The problem with becoming a "Red Dog Democrat"

The Bulwark staff- mainly the venerable Bill Kristol and the provocative Tim Miller- seem to have become cheerleaders for the idea of Never Trump conservatives becoming, in Miller's phrase, "Red Dog Democrats." The argument is simple, and in principle, I have no disagreement with its premise. They point out that democracy and our most fundamental institutions are under attack. Saving them must take priority over even essential policy concerns.

The right has given birth to a violent insurrection against the Constitution and cannot bring itself to hold those responsible accountable or even to unambiguously repudiate it. The man who fomented it remains its leader even after having failed twice in national elections to win the support of most American people. He has become the first president in our history to be impeached twice. His bungling of the COVID pandemic has caused hundreds of thousands of unnecessary deaths. In fact, the Trumpist right has effectively made itself the ally of the virus, supporting policies that have resulted in a nation with four percent of the planet's population sustaining 20% of the pandemic's deaths.

The almost unbelievable lack of respect for human life displayed by the Trumpists in minimizing the  pandemic, exalting the economy above it as a priority,  and opposing rational public health measures to control it has destroyed the credibility of its claim to be "pro-life." The achievement of an anti-Roe super-majority on the Supreme Court effectively renders abortion irrelevant as an issue in electoral politics; nothing presidents, or congressmen, or state legislators do will make the reversal or modification of Roe more likely than it already is. And it's becoming increasingly clear that the Court isn't even going to address Roe in any significant way. Realistically, the law concerning abortion isn't going to change without changing the nation's attitudes. The manifest hypocrisy of the right when it comes to respecting life ill-suits it to the task of changing them.

Despite its professed allegiance to the Constitution, the positions of the Trumpist right and its support of the former president's policies have demonstrated a combination of ignorance of that document and utter contempt for it. Their attempt to overturn the result of a free and fair election based on a lie unsupported by a shred of evidence clearly establishes them as America's foremost enemies of the Constitution and the rule of law, to say nothing of democracy.

But the Democrats and the left have their own constitutional problems. Their otherwise admirable commitment to equality and egalitarianism has led them to become enemies of religious freedom and undertake sweeping reforms whose implications seem not to have been thoroughly thought through. The Biden  Administration's hallmark Equality Act, recently passed by the House, is a case in point. 

As David French points out, the purpose of anti-discrimination laws is to prevent invidious discrimination, a term that usually means “arbitrary, irrational and not reasonably related to a legitimate purpose." The Equality Act, he suggests, paints with too broad a brush. French observes that the Act "renders virtually all biological sex distinctions unlawful, regardless of context." But he points out that the courts have repeatedly recognized the legitimacy of such distinctions where they have a reasonable, practical purpose.

He points out that not all "discrimination" is invidious or destructive. Male prison guards ought not to be allowed to conduct strip searches of female prisoners. Members of a college women's basketball team might reasonably be permitted to shower separately from members of the men's team and to have their own locker room. And it would be unreasonable to prohibit separate basketball teams for men and women on the ground that the distinction is discriminatory. If we did, few women could play college basketball!

And he observes that there is also a second major problem with the Equality Act: it explicitly provides that the Religious Freedom Restoration Act (RFRA) “cannot provide a basis” for challenging the “application or enforcement” of the Equality Act.

French's legal career has primarily been spent defending the freedom of religion from attacks by the cultural left. It's a real phenomenon, often denied by secularist "progressives," frequently in the context of attacks on Christianity or on religion in general, which often luridly demonstrate the existence of the same hostility and prejudice they deny exists. Why go out of the way to foreclose challenges based on religious freedom when no necessary conflict exists between civil rights laws and the RFRA? Shouldn't we at least expect a showing that the RFRA is likely to be the basis of invidious discrimination? If so, shouldn't it be modified so as to avoid that? So far, that hasn't seemed to have been the case. Lawsuits have been dismissed as "frivolous" when the RFRA has been used as a mere pretext for invidious discrimination.

Keep in mind that the Equality Act is not the product of the Democratic Party's far left. It is hallmark legislation advanced by the Biden Administration- by the wing of the Democratic Party, we potential "red dogs" would be joining it to support and strengthen.

However reasonable and temperate we might be, I'm not sure that social conservatives would be welcome in the Democratic Party. I am absolutely sure that the left-wing of that party would be ferociously hostile to any enlarging of the Democratic tent in our direction.

The left's sloppy thinking at the intersection of anti-discrimination laws and the First Amendment  is what prevents me from embracing Tim Miller and Bill Kristol's idea of Never Trump conservatives becoming "Red Dog Democrats." Well, that and my doubts as to whether pro-life and socially conservative folks would even be welcome in the Democratic Party, especially after Joe Biden and the threat of Donald Trump are gone.

Arbitrary discrimination against people's gender or sexual orientation is wrong. But the cultural left seems unable to distinguish between seeking to restrict or penalize others' private behavior or ontological characteristics and merely seeking to conduct one's own life based on one's convictions or even realistic, practical concerns.

I agree that photographers, caterers, and others should not be allowed to express their opposition to gay marriage by refusing to do same-sex weddings. But no stretch of logic will suffice to make compelling people who believe- however illogically- that participating in them would be an actual sin for them to be anything but a violation of the First Amendment.

There need be no conflict between actual and legitimate protection against discrimination and religious freedom. But I can't help but be troubled by the evidence that some Americans are determined to act as if it were otherwise. And it's especially troubling when it's the Biden Administration that's doing it.

Now, don't get me wrong. I do not regret voting for Joe Biden, nor do I have the least objection to partnering with the Democrats in an ongoing coalition against Trumpism. Nor do I see Joe Biden as being personally hostile to religion or to religious freedom. But a viable center-right party is absolutely crucial to the survival of our democracy. The Republican Party will never again fill that role, And it takes two viable parties to make a two-party system work.

Working with the Democrats and voting with them, at least temporarily, is one thing. And I'm open to being convinced that I'm wrong. But the threat to the Constitution doesn't come from the Trumpist right alone. Until I'm surer than I am that the Democratic Party is committed to freedom of religion, I'm afraid I can't muster much enthusiasm for Kristol and Miller's idea that we all run out and become Democrats.

Or maybe I misunderstand them. Like I said, I see no problem at all with a temporary alliance with the Democrats, a "popular front," as it were. I just think we need to beware of the idea that we can find a home in the Democratic Party.