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It don't even make good nonsense

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.

And this,

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.

Comments (60)

I am afraid that once the traditional definition of marriage was abandoned for one that included same-sex couples, the rest was always going to be downhill for the anti-Christian left -- who could then proceed to make the usual Rawlsian appeal to fairness/equality vis-a-vis how society treats *married* couples with predictably successful results. If our society were unwilling to abide by this definition precisely because it doesn't make room for same-sex couples, then a *new* concept should have been developed without overthrowing a centuries-old concept presupposed by our oldest and most dominant religious traditions, who are not about to change their thinking on this matter in any case. All these legal controversies involving florists, bakers, and pizza pie makers would have been avoided; but then the anti-Christian left would have been deprived the joys of wielding this cudgel against the conservative Christians they despise, and apparently that's what really matters to the powers that be.

It has struck me that (probably) no judge would find that discriminating against a Christian because of their traditional beliefs on marriage and sexuality would constitute discrimination against that person's religious identity. Yet, we already know the precedent has been set that discriminating against a same sex "wedding" is considered discriminating against someone because of their sexual identity.


This may not be a perfect example, but it is probably at least indicative of how things will go. In Colorado it is (probably) illegal for a bakery to refuse to make a cake with "pro-gay" imagery but not "anti-gay". (to be clear, I think they ruled correctly in this case)

DR84, I see that discrepancy as the worship of sex. Sexual _activity_, and hence setting up faux "marriages," are defined by the left as "integral" to the identity of a person with same-sex attraction. But writing a religious message is not seen as "integral" to the identity of a Christian. Hence, publishing such a message on a cake is not seen as integral. I would argue that the parallel would be even closer if we were talking about a printer. The printer would be punished for refusing to make homosexual "marriage" invitations, but would (I believe) not be punished for refusing to print gospel tracts and included an explanation of why homosexuality is wrong. And there, I think the parallel would be so strong that such rulings would in fact be inconsistent. For Christians are told by Christ to spread their message and preach the truth, and printing is a natural and important method for doing so (more so than a cake).

then a *new* concept should have been developed without overthrowing a centuries-old concept presupposed by our oldest and most dominant religious traditions,

Boreas, I'm not sure what you mean here--civil unions or something? But bear in mind that one of the most infamous cases--the photographer in New Mexico--occurred in a state that did not officially have homosexual "marriage." What the photographer refused to celebrate was a purely informal "commitment ceremony" with no legal status. She lost anyway. And civil unions were _designed_ to be identical to marriage in all respects, including (crucially) child custody and the formation of families. The worst case of my knowledge concerning child custody--the Lisa Miller case--concerned a civil union.

There never was any new concept that would not have had these results. It never was just about the word "marriage" but about marriage-like treatment and benefits, and any marriage-like treatments and benefits would have had the same results. After all, you can kick off a civil union with a ceremony, too, for which you have a cake, a florist, etc. And woe betide any school teacher, employer, etc., who creates a "hostile environment" by not referring to the two lesbians one of whom has borne a child by artificial insemination as "your two mommies."

So there was no other thing that would have solved this problem, because every other thing that has been or would be introduced had the same intent--to force and require _recognition_ of homosexual pairings and to give them the social benefits and status of marriage.

Ben, apparently, has a history of taking easy way out: http://www.nytimes.com/2006/03/25/business/25post.html?_r=0

TA, I know what you mean, but there would have been plenty of support for his continuing to be consistent with federalism, etc. How hard would it have been within the conservative world he supposedly inhabits? My conjecture is that the connection is to libertarianism. The libertarians are proving an extremely bruised reed in this crisis and are developing absurd and sophistical arguments. If anything, my research for this article has made me more angry at legal scholar Steven Calabresi than at Ben Domenech. Calabresi once co-wrote a book with Scalia and is now using that, his having co-founded the Federalist Society (!!), and his having clerked for both Bork and Scalia to bolster his "creds" among conservatives while helping Cato to draft this absurd other amicus brief (not the one Ben signed but a separate one) pretending that homosexual "marriage" is required by the 14th amendment. By its original meaning, no less! Pretty brazen. It's sickening. It's like a mental virus sweeping the land. If Calabresi could go that direction (why? why?) then that makes it less surprising that Ben did.

Sorry, correction: Calabresi edited a book to which Scalia wrote a forward. He didn't co-write with Scalia. But there are definitely connections there which Calabresi and Cato are exploiting to make people think that their "originalist" argument for homosexual "marriage" in the 14th amendment might be something other than horse manure.

It'll get better when conservatives accept that this is the end game of the culture war and realize that they must fight like it's a real form of war. That means taking actions that while moral, inflict real harm on their opponents. For example, Glenn Reynolds of Instapundit has long advocated measures that would force the left to choke on its own pro-tax bile. Conservatives could also take a page from GamerGate and start targeting those organizations that fund the left with divestment campaigns, hounding advertisers to drop support of the left and things like that. GamerGate cost several journalists their jobs, Gawker Media lost over $1m in advertising revenue and all but lost its relationship with several major advertisers. What scalps have social conservatives tried to claim like that? Oh, right, probably none.

I know this isn't the level of "scalp" you are thinking of, Mike T., but in my opinion Houston Baptist University should definitely demand Domenech's resignation as editor of any journal they house or publish. As they would for any other public advocate of values diametrically opposed to Christian ethics. And that is one place where conservatives might actually have the clout to make the demand effective.

A scalp is a scalp. I think this blog post should be required reading for conservatives, particularly ones who have to deal with "moderates." One particularly good point:

If the moderates will not at the very least provide covering fire for the extremists, they are useless. And to the extent that they open their cowardly mouths to criticize, correct, and concern-troll the only people on their side who are taking action, they are worse than useless.

In this case, I would say that conservative leaders who have any power to do so should fight to ensure that this sort of betrayal ends Domenech's career publishing in any remotely conservative outlets. If a leftist were to publish an apologia for traditional marriage, especially if it hinted at the man being head of household and the indissolubility of the relationship, they'd be flogged in the MSM and social media. Making a tent big enough for quislings is not tolerance, but inviting a fifth column in. That's part of how the National Review went from conservative to being a neocon rag.

Looks like the scalp is already off. I have it from an inside source that he is no longer editor. They will want to change their Wiki page. The City Online page now, as far as I can tell, lists no editor and simply has Domenech as one of the authors archived from the sidebar.

Now if somebody would just strip Steven Calabresi of some of his honors. If he still has any position with the Federalist Society, either nationally or with the local chapter at Northwestern University, he should be stripped of it on the grounds that his "arguments" for an "originalist" case for homosexual "marriage" are manifest, politicized sophistry rather than anything to do with constitutional originalism.

Is there some kind of mental disease that runs around conservative circles? How hard is it, really, to recognize that being conservative means a commitment to certain ideals? How hard is it to recognize that if one neither thinks (a) on principle that government should be limited, nor (b) that traditional standards of morality are worthy of legal protection and support, that one is not actually a conservative? Why the heck would a liberal spend all those years pretending to be a conservative, if he were not mentally ill? Alternatively, why would a conservative who actually thought either (a) or (b) (or both) stop doing so after years of thinking them, due only to glittery non-arguments of non-sense from liberals, if he were not mentally ill?

Why the heck would a liberal spend all those years pretending to be a conservative, if he were not mentally ill?

Are you seriously asking why someone would infiltrate their enemy's camp under pretense of being one of them and then spend years undermining them slowly from within?

The "mental disease" feeling is what has oppressed me in the last couple of days when I've become aware of these claimed "originalist arguments" for taking the 14th amendment to require homosexual "marriage." That's so insane. Any approach that would allow one to wring a requirement for homosexual "marriage" from the 14th amendment has _no_ claim to be originalism. What can be wrong with these people? By that approach, Roe v. Wade was also decided on "originalist" grounds. It's pathetic. Just playing a level of generality game. We make up some kind of vast principle ("equality" or "the elimination of caste legislation") that supposedly the 14th amendment was meant to articulate or support, and then we engage in selective application to the case we want to make. If "equality" or "the elimination of caste legislation" was what the 14th amendment was about at some level so vast as to encompass homosexual "marriage," then why not three-person marriage? Why not 12-year-olds voting? Why not the elimination of the sex offender registry? _Every_ law involves putting people into groups and treating them differently.

That this is a sophistical game is absolutely self-evident. Some kind of mental virus must be going the rounds of some supposed "originalists" not to see this.

What you and Tony are seeing is that they'll say anything to advance their agenda. This kind of dishonesty should not be treated compassionately, but should be ruthlessly mocked and ridiculed with the purveyor treated like a propagandist and liar. One of the reasons why GamerGate has been so effective is that the gaming community has been unwilling to sit back and be shamed/brow-beaten by the leftists. The average vocal gamer has shown more backbone in facing down the left than a dozen typical conservatives.

Ross Douthat has asked several questions for so called progressive, pro-ss"m",anti-rfra supporters.


"At the very least, I think liberals would benefit from recognizing that the current thinking of religious conservatives, in the RFRA debate and elsewhere, is shaped not only by these kind of specific fears but by a near-total uncertainty about what happens after this, and after that, and so on"

That last question about children is particularly ominous given that some so called progressives to claim that our views on marriage and sexuality should be considered child abuse if taught to children. Those that may not go quite that far, may if the child happens to claim to be "gay" or "transgender" and their parents do not affirm and support those things.

I have only found one set of answers from a so called progressive so far:

DR84, I have no doubt that in the U.S., as in Britain already, Christians with traditional moral views will be increasingly blocked from adoption and foster care.

The irony is shouting: Homosexuals can obtain children by all sorts of means, adoption among them, but Christians will be blocked from adopting. Note again: This is _already_ happening in Britain.

Lydia, et al,

Please read this article about the conduct of the gay debate in the country of Ireland. It's quite illuminating about how far advanced the toxicity of the dis-ease has advanced:


P.S. I was going to cancel my subscription to HBU's quarterly, but since it's free, what's the point?

Glad to see that Ben Domenech has been removed.

Anyone remember Facebook groups? (I'm not sure if they're still a thing, I've been off FB for awhile now.)

I remember one, way back in '05 or so, called (paraphrasing) "If you don't support gay marriage, then don't get one and shut up."

I remember thinking that this was bad reasoning even then, but I couldn't put my finger on why. I now say this phrase to myself sarcastically every time I see a new case where someone has tried to take what was the liberal position ten years ago, only to be smacked around outraged liberals.

Yes, and if people are considered unfit to adopt or foster children, by what rationale could they be regarded as fit to raise their biological children? I am asking mostly rhetorically because I doubt there is any rationale. Also, for what it is worth, I believe it is the common practice for a social worker to interview and clear parents before they take their newborns home. At least that is what I have been told by someone who works in a maternity ward.

" Also, for what it is worth, I believe it is the common practice for a social worker to interview and clear parents before they take their newborns home." Not in the U.S.--yet. It's the nurses who are assigned to be the busybodies in the U.S. (Some of them probably don't appreciate the job, either.) But in Scotland, definitely. In fact, Scotland assigns a social worker now to every child.

In addition, I believe it is already the case that the pro ss"m" side has concluded that biological relation between parent and child is of no consequence at all. Even more so to hold the view that it is, is itself, hateful, homophobic, and bigoted.

That this is a sophistical game is absolutely self-evident. Some kind of mental virus must be going the rounds of some supposed "originalists" not to see this.

Orignialism means nothing if does not mean that we should ascribe to any the law the meaning that the words bore when it was adopted. There is simply no possible "originalist" case that the ratifiers of the 14th Amendment accidentally changed the legal definition of marriage in every State. To argue differently requires something much worse than sophistry, though for purposes of disqualifying a man from the ranks of the genuinely "conservative," sophistry will do.

Secular conservatives are susceptible to argument of the sort--marriage is good for straights so SSM is good for non-straights.
The privileging of monogamy over complementarity is, I suppose, an American oddity, a curious remnant of Christianity and would make no sense to a Muslim or a Hindu.

Indeed, I suspect that even social conservatives and religious Americans prefer gays paired-off than unpaired. So strong is the cultural idealization of marriage. In a way, it was the hyping of marriage that did the conservatives in.

I would say that the gays are better-off unpaired. That makes for less confusion between straight relationships and gay relationships. But apparently, no American could be convinced of something so barbaric and medieval.

Indeed, I suspect that even social conservatives and religious Americans prefer gays paired-off than unpaired.

If you're saying that religious Americans in general share Andrew Sullivan's counter-intuitive view that homosexuals marrying is a conservative public policy because, you know, marriage, I think that's crazy talk. Conservative Americans and religious Americans generally don't think that, although that view has been expressed here and there as a corner case by obviously liberal people claiming to be conservatives.

I also don't know that marriage has been excessively "hyped" by anybody. This sounds like the usual accusation against conservatives, that merely by making an argument for the importance of an institution that is under full-frontal assault, they are guilty of "idealizing" it, or engaging in dewey-eyed "nostalgia". (As a traditional Catholic, this chimes a little too familiar to my ears.) Under this rhetorical regime, conservatives basically can't win, since they're somehow at fault just by stating their case.

If anything, American conservatives have been far too insouciant about defending marriage, and have made almost no efforts to undo the judicial and statutory regime that has so badly eroded it. I can't take seriously the accusation that conservatives are prone to excessive zeal in this area.

If anything, American conservatives have been far too insouciant about defending marriage, and have made almost no efforts to undo the judicial and statutory regime that has so badly eroded it. I can't take seriously the accusation that conservatives are prone to excessive zeal in this area.

Since the left has made it clear that "liberalism" does not mandate tolerance for religious views alongside homosexuality, it would behoove conservatives to realize that there is no profit to be gained by arguing for traditional marriage on the opposition's terms. What we have left is a naked power struggle. Instead of playing by rules largely abandoned by the other side in a vain attempt to appear the better side, conservatives would do well to just take every moral avenue to just impose their will on the left. What we have now is raw power politics taking center stage since the left's activists have made it clear that they have no intention of balancing interests.

As I say to a liberal coworker who is dumbfounded that received wisdom on the left today is that he, as a gamer is a misogynist despite being a Good Liberal(tm)... "when you realize that equality was never their goal, it changes everything."

Tell 'em, Sage.

BI, the fact is that there are people (but I won't call them conservatives), including progressive "Christians," who are just looking desperately for some reason to think positively about homosexuality because they don't want to feel mean. For _those_ people, I suppose the Sullivan-esque nonsense about how this will somehow be good for homosexuals might be useful. But that's only because they are looking for some reason to approve.

In the symposium at the Federalist that I linked in the main post, Domenech asked everybody to say in each piece what each of them thought was the strongest argument against their own position on homosexual "marriage." Cute, huh? One participant, whose name I forget, was still against homosexual "marriage" but was saying that the strongest argument against his position is something like "people need companionship." He was favoring a regime, which he (fortunately) admitted would not give the homosexual activists what they want, in which any two people (why two?) would have a "streamlined" route to some kind of legal entanglement. I _assume_, though he didn't say, that it would have nothing to do with child custody and hence would not even be a civil union. This would be useful, he said, for an elderly parent and grown child, etc. It would have nothing to do with recognizing a distinctively romantic union, etc. We've heard this kind of thing before. I have much to say about it, all against. But one of the points that occurred to me is just what you have said about "unpaired" homosexuals. If one thinks that their behavior is unnatural and _bad for them_, then the _last_ thing we should be looking to do is _anything_ that binds them into that lifestyle more fully. This includes any legal regime that somehow binds two of them together formally, even the kind of "civil partnership" or whatever this guy was talking about. And a fortiori calling them "married."

Mike T writes, "What we have left is a naked power struggle. Instead of playing by rules largely abandoned by the other side in a vain attempt to appear the better side, conservatives would do well to just take every moral avenue to just impose their will on the left."

I agree with the first part. There is a naked power struggle going on, largely since those on the radical left tend to see *everything* as a power struggle, and since all of us are prone to wrongdoing. However, depending on what you mean by, "just impose their will on the left," it is not clear to me that the best conservative response is to adopt the same approach, albeit constrained by the bounds of the moral law. At least, it is not clear to me why a *Christian* should aim to impose his or her will on non-Christians. Resist evil? Yes. Denounce harmful policies? Yes. Refute bad arguments? Yes. Pray? Absolutely. Love your enemy? Of course. Coerce? Not so sure. Why should we think this?

PF, Mike T. often deals in generalities. "Coercion" is obviously good in some cases and bad in others. Obviously it's fine to "coerce" people not to murder, for example. I myself wouldn't mind putting pressure on people not to bully Christians and also on those who want to be considered conservatives to to act as a fifth column. For example, I think that anyone who professes support for homosexual "marriage" should be unable to teach at a Christian college. This is bare common sense if organizations, institutions, and even looser political groups are not to lose their meaning and essence. I have a feeling that Mike would call this "coercion," where that is perhaps not the most felicitous phrase. Similarly with politicians who scorn their base and hence lose their positions. Or, within politics, various perfectly legal parliamentary tactics might be considered "coercion." For example, going back many years, I think Ronald Reagan should have been less of a "gentleman" and should have appointed Robert Bork (or someone if possible even more odious to the left) to the Supreme Court on a recess appointment.


Let's use marriage as an example. The left has admitted that compromise is not in the cards. It's their way come hell or high water. The old pluralism and spirit of compromise is dead with them. They have declared open hostility. The status quo is hardly Christian. It's neither patriarchal nor is it even marriage in the sense that Christendom would recognize due to the trivial effort to legally dissolve it. The time has come for Christians to stop the pluralism act, stop accommodating other religions which are often aligned with the left and openly demand a more blatantly Christian standard of legal marriage.

I have often pointed out when debating ss"m" proponents that it is possible to extend some marital benefits to non-marital relationships. Not because I am for doing so, but because it counters their claims that homosexual couples are specifically singled out for these benefits and harmed accordingly. That said, there does seem to be a plausible argument based on free association for extending inheritance and possibly joint tax filing benefits to people that share a household. I am completely open to this being a very bad idea for reasons that I dont yet understand, and regardless, do not see it as a pressing need even if it is not.

Mike T-

Do you have something like (legal) covenant marriages in mind?


Strategically, trying to roll back ss"m" is probably a no-go (but worth trying regardless). Maybe this is a way to go on the offensive.

What I have in mind is roughly that we advocate for traditional, Christian marriage as would have been recognized in most of Western society in past centuries. That includes the patriarchal elements in the law. The left has declared that it wants a definition of marriage that is unrecognizable in any other society. Compromise is now not reasonable, let alone really possible. Therefore we should stop playing the pluralism game and openly push for the Christian understanding of marriage to be the foundation of family law.

As to the points you made about inheritance and such, I tend to agree. In Virginia, it's my understanding that conservatives were able to get a heck of a lot of such rights tied to marriage and the result is that now gays actually have a legitimate claim that our laws give them greatly reduce rights on things we take for granted.

Inheritance "rights" _should not_ automatically go to someone who shares a household. Why should the lover you ran away to join (be it male or female) get automatic inheritance in cases of intestacy over the spouse you left? It's easy enough to give inheritance to a non-family member to whom you aren't married.

Make a will. Get a form on-line and keep it simple if you can't afford a lawyer.

If you can't be bothered to do that, don't whine.

As far as joint tax filing, there I disagree as well. "Sharing a household" is too vague a concept. Two roommates do not have any claim on joint tax filing status.

Moreover, as I already said, if the roommates have a homosexual relationship, it is a _bad_ policy idea to take that into consideration and to make their "love" something that gives them some sort of prima facie rights as "making a home together." Among many other things, it tends to tie them together more tightly, which is deliberately encouraging the immoral relationship.

The same for a guy and a girl shacking up, by the way. They should either get married or get no special benefits of marriage.

Except for joint tax filing and child custody, all of the supposed "benefits of marriage" that homosexuals whine about can be set up between non-family members by going to the trouble. Moreover, lots of people have to go through that trouble when they have _more_ of a claim than a homosexual couple does. Take a parent with a grown child. If you want to be sure that you can be that grown child's decision-maker in case of medical emergency, the young person has to fill out a form and sign it. If parents have three children who all grow up before getting married, the children all need to fill out these forms or the parents may be locked out of medical decision-making if the child is in a car accident. So fill out the danged forms! Some legal regime that lets "any two people" have some kind of streamlined legal association isn't going to help, because we're talking about _parents_ on the one hand and _multiple children_ on the other. It could be a group of five or eight, for example, related in complex ways. And I have a heck of a lot more claim to have "a life together" with a nineteen-year-old biological child who hasn't left the nest yet than some homosexual has to have "a life together" with his sodomite partner. If they want each other to have DPA for healthcare, they should have to fill out the same forms we do.

So, no, I'm really not at all interested in streamlining any "marital rights" for homosexual couples.

If you have any significant amount of property to leave, even just a house, it's dumb and inconsiderate to die intestate anyway.

As far as medical privacy, even husbands and wives cannot get access to each other's medical records under a great many circumstances unless the adult patient has filled out a form with _that_ medical provider granting the other person access. Even a general DPA for health care isn't enough unless the patient is fully incapacitated. So it doesn't do to take anything for granted in that area. HIPAA has made medical rights for spouses much restricted. So there, again, homosexuals have nothing to complain about in comparison to the rest of us.

Not only is there no "market" for any special, streamlined status for innocent, non-homosexual couples, it's a kind of self-deception to think that we'd even be discussing any of this if it weren't for the agitation of, specifically, homosexuals.

Something worth thinking about for people like Philosofarmer is how "pluralism" has in fact generally meant that the left will demand that Christianity's cultural and legal relevance be watered down a little here and then a generation later a little there. On marriage, the left has been steadily assaulting traditional Christian marriage in the US in the following ways over the last century or so:

1. Expanded the ways of divorce can be acquired with grounds.
2. Greatly expanded the legal autonomy of wives from their husbands with no concurrent reduction in the husband's responsibility.
3. No fault divorce with most of the old support system in place.
4. Now "gay marriage."

Each of these major initiatives were an attempt to attack the main pillars of Christian marriage as practiced by Catholicism and orthodox Protestants:

1. The indissolubility of marriage.
2. The presumption that the husband is head in both moral and legal authority.
3. The presumption that if a spouse destroys the home life they do not get to cash out the family assets/run off with the kids.
4. That marriage is between one man and one woman for life, not until our happiness doth wane.

The left successfully used the language of pluralism to get us to this point because conservatives and right-of-center moderates did not understand that the left will generally say anything to advance its cause. So what do we get out of playing along instead of just defending and even taking the initiative to restore the pillars of orthodox Christian marriage? I don't see any benefit except "warm fuzzies" that come from feeling like a swell guy who plays nice with others, except in this case you're playing nice with people who would quite cheerfully lock you up and asset strip you for not doing things their way.

At this point, a conservative who does not forthrightly advocate a particular worldview instead of dogmatically defending the status quo is just too far behind the curve to be good for anything.

Here is another originalist argument.


"Laws that outlaw marriage equality, of course, exemplify class-based legislation: By outlawing same-sex marriage, the government has targeted a class of people and disadvantaged them based on their identity. South Carolina is correct that the 14th Amendment’s framers didn’t foresee the equal protection clause’s application to gay people. But it’s not really accurate to say that these men didn’t intend their amendment to apply to new minorities. Few legislators in 1866 could have predicted the emergence of gays (or, for that matter, women) as fully participating members of society—as citizens, in a word. Luckily for us, they intentionally wrote an amendment that spoke in extremely broad terms that, by their plain text, protect classes today who were barely recognized as people 150 years ago. That, at least, is the originalist theory in support of marriage equality—one that makes South Carolina’s cherry-picked history lesson look an awful lot like pretext for bigotry."

This argument is called brilliant. Unbelievable. As if recognizing marriage as a male/female somehow targets this "homosexual class" of persons and disadvantages them based on their "identity".

Anyway, I agree none of this would even have been thought up apart from that agitation. No one has been finding it a significant injustice that such a streamlined status has not been made available otherwise. More so, it is not as if those agitating are even for such a thing. After all, they want special status for homosexual relationships *because* they involve homosexual behavior. They, by and large, do not want to share any social or legal status and benefits with relationships consisting of friends or family members.

That all said, I admit I wonder if Edith Windsor was not given a tax bill after inheriting her partner's assets if DOMA would have even been struck down. What's done is done there, but I do wonder nonetheless. It seems this could have happened without changing marriage and also without doing any kind of streamlining of benefits.

"The Heritage Foundation has argued for eliminating the estate tax, popularly called the “death tax,” for more than fifteen years. In an influential 1996 report, Heritage argued that such reform was in line with the American dream and sense of justice. Tax law should not discourage savings and investment, nor punish hard work and thrift. Nor should it encourage Americans to consume now in order to avoid passing on wealth to loved ones because they would be taxed.

Killing the death tax would encourage economic growth, add jobs, and allow offices and factories to buy equipment that elevates productivity and wages. Lower capital costs mean new small businesses.

Best of all, such tax reform would treat all Americans fairly.

Ask yourself: What if Edith Windsor’s sister rather than a same-sex partner had died after living with her for decades? It would be arbitrary and thus unfair to redefine marriage to grant Ms. Windsor tax relief simply because she was in a same-sex sexual relationship while not granting that relief if she were in a similar, but non-sexual, relationship."

That all said, I admit I wonder if Edith Windsor was not given a tax bill after inheriting her partner's assets if DOMA would have even been struck down. What's done is done there, but I do wonder nonetheless. It seems this could have happened without changing marriage and also without doing any kind of streamlining of benefits.

DR84, it would have happened over income taxes based on marital status all the same.

Killing the death tax would encourage economic growth, add jobs, and allow offices and factories to buy equipment that elevates productivity and wages. Lower capital costs mean new small businesses.

I am all in favor of tax reform, and designing taxes to do the right things socially. But Heritage's drumbeat here is either ignorant or intentionally designed to obfuscate.

ALL taxes discourage economic growth in some measure, because the money in the hands of private persons can then fund the natural economic engine. Estate taxes are not special this way, they are simply a larger bite all at once than usually occurs, thus have more of the same old effect all at once.

Because of the marital deduction and exempt amount, most couples don't pay estate tax unless their combined wealth exceeds 11 million. That covers the majority of family farms, and family small businesses (or at least the bulk of the value of a small business, leaving the remaining tax burden something the business can handle and remain intact.) The notion that people cannot pass on a small business to their kids and this prevents investment in small business is just smoke and mirrors. Less than 3% of farm owners at death had to file an estate tax return.

Most of the estate tax is collected from people holding more than $20 million. This isn't small potatoes. I agree that the 40% rate is ridiculously high. But the problem with taking the estate tax off the table all together is that there is no real sound argument for it. All taxes are taxes on wealth - you cannot tax poverty as such. If you are going to tax wealth, you can either tax the act of acquiring it, having it, or getting rid of it. We do all 3 of these: income taxes, property taxes of various sorts, and sales taxes. The estate tax could be viewed as a combined property / sales tax: a tax measured by your whole property, imposed on the act of getting rid of it. There is no principle which says this should be off limits. So, here is the way to respond to Heritage's theory: to ask them "if estate tax is bad because of how it affects the social structure, with what tax increase would you replace the lost government intake?" Heritage just wants a tax break for the rich, that's all. I want a tax break for everyone, not just for the rich, by actually cutting spending.

DR84, it would have happened over income taxes based on marital status all the same.

I'm with Tony on this one. Activists would have found something else to sue over; believe me. If it weren't that woman with that complaint, it would have been another lesbian or homosexual with another complaint. Marriage is too much woven into the warp and woof of federal law for them to have been unable to find something to sue over. There's no way that we're going to be able to prevent that by reforms that happen to be justifiable on entirely independent policy ground (e.g., if one happens to support eliminating the death tax).

Mike T,
The idea that marriage is under attack from the left is seriously and misleadingly incomplete unless the libertarians are understood to belong to the left. Are Koch brothers left? Is Tom Cook?

Indeed, the social conservatives that should really call themselves traditionalists should recognize that that libertarians are their bigger opponents than the progressive left. The progressives recognize community and the demands a community may morally make on individuals. The libertarian does not recognize any limitation on his sovereign will.

That is utterly insane for at least a few reasons...

1. Progressives absolutely do not recognize any moral claims made on wives by their husbands and children. In fact, it was the left that spear-headeded the demand for no fault divorce and that is overwhelmingly represented in family law work.

2. Libertarians advocate contractual marriage and greatly reduced authority for judges to throw out marriage contracts, meaning that under a libertarian regime the Roman Catholic Church could effectively create a legal regime where Catholics could not lawfully divorce one another and had to use canon law courts for arbitration.

3. The vast majority of the people enthusiastically demanding the maintenance of the anti-male family law regime and advancing it further are "progressives/feminists." I defy you to find more than a handful of freaks among libertarians that have anything positive to say about family law, let alone want it to go further.

4. If you mean "Tim Cook," then I would say no since there about as many libertarians in Silicon Valley leadership as there are righteous men in Sodom.

The progressives recognize community and the demands a community may morally make on individuals.

Progressives are the bastard children of Marxists. As such, they recognize claims only by "oppressed groups" on "oppressor groups."

Bedarz, if you think you can make progressives look good in the area of marriage, you're trying the proverbial "making a silk purse out of a sow's ear." "Recognize the claims of community" is just words when we are talking about a group that is actively, viciously destroying marriage. As progressives are. Their idea of "community" is "it takes a village to raise a child." Meaning, persecute the parents by child protective services, outlaw home schooling, and raise children in daycare and public schools because socialization, community, blah, blah. Don't make me laugh.

As for libertarians, the term is fluid. The main post shows that, indeed, libertarianism in the main in America has inexplicably allied itself with leftism on this issue and blinded itself to the incredibly un-libertarian actual policy intentions of the left. There are probably many explanations for this, but some of it is just chance. Like the chance stupidity of official libertarian leaders in being willing to swallow mantras like "gay marriage is about freedom from government coercion." What a joke.

When a so-called "libertarian" favors homsosexual "marriage," he's just a leftist.

When he thinks that homosexual "marriage" should be part of a radical regime in which civil marriage as such is abolished, no contract is favored over any other, and everything is done by enforcing contracts, he's an idiot.

But please, don't make me laugh with faux distinctions such as, "Progressives are better than libertarians because they recognize the claims of community." Collectivism as an alternative to radical individualism is no choice at all. And if you don't know that collectivism is what a progressive means by "community," then you have been asleep for decades.

But please, don't make me laugh with faux distinctions such as, "Progressives are better than libertarians because they recognize the claims of community." Collectivism as an alternative to radical individualism is no choice at all. And if you don't know that collectivism is what a progressive means by "community," then you have been asleep for decades.

I would say that by "community," what progressives mean is "the state," full stop. The actual community--e.g., churches, families, private clubs, etc.--is their enemy, inasmuch as it is a rival center of power to government bureaucracies, and they aren't even particularly subtle about this fact. I wonder precisely which claims of, say, the local Boy Scouts progressives are inclined to respect? They aren't even inclined to respect the claims that non-state institutions make on their own members, for heaven's sake. In the context of marriage, where the claims of community are pretty much the exact opposite of the relevant progressive policy agenda, such a statement is something approximating a sick joke.

There is nothing inexplicable in the libertarian-progressive alliance. Russell Kirk knew of it decades ago. What is inexplicable is the continued hopes that social conservatives have from libertarians. As the Catholic Church has continued to stress, the radical individualism that libertarians espouse is the deadliest enemy of any tradition worth having. There is nothing odd in libertarians asking for govt coercion as well. Liberalism and individualism has ever advanced on State support.

I never said that progressives are friends of social conservatives. But social conservatives share some common language with progressives. But nothing is shared with libertarians.

The founding texts of libertarianism, for instance Mises or Mill clearly declare their aim is to emancipate the individual from the hegemony of both State and Tradition. For state is nothing but tradition formalized. Only then, the autonomous self-creating individual will be born.

For a social conservative to insist in 2015 that libertarians are our best friends is nothing short of suicidal folly (and I use the word carefully) and that it is inexplicable to see them march under our enemies' banner.

It is an old pincer movement, the two wings of liberalism, progressive and libertarianism, have ever reinforced each other and now have poor conservatives in death grip.

I never said that progressives are friends of social conservatives. But social conservatives share some common language with progressives. But nothing is shared with libertarians.

Social conservatives share common language with a group that is notorious for using a postmodern view that words mean whatever you want them to mean. So aside from shared sounds and written symbols, there's nothing shared between them. If you think otherwise, you're delusional and actively avoiding any observation of the real behavior that would inform you of how progressives actually regard the meaning of their words.

Doctrinaire libertarians are actually not that common, except on the Internet. In real life, most of them are non-authoritarian conservatives who want a minimal domestic policy and a foreign policy that leaves other countries alone. The beltway libertarian vs Ron Paul supporter fight back in 2012 also highlighted to the public what was obvious to most small-l libertarians: the libertarians that run Reason, Cato, etc. are left-libertarian insiders who are not representative of the majority of libertarian-leaning individuals.

But social conservatives share some common language with progressives.

Oh, come on. If, for example, a communist talks about "freedom" (for example) and I talk about "freedom," does that mean we "share a common language"? Or love, or commitment, or the good of humanity, or anything else? If the Grand Inquisitor says he believes in obedience, and I say that I believe in obedience, do he and I share a common language? If a murderous, evil dictator engaging in genocide says he believes in pride in tradition, and I use that same phrase, do we share a common language? A "common language" is supposed to mean that the words have something like the same meaning. If you think they do, between social conservatives and progressives, you're really, really out to lunch.

By Bedarz's logic, pedophiles and the Pope share a common language on love of children.

All social deviations have been argued on basis of radical individualism. On same-sex marriage, people have been persuaded by "how does it harm you?" and not on any collectivist argument.
Abortion and euthanasia are justified on self-ownership grounds.

Progressives, along with conservatives, believe that the community may make demands on individuals.
that is, they believe in political authority, though in a defective way. Libertarians, by contrast, entirely dismiss any notion of political authority as an impermissible infringement of the sovereign individual. You could not talk about common good with them for the common good does not exist for them. Neither does justice, it is always individual liberty.

Those calling merely for limited foreign policy are not libertarians but merely mislabeled conservatives. This point was too made by Kirk in the Chirping Sectaries essay.

Are arguments on basis of collective sentiments more likely to succeed in America than arguments on basis of individualism? To ask the question is to answer it

Progressives, along with conservatives, believe that the community may make demands on individuals.

Like, y'know, just give us your children to raise.

"Are arguments on basis of collective sentiments more likely to succeed in America than arguments on basis of individualism?"

It depends on whom you're talking to. The leftist media is becoming ever-more-blatantly collectivist, and they don't seem to be suffering for it.

But it wouldn't be particularly a _good_ thing if "arguments on the basis of collective sentiments" were successful in America. Plenty of arguments on the basis of collective sentiments stink to high heaven.

I think you need to give this silliness a rest, Bedarz. I've already answered it several times and am getting tired of repeating myself. So have other people.

Mike T,
It is precisely the small-l libertarians who, by accepting and propagating- "how does this personally harm you?"- have cleared the way to massive social acceptance of deviations.
They are a major part of the problem. I note that Paulites have not been able to make a forthright statement on current Indiana controversy.

God, looking down on this mess, must be weeping. Marriage, between a man and a woman, is a covenant and there can be no covenant without the shedding of blood, and this occurs when [edited LM] the new marriage is consummated.

What ever these vile people are doing cannot be called marriage since there cannot be the shedding of blood as God has intended for marriage. These unions or what ever they may be called are unholy and fly in the face of everything that holds our society together. God help us.

Homosexual relationships certainly aren't marriage and certainly cannot be consummated in the eyes of God. Our nation certainly needs God's help.

But your comment shows that you are a real weirdo, and your theory concerning real marriage is not supported by...anything, really. So please, refrain.

I sometimes wonder how W4 manages to attract such totally bizarre comments from (in some sense) "the right." I will do my part to make really wacky comments from that side of the political spectrum unwelcome on my threads.

I shouldn't mention this, I really shouldn't, but if whirlwinder's premise is correct. [Yes, sorry, you really shouldn't mention it. LM]

Sorry, I realize the comment I just deleted was well-intentioned as a reply to WW's nonsense, but I had to delete it anyway. I'm sure the writer of the comment will understand.

No worries, I knew it was borderline.

How is it that a group of just over a million people...has this much control over the 340,000,000 (that's 340 Million people)???

WHO is behind all the politics and funding of the Gay/Lesbian/(?) "funding"...

Perhaps Conservatives, and Christian's should start plugging to America just how "diffe re nt" they are...after all, if one isn't a majority then in reality we are all minorities, aren't we?

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