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.

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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

Devolution Trumps Secession

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The 1996 Salzburg Seminar was a prestigious international gabfest organized to discuss “cross-cultural perspectives on conservatism.” Worldwide political parties and movements designated “conservative” at home or considered as such by Westerners were invited to explain their views on conservatism, to discuss what they held in common. With representatives from across Europe to Turkey, and even from China, obviously there was little commonality.

Playing by the rules, this U.S. representative suggested that localism and community could be a unifying ideal for the right, at which the French representative nearly swooned, furiously insisting that conservatism was precisely the opposite. It was love of the patria and of its representative the national state, whose point was seconded immediately by the Turkish representative. The Spanish, Italian, Belgian, and several Eastern European national representatives actually denounced local nationalistic movements as threats. But when I suggested that sub-national movements were alive even in Britain, the idea was so preposterous the room immediately broke into laughter, with the Englishmen questioning my very sanity.

Two decades later, Scotland massed 45 percent of its population willing to break 300 years of ties to become independent of England. Inspired, a million Catalans went to the street to demand independence; and its regional legislature voted to hold a (non-binding) referendum. Basques threatened the same. Flanders nationalists in Belgium promised that if Scotland received European Union representation, so would they. The Italian Northern League, organized around the ideal of separation, cheered Scotland on. Even Bavaria every so often threatens splitting from Germany. Norway and Sweden did separate in 1905, as did the Czech Republic and Slovakia in 1993.

All Europe was centralized under divine right kings and nationalisms at great cost in blood and treasure throughout the 16th and 17th centuries, forcing previously independent nations and peoples into the larger units we know today. Germany and Italy were not unified until the 1870s. Hundreds of independent states were dissolved over the period, but most of the successors retained local customs and institutions, many nursing old and developing new grievances against an often remote and unresponsive state. Even France still has restive Basques, Bretons, Savoyans, and others demanding local rights or independence.

Americans certainly have not been immune to the secession impulse, of course, including a great civil war costing millions of lives. While that war presumably settled the matter, even today a recent Reuters/Ipsos poll found that 23.9 percent of Americans would like to see their state pull away from the union, up from 18 percent in 2008. In the previous year under George W. Bush, 32 percent of liberals thought breaking away would be a good idea, compared to 17 percent of conservatives. Today under Barack Obama, 30 percent of Republicans and even 20 percent of Democrats would have their state secede.

Former congressman and presidential candidate Ron Paul even claimed a recent “growth of support for secession” inspired by Scotland and demonstrated by the one million Californians who supported dividing the state into six entities, saying this “should cheer all supporters of freedom.” He was congratulated for raising the issue by Daniel McCarthy of The American Conservative, but McCarthy responded that secession is not a principle of liberty. Not only does secession often trade one master for another—as Scotland would do under the European Union and NATO—but there is no guarantee the new state would foster internal liberty. McCarthy argues persuasively that for Scotland and America, secession and union are questions of security and power, which undergird prosperity, self-government, and individual freedom. For much of the rest of the world, poisoned by ethnic and sectarian hatreds, secession means nationalism and civil strife. In both cases, breaking up existing states to create new ones is a revolutionary and dangerous act, one more apt to imperil liberty than advance it.

Indeed, Paul’s own original article on the matter viewed secession sentiments mostly as pressure on a national government to limit its power over local units as opposed to being valuable in itself. He specifically urged “devolution of power to smaller levels of government,” which can be a very different thing from secession. While secession is problematical as McCarthy argues, devolution of power within a national government is essential to liberty.

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Divided America—And How It Heals

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Staid old Gallup knows how to get attention. Its Presidential Job Approval Center recently announced a new report with the provocative title: U.S. Muslims Most Approving of Obama, Mormons Least. The full results of this extraordinarily large sample of 88,000 interviews showed an even more dramatic division. Majorities of Muslims (72 percent), other non-Christians (59 percent), Jews (55 percent), and atheists (54 percent) supporting President Obama faced Catholics (51 percent), Protestants (58 percent), and Mormons (78 percent) opposing him.

It looks like the basis for a religious war. Then it gets even bleaker.

Only 34 percent of weekly church attendees and married persons supported Mr. Obama, with majorities of the unchurched and single women approving the job he was doing as President. The division becomes even more dramatic when one looks at race, with African Americans supporting him by 82 percent and Hispanics by 53 percent, and whites by only 30 percent.

Another very large poll of 10,000 by the Pew Research Center analyzed in its Political Polarization in the American Public registers an even deeper division by looking where people live and how that is related to what they think. Liberals told the pollsters that in choosing a place to live, they prefer a place with ethnic and racial diversity. Substantial majorities of liberals even prefer a place where houses are smaller and stores are near. Taking only the most liberal Americans, three-fourths say that proximity to art museums and theaters is important in deciding where to live. Large percentages of conservatives prefer to live where houses are larger and facilities are further away. Conservative majorities say that living near people who share their religious faith is an important feature in deciding where to purchase a home. Liberals and conservatives alike say it is important to live where people share their political views.

Looking at the two major political parties specifically, 20 years ago, one quarter of Republicans were more liberal than the median Democrat; and a fifth of Democrats were more conservative than the average Republican. Today, the typical Republican is more conservative than 94 percent of Democrats; and the typical Democrat is more liberal than 92 percent of Republicans.

Most Americans are not very ideological and “remain on the edges of the political playing field,” but the more ideological “make their voices heard through greater participation in every stage of the political process.” To them, beliefs count: 30 percent of consistent conservatives and 23 percent of consistent liberals say they would be unhappy if a family member married someone who voted with the other party. Half of all Americans and 73 percent of conservatives would be unhappy if a family member married someone who did not believe in God.

The country is divided, but what journalist Ben Domenech calls the “governing cartel” in politics and the media demands a single national solution to every problem. Barack Obama aimed at a “transformational” program like Franklin Roosevelt’s. But the country is much more divided today, and on deeper matters. And few think government bureaucracy works anymore. In his new book Citizenville, the former Democratic mayor of San Francisco and now Lieutenant Governor of California Gavin Newsom argues that “top-down, bureaucratic, hierarchical government [is] choking our democracy.” He adds: “We need to allow people to bypass government . . . to look to themselves for solving problems rather than asking the government to do things for them.”

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No Radicalism For Conservatism, Please?

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A 20th century wag topped off a famous line from Kipling this way: “If you can keep your head when all about you are losing theirs . . . maybe you just don’t understand the gravity of the situation.”

Five years after the “recovery,” the economy continues to chug along with a puny two percent growth, actually minus in the first quarter. For 2013, growth was a lackluster 1.9 percent. Labor-force participation is at the lowest in years. Youth and minority unemployment nears Depression levels. Traditional marriage is crumbling, with low income families bearing the economic burden. Obamacare threatens the world’s best medical system. Unfunded entitlement promises reaching $40 trillion threaten solvency. The government cannot even care for its veterans.

The Center for Disease Control is found to have mishandled deadly pathogens for a decade, inappropriately sending them to unsuspecting subjects. The National Institutes for Health had vitals of incurable smallpox improperly stored since 1954. The Washington Navy Yard security system was easily penetrated by a former contract employee who killed 12, and 160 cameras of internal traffic were not used to find him. After discouraging Obamacare enrollment statistics, the Department of Health and Human Services announced it would no longer report any numbers. NATO and the United States delayed 15 years and $100 million to develop common ammunition for their armies due to environmental concerns. A year into a congressional investigation, the Internal Revenue Service says that emails concerning its targeting of conservative activist groups were lost.

This is a picture of a federal government out of control—an institution trying to solve every problem and right every wrong but with little idea of how, other than “doing something” to get through the next media cycle. It is a nation with 300,000 regulations but no understandable law. Even pro-government public administration expert Paul Light concludes that an overly bureaucratized national government can “no longer faithfully execute its laws.” The whole welfare state New Deal/Great Society program to centralize power in Washington, to manage the economy, to regulate everything from securities to energy, to force social policies, and democratize the world, has ended tangled in red tape. It is overwhelmed.

Enter “reform conservatism,” which promises a new way. Noting that the Left and the Right are out of ideas, a group of young writers and analysts have come out with Room to Grow: Conservative Reforms for a Limited Government and a Thriving Middle Class. The authors of this manifesto agree that the welfare state is trying to do too much and search for ways to curb government and revivify intermediate institutions like the family and civic associations.

The principles set forth in the book’s introduction by the very impressive Yuval Levin are flawless. The conclusion by Ramesh Ponnuru even concedes that much of government “becomes a series of shakedowns, special-interest deals, and programs that continue from inertia” and does not work. But, Ponnuru cautiously adds, if a reformer sees laws and programs that do not fit with our constitutional commands and ideals, he will not vainly demand that they all be abolished straightaway. Instead, he will move patiently and intelligently to bring government closer to its proper bounds.

Things may be bad, but change must be “practical” and “incremental” and not based on radical reform of the constitutional “institutional arrangement.”

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Is “Gay Marriage” Accepted As Modern Marriage These Days?

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In her essay “Can Marriage Be Saved?,” Boston College Scholar in Residence Laura L. Garcia suggests we may be looking at marriage from the wrong perspective:

I conclude that given the values dominating our culture today, the ideal marriage might be that between two homosexuals. There is no possibility that children will enter the picture unexpectedly to create burdens on the couple’s time or money or freedom. Partners are free to leave whenever the relationship no longer suits them, with no repercussions on children and little financial impact. There are likely to be few financial difficulties, in fact, since both partners are likely to be working and in general handle their accounts separately. Sexual desires are gratified without risk of pregnancy. If children are seen as a desirable addition, perhaps they can be adopted or artificially produced—poster babies for Planned Parenthood’s slogan ‘Every child a wanted child.’

Perhaps only someone like her who views marriage as a sacred union created by God between one man and one woman can see the essential issues. Well before homosexual marriage became a public policy issue, heterosexual America had already redefined marriage. In the modern dispensation, the purpose of marriage was not lifetime mutual support whose love’s goal, if not necessarily actual fruit, was biological children; it instead had morphed into an alliance of two individuals maximizing their own interests in any way that suited them, dissoluble anytime either party desired. Transitioning from men and women to same-sex partners was a small step once marriage was so redefined.

The facts are hardly in contention. As far as the prospects for traditional marriage go, Richard Reeves of the Brookings Institution recently outlined them in The Atlantic:

It is too late. Attitudes to sex, feminist advances, and labor market economics have dealt fatal blows to the traditional model of marriage. Sex before marriage is the new norm. The average American woman now has a decade of sexual activity before her first marriage at the age of 27. The availability of contraception, abortion, and divorce has permanently altered the relationship between sex and marriage. As Stephanie Coontz, the author of Marriage, A History and The Way We Never Were, puts it, “marriage no longer organizes the transition into regular sexual activity in the way it used to.” Feminism, especially in the form of expanded opportunities for women’s education and work, has made the solo-breadwinning male effectively redundant. Women now make up more than half the workforce. A woman is the main breadwinner in 40% of families. For every three men graduating from college, there are four women. Turning back this half century of feminist advance is impossible (leaving aside the fact that is deeply undesirable). There is class gap here, however. Obsolete attitudes towards gender roles are taking longest to evolve among those with the least education.

His solution is to promote parenting as the rationale for marriage, plus stay-at-home dads for the lower classes since most of these breadwinners are women anyway. But why should liberated moderns accept either sacrifice? As the great economic historian Joseph Schumpeter predicted almost a century ago, once

men and women learn the utilitarian lesson and refuse to take for granted the traditional arrangements that their social environment makes for them … and … as soon as they introduce into their private life a sort of inarticulate system of cost accounting – they cannot fail to become aware of the heavy personal sacrifices that family ties and especially parenthood entail under modern conditions and of the fact that…children cease to be economic assets.

No one can complain that moderns have been slow to learn the lesson, with childbearing collapsing in Europe except among mostly Muslim immigrants, and barely holding on at replacement levels for European- and African-Americans; it’s even abating among Hispanic-Americans.

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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