Chairman of the Board for Hypocrisy

Rob Tisinai

December 13th, 2012

John Eastman is all of the following:

  • Chairman of the Board for the National Organization for Marriage
  • Current professor and former Dean at Chapman University School of Law
  • A specialist in constitutional law and legal history

And…wait, there was one more. Oh, yeah:

  • Another conservative happy to chuck his principles so he can be anti-gay

Eastman has a commentary about Prop 8 in USA Today: “Federal government can define marriage too.” I found it pointless and disjointed, but one paragraph leapt out at me, apparently in defense of DOMA:

And if states have the right to define marriage, doesn’t the federal government have that same right? It’s the constitutional duty of our elected officials to decide what burden taxpayers bear in dealing with same-sex couples. Federal laws encourage men and women to marry and have children because society has a profound interest in ensuring that children are born (to continue society) and then raised by their parents to become responsible adults.

That surprised me. Conservative legal scholars are usually federalists who believe in limiting the federal government’s power to what’s enumerated in the Constitution, leaving everything else to the people or to the states. It would be hypocritical, even bizarre, for a federalist to throw all that out the window with a simple, “And if states have the right to define marriage, doesn’t the federal government have that same right?” Because a federalist would answer that with a firm, “No.” Perhaps even a lifting of the chest, an intake of the breath, a scowl on the brow, and a stern, “Absolutely not!”

So I figured, John Eastman must not be a federalist.

I figured wrong. Eastman isn’t just a federalist — he’s an officer of the Federalist Society. And he’s written passionately about limiting the power of the federal government:

[I]t became and remains one of the most fundamental tenets of our constitutional system of government that the sovereign people delegated to the national government only certain, enumerated powers, leaving the residuum of power to be exercised by the state governments or by the people themselves.

This division of sovereign powers between the two great levels of government was not simply a constitutional add-on, by way of the Tenth Amendment. Rather, it is inherent in the doctrine of enumerated powers embodied in the main body of the  Constitution itself. Article I of the Constitution provides, for example, that “All legislative Powers herein granted shall be vested in a Congress of the United States.” And the specific enumeration of powers, found principally in Article I, section 8, was likewise limited.

Of course, when he wrote that he was trying to place limits on federal business regulation. But if that’s his principle, then surely he would apply it consistently. He wouldn’t abandon it just so the federal government could actively limit the rights of gay people. He’d never casually argue a non sequitur like, “And if states have the right to define marriage, doesn’t the federal government have that same right?”

But — ha! — I’m just kidding. John Eastman isn’t a principled conservative. He’s just a professional anti-gay at NOM.



December 13th, 2012

Where have you been. Him and his ilk always only wanted total freedom for businesses to do whatever they want and enslave their workers. They have never and will never extend that to personal liberty. Unless it’s their own. American libertarians have the exact same mindset.


December 13th, 2012

“Enumerated Powers” anyone?

The hypocracy of these folks!

Timothy Kincaid

December 13th, 2012

“It’s the constitutional duty of our elected officials to decide what burden taxpayers bear in dealing with same-sex couples.”

And that is fascinating – and an obvious dig at the Windsor case.

Although I never thought I’d actually read one from a legal scholar, this is actually an argument that the federal government can and should tax gay people at higher rates than straight people.

Oh please let someone try that in front of the SCOTUS. Please please please.

Timothy Kincaid

December 13th, 2012


American libertarians most definitely DO NOT have the same mindset. By definition.


December 13th, 2012

Eventually, for some issue, everybody° runs into a situation where their values conflict, and has to prioritize one or the other.

And if the conflict is between “states take precedence over feds” and “allowing gay people to marry will destroy civilization,” however completely insane the latter is, it’s not at all odd he’d put that one first.

°Near enough everybody, anyway.


December 13th, 2012

Thanks for the correction regarding “American Libertarians” Tim, the vast majority of whom were for same sex marriage long before even a single Democrat got with the program.


December 14th, 2012

Its the same hypocrisy.
It doesnt seem to matter how gays win, when they win its always “unfair” or “rigged” or “conspiratorial”.
If elected officials vote in gay rights, its a violation.
If the people vote in gay rights, theres still a violation and they RUN to the elected officials to enforce things like DOMA.
Gay people have run this battle six different ways from Sunday. And I think most people are getting a bit tired of the tyrannical hypocrisy of the opposition.


December 14th, 2012

Most American Libertarians – at least the public and vocal ones – are merely anarcho-capitalists who wants complete and absolute power for businesses. Personal liberty doesn’t play much of a role for them. There may be other ones, but they are like liberal Christians: silent, complicit and inconsequential

Timothy Kincaid

December 14th, 2012

Steve, you seem to live in a world much dissimilar to the one that I live in.


December 14th, 2012

Republicans are against taxes on heterosexuals because, you know, taxes are tyrannical. But they are all in favor of “fag taxes.”


December 14th, 2012

Did Mr. Eastman just endorse mandatory child-bearing, federally mandated child-bearing, for all married persons? I’m sure he’s just referring to federal tax codes that provide benefits for having children. But are those limited to children born to married people? My single mom (dad died) got those benefits.

But, I suppose under DOMA, a same-sex couple that adopts a child who was not aborted (something conservatives encourage) does not get those benefits unless, I suppose, the child is adopted legally by only one of the couple, so it’s a single parent family for purposes of the law.

And what is he suggesting about the federal role in parenting? That the parents of children who become irresponsible adults should, what, have to repay their tax benefits? Be charged for the public costs of dealing with their adult children’s irresponsibility?

“Federal laws encourage men and women to marry and have children because society has a profound interest in ensuring that children are born (to continue society) and then raised by their parents to become responsible adults.”

The interventionism implied in that sentence is massive, and way beyond keeping the gays from marrying.


December 14th, 2012

Additional thought.

The sentence I quoted suggests that the next canard from the anti-equality forces will be to use the documented falling birth rates as evidence that same-sex marriage is a threat to the continuation of society.

See, before 2004, when the gays in Massachusetts could get married, American women were popping out the babies at rates that would at least sustain the society. Now that the gays can marry, women don’t want to have babies anymore. And they can get contraceptives and abortions, too.

Oh, if only we could use federal law to keep women from getting an education, joining the workforce, pursuing their own ambitions, receiving contraceptives, terminating a pregnancy, voting, or being a human being separate from their man! Why, I remember when Constitutional rights applied only to white heterosexual male property owners — those were the days!

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