face!), and disinclined to do much about it.
It looks as though, whatever his moral and religious background, this is approximately where Ben Domenech was at, mutatis mutandis. I can find (in the research I've done in the last few days) no evidence of any real understanding on his part of the nature of sex, the nature of nature, or the nature of marriage. I can find no evidence of a love of nature, a love of the beauty of heterosexual love, romance, and marriage, or an understanding of the harm that active homosexuals (not to mention transsexuals) are doing to themselves by violating their own bodies.
John Zmirak's mea culpa gives us, who are left with nothing but conjecture, a clue to what went wrong with Ben Domenech. It is a cautionary tale. It tells us what we conservatives cannot afford: We cannot afford to fail to educate our own young people in the realm of nature, especially as regards sex. We cannot afford to let them wander unwittingly into a world in which homosexuality is all about love and in which "religious" people who think it is a "sin" are an odd minority at best.
If they do, meta-principles about federalism, small government, and freedom will, it seems, be psychologically insufficient to protect them from the wave of loud approval for homosexuality sweeping the nation. They will be caught up in that wave, and then they will do things that don't even make good nonsense.