Gay marriage supporters hold a gay rights flag in front of the Supreme Court before a hearing about gay marriage in Washington April 28, 2015. REUTERS/Joshua Roberts

Conservatives Under Siege – Why the 10th Amendment is the Last Hope for Traditional Marriage


Late in the autumn of 1943, German fighter general Adolf Galland headed to the opulent estate of Luftwaffe Reichsmarschall and Hitler’s second-in-command, Hermann Göring. Galland, a decorated combat ace, had seen extensive action on the western front, and by this point in the war, he could see that the odds were turning against the Third Reich, as British and American bombers made regular raids deep into fortress Europe, escorted by new, long-range allied fighters that had started to thin his distinguished ranks.

Galland’s mission on this night was to convince Göring that Germany must re-tool their air force for a defensive struggle in light of the Allies’ ever-tightening stranglehold on the skies over Europe.  While Hitler and Göring insisted that the Luftwaffe continue to focus on offensive strategies and vengeance weapons like the infamous V1 and V2 rockets, Galland knew that if they did not soon cut back on bomber production and boost their fighter force, Allied bombers would soon roam the European skies unchallenged.

Conversely, if they shifted to a defensive posture and focused production on fighters and anti-aircraft installments, Germany could continue to inflict the heavy losses on British and American bombing campaigns that – unbeknownst to him – had nearly driven the Allies to abandon strategic bombing earlier that year.  Eventually, the Allies would be forced to choose between continuing an unsustainable war of attrition, or suspending strategic attacks on the European mainland entirely.

The meeting didn’t go well.

From Göring’s perspective, the Luftwaffe simply wasn’t being aggressive enough.  They needed more bombers, bigger weapons, braver pilots – and generals who didn’t question leadership.

The conflict between Adolf Galland and German high command eventually resulted in the high-profile but now forgotten rebellion of top Luftwaffe brass that came to be known as the “Revolt of the Kommodores.”  Even in 1945, as Allied forces crushed the life out of Germany on both fronts, Hitler and Göring refused to accept that they were losing and needed to change tactics, instead deriding and demoting their own most loyal officers, accusing them of cowardice and disloyalty for daring to challenge the fragile narrative that Germany was still in control of the war.

The foolish bravado of Nazi high command was arguably one of the biggest factors determining the fate of the European air war, and eventually, the entire western theatre.  Had they recognized the tide turning against them and adopted a defensive posture even as late as 1944, D-Day might never have happened, and the face of the 20th century might look very different today.

Why the history lesson?

Because I believe conservatives are facing their 1943 of traditional marriage. Pro-family politicians and groups are quickly approaching the point of desperation as it becomes evident that the national trend is full acceptance of gay marriage, and is moving that direction on a number of other LGBT issues as well.

While part of the conservative frustration is understandably directed at the toxic combination of judicial activists and spineless GOP leaders who have shown themselves unwilling to fight for traditional values, federal deference on the part of some well-intentioned culture warriors is equally to blame.  After all, the reason we find ourselves plunged into federally-mandated national acceptance of gay marriage is that we have established a trend of ignoring the 10th Amendment and taking every grievance to the federal government (DOMA, anyone?) in a bid to establish our preference as the law of the land – an approach that the other side has now mastered.

In the wake of this frustration, many conservative leaders have taken the opportunity to explain that we simply aren’t being aggressive enough in defending marriage.  These leaders want to see a federal marriage amendment passed, and want courts stripped of jurisdiction to redefine marriage. They want Republican officials to stand up and declare that marriage is defined by the laws of nature, and that any law in conflict with that standard is invalid.

But the problem is that we are losing the argument both culturally and legally, and not just by a little bit: We’re being dragged like a Chihuahua behind a Chevrolet.

A lot of fiscal conservatives (and even some social conservatives) are ready to wave the white flag on marriage and divert that energy and effort to arguments that we are winning – like gun rights and personhood.

While this is a definite risk in light of the religious liberty threat posed by the more militant social justice trigglypuffs being spewed from our colleges, the temptation is understandable given that our losing streak on social issues now approximately rivals the Cleveland Browns.

But some Republican leaders have put forth a strategy that could be the last hope for both traditional marriage and religious liberty: leave marriage entirely to the states. Shortly after the Obergefell decision last year, Sen. Ted Cruz attempted to shield both through an appeal to federalism – a powerful and underused bulwark intended by the framers to stop exactly this kind of assault on liberty.

Despite recent studies showing that support for same-sex marriage has dramatically increased in every single US state in the last decade, there are still a number of states in which support still rests below 50%.  Because the fight has consistently been elevated to the federal level, states have lost their ability to dissent on marriage as well as a host of other issues.  Federal courts have made a business of overthrowing state gay marriage bans, and a full 60% of Americans now not only support legalization of same-sex marriage, but also believe that individual states have no right to limit marriage to heterosexual couples.

It is the last statistic that makes Sen. Cruz’s two-pronged federalism strategy so important. His twin bills would have constitutionally protected states that wish to support traditional marriage from legal incursion, and would have barred federal courts from overturning any more state bans until that constitutional protection is cemented. This long-overdue defense would allow states to define marriage as their citizens see fit – itself an important protection for people of faith.

It’s one thing for Massachusetts to recognize same-sex marriage and allow dissenting religious conservatives to move their homes and businesses to Texas.  It’s quite another for the federal courts to force every state to recognize gay marriage in spite of the wishes of the state’s populace. If the states fall, what refuge is left for those unwilling to bend on issues of conscience?

Cruz, and others who consistently promote the 10th Amendment solution, have become the conservative Gallands of our day – recognizing that there is a time to go on offense and a time to strengthen that which remains.

The states’ rights position forces liberals to attack something stronger than pulpit rhetoric and more resilient than the weak-kneed national GOP leadership. If a federalist solution is adopted, states that embrace gay marriage can legalize gay marriage, while states that object to it can escape being subjected to it. While this clearly isn’t the outcome that many social conservative stalwarts consider ideal, it is becoming apparent that it is the only viable option to protect freedom of conscience and representative government in a nation as sharply divided as it has been since the Civil War.

If conservatives insist on maintaining a posture of attack as the bombers rumble over our cities, the result will not be a stalemate: we stand to lose the war entirely. We need to see where we’re winning, where we’re losing, and where we’re at an impasse.  This recognition often constitutes the line between courage and recklessness, victory and defeat.

In another great WWII analogy, conservative radio host Steve Deace recently compared the plight of the GOP’s Trump-besieged conservatives to the Miracle at Dunkirk – an equally apt description of where things stand, and a timely acknowledgement that there’s a time to advance and a time to fall back and regroup.

Enough lobbing ineffective bombs at a society bent on burying moral absolutes. It’s time to fire up the fighters, put our backs to the Constitution, and dig in for the defense of religious liberty. There will be a time to advance again, but now is not that time. Now is the time to defend, now is the time to endure.

Joel Kurtinitis is a columnist for the Des Moines Register, contributing editor for The Liberty Conservative, and operations director for the US Federalist Party.

Joel was a Regional Director for Ron Paul 2012 and served on the State Central Committee of the Republican Party of Iowa. He co-founded Liberty Iowa in the wake of the Paul campaign, and organized the Free DC Project during the government shutdown of 2013.

When not busy setting the virtual world aflame with controversy, Joel is actually an okay guy who enjoys reading, cooking, chess, bluegrass music, and an occasional foray into fiction writing. Joel and his family live in Des Moines, IA.

1 Comment

  1. A bit uncomfortable with the comparison of pro-traditional marriage people to Nazis, but it makes a valid point. However a 10th Amendment stance ultimately wouldn’t hold for the same reason that anti-“miscegenation” bans didn’t hold: the 14th Amendment, and the Civil Rights Act.

    The only answer to this problem is to eliminate civil marriage from the law. That’s the only way to protect it from the state’s coercive measures.

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