Conservative legal scholar proposes new marriage-defense bill to challenge Obergefell ruling

As LGBT activists continue their efforts to impose acceptance of homosexuality and transgenderism in the country at large, one prominent conservative thinker has offered a unique legislative proposal he says may help conservatives go back on offense in the culture wars.

For months, conservatives have been debating how to respond to instances of left-wing cultural aggression such as Drag Queen Story Hour (DQSH), which is the practice of cross-dressers reading to small children in public libraries for the express purpose of acclimating them to notions of gender-fluidity. New York Post editor Sohrab Ahmari initiated the debate in May by identifying National Review writer David French as emblematic of a certain breed of conservative unsuited to meaningfully resist such projects; French argues that DQSH is a free-speech issue government is powerless to prevent.

Last week, Hadley Arkes, eminent Amherst College political scientist and architect of the Born-Alive Infant Protection Act of 2002, published an essay about the debate at The American Mind, largely identifying with Ahmari’s critique of the American Right.

“If we are engaged in a ‘culture war,’ it is being fought forthrightly as a moral battle on only one side,” he wrote, noting that while liberals “are convinced they are making nothing less than moral arguments on the deep rightness of same-sex marriage and abortion, the wrongness of saying anything critical about transgenderism, and anything else in the vision of sexual liberation,” the “conservative side in the courts responds with tired clichés of ‘conservative jurisprudence’ and prides itself on avoiding moral reasoning altogether.”

“One professor of law who had been engaged with us in drafting Defense of Marriage Act (DOMA) in 1996 told me recently that the issue of marriage was now lost, that it was quite unavailing to launch any effort to start chipping away at the Obergefell case,” Arkes recalled. “Soon, in turn, we will lose the will to stand up against the destructive illusions of the transgendered, whether it’s the matter of males in female bathrooms or the defense of parents trying to rescue their teenagers from disfiguring surgeries.”

However, rather than falling into despair, Arkes offers a series of legislative proposals which he argues could help conservatives regain momentum in the culture wars by “test(ing) the principles running to the root in our current crisis,” which “would be understood at once by ordinary people.” Among them is a national bill protecting states from being forced to recognize polygamy, which he argues could “begin some serious unraveling” in both the legal and moral reasoning that sustain same-sex “marriage”:

What I have in mind is the proposal for a Defense of Monogamous Marriage Act (DOMMA). That would simply enact another version of the Defense of Marriage Act, but with these components: that neither the federal government nor the states would be obliged to recognize as a “marriage” a union of more than two people. That proposal made its way to the staff of Paul Ryan when he was Speaker in the last Congress, and I was told that the Speaker would make a decision on bringing the matter to the floor if a sponsor could be found for the bill. 

For the leadership the prospect was intriguing, for they couldn’t guess how Democrats would vote on such a bill. On the one hand, the Democrats don’t want to come out explicitly for polygamy, but on the other they are reflexively opposed to virtually any measure that would cast a moral judgment on the way that people act out their sexuality. As for the courts, the Supreme Court could not strike down this bill without virtually licensing polygamy. In the meantime, we would establish—in the face of Justice Kennedy’s dubiety—that Congress does indeed have the authority legislate on this subject of marriage. 

There were two conservative congressmen who were willing to consider acting as sponsors of the bill, but both men had other troubles of their own and they didn’t survive their primaries. Still, the proposal is as sound and as provocative as it ever was in testing the constitutional argument. What remains is finding the conservative congressman with the nerve to introduce it.

The Daily Wire’s Josh Hammer hailed the proposal as a “brilliant piece of legislative mischief that would force Democrats to directly confront the societal hell that they have begun the process of unleashing,” noting that in debating same-sex “marriage” proponents over the years he has “never once heard an intellectually defensible rationale articulated as to why, once the biological and conjugal element is eliminated from the marriage definition, the definition must be capped at solely two individuals.”

In his dissenting opinion from 2015’s Obergefell v. Hodges, the Supreme Court ruling that forced all 50 states to recognize same-sex “marriage,” Chief Justice John Roberts called it “striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage,” noting that while there may be differences between polygamy and same-sex unions, “petitioners have not pointed to any.”

Following Obergefell, advocates of polygamy began citing the ruling in federal lawsuits against state anti-polygamy laws. The Supreme Court has so far refused to hear such cases, but Arkes’ DOMA proposal could force the issue to the national forefront, and with it a re-evaluation of the rationale for recognizing same-sex “marriage.”

“There is no want then of places or moments touching the issues of deepest moral import in our political life where conservative arguments may be made anew, with a moral argument no longer muffled,” Arkes wrote. “The test for us, though, is whether the conservatives who enjoin us not to be uncivil would be willing to see their fellow conservatives ignite fires in our national life by making this serious challenge and fighting the culture war ‘for keeps.’”