Rules Are for Schmucks: Rethinking Federalism

I don’t look at the Conservative Review very often. Most of its articles are just annoying. Every now and then, though, they hit on something interesting (think Jefferson’s “diamonds in a dunghill”).

In America’s House Is Divided Over Faith, Nate Madden correctly notes (while bemoaning) the decline of religiosity among American liberals, more than half of whom now agree that religion’s impact on society is more harmful than helpful. He goes on to connect that trend to the decline in civility of debate, in fact a decline in reasoned debate itself. As he puts it, “Even more, the philosophical frameworks in which we debate the issues of the republic are growing more and more different from each other, leading us to effectively talk past each other, not debate, on issues like religious freedom, marriage, abortion, and others.” When one side says “God wants the law to say _____,” and the other side says “No he doesn’t,” there’s not much more to talk about.

Most God lobby writers stop there, with an “Ain’t that terrible” coda. Madden, though, suggests a more constructive approach: a “return to the tenets of our original federal system.” To a system, in other words, of greater rights for states and local communities to make their own rules for themselves, with less control from Washington. “In an era of such contrast among fellow citizens,” he argues, “good fences are necessary to good neighbors; it’s high time we mended them.” Let Massachusetts be Massachusetts, and let Mississippi be Mississippi.

Not that long ago, “states’ rights” was a code word for “segregation.” Before that, it was a code word for slavery. Most humanists today still view it with deep distrust. Maybe we should rethink that.

For starters, consider the impending disaster we face in the Trinity Lutheran case. It’s not certain yet how far the Supreme Court will go, but it appears to be on the verge of erasing, in one fell swoop, constitutional protections against taxpayer subsidies for churches in some thirty-eight states. Caught in the net may even be Jefferson’s Virginia Statute for Religious Freedom (which he regarded as so important that he asked for it to be inscribed on his tombstone)—a statute that by its own terms should never be amended and one Justice Gorsuch & Co. are now about to erase. While they’re at it, they’ll be overturning the overwhelming anti-church subsidy desire of the voters even in heavily religious states like Oklahoma and Florida.

Federalism would say “Don’t do that. Let each state decide for itself whether it’s OK to shovel humanist tax money into preaching that humanists should burn in hell.” I’d lean to federalism over what we’re about to get.

“Religious freedom” is the first item on Madden’s list of “talking past each other” items. A return to federalism would mean that states and localities should be able to make their own zoning decisions, without the federal government ordering them to bend over backwards to accommodate one particular type of applicant–a church. Which is exactly what today’s federal Religious Land Use and Institutionalized Persons Act (RLUIPA) does. Federalism would also let states and localities set their own rules in their prisons. Instead, that same RLUIPA law lets Washington micromanage state and local prison rules on everything from beard length to requiring more expensive food for religious inmates.

RLUIPA, of course, is the bastard child of the federal Religious Freedom Restoration Act (RFRA), which the Supreme Court held in 1997 could not apply to the states due to, of all things, principles of federalism. But commentators agree that my new least favorite Supreme Court justice will jump at the chance to overturn the Employment Division v. Smith case which led to the federal RFRA in the first place. If that happens, then the outcome for all those states that have thought about RFRA and said “No! We don’t want that!” will be “Too bad. God industry wins, you lose. Deal with it.” Federalism sounds a lot better than that to me.

Forcing myself to think about Justice Gorsuch makes me frown even more when I think about the threat to state assisted-suicide laws. It’s true that nowhere in his lengthy book on the subject did Gorsuch come out and say he thought all such laws are unconstitutional. It’s also true that he loathes them so much no one will be shocked if he ever does say that.

Assisted suicide is a perfect example of the value of federalism. To say that no one can ever help end a situation of hopeless suffering without being charged with murder is not good. On the other hand, I agree with many religious conservatives that the “slippery slope” risk is troubling. So, let different states try different rules, and see what works best. Don’t have Washington decree a one-size-fits-all outcome.

To be sure, as Madden would quickly point out, a return to federalism would have some consequences many humanists would dislike. Second on his list was “marriage,” referring to the quite anti-federalist Obergefell case forcing same-sex marriage on the states that didn’t want it.

I agree with him. Right after Obergefell came out, I wrote here that it was unnecessary, and that a far better path to same-sex marriage would have been simply to rule that if you wake up married in Maryland, you don’t suddenly become unmarried when you drive across the bridge to Virginia. There was already an irresistible national trend in the same-sex marriage direction, and there was no need to jam it down people’s throats. It’s impossible to prove one way or the other, but I’m convinced that one of the repercussions of Washington once again telling ordinary folks that “You’re too backwards to make your own laws” is the bizarre-sounding phrase, “President Donald Trump.”

Where I live, there had been plans for a referendum on same-sex marriage in 2010. I was disappointed when the politicians and courts connived to take the decision out of voters’ hands–not only because I was looking forward to voting “Yes,” but because I thought that having the people themselves say “Yes–this is right” would put same-sex marriage on the firmest possible footing.

Next on Madden’s list is abortion. Now that your fists are clenched, go ahead and sock me–but I don’t think reversing Roe v. Wade would mean the end of civilization as we know it. Or, for that matter, would reversing the Griswold v. Connecticut case [gasp!] on which it was largely based and that invalidated a ridiculous state ban on contraception.  Here’s what Ruth Bader Ginsburg had to say in 1985:

In 1973, when Roe issued, abortion law was in a state of change across the nation. There was a distinct trend in the states, noted by the Court, ‘toward liberalization of abortion statutes.’ … The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.

So if you want to sock me for questioning Roe, then sock Justice Ginsburg, too.

Do you really think that Connecticut would reinstitute a ban on contraception if Griswold were reversed? I don’t. Do you really think that many states would start sending women to jail for taking a Plan B pill if Roe is reversed? I don’t. I do think that a few states would enact some restrictions on abortion rights that you and I wouldn’t like. I think they would then get creamed in the media and the court of public opinion, and many–not all, but many–of the new restrictions would disappear. North Carolina just repealed its restrictions on transgenders choosing which bathroom to use. The repeal didn’t go as far as some civil rights advocates would like, but it still infuriated the Christian right. Do you think they’re about to criminalize abortion?

The Information Age is different from the Industrial Age. The good results that flow from “trusting the people” when they carry around the entire body of human knowledge in their pockets or purses are greater than they used to be. Not perfect, but better. The humanist cause is winning among the people, on the average, and being held back by the elites. I would rather take my chances on being ruled by the people in the states than on being ruled by Donald Trump and Neil Gorsuch.