Beachheads and Enclaves

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Beachheads and Enclaves

Published in the Maryland Daily Record March 18, 2014

Beachheads and enclaves, whether social, legal, or military, can resemble each other a lot. Each is a small pocket where the norms of the outside world don’t apply. The difference between them is usually determined by nothing more than the direction of history. In June 1944 Normandy was a beachhead, a small exception to the Nazi dominance which covered much of Europe. For a while in April 1945, Berlin, where Hitler made his last stand, was an enclave of Nazi governance in a Europe mostly under Allied occupation.[1] To a person who knew no history, maps showing the 1944 Normandy beachhead and the 1945 Berlin redoubt would seem to tell roughly similar stories. But with the hindsight of history, we know the stories were actually opposites: the Allied beachhead was about to explode, and the Nazi enclave was the result of an implosion.

It looks as if the same kind of tradeoff is playing out as same-sex marriage and marijuana become legal.

The beachheads in the same-sex marriage story were “early adopter” states like Hawaii and Massachusetts. Then, propelled by an astonishing shift in public sentiment, the bans against same-sex marriage have fallen in state after state. As of this writing, sixteen state governments (plus the District of Columbia) actually issue marriage licenses to gay and lesbian couples, and there are stayed court rulings invalidating bans of same-sex marriage on constitutional grounds in six more.[2] That’s almost half the Union. It seems as if the only thing that could stop the steady march against prohibitions of same-sex marriage would be a Supreme Court ruling that expressly or implicitly overturned each of those six unanimous rulings. At this point, that remains possible, but it is not likely. If those six rulings stand, every ban not killed by legislators and/or voters will be overturned judicially; it is close to a certainty.

The Religion Fence

The “religious freedom” bill that Arizona Governor Jan Brewer recently vetoed was an obvious attempt to counteract this trend and the changes in public sentiment it reflects. The bill sought to enable the creation of business enclaves in which laws of general applicability could be rendered ineffective if the proprietor was acting on a professed religious belief. While the bill said not one word about homosexuality, it was both promoted and attacked in reference to that issue. Uppermost in the minds of its promoters was a scenario in which businesses owned by adherents of a faith that rejected homosexuality might be asked to employ gays or to serve as vendors for a same-sex wedding. Arizona’s rejected law was expected to lend cover to a refusal to hire or to do business.

It is doubtful that such a law would have survived constitutional review. But it might have; religion has successfully served as a “fence” around certain kinds of refusal to conform with otherwise applicable law. During the Draft, conscientious objectors could sometimes be protected from service on the basis of their religious convictions. During prohibition, sacramental wine was always permitted.[3] Nowadays, religious organizations are given wide exemptions from anti-discrimination laws in hiring and enjoy special tax statuses under federal and state laws. In the future, religious objections may well prove a successful basis for noncompliance with the Affordable Care Act.

But even religious freedom does not have a great track record as a sanction for deviation from legal norms. Religious conviction does not get you a license to ingest peyote, for example, or to avoid paying income tax.

Anyway, even though there’s plenty of litigation yet to come, we’re already down to enclaves with sexual orientation.

Crushable, But Probably Not to be be Crushed

We are still in a beachhead phase with marijuana legalization. The legal changes advancing it have taken two forms: laws legalizing marijuana for medical purposes (currently enacted in 20 states plus D.C.), and laws legalizing it for recreational purposes (currently enacted in two states). These enactments have in common with the Arizona “religious freedom” law that they are passed as attempts to fashion environments in which the laws outside do not apply. The legislatures involved know that marijuana remains a federal Schedule I controlled substance, and that federal prosecutors and law enforcement retain full authority to halt every activity these state enactments purport to permit. These beachheads could still be easily crushed, and only the decision of the Justice Department not to proceed against them keeps this from happening.

In reality, though, it would be a tremendously impolitic thing for federal law enforcement to try stopping this change. Last year, for the first time, public opinion swung in favor of legalization. True, in the wake of these poll results, the Drug Enforcement Agency, apparently at loggerheads with the Department of Justice on how to respond to state legalization, sent an emissary to Congress, pleading that public opinion about marijuana should not be allowed to trump “science and fact.” There’s much to say for following science no matter what public opinion says, for instance in dealing with climate change or teaching evolution without bringing up the first two chapters of Genesis as some kind of equally plausible alternative. But what “science and fact” would the DEA be referring to in this context? Succinctly put, they got nothin’. Marijuana doesn’t cause lung cancer, isn’t addictive, does have medical uses, etc.[4] That’s why marijuana is gaining ground in public opinion and in our states’ laws. So a strengthened federal resolve against legalization at the state level seems unlikely.

Can we foresee a time, then, when there are enclaves against marijuana legalization? Probably so. Eighty years after the end of Prohibition, you can still find some dry counties and communities. Marijuana-free towns seem a good deal more likely than the tolerance of enclaves in which discrimination against LGBT people will be permitted, notwithstanding that the would-be discriminators have chosen to wrap themselves in the banner of religion. Certainly businesses that can reasonably be called public accommodations will be allowed little scope to discriminate. And for smaller business, the outlook is not much different.

Opposing Equality Puts You in Bed With Undesirables

It might not be fair, but surely some of the outcome in this argument will hinge on the fact that the religious elements sanctioning discrimination look distinctly fringy. Under the new pontiff, even the Catholic Church is backpedaling now. Few denominations want to look like the Westboro Baptist folks, who spew venom at gays and lesbians in the name of the Almighty. Looking like Westboro (or Vladimir Putin for that matter) will become an inevitable consequence of continuing to oppose legally equal status for LGBT people and their spouses. Bet on most religious organizations abandoning, within the decade, active resistance to laws assuring such equal status. In any event, there won’t be much left to fight about. Same-sex marriage will probably be the law everywhere by then. There will be openly gay generals and NFL quarterbacks. Denominations that prolong the lost battle and keep the populace unnecessarily divided will be judged harshly by the people who make the laws.

In any event, when you have to protect your viewpoints by trying to build an enclave, you have basically already lost. Redoubts almost never hold.


[1]. There were areas south of Berlin that remained in Nazi control after Hitler’s demise. See this useful map.

[2]. Ohio; Oklahoma, 2014 WL 116013; Kentucky; Virginia; Texas, 2014 WL 715741; Utah. (In the week this article reached the press, another ruling, 2014 WL 1100794, also subsequently stayed, added Michigan to this list.)

[3]. As per the former 27 U.S.C. § 4.