As I had said all through the great gay marriage tsunami of years past: States have no "rights." Only individuals have rights. States have powers — powers that they can and do abuse. The question of how social issues, especially gay marriage, will impact the Tea Party movement, is not only unanswered but has been insolently ignored by both those inside and outside the movement. That ends now. (And, as the race to make "yeah, but…" seem non-hypocritical begins, I think it will not end well for the Tea Partiers.

The silence continues to deafen:

While many conservative organizations immediately decried a federal judge's decision last week to invalidate the federal ban on recognizing gay marriages, tea party groups have been conspicuously silent on the issue.

The silence is by design, activists with the loosely affiliated movement said, because it is held together by an exclusive focus on fiscal matters and its avoidance of divisive social issues such as abortion and gay marriage. Privately, though, many said they back the decision because it emphasizes the legal philosophy of states' rights.

No rights. Powers. Abuse. Etc.

"I do think it's a state's right," said Phillip Dennis, Texas state coordinator for the Tea Party Patriots. The group does not take a position on social issues, he said, but personally, "I believe that if the people in Massachusetts want gay people to get married, then they should allow it, just as people in Utah do not support abortion. They should have the right to vote against that."

Everett Wilkinson, state director for the Florida Tea Party Patriots, agreed: "On the issue [of gay marriage] itself, we have no stance, but any time a state's rights or powers are encouraged over the federal government, it is a good thing."

What kind of party (or movement or whatever), especially one that claims to be radically transforming the political landscape at the most basic constitutional and philosophical levels, "does not take a position on social issues"? Setting priorities is one thing; fingers-in-ears la-la-la chanting is something else entirely.

Keep in mind that this phenomenon is not an inconsistent message within the movement, comparable to Dixiecrats or Rockefeller Republicans. It's a perfectly consistent absence of a message. Indeed, it appears some Tea Partiers actually conflate the two and boast that "the lack of a message is the message" (or: "I'm as mad as hell, and I'm not gonna think about this anymore!!!") Again, good luck "radically transforming the political landscape at the most basic constitutional and philosophical levels" with that.

This vapid tunnel vision is, of course, to be expected, since the Tea Party's positions (again, is the plural "positions" even appropriate?) are based on no true theory of law or politics. The Tenth Amendment argument upon which the Tea Party now relies was a total afterthought, a means to an end, an excuse.

This is exactly why libertarians should avoid the Tea Party, at least for now. Libertarianism is a philosophy (with an associated school of jurisprudence and a theory of constitutional interpretation that consists of more than, "Tenth Amendment – Fuck Yeah!").

Libertarianism is a philosophy that, hopefully, can be and is applied consistently across all or most policy issues. It is, contrary to the kindergarten screeches of some, more than a loose collection of "conservatives who want to smoke pot." Compare and contrast that to the Tea Party, a loose collection of "conservatives who sorta kinda think that the Tenth Amendment sorta kinda means something, sometimes."

Incidentally, another reason that libertarians should avoid the Tea Party, just like they should have avoided the vulgar anti-gay bigot Ron Paul, was that even if the Tea Partiers do think that the Tenth Amendment sorta kinda means something, sometimes, there is no evidence whatsoever that they think the Fourteenth Amendment ever means anything. No rights. Powers. Abuse. Etc.

More thoughts at gaypolitics.com.

To review: The debate over so-called "deem and pass" (also called the "Slaughter House Rules"), under which cowardly House members could pretend to pass the Senate version of health care without actually voting on it, had (so we thought) been so thoroughly bitch-slapped by those willing to remember the unambiguous text of the Constitution's Presentment Clause (or, alternatively, Schoolhouse Rock) that supporters of ObamaCare and opponents alike had thought the matter closed.

Then, somehow, the constitutional brush fires sparked by the damn-it-all ferocity of Democratic leaders to force socialized medicine on an unwilling majority have jumped from Article I to something called the Enrolled Bill Doctrine:

In other words, the signatures of the Speaker of the House and President Pro Tempore of the Senate are considered authoritative on the question of process. The court refused to interfere on a political question in 1892 and has maintained that precedent since.

I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That's because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener's errors, not with major foundational questions of federal lawmaking.

This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.

But there's another reason why trying to cite to the Enrolled Bill Doctrine is misguided: That 1892 Supreme Court case stating the modern Doctrine, Field v. Clark, 143 U.S. 649 (1892), did not just fail to uphold a political-branch negation of Article I, Section 7, as some seem to infer. It actually held that such a negation would be so preposterous as to be, literally, unthinkable:

It is said that under any other view, it becomes possible for the Speaker of the House of Representatives and the President of the Senate to impose upon the people as a law a bill that was never passed by Congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the Constitution. Judicial action based upon such a suggestion is forbidden by the respect due to a coordinate branch of the government.

Try to process what Justice Harlan is saying: Honest bureaucratic mistakes in Presentment happen and are not constitutional crises. But Congressional leaders wilfully trying to evade the Presentment Clause? That would be so outrageous, such a betrayal of the Constitution, that to ask a court to even entertain the notion would be, to coin a phrase, judicial activism of the most egregious kind.

Justice Harlan, meet Speaker Pelosi. "Too remote" just got a lot closer.

(Via Below the Beltway.)

[I]f you're on that no-fly list, your access to the right to bear arms is cancelled, because you're not part of the American family; you don't deserve that right. There is no right for you if you're on that terrorist list[.]

That was Rahm Emanuel back in 2007. You can watch the video here.

That stupid, un-American and downright evil statement had been (quite properly) dismissed and forgotten, along with most of Emanuel's hyper-partisan, Rovian blather.

Unfortunately, there are plenty of other hyper-partisan, Rovian blatherers:

Citing a "terror gap," Sen. Frank Lautenberg (D-N.J.) … introduced legislation yesterday to give the U.S. attorney general authority to stop the sale of guns or explosives to terrorists.

Just one problem: Lautenberg's proposal does not concern "terrorists," but people on the no-fly list.

Some are quick to point out that the no-fly list (now over one million names and rising) is teeming with false positives — including children, generals and several members of Congress.

True that. But one must go further and ask why there are so many false positives on the list. As I noted elsewhere:

False positives aren't even the issue — true positives are just as problematic.

Suppose for the sake of argument that the no-fly list is constitutional, reasonable and inoffensive to libertarian sensibilities (big assumption, I know).

What Emanuel proposes here is that the (hypothetically appropriate) denial of a privilege (i.e., non-right), without traditional notions of due process (notice and a hearing before a neutral magistrate), be used to bootstrap to the denial of a full-fledged constitutional right (the Second Amendment right to bear arms).

This the Fifth Amendment simply does not allow. Not even close.

Keep this important point in mind as the hyper-partisan Rovian blather continues: This is not a Second Amendment issue — it is a Fifth Amendment issue. Anyone who supports the Lautenberg bill opposes the Fifth Amendment. The Second Amendment is entirely ancillary.

(Lautenberg, fully aware that his proposal is unconstitutional, nevertheless pretends that his plan comports with due process because anyone on the no-fly list can challenge the denial of her Second Amendment rights after the fact. This would be akin to saying that a couple convicted for violating an unconstitutional sodomy statute aren't denied their rights, because they are still entitled to appeal to have the conviction overturned after the fact. That's absurd, of course: Being forced to sue for rights wrongly denied you under an obviously unconstitutional law is still a due process violation. There is, in essence, a right not to have to sue for your rights.)

So I ask again: what happened to that new civil libertarian paradise that Obama and the hyper-liberal Congress were going to usher in?

It's probably in that same alternate reality where DOMA and DADT have already been repealed.

Previously:
–Think Twice Before Ordering a Special Meal
–"Secure Flight" Revisited
–CAPPS II Successor Unveiled
–CAPPS Capsized

I am rapidly becoming convinced that the Palin pick will go down as the worst political blunder since Mondale's "I just did" speech.
–Me, August 28, 2008

While everyone tries to make head or tails of precisely what Sarah Palin is planning for the future, it would behoove us all to recall Sarah Palin's past and how she came to this tragicomic point where anyone even cares:

–Palin had to attend five colleges (one twice) before she could finally get around to graduating. A nominal "communications" major, Palin never joined a college newspaper or television station. She never released her transcripts or academic (disciplinary?) records.

–Palin's sole foray into the private sector (other than brief stints as a local sportscaster and then sports reporter) was as a beauty pageant contestant. Palin was Carrie Prejean before Carrie Prejean was Carrie Prejean.

–Palin started her political career as mayor of what was essentially a giant strip mall. Palin's Wasilla (2005 population: 6,500; annual budget: $18 million) had no fire department, no EMT service and no sanitation department; that was all provided by Anchorage. It did have a police department — Palin fired the police chief under dubious circumstances — and a public library, complete with books Palin inquired about the possibility of banning.

–By her own standards of "traditional family values," Palin is a failure as a parent.

–As for "governor of Alaska" (98% owned by the federal government), recall this other old post of mine, also from August 2008:

Alaska has no declining industry, no blighted inner cities (or the racial tensions that often accompany them), no aging infrastructure. No baby boomer entitlement crisis, no illegal immigrant crisis, no subprime mortgage crisis. And, contrary to the delusions of some, neither Alaska nor its governor are fending off Vladimir Putin at the Bering Straits or negotiating treaties with Ottawa. What exactly would you expect a governor of Alaska to do all day besides hunt, fish and flip-flop on the Bridge to Nowhere?

The only thing that occasionally makes Alaska difficult to govern is — Alaska Republicans. Go figure.

This — running what really is a puny state with puny problems — was what Palin concluded was too difficult to do anymore. Call it the Palin Doctrine™: If you can't stand the heat, get back in the kitchen.

Folks, stop imagining a mystery where none exists: She's an idiot. A real-life Chauncey Gardner. That's all there is to her resignation. There is no "crazy like a fox" aspect to her announcement — it's strictly "stupid is as stupid does."

Her circuits finally overloaded, and she could no longer find a way to smile and wink her way out of actually having to deal with an issue or two. The fact that she came to within a inside royal flush of becoming president is nothing more than a combination of circumstance, political scheming (by others), and plain old dumb luck — with emphasis on the "dumb."

All the more reason to expect — to demand — more from politicians, and from voters.

Previously:
–On Palin
–From the Archives: The Alaskan Tax Vulture
–David Broder's Gubernatorial Survivor Bias

1. Because it is an affront to our longstanding aversion toward double jeopardy, "punishes thought" and further erodes what little federalism-style checks and balances still exist in American governmental policy today.

2. Because it includes sexual orientation.

So as "you #1" (i.e., my fellow libertarians) sally forth into the blogosphere to argue against ENDA, be careful to remember that the "enemy of your enemy" may well be a James Dobson or Pat Robertson, and does not really share your libertarian views on — well, anything other than opposing ENDA.

And as "you #2" (i.e., my fellow gay activists) sally forth into the blogosphere to argue for ENDA, be careful to remember that the "friend of your enemy" may well not be a James Dobson or Pat Robertson and does not really share their bigoted views on — well, anything other than opposing ENDA.

I, meanwhile, already split that baby in the posts below.

Previously:
–A Gay-On-Gay Hate Crime?
–On the ENDA-T Conundrum
–On Religious Bigots' New-Found (Faux) Libertarianism

—

On a somewhat related note, let's also recall that the correct reason to oppose the Obama administration's plan to try to have the Census Bureau count same-sex marriages is not because gay marriages shouldn't be counted, but because no marriages should be counted.

The sole legitimate function of the Census is to enumerate people (i.e., who lives where) for two and only two purposes: the allocation of House seats and presidential Electors. There is nothing in Article I, Section 2 about counting marriages — or occupations, incomes, refrigerators or anything else. Such privacy-eroding inquiries by the Census are extra-constitutional at best and downright unconstitutional at worst.

Previously:
–Big Census is Watching (and Betraying) You

–It is a request by President Obama. Literally: "I hereby request the following…" File that under "bold new leadership…"

–It is not "change." The memorandum is thoroughly infested with weasel term such as "currently available," "consistent with," etc. At best, the memorandum is the equivalent of policy proofreading: Let's go back and make sure we didn't miss anything that we were supposed to do in the first place.

–It is expressly worded not to give gays any real tools to work with:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

That's boilerplate that always appears in such memorandums — when they're meant not to mean anything.

–It is not a "law" by any denotation of the word. It goes into neither the United States Code nor the Code of Federal Regulations. Only the (voluminous but worthless) Federal Register, which is the functional equivalent of the federal government's scrapbook.

–It is unconstitutional (or would be, if it were an actual law or order rather than a bottom-of-the-cereal-box plastic toy with no real value). More on that below.

–It is not applicable to health care benefits. With the putrid mucus of socialized medicine proposals gushing out of every Obama administration orifice, there's a definite bit of "fierce advocate" irony there.

—

Let's go back to why the memorandum, were it at all substantive, would be unconstitutional.

–First, "domestic partner" is not a federal term of art, in either the statutory or regulatory senses, and is therefore unconstitutionally vague. What exactly is a "domestic partnership," who gets to decide, what kind of notice is given, and is there an appeal process? Again, such questions are mere academic cocktail hour topics, since the memorandum isn't really a government action in the first place.

–Second, there are equal protection questions. Let's say you have three similarly situated same-sex couples "covered" (loosely speaking) by the faux initiative:

1. One in Massachusetts, where gays can get married.
2. One in New Jersey, where gays cannot get married but can get "civil unioned."
3. One in Wisconsin, which has a "no nothing never" bigot amendment.

The one thing that the three couples have in common is that none of them have a "domestic partnership." If the intent is to extend (already existing) benefits to the couples in Massachusetts and New Jersey, then where does that leave the Wisconsin couple?

Or perhaps the plan is to have an honor code: The federal employee need only fill out an affidavit declaring her loved one to be her "domestic partner." But that poses equal protection issues too: Why shouldn't unmarried heterosexual couples be afforded the same option?

Because in, e.g., Wisconsin, straights can get married but gays can't? Okay — but now suppose you have a gay couple in Massachusetts who choose not to marry but opt instead to declare themselves an (unmarried) "domestic partnership" in order to glom on to the (not) new policy. Are we going to require them to get married to get the benefits? And so on…

Oh, and DOMA is still on the books. If the memorandum actually meant anything, and if anyone actually had standing to sue over it, then it's fairly obvious that the more potently the memorandum were used, the more likely it would violate DOMA (which, recall, Obama is defending vigorously in court. Ahem…)

Again, this is all angels dancing on the head of our cowardly president. I expect no law review articles, intense blog debates or other elaborate evaluations of these (strictly hypothetical) issues to emerge. But they help illustrate just how pointless the memorandum is. One would normally be tempted to call it "insulting," but this president has so callously insulted gays so many times already that this latest gesture barely warrants a footnote.

The memorandum does not insult the gay rights movement per se (leave that for the ever-lengthening trail of gay-hostile wreckage — from Rick Warren to the DOMA brief scandal, and likely beyond). Instead, this absurd piece of worthless paper insults our intelligence. This obnoxious, Rube Goldberg inspired non-policy, in which Obama actually finds a way to call nothing "something," is like two parents letting their kids vote on toppings for the pizza and pretending that the family is a democracy. It's cute — and strictly fantasy.

Gay apologists for Obama will either fall for it (again), or they won't. While there have been some "green shoots" (rainbow shoots?) on that front, for now I'll settle for a well-directed "I told you so…"

The more desirable route would be for Congress to repeal DOMA, but that would require the Obama Administration and Democratic leaders in Congress to show political courage and to be willing to expend political capital in an all-out struggle, and nobody is holding their breath for that to happen, given the timidity and cowardice of the political branches of our federal government on any issue involving gay rights. Consider – The Don't Ask Don't Tell military policy makes us a laughing-stock before our strongest military allies, since it is founded on the peculiar notion that American service members are such emotionally insecure creatures that they will collectively flip out if the numerous gay servicemembers among them were open about their sexual orientation, and yet the Obama Administration, elected on a pledge to end the farce, has now put this issue off "indefinitely" – because, of course, the administration is unwilling to expend political capital on anything involving gay rights…. And when did you last read that the Obama Administration was going to secure passage of an inclusive Employment Non-Discrimination Act this year???? They keep saying that they don't want to be distracted now from the twin issues of the economy and the wars in Iraq and Afghanistan… but then they insist that this year will also see action on education and climate change and this and that…. in other words, this is an Administration that is devoted to multitasking – but just not for the LGBT community, who they can continue to take for granted politically because of the continued knee-jerk anti-gay rhetoric of the Republicans. [All ellipses and typos in original.]

He forgot Rick Warren, but we can forgive him for that.

I would have let this fine blogpost come and go, but later in the day I read another post on a very high-profile gay blog (I will not link to it so as not to humiliate the author), reminding readers that gay marriage in New York State now hinges on "support from some Republicans" in the state senate — totally omitting the pesky fact that said state senate is now controlled by Democrats — some of whom happen to be anti-gay bigot Catholics.

Gay Democrats gave Bill Clinton a pass. Then they gave Hillary Clinton a pass, along with the three other candidates for the Democratic nomination who were in the Senate and who could have actually introduced or co-sponsored legislation regarding DOMA or DADT, but chose not to — for the very same "risk no political capital for gays" attitude that Leonard notes so adeptly.

Gay Democrats are as a group still nowhere near the plateau of pathetic self-loathing that gay Republicans occupy.* Still, there is no basis for pretending that the tried and true Democratic tactic of throwing gays under the bus is either new or shocking.

They've simply been doing it too long and too often to pretend you hadn't noticed.

—

*Speaking of gay Republicans:

A dissident faction of gay conservatives is launching a rival group to the traditional voice of gay Republicans: the Log Cabin Republicans.

GOPROUD, the new 527 group, will launch next week, according to a media advisory. The contact given for the group is Christopher Barron, a former Log Cabin political director who broke with the group.

"Essentially, there's no voice for gay Republicans or gay conservatives in particular in D.C. right now. Log Cabin has been completely and totally absent here in D.C. for months and months," Barron said."

"It has simply moved way too far to the left and is basically indistinguishable from any other gay left organization."

Sure it has.

It's quite simple really: Self-loathers who break away from the self-loathing group that represents them and then form another self-loathing group are still self-loathing.

Would it really be so horrible to become, if not a libertarian, then just an independent? Really?

Previously:
–The Perils of the Democracy Fetish — Part Two

As George Bush has demonstrated, you can pretty much destroy an entire country and more than a quarter of the public will still insist you did an O.K. job.

The target of Collins' comparison is New York's accidental governor, David Paterson, who — thanks to his wide, broad and deep incompetence — is setting new records for "drops in approval ratings."

But Paterson is not the target of this blogpost:

Meanwhile, the 32 Democrats who control the [New York] State Senate by one vote have discovered that a party with a one-vote majority is exactly as good as its weakest, dumbest and most venal member. This in a group where one guy is about to stand trial for beating up his girlfriend and several others give the impression of being willing to trade their vote for a television someone handed them from the back of a stolen truck.

Gay New Yorkers could have told you that.

And not just gay New Yorkers. Gay Californians had the state legislature, the governor and the attorney general on their side. Oops, they forgot to check with the "weakest, dumbest and most venal" element of their governing process — bigot voters. Outcome: Not exactly as planned.

Or gay Vermonters. State legislature on their side. Oops, they forgot to check with the "weakest, dumbest and most venal" member of their governing process — a bigot governor. Outcome: Not exactly as planned.

Of course, this phenomenon of "weakest, dumbest and most venal" is non-partisan. Remember how Republicans briefly exhaled a sigh of relief upon learning that they still had a filibuster-enabling bloc in the Senate? Well, the three "weakest" members of the Republican caucus promptly put that wishful thinking in its place.

As for the Democrats in Congress (and remember, there are an awful lot of them now), they still can't come up with the votes to repeal DOMA or DADT. Why? Three reasons: weak, dumb, venal.

Or maybe not. Maybe to be weak is to be powerful and to be dumb is to be smart. (Since all politicians are by definition venal, we'll leave that one aside for the moment.) The least Democratic members of the New York State Senate essentially captured the entire legislative agenda. So did the three New England pseudo-Republicans in the U.S. Senate. And who could possibly forget Joe Lieberman?

Sometimes "weak as strong" goes Mobius Strip and becomes "weak as strong as weak as …" See, e.g., Arlen Specter, who is either the strongest weak Republican, or the weakest strong Republican, in the Senate. Or maybe he's not even a Republican anymore — hard to tell these days. But card check still hinges on his weak-strength/strong-weakness.

The idea of "weak as strong" even transcends the legislative branch. Recently, a silly woman wrote a silly book espousing a silly idea: That Supreme Court Justice Anthony Kennedy is a ("modest") libertarian. Um, no. The best way to describe Kennedy (or at least post-O'Connor Kennedy), as I have explained previously, is as the perennial chaser of the swing vote. Because on the Supreme Court, the swing vote — whether as "weakest conservative," "weakest liberal" or "weakest whatever" — is of course the strongest voice: the one who gets to write the controlling opinion.

Democracy fetishists (and their incestuous siblings, the political fetishists) tend to forget that "politics" is nothing more than "politicians" — all of whom seek, to the greatest extent possible, to maximize their own power, prestige and influence. If being (or acting) "weak, dumb and venal" works to that end, then few if any politicians will hesitate to do so.

Furthermore, a system that is rigged to pull both partisan extremes to the political center will inevitably maximize the power at the center. But what is "the center" but the weakest partisans? The system encourages weakness; the system rewards weakness. To be weak can be extraordinarily powerful.

So stop acting surprised when you see "weak, dumb and venal" politicians all around you casting "weak, dumb and venal" votes.

(Part One here.)

On March 3, 2009, GLAD filed a lawsuit in Federal District Court in Boston on behalf of eight married couples and three surviving spouses from Massachusetts who have been denied federal legal protections available to spouses. Two of these couples will be filing suit after receiving rejections of their amended tax returns from the IRS. Each plaintiff is currently eligible for a particular program or benefit, applied for it, and was denied that legal protection because of Section 3 of the Defense of Marriage Act ("DOMA").

Section 3 of DOMA is the provision that bans any and all components of the federal government from recognizing same-sex marriages (as opposed to Section 2, which unconstitutionally repeals the Full Faith & Credit Clause and authorizes states to refuse to recognize gay marriages performed in other jurisdictions).

I once wrote:

As I have blogged previously, it's all well and good for professional gay activists to advise going slowly, waiting "a generation or two." Except that I'm 38 — I don’t have a generation or two.

On the other hand, it is entirely appropriate for those who stand to suffer from a foolhardy strategy (e.g., a doomed-to-fail lawsuit) to speak out against it and call for it to be withdrawn. This is such a lawsuit.

A good rule of thumb is that any gay rights litigation not sponsored or supported by Lambda Legal is probably not a winner. Yes, GLAD was the lead counsel in both the Massachusetts and Vermont marriage cases. Point conceded. But Lambda had their backs in both instances. They are the experts, and they have nothing to do with this case. Not a good prelude.

A victory at the trial level might well be won, and perhaps the First Circuit would even uphold a victory on appeal. All entirely possible.

But then what?

"[The case] certainly can and may reach the Supreme Court level, and we think the Supreme Court is receptive to these fundamental notions of equality and the balance between federal and state governments."

That from one of the GLAD attorneys. And I am flabbergasted by it. Wishful thinking is one thing. Self-delusion is something else entirely.

This Supreme Court not showing great deference to Congress on a matter that does not involve heightened scrutiny? What are they thinking over at GLAD? (Remember: Gays are not a suspect class under federal law, and while there is a fundamental right to marry, there is not a "fundamental right to a joint tax return.")

Finally, whatever happened to legislative repeal of DOMA — now that Democrats control everything in Washington from the Oval Office to the supply closet? The people are more convinced that the Supreme Court will "do the right thing" than they are that Congress and Obama will?

Wow. Just wow.

The case is Gill v. Office of Personnel Management (complaint PDF – 92 pages). More thoughts from Hunter of Justice, Right Wing Watch.

It would work like this: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

Two hasty stitches:

First, I don't see "bestow the status of civil unions" — or, for that matter, "bestow the status of marriage" — listed among the enumerated powers of the federal government. The limitations of Article I may seem a frivolous irrelevancy to Blankenhorn and Rauch, but some of us still care about such things.

I remain adamant in my view that being a consistent libertarian and being a consistent full-equality-demanding gay are in no way inconsistent. I can make the case that the only consistent political orientation for a full-equality-demanding gay is to become a consistent libertarian.

Any approach to achieving full marriage equality that circumvents the proper role of a legislature is just as much an abomination as an approach to denying full marriage equality that circumvents the proper role of the judiciary. All else is rank ends-means Machiavellianism.

Second, as I have repeatedly blogged, in several contexts, there is simply no such thing as First Amendment "separation of hospital and state" or First Amendment "separation of adoption agency and state" or First Amendment "separation of parochial school and state." Why, exactly, are Blankenhorn and Rauch taking as an axiom that such absurdities must be conceded ex ante?

If we are going to have anti-discrimination laws — a noble debate in its own right — and if we are going to offer a "church and state exemption" to such laws — another debate always worth having — then such an exemption should apply to the church qua church, and to nothing else.

(Incidentally, if theocratic bigots have a presumed prerogative to refuse to accommodate me on First Amendment grounds, then do I have a reciprocal prerogative as an atheist to refuse to accommodate them? I can assure you that I find them at least as offensive as they find me.)

In short, as a question of normative statecraft, Blankenhorn and Rauch's proposal is a total non-starter. But what about as a reality-based strategic compromise? Gays get their rights, bigots get their bigotry, and non-gay non-bigots can stop hearing about it all the time.

The problem I have with that is the same problem I have with people, including gay and gay-friendly, who still somehow subscribe to the "too much, too soon" school of thought.

We have gone from a nation where gay marriage and gay civil unions existed exactly nowhere to a nation where gay marriage exists in two states, near-marital alternatives in five other states, not-near-marital alternatives in four others, and at least one state (probably more at this point) that recognize gay marriages from outside the state.

That's mighty bizarre "proof" that gays demanded "too much too soon."

I'm not sure what a "federal civil unions" compromise (and remember, this proposal is a compromise of our principles and not just our politics) accomplishes that continuing the current (morally superior) strategy —

• relentlessly demanding full equality without any exceptions whatsoever;
• relentlessly shaming, shunning and mocking zealots and ignoramuses;
• waiting for the geezer-bigots to do the world a favor and just die,

doesn't also achieve.

More thoughts at Below the Beltway, Hunter of Justice.

Previously:
–On the Supposed Impropriety of "Discriminating Against Discriminators"
–New Jersey: Are Civil Unions Enough?