From a reader:
Jonah,
You agree with Ponnuru that if Sullivan is right, then the Virginia law is persecution (Ponnuru’s term). And yet in that case, you only think the law is “ill-advised” and “they’re free to do it”. That’s tolerance of the radical, anti-gay Right.
Remember, Sullivan’s point is that he theorizes the mainstream Right is lying when they claim they only oppose same-sex marriage in the name of marriage and aren’t anti gay. Even though the Virginia law may not be a fair test of Sullivan’s thesis (Ponnuru’s point), you sure gave credence to Sullivan’s theory with your reaction.
How about a strong condemnation of the law under Sullivan’s interpretation? How about confirming that federalism should be trumped by persecution?
Me: Not quite. Though I should have been more clear: If Andrew’s reading of the law is correct, then I agree that the law is ill-advised and wrong. I don’t necessarily think the law constitutes persecution in the way Andrew does. And even if it does qualify as some kind of “persecution” — a fairly nebulous word — it does not automatically follow that it trumps standards of federalism. For example, we all remember Clarence Thomas’ “notorious” conclusion that a prison guard did not violate the constitution when he illegallybeat up a prisoner. Something can be an outrage and a crime and not be unconstitutional.
In my book, for the persecution to justify trumping federalism it would need to meet a standard which justifies federal action, which is a high bar for me. I think I’m being perfectly consistent here in that I opposed, for example, sodomy laws but I didn’t find them to be necessarily unconstitutional.