How To Fight The Bureaucratic State

Is there anything more clear in the Constitution than the fact that “All legislative powers herein granted shall be vested in a Congress of the United States”? Nevertheless, there are currently about 23,000 pages of federal laws passed by Congress and almost 80,000 pages of regulations by executive bureaucracies.

Until recently, no one seemed to care. But in 2010, House Republicans appealed to the rising Tea Party movement by pledging to “require congressional approval of any new federal regulation that has an annual cost to our economy of $100 million or more.” In 2011, Rep. Geoff Davis introduced just such a bill; the “Regulations from the Executive In Need of Scrutiny” (REINS) Act passed the House with the support of all 237 Republicans, and four Democrats. But President Barack Obama pledged to veto it, and a similar bill sponsored by Sen. Rand Paul died in the Democratic Senate.

Congress, of course, has always been able to override bureaucratic rules even without REINS. However, as the Heritage Foundation’s James Gattuso has noted, the process is cumbersome. To try and address this, Congress adopted “expedited resolutions of disapproval” in 1996, to encourage up-or-down votes to reverse counterproductive bureaucratic regulations. Since that time, however, Congressional reluctance to override the president and the politicians’ fears of taking responsibility for controversial regulatory acts has resulted in only one such disapproval passing Congress, allowing all other rules to go into effect. REINS is aimed at forcing legislative responsibility by requiring every rule with a large economic impact to obtain specific approval from each house, without which the regulation would never go into effect.

With newfound Republican control of the Senate following the 2014 elections, there has been a renewed interest in passing such a bill. Of course, President Obama would still veto it; and Democrats will make it very difficult to corral the 60 votes needed to pass the Senate. With this solution stymied, top regulatory expert Wayne Crews proposes creating a bipartisan commission to identify regulations that must be voted upon by Congress to remain in effect. Even that has met substantial opposition, including from some frightened Republicans.

Substantive objections to requiring Congressional approval are few and weak. The best that the progressive Center for Effective Government could do was to warn that this would allow Congress to “second-guess agency expertise and science on food safety, worker safety, air pollution, water contamination, and a host of other issues.” But even disregarding the fact that bureaucratic expertise in these areas is often more in the promise than in performance, is not voting on such issues precisely what the Founders expected Congress to do?

As Crews notes, the number of federal regulations has been exploding. “While an utterly imperfect gauge, the number of pages in the Federal Register is probably the most frequently cited measure of regulation’s scope, which unintentionally highlights the abysmal condition of regulatory oversight and measurement. At the end of 2014, the page count stood at 78,978, the fifth highest level in the Register’s history.” He estimates the real cost (mostly hidden in “guidance’ and sotto-voice threats) could be higher than the formal debt of $18 trillion.

In an important Frazer Institute essay published in What America’s Decline in Economic Freedom Means for Entrepreneurship and Prosperity, Crews notes the baleful results:

An astounding 92 million Americans are not working, positioning labor-force participation at a 36 year low, with nearly 12 million having dropped out during the Obama administration. Data point to high debt per capita, and to the highest part-time and temporary-job creation rates in contrast to full-time career positions. A popular blog laments the “slow death of American entrepreneurship.” Headlines tell painful tales, like that of January 2015 in Investor’s Business Daily reporting on businesses dying faster than they’re being created, a circumstance the Washington Post had noted in 2014. Likewise, a Brookings study on small business formation noted declining rates, as did a Wall Street Journal report on reduced business ownership rates among the young. One recruiter described to the Wall Street Journal how regulations undermine employment, while others point to an inverse correlation between regulation and innovation.

The World Economic Forum’s “burden of government regulation” places the U.S. the 87th most onerous of 144 nations globally on complying with administrative regulations on business.

Indeed, Supreme Court Justice Clarence Thomas has recently questioned the entire logic and wisdom of regulatory delegation. First, in Perez v. Mortgage Bankers, he asked whether the Court’s precedent in Seminole Rock, requiring judicial deference to executive interpretation of regulations, improperly “represents a transfer of judicial power to the Executive Branch.” He says that decision “precludes judges from independently determining” the meaning of laws and unfairly favors the executive against the legislative branch in interpreting the law.

In Department of Transportation v. Association of American Railroads, Thomas even demanded judicial review of the Court’s whole existing standard, which delegates rulemaking to the executive as long as there is an “intelligible principle” in the law to guide the executive. Thomas argues, to the contrary, that that principle has become “boundless” today, undermining the original constitutional understanding of legislative power.

Pretty much everyone knows the regulatory system is broken and probably unconstitutionally so; but nothing ever changes. The executive loves to boss folks around, Congress is afraid to act, and the courts are so isolated they actually think the regulators know what they are doing.

Just in time to prevent despair, however, the nation’s most inventive social scientist, Charles Murray, has written another ground-breaking book, mischievously titled By the People: Rebuilding Liberty Without Permission. Murray concludes that the government is incapable of changing its ingrained irresponsibility, so he suggests that reform should be initiated by the people themselves.

Murray starts with the fact that there are so many federal regulations on so many daily behaviors that it is impossible for the regulators to enforce them. The traffic police can issue tickets on rural roads, but they cannot enforce reasonably-over-the-speed-limit driving on crowded highways. It is the same with regulators. They can only effectively police when few disregard the rules. They can then come down good and hard on them. Most settle without a trial, knowing that bureaucratic courts are rigged against them.

Murray would create a Madison Fund named for the father of the Constitution to provide legal assistance to the public, which is encouraged to simply ignore the screwiest regulations. If Americans refused to obey irrational regulations and were backed by an insurance-like fund that would provide legal support to, and publicity for, those unreasonably harassed, regulators themselves would soon learn not to enforce indefensible rules.

Murray believes it would only take a few wealthy contributors to get the Fund established, and that trade associations might get into the business too. Congress might even find enough courage to act constitutionally, if enough people get involved. There are many devils in the details, but sign me up anyway.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

The Enduring Spoils System

At the very pinnacle of the progressive agenda to make government competent stands civil service administration — the process that produces the scientific experts required to staff the government and deliver its promised welfare state benefits effectively and efficiently to the people.

Not everyone was convinced it would work, the old Democratic city machines being especially suspicious of the whole undertaking. Its most eloquent, if dialectally differently abled, critic was the legendary Plunkitt of Tammany Hall as William L. Riordon portrayed him in his immortal treatise of the same name.

Reflecting on the need to staff New York City government with good men in the early days of the 20th century, Democratic Party leader George Washington Plunkitt ruminated: “There are 10,000 good offices, but we can’t get at more than a few hundred of them. How are we goin’ to provide for the thousands of men who worked for the Tammany ticket? It can’t be done.

“I know more than one young man in past years who worked for the ticket and was just overflowin’ with patriotism, but when he was knocked out by the civil service humbug he got to hate his country and became an Anarchist.

“I have good reason for sayin’ that most of the Anarchists in this city today are men who ran up against civil service examinations. Isn’t it enough to make a man sour on his country when he wants to serve it and won’t be allowed unless he answers a lot of fool questions about the number of cubic inches of water in the Atlantic and the quality of sand in the Sahara Desert?”

Good boss Plunkitt need not have been concerned. By the middle of the century, the spoils system was back in operation, although not the one that had supported his poor Irish constituents. For the past 34 years, the United States Civil Service has mothballed its merit-based civil service examinations and reintroduced spoils.

I was actually present when merit was abandoned, as head of the civil service agencies transition team for Ronald Reagan in 1980. As the Jimmy Carter presidency was winding down that year, the Department of Justice and U.S. Office of Personnel Management (OPM) lawyers colluded in a “consent decree” with their private civil rights activist buddy lawyers to end civil service IQ examinations because minorities did not score as highly on them, claiming discrimination simply because of the results alone.

I was unable to convince our lawyers to contest the decree, so the court ordered an end to IQ exams for a decade. But the ban has been extended to this very day.

Obviously, one cannot run an institution, even a government isolated from market discipline, without some assessment of applicants. So merit exams were replaced with various “tests” based on resumes, self-assessments, and recommendations. The current test is called USAJobs and is a self-assessment of one’s own skills and qualifications.

Obviously, no one fails when assessing oneself, although the suspicion is that honest applicants are penalized for more accurate evaluations. But clever insiders discover the key words that enhance their odds of being hired.

Obviously, such exams hardly narrow the search for good employees. Agencies that are serious about finding qualified scientists, engineers, security agents, etc., are overwhelmed by applicants; and they cannot tell who will actually be qualified to do the work. There are enough breeches of White House security and FBI forensic incompetence already.

What do the bureaucrats do? They select people they know. If one cannot use a merit test, what else could one do? In fact, the overwhelming number of mid-to-upper level vacancies in the federal government is filled by what are called “name requests.” It is a spoils system, but of bureaucratic acquaintances rather than political pals. Nepotism is still illegal in Washington, but how about accepting some friend’s relatives if she will do the same for you? Who could tell?

The reason for this civil service history lesson is that after all these years, OPM is planning to introduce a merit examination that it calls USAHire. It has been quietly testing it since 2012 in a few agencies for a dozen job descriptions. The tests actually have multiple choice questions with only one correct answer. Some questions actually require essay replies — questions that change regularly to depress cheating.

OPM deserves high praise for this audacity. Unfortunately, it will not last. The federal unions have now been informed, and the old dynamics will inevitably return. Test results will soon reveal that some minority or another will not pass the exams at levels as high as others. Discrimination will be charged. And the government will relent and go back to its old bureaucratic buddy spoils system.

As Plunkitt fully understood, politics changes; but human nature does not.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

Are You A Discouraged Conservative? Then This Book Is A Must-Read…

The Conservatarian Manifesto: Libertarians, Conservatives, and the Fight for the Right’s Future, Crown Forum

Charles C.W. Cooke’s The Conservatarian Manifesto is a delightful call for a fusion of conserva(tive) and (liber)tarian ideals into a new synthesis that can lead the right to victory after eight years under George W. Bush “ruined its reputation, giving conservatism a bad name.”

“Republicans spent too much, subsidized too much, spied too much, and controlled too much.” The GOP “abandoned its core principle of federalism, undermined free trade, favored the interests of big business” over a free market, “used government power to push social issues too aggressively” and “lost its reputation for fiscal restraint, constitutional propriety and mastery of foreign affairs.” He justifies his indictment in crisp prose and difficult-to-dispute facts.

The best news is that Cooke’s solution is federalism and decentralization. The difference between the left and right, he argues, is that conservatives and libertarians do not insist on telling people hundreds and thousands of miles away how to live their lives. Progressive philosophy “is built upon the core belief that an educated and well-staffed central authority can determine how citizens should live their lives.” But, he argues, Utah and New York, indeed New York City and Buffalo, are very different places and deserve very different policies. Federalism is the answer.

In one of his few references to philosophical sources, Cooke questions whether it is even possible to run things well from the center. He references Nobel laureate F.A. Hayek’s magisterial “The Use of Knowledge in Society” to demonstrate that decisions must be left to people who are familiar with specific circumstances and know directly of resources and the changes in them necessary to make rational decisions. President Obama admits that many national agencies are “outdated” and “designed poorly,” but he proceeds to utilize them to dramatically change and affect peoples’ lives. The result is today’s governmental dysfunction.

The intellectual elite in the media and education simply keep repeating the progressive mantra, blind to any alternative. The differences between this refrain and conservatarianism, Cooke insists, are fundamental and “utterly irreconcilable.” The solution for the right is to build competing institutions to influence those with an open mind as it has already begun through alternative media, talk radio, journals, and think tanks. He concedes these are no match to the resources of establishment progressivism but is optimistic that the young represent “a generation of nonconformists” who will adopt his conservatarianism if it is presented attractively to them.

A sound platform must begin with the Constitution, the fount of federalism. But its central message is distorted by progressive intellectualism reading its prejudices into that document. He quotes progressive icon Woodrow Wilson that “The Constitution was not made to fit us like a straightjacket. In its elasticity lies its genuine greatness.” The conservative response should be the “simple idea” that “law should continue to mean what it meant when it was adopted,” which progressives seem to understand except when it comes to the Constitution. Before the progressive revolution, courts did not find black or female suffrage hidden somewhere in the Constitution. They required amendments, as required explicitly in Article V, which were in fact adopted in the 13th, 14th, 15th, and 19th amendments. Today, rights to sodomy, gay marriage, abortion, and the like are “discovered” in a Constitution that has nothing to say about them. Although he seems to concede past anti-federalist interpretations, his basic solution is to defend that document as written, leaving issues not in the Constitution to the states and using the amendment process when national change is thought necessary.

At least in theory, Cooke’s manifesto preaches rational balance in foreign policy. He identifies himself as a firm believer in American world leadership but finds that “a contingent on the right that is hostile to the heady interventionism of the Bush years is a healthy thing indeed. [But] That there is a tendency to extend this skepticism beyond prudence into all out disengagement is worrying.” America, he believes, “can lead without needing to rush to the scene of every fire in every corner of the world.” Military spending should be privileged, but the right should be in the forefront of “rallying against waste” and against using defense for pork-barrel spending.

Many conservatives will be upset with Cooke on social issues. On the positive side, he is a serious opponent of gun control and attributes the right’s success on this issue to having “the facts on its side” in a local-oriented policy (ignoring the Heller decision) that respects legitimate desires for protection and sportsmanship as well as differences between central city and rural life. Years of drug control policy (beginning with Wilson in 1914) have been a failure because it is national and cannot take into account local differences. It discriminates against African Americans, makes the U.S. the world leader in prison populations, and has contributed to the militarization of police forces. Drug policy should be decentralized to relate to local circumstances.

Cooke becomes provocative when he claims the whole idea of “social issues” is a myth. Each policy instead requires a pragmatic approach sensitive to different circumstances. Although specifying he is an atheist, he says abortion is settled by the simple and coherent argument that “a life is a life and that anybody who is interested in individual liberty is duty bound to protect the innocent.” Gay marriage is different. While Americans tend to oppose abortion—at least after the first three months—a large majority now support gay marriage.

Surprisingly, Cooke does not support the libertarian solution of privatizing marriage but does say that there is no Constitutional right to gay unions. The problem is that government is so intertwined in marriage that in a practical sense, either gay unions must be recognized–or gays must be deprived of too many government services, even ones libertarians recognize. Indeed, contracts cannot allow every human relationship (e.g. bondage or slavery); so the state cannot be excluded even when it is just enforcing free contracting. The solution again is local, to work out specific real-world difficulties. Minimally, those who do not wish to offer services to such marriages should not be coerced to do so.

Overall, Cooke presents a lively and interesting discussion of issues that should be widely read especially among America’s millennials and younger generations. This rising cohort should just buy the book and stop reading this review.

To older generations, the book reminds one of Athena emerging full grown from the skull of Zeus. Here is an argument for some type of traditional and libertarian fusion written by an intellectual at the magazine National Review, who seems to have no idea that his magazine had developed the whole concept of conservative fusionism a half century earlier. Its founder William F. Buckley Jr., an editor named Frank Meyer, and their acolytes promoted the idea of a conservatism based upon a synthesis between pursuing traditional value ends and utilizing free means to do so. While preferring “tension” to “fusionism,” both Buckley and Meyer adopted the latter as the least objectionable designation. At least it iterates better than conservatarianism.

Cooke’s omission is mitigated by the fact he is British by birth and young and so would have no reason to know this history. Yet, it is remarkable that no one at the magazine alerted him to its paternity. Perhaps no one remembers. The current mini revival of fusionism (the Heritage Foundation, Philadelphia Society, Intercollegiate Studies Institute among others) apparently passed them by. Indeed, this lineage traces back much further. As Meyer and Hayek both emphasized, the fusion of freedom and tradition was derived from the medieval synthesis of faith and reason that formed European civilization culminating in the Magna Carta, which in turn was grounded on St. Paul’s synthesis of Greek and Jew that created Western Christendom.

But these big issues are not required to enjoy this bright, reasonable to the max, and readable book. It is a good place for the younger generation to begin the long journey back from monochromatic utopian thinking, especially the modern progressive version being force-fed to them at their colleges and universities every day.

This post originally appeared on Western Journalism – Equipping You With The Truth

Islamic State Authorization For Military Force Scrambles Washington

Islamic terrorists

Barack Obama’s request for a formal Congressional authorization to use military force (AUMF) against the Islamic State has produced the most amazing responses. Everyone seems to be switching sides, and one cannot tell the players without a scorecard.

Senate Armed Services Committee Chairman John McCain went from earlier introducing a new War Powers Act requiring the president consult with Congress if he plans military action lasting more than seven days to saying, “To restrain [the president] in our authorization of him taking military action, I think, frankly, is unconstitutional and eventually leads to 535 commanders in chief.” Ranking Foreign Relations Democrat Robert Menendez went from introducing a more restrictive AUMF in December to supporting the president’s broader authority now.

For the past several months, as the Islamic State or ISIL has expanded from Syria into Iraq and created a large non-state “caliphate,” the U.S. has responded with air strikes to blunt its advances. The president had argued that he was already authorized to respond by an AUMF enacted in the wake of the 9/11 attack in 2001 that gave him power to use:

all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Both parties had argued this was inadequate and requested the president submit a new AUMF that specifically covered ISIL. Now, neither side is sure they want one. The leftist Huffington Post fumed that Obama’s proposal represented a “rubber stamp for his perpetual war.” Coming from the opposite side, the rightist Real Clear Politics complained that the president’s new AUMF actually “prohibits him from using force” and will bind his successors from taking necessary military action.

Criticism was widespread because Obama’s proposal is quite vague. First, it did not revoke the 2001 AUMF. It did not even claim a new authorization was necessary to continue fighting ISIL, or that the earlier authorization could not still allow even greater force in the future. Does this mean that any limitations in the new version could be overridden by the earlier version? Does it mean that if the new version is approved and expires in 2018 that an ISIL war could continue afterwards under the earlier version? Or could the president’s general commander-in-chief powers override both AUMFs? If so, why is a new authorization necessary at all?

Second, the new proposal “does not authorize the use of the United States Armed Forces in enduring offensive ground operations.” This was proposed to satisfy the majority in the Senate opposed to using ground forces. But what does “enduring” mean? What is offensive as opposed to defensive action?  Third, besides allowing military force against ISIL, it also authorizes action against “associated persons or forces’’ defined as “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor.” What is “closely-related”? As ISIL is supposedly close to al-Qaeda under the 2001 version, even though the two forces have now formally separated and even fight each other?

Former Attorney General Michael Mukaesy (and David Rivkin) support McCain in arguing that the Constitution forbids Congress from restricting the president on military policy: “Congress cannot restrain the president’s core authority to wage war, even when congressionally-imposed restrictions are minor.” Mukaesy claims, “The Founders were careful to vest responsibility for waging war in a unitary executive, rather than a multi-member legislature.” Of course, this former attorney general knows the Constitution did give Congress the power to “raise and support armies,” “provide and maintain a navy,” and “declare war,” and that the “careful” vesting in the president is merely as its “commander in chief” without any specifics.

Former Assistant Attorney General Jack Goldsmith responded: “Some of Congress’s very first authorizations of force, in the quasi-war with France in the 1790s, authorized the President to use only limited military means (U.S. armed vessels) against limited targets (certain French armed vessels). The Supreme Court recognized these limits in Bas v. Tingy.” Indeed as Goldsmith and Curt Bradley argued, “most authorizations to use force in U.S. history have been of this limited or partial nature. (For more on the constitutionality of this longstanding practice, see the evidence and arguments in this article by Barron and Lederman).”

Even the normally coolheaded seem flabbergasted by recent ISIL and other extremist attacks. To make the case that these are no longer “normal times,” Daniel Henninger cites ISIL’s beheadings in Iraq, its immolation of a Jordanian pilot, and also its Libyan offshoot beheading 21 Egyptian Coptic Christians, Nigeria’s Boko Haram’s capture of young women with its murders spilling into Niger and Chad, terrorist acts and anti-Semitism in France and Denmark, and Russian aggression in Ukraine. He criticized President Obama for his decision “not to deploy American resources” in his “thought-out, brutal and unapologetic” policy that ignores the international environment only so that he can institute a leftist domestic agenda in the United States.

While understanding his frustration, can Obama’s foreign policy really be described as not deploying American resources when he proposes a defense budget of $585 billion for the coming year? He is managing a major drone and air-centered antiterrorism policy in Iraq, Afghanistan, Syria, and elsewhere. As Huffington Post’s Marjorie Cohen stated from an opposing perspective: “Obama has launched 2,300 airstrikes in Iraq and Syria since August 8, 2014. In his six years as president, he has killed more people than died on 9/11 with drones and other forms of targeted killing in Pakistan, Yemen and Somalia — countries with which the United States is not at war.”

Moreover, coalition commander Lt. General James L. Terry believes the current limited strategy against terrorism is working. President Obama’s policies certainly can be questioned, but how do they relate to the atrocities Henninger and the public are rightly concerned about? Could they have been avoided by the most active policy imaginable, including occupation of all nine nations mentioned? Even holding local leaders accountable with their lives cannot force weak and dysfunctional governments to control their angry and divided populations.

ISIL’s despicable acts should not panic the West to run off in all directions without a rational plan. The continuing problems in Iraq and Afghanistan after such great human and material cost over so many years should give one pause. So should Atlantic editor Graeme Wood’s warning that ISIL’s plan is to draw the U.S. further into the morass.

A serious Congressional debate on a new AUMF provides a real opportunity to move from emotion to serious thinking about U.S. interests and what can and should be done about advancing them in this very complex and dangerous world.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Federalism Can Still Save Religious Liberty

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We live in a post-Christian America, broods the insightful “natural pessimist” on morality and religion, Rod Dreher, writing two long pieces on his The American Conservative blog that feature theologian Peter Leithart coming to this dramatic conclusion about government and Christianity in America today:

We’ve fooled ourselves for decades into believing that Christian America was derailed recently and by a small elite. It’s tough medicine to realize that principles inimical to traditional Christian morals are now deeply embedded in our laws, institutions and culture. The only America that actually exists is one in which “marriage” includes same-sex couples and women have a Constitutional right to kill their babies. To be faithful, Christian witness must be witness against America.

Specifically, Leithart had predicted beforehand that “Tax exemption will be challenged, and so will accreditation for Christian colleges and schools that hold to traditional views of marriage. Once opposition to same-sex marriage is judged discriminatory, no institution that opposes it will be unaffected.” He justified his pessimism by Supreme Court Justice Antonin Scalia’s dissent in Windsor:

In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Dreher concluded with an even darker insight, from Catholic Cardinal Francis George:

I am (correctly) quoted as saying that I expected to die in bed, my successor will die in prison and his successor will die a martyr in the public square. What is omitted from the reports is a final phrase I added about the bishop who follows a possibly martyred bishop: “His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.”

Dreher bases his grim view from the passion on the matter exercised by the other side of the debate. He recalled that Maggie Gallagher had reported on a 2006 Becket Fund conference about the now EEOC Commissioner Chai Feldblum, who, raised as an Orthodox Jew, was open enough to attend the symposium with the goal of showing gay respect for religion. Yet, it turned out to be a limited type of respect.

To Feldblum the emerging conflicts between free exercise of religion and sexual liberty are real: “When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians.” Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, she argues. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don’t matter.

Feldblum believes this sincerely and with passion, and clearly (as she reminds me) against the vast majority of opinion of her own community. And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, “I’m having a hard time coming up with any case in which religious liberty should win.”

And it appears that public opinion is now on the side of the gay community. Case closed.

Is America really on the verge of a civil war in which Christians replay the early persecutions? Actually, the most recent Pew survey finds only a plurality of 49 percent in the U.S. support gay marriage, but also that 51 percent still think such marriages are sinful. Gays may have won the marriage law, but they still lack the legitimacy they demand. The public is split down the middle on whether caterers and florists who have religious objections should be able to refuse services to gays. As far as political elites, region and urbanization play big roles. California has required churches to purchase insurance that includes abortions. Oregon required bakers to supply gay marriage ceremonies. Washington state sued to require a florist to garnish for a gay marriage. Catholic dioceses in Washington D.C. and Boston have left adoption services because they were forced to refer children to gay couples against church policy. The city of Coeur d’Alene, Idaho, demanded that married, ordained Christian ministers running a wedding chapel marry gays. The New England Association of Schools and Colleges threatened to revoke their accreditation of Massachusetts’ evangelical Gordon College if it did not change its policy on homosexuals.

This division reflects that of U.S. politics and culture generally: left and right coasts verses middle America, blue verses red states, sophisticates verses rednecks, religious against secularists, conservatives against liberals. The difference is that power has shifted radically left through the Ivy League elite-dominated Supreme and lower federal courts. But does this mean civil strife? Leithart recommends that discriminated-against Christians witness peacefully even at the cost of reputation, economic opportunity, and income or even more serious repression. James Davidson Hunter has long recommended shunning politics and especially national policy and going local to reconnect with Jesus and community. Are the catacombs, then, the only remedy for traditionalists determined to follow their faith as courts take decision-making from local control?

Fortunately, federalism is not that brittle. While granting national appeal courts a strong hand against the states on gay marriage, the most recent Supreme Court decision actually turned the matter back to the states for administrative disposition. National courts have limited ability to write their own marriage laws; and even with their oversight, there is much room for state action to limit the damage as traditionalists await future changes in the complexion of federal courts and law-making.

Before the Supreme Court ruled, 24 states more-or-less voluntarily adopted or accepted same sex marriage. That means that remedies are potentially available in the other 26 states to consider legislative remedies to preserve, in some manner or another, marriage between one man and one woman as a unique relationship. The fact that Republicans now control two-thirds of state legislative bodies makes this possible. At least some gay marriage supporters—for example, law professor James G. Dwyer–recognize there is a sufficient state interest to pass federal judicial rational-basis review in treating traditional marriage distinctively based upon the unique biological composition of such unions in producing children–and perhaps even because children may benefit more under such relationships.

State regulation of marriage itself could remain minimal as at present, being basically a contract between the couple being married. Only with children and the possibility of their abuse, or in separation or divorce, is state regulation of marriage per se common. Marriage could even be a purely private or religious contract without government controls other than offering an alternative state contract for those who might prefer one and for all of them being enforceable in state courts. Divorce and separation options could be specified in the original contract, perhaps with limited additional state oversight. When children are involved, the law could distinguish between different child situations: most sections of traditional state child protection law could be re-organized under the title of biological family law–and new titles added for adoption and artificial insemination for other child custody originations, which clearly present different issues. Rational differences could be deduced and the state interest in each identified, including any empirical benefits to children under different relationships.

Significant privatization is essential for marriage and social policy generally if force and severe civil conflict are to be avoided. Justice Anthony Kennedy’s main concern was to provide equal material benefits to homosexuals as granted to heterosexual couples under Federal laws. That can easily be achieved by granting all welfare benefits to individuals, to children through whoever has legal custody. As far as anti-discrimination laws, these were adopted as an extreme means to combat the extreme evils of slavery and legal segregation. Over time, new aggrieved groups demanded equal remedy for less cause. Applying such laws to sexual preferences and religious disagreements on morality would be momentous. The European religious wars of the past are not appealing futures, and make no mistake: a secular demand for moral equality is a religious claim under a different label. One need only look to the Middle East to see what we should want to avoid. Any real reform of marriage must take place freely in what future pope Joseph Ratzinger then called an attitude of “non-conformity” toward the dictates of current fashion.

Conditions change. Christian marriage did not even require clerical witnesses for its first millennium. The state did not control marriage in Britain until 1754 or in France until the Revolution, before America broke free of both. Catholic marriages were not recognized in the United Kingdom until 1836. Meanwhile, American federalism provided the means for cooling things off. It managed tensions well enough to take extremely diverse colonies, from Puritan New England, to Anglican Virginia, to Quaker Pennsylvania, to Catholic Maryland, to mixes of these and others throughout the colonies and early states finally developing into a nation by allowing each to develop independently and freely. It failed in 1860 with a civil war but slowly arose again to a reasonably peaceful, just, and prosperous America in modern times.

The U.S. is divided once again by strong views on social policy; and wisdom suggests the solution once again is regional diversity, federalism, and a live-and-let-live culture. Without them, Dreher, Leithart, and George might just be proven prophetic.

 

This commentary originally appeared at The American Conservative.

Photo credit: shutterstock.com

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom