Posted by: theoptimisticconservative | February 8, 2014

On McCarthy and Bolyard: America’s not free enough for same-sex marriage

Eagle light 2Conservatives just keep sniffing the same old fire hydrants on the same-sex marriage (SSM) topic.  It’s not getting us anywhere, and I contend that that’s because we’re talking about the wrong thing.

On Thursday, at PJ Media, Andrew McCarthy and Paula Bolyard had long, thoughtful pieces on SSM; in particular, on how to persuade social conservatives to accept a “compromise” that adheres to the Constitution.  In principle, I concur with McCarthy’s “compromise”:  America ought to simply follow her laws on this matter; the religious beliefs of all must be respected.  Have same-sex marriage, if the people of a state vote for it.  But don’t corrupt the rule of law to make it happen, and don’t attack the rights of those who believe it’s wrong.

Bolyard points out that there are a number of conservatives who have already embraced this compromise.  She raises questions, however, at the end of her post:

I think most social conservatives — including religious conservatives — could accept this compromise as long as they were convinced that the GOP would fight to defend their religious liberties. The question is whether those on the other side demanding their rights will be willing to accept this “third way” compromise of letting the states decide while defending the religious liberty of conscientious objectors.

And there’s the rub.  Bolyard is behind the curve.  Her questions aren’t even the right ones.  We know social conservatives can’t trust that their rights will be defended.  We know that some (not all) of those on the other side – a noisy, litigation-prone contingent – will give no honor to such a compromise, and won’t rest until all opposition is stamped out. And we know that every trend of law and government favors them today.

McCarthy and Bolyard – both of whom I respect – appear to think we’re still in Kansas.  They speak as if the “old consensus” status quo still prevails in America: as if there’s an unthreatened space in which the GOP has some means of fighting to defend the people’s religious liberties.

But the people can tell them that that’s not the case.  The attacks are already underway, and they are already hitting their targets, and altering people’s lives.  The price of seeing their rights upheld has become more than many people can pay.  That means the shift has already happened.

If the price of upholding the right to not cater to same-sex weddings is that individuals have to accept life-altering financial loss, and years in court, then regardless of the outcome of a given case, those individuals’ religious freedom – or, more broadly, their freedom of conscience – has not been protected.

The GOP is in no position to make promises about protecting the people’s rights – and it has no plans to be.  America has already changed so much that our rights are effectively without protection in a growing list of situations.  Unfortunately, many Republicans and conservative pundits continue to speak and act as if that’s not the case.

Yet the main problem facing Americans today – the main concern of the great majority of conservatives – is the weaponization of government against us.  It is fruitless to keep talking about instituting same-sex marriage, when our real and urgent problem is that, with our rights under siege, there is no way to safely implement any kind of “compromise” on that or any other matter.

The issues that are actually urgent

I, for one, don’t intend to talk about SSM in “old-consensus” terms anymore.  The old consensus has already passed from among us.  There can be no meaningful compromises on single issues now until we have some rules again, rules to which both sides of the political spectrum consider themselves bound.

Those rules will require a network of assumptions, none of which is in place today.  Litigating people’s consciences, for example, must not be an option.  No action of government should be taken on the assumption that some of the people are bigots.

The reason for making a new category of laws must be open for inspection.  Government has a role in regularizing social institutions.  But why should a properly constituted government give official recognition to people’s “sexual orientation,” or to any sexually defined relationships – as distinct from the single and only relationship that can be procreative?

Instituting SSM creates a new category of law.  The premise behind it must be articulated – and must defend itself against the skepticism to which all proposals for new laws should properly be subject.

We must agree that government – the federal government, in particular – is the wrong tool for trying to “mainstream” niche social ideals (like same-sex marriage) that won’t mainstream of their own accord.

Our federal system does accommodate more government activism in this regard at the state level.  But one of the functions of the federal government is supposed to be protecting the rights of the politically disfavored, when activists get up a head of steam within the states.  That applies to classrooms and workplaces as well as to anywhere else.

These are just some of the public issues that are more important than SSM.  It’s far more urgent that the United States respect liberty of conscience, and protect the people from government, than it is whether state governments confer privileges on particular sexual relationships or not.

America’s real political crisis is that we don’t respect liberty enough today to risk giving government a charter to regulate or endorse sexual relationships.  We don’t have a common definition of tolerance that is adequate to the task.  Our current, befuddled idea of the purpose of government is too corrupt – too susceptible to misuse – to administer the compromises needed.

The price of agreeing to the McCarthy compromise will have to be first establishing conditions that make it realistic.  We have some fundamental deficiencies to repair in our body politic.  It’s past time to recognize that, and make it the main thing we talk about.

J.E. Dyer’s articles have appeared at Hot Air, Commentary’s “contentions,Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard online. She also writes for the new blog Liberty Unyielding.

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  1. Democrats might push to legalize pot to win upcoming elections, what to do if this becomes election issue as well?

    • Good question. The GOP doesn’t have a unified position on this. My own position is that we can legalize pot the day we end the welfare system.

      I’m no friend of people using SSI benefits to buy liquor either, but the Europeans who’ve legalized pot have found that drug use, as opposed to alcohol use, correlates much more strongly with young people simply spending their lives as wards of the welfare state.

      We will find the same thing here. No one should be enabled to live drugged out on the public dole, period.

      So: America’s not free enough for same-sex marriage. America’s not responsible and hard-working enough for legalized pot.

  2. “don’t attack the rights of those who believe it’s wrong.”

    A. What’s the justification for the state legalizing or prohibiting any particular form of marriage?

    B. If enough people think that bowling is wrong, should it be illegal?

    C. How does legalizing or accepting or tolerating SSM “attack the rights” of anybody else?

    D. People of the same sex having been living together for millennia. Why should anybody care now?

    E. What’s the potential of “straight” people marrying for the advantages that gay people obviously feel that they’ll get from recognized SSM?

    F. Once the definition of marriage has expanded from a man and a woman, how and why does it end? Is polygamy OK? If not, why not? How about marrying my dog, she needs subsidized health care and, when I’m gone, some kind of retirement benefit.

    • cm — some good questions. To question C, the answer is that, as America operates today, people who don’t want to provide their commercial services to gay weddings are being punished under the law.

      Literally punished: being sued, harassed (with no help from the police), forced to close their businesses; being found guilty of “discrimination” and fined in court; and if they want to fight the penalties, having to launch appeals or court cases that will paralyze their lives for years.

      This is an attack on people’s rights. Until the day comes when no one can be attacked in this way, America is not ready for same-sex marriage.

      None of your questions about law and government is inadmissible, as far as I’m concerned. The American people need to have the intellectual foundation to discuss these topics.

      • I always figured it would have been much better for the photographer to have charged the shooting fee and had a camera malfunction, thus making sure the event was left unmemorialized.

        For the baker – the cake didn’t bake, oops. Sorry.

    • To F. – there is no reason or legal harbor for legal restrictions on marriage for anything consenting adults choose to call a marriage.

  3. “We know that some (not all) of those on the other side – a noisy, litigation-prone contingent – will give no honor to such a compromise, and won’t rest until all opposition is stamped out.”

    That is exactly correct because SSM has NEVER been about marriage but about judicial rulings that ‘legally’ demand societal acceptance and endorsement of self-declared sexual orientation. SSM is NOT the goal but the means to enforce societal acceptance and endorsement of self-declared sexual orientation.

    “the main problem facing Americans today – the main concern of the great majority of conservatives – is the weaponization of government against us.”

    That is the main tactical problem and IMO, the only remaining legal means of redress is to elect enough Tea party/libertarian style conservatives to the House that they may form a conservative block sufficient to stop both the raising of the debt ceiling and the raising of taxes. Cutting off the funding for the entitlement and regulatory ‘states’ is the only constitutionally legal means left that can stop the left’s advancement. And that can provide the time needed for conservatives to continue to seek ways of communicating with the low-info voter.

    “It is fruitless to keep talking about instituting same-sex marriage, when our real and urgent problem is that, with our rights under siege, there is no way to safely implement any kind of “compromise” on that or any other matter.”

    The left is not interested in compromise, they are not interested in fair play or in unalienable rights. They are interested in imposing a new world order upon mankind. That the typical liberal has no idea that their support is leading to the elimination of liberty is only of value if we can stop the left’s advancement long enough for the truth to gradually emerge.

    The progressive left is not interested in compromise because their ideological tenets are that religious belief, nationalism and a capitalistic system that they perceive promotes greed are the three primary factors responsible for all the world’s evils. This what they believe and with such beliefs there can be no compromise because that path leads to a new modern dark age of tyranny, the likes of which the world has never seen but which Orwell presaged with his novel 1984.

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