Category Archives: Federalism

Sixth Circuit Decision Upholding Gay Marriage Bans Invites Supreme Court Review

finally married 2

On Thursday, the U.S. Court of Appeals for the Sixth Circuit upheld gay marriage bans in Ohio, Michigan, Tennessee and Kentucky. It did so by reversing lower court rulings striking down the bans. This decision puts the Sixth Circuit out of step with the other circuit courts to address the issue thus far (the Fourth, Seventh, Ninth and Tenth). The decision is sure to be appealed, and many observers believe it will be the vehicle by which SCOTUS finally weighs in on the issue.

DeBoer v. Snyder was decided 2-1. The majority decision was authored by Judge Jeffrey S. Sutton. Sutton largely argues that the definition of marriage should not be “constitutionalized” and that change should come from the voters. He maintains that the right to marriage recognized as fundamental in prior SCOTUS cases is defined by, and presumes, a relationship between one man and one woman. He rejects sexual orientation as a suspect classification entitled to heightened scrutiny, and frets that constitutionalizing gay marriage will require recognition of plural marriages.

Having found no need to apply heightened scrutiny to the bans, Sutton finds two rational bases for denying marriage to same sex couples. The first involves channeling straight people’s sexual energies into monogamous, legally binding relationships:

One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means.

The dissent scores powerful points observing that heterosexuals are already free to follow their procreative urges where they will, and that the unwanted children resulting from such unions suffer when their adopted same-sex parents are precluded from marrying. In any case, Sutton’s second rationale for upholding the bans has to do with principles of federalism:

[O]ne of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. …. How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems.

Indeed, this decision creates a conflict among the circuit courts that did not exist (or at least not clearly) back in October, when SCOTUS declined to hear appeals from decisions in the Fourth, Seventh and Tenth circuits striking down similar bans.

Shortly after SCOTUS declined those appeals, the Ninth Circuit also struck down bans.

Collectively, those decisions were reached in a variety of ways: finding that the bans failed under rational basis review; applying heightened scrutiny to restriction of a fundamental right under a due process analysis; or applying heightened scrutiny under an equal protection analysis based on suspect classification or history of animus. However reached, they had the result of making gay marriage legal in 32 states (with three additional states with bans still technically in effect, which will inevitably be struck down).

That left litigation percolating in the Fifth, Sixth, Eighth, and Eleventh circuits. The decision Thursday by the Sixth was the first to break the prior pattern. Most commentators believe SCOTUS will now accept review to resolve the conflict. As Doug Mataconis, writing for Outside the Beltway, explained:

[T]he most important thing about the decisions in these cases is the fact that it creates the split among the Circuit Courts of Appeals that the Justices apparently felt was lacking when they considered the appeals it acted on in early October. … With this decision, though it can no longer be said that there is not a Circuit split since the differences between Judge Sutton’s opinion and those from the other four Circuits could not be more apparent. Thus, the one thing that didn’t exist on this issue in early October regarding this issue can now be said to clearly exist, and the likelihood that the Supreme Court will accept an appeal to this decision would seem to be quite high.

Only four justices need to agree for SCOTUS to accept an appeal. Assuming one is accepted, Mataconis and others predict SCOTUS will rule that the states cannot regulate gay marriage, by a majority consisting of at least Ginsburg, Breyer, Sotomayor, and Kagan, plus Kennedy.[1]

From my own perspective, I do not see how we avoid the leviathan of government once we accept its tentacles are properly applied to the regulation of personal relationships. Even if the collective will was acceptably used to such ends, I have not come across convincing reasons for denying same sex couples access to the same bag of government goodies, incentives and subsidies enjoyed by opposite sex couples. The various theories propounded by opponents of gay marriage are belied by the sound sociological research to the contrary. Plural marriage does not frighten me, both because it does not rise to the same level of constitutional scrutiny as gay marriage—and because it is inherently non-frightening. Finally, I have and will continue to oppose all efforts to force private people, churches or businesses to associate with gay marriages against their will. The same principles that underpin the right to choose a spouse also underpin the right to choose with whom to do business.

I will close with Justice Sutton’s own observation that:

Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers.

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[1] Kennedy wrote the majority decisions in Romer v. Evans (overturning a Colorado law preventing local governments from enacting anti-discrimination regulations to protect homosexuals), Lawrence v. Texas (overruling sodomy laws), and U.S. v. Windsor (overturning provisions of DOMA allowing the federal government to refuse recognition of same-sex marriages performed by states).

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

“Bad” or “Wrong” or “I don’t like it” is not equivalent to “Unconstitutional”

In a comment on someone elses post, another reader wrote “The DEA is an unconstitutional and illegal agency”.

This bugs me… We frequently see these sorts of statements made about the DEA, the ATF, the federal reserve (where ok, there’s at least a rational and reasonable though flawed argument to be made… most of the people shouting stuff like that above aren’t making those arguments, but still)… Basically any federal agency that they don’t like, or which enforces laws, or uses delegated powers which they personally don’t like.

No, the mere existence of the DEA is not unconstitutional or illegal. It is perfectly constitutional in that it is an executive agency chartered to enforce the laws promulgated by the legislative branch.

The fact that the federal government has no constitutional authority to outright ban or criminalize such substances as the DEA is chartered to regulate, or to ban or criminalize their manufacture, use, or possession (and only limited power to regulate their sale. No, sorry, regulating interstate commerce and making such laws as necessary for the general welfare does not grant them such broad and deterministic powers… and Wickard v. Filburn is bad law and needs to be overturned), does not mean that all laws relating to such substances are illegal or unconstitutional. There are legitimate regulatory powers that such an agency may lawfully and constitutionally exercise.

AS CURRENTLY EXTANT AND IN THEIR CURRENT ROLES AND ACTIONS… The DEA often engages in unconstitutional behaviors, and acts to enforce unconstitutional laws. That much is certainly true. But they are not inherently unconstitutional, or illegal.

Those are actually really important distinctions. Not just semantics or distinctions without difference.

This is so, because you go about addressing the issues, and solving the problems, differently. Things which are blatantly and directly illegal or unconstitutional are best addressed in one way. Things which are peripherally so, are best addressed in a very different way.

You have to shoot at the proper target, with the proper ammunition.

Also, it’s really important to remember, that “bad and stupid” or “harmful” or “undesirable”, or “pointless”; does not necessarily mean “unconstitutional”. Nor does “constitutional” mean “good”, or “useful” or “effective”.

That’s not even a matter of judges discretion or interpretation… The constitution actually provides far less protection of rights, and limitation of powers, than people believe it, expect it, and wish it to (at least explicitly… the 9th and 10th amendments… there’s much bigger and messier issue).

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

The Constitutional History Lessons You Didn’t Learn in School

More often than not, history is written by the winners and taught by individuals who love big government. Tom Woods’ Liberty Classroom has been providing a refreshing non-P.C. presentation of history that is rarely brought up. Very little of what we call history either is “settled” without controversy or without lingering questions.

• What is the true philosophical inspiration for the Declaration of Independence?
• What is the meaning of “natural law” and “natural rights”?
• Was the American Revolution just about “no taxation without representation”?
• Was the Articles of Confederation really inadequate for the needs of the several states?
• Was the Constitution itself legally drafted and adopted in replacing the Articles of Confederation?
• How controversial was the Constitution previous to its ratification?
• Was it originally the intention that the union would be perpetual? (i.e. Was it the common understanding during the ratification debates that states could leave the union or not?)
• What did the founders think about states nullifying federal law?
• Was the American Civil War (or “War Between the States”) really about slavery?
• Might slavery have ended without war?
• Was the Supreme Court intended to be the final arbiter of both state and federal law?

These questions and more are explored in Tom Woods’ Liberty Classroom. The video below “German and British Antecedents [to the U.S. Constitution]” is the first of 15 videos available for free from Liberty Classroom (watch the rest here,). Each lecture runs for about 25 minutes. Enjoy!

Do We Really Want the President to Enforce ALL Federal Laws?

The Rule of Law, theoretically at least, is superior to the arbitrary Rule of Men. For most of human history, the law has been subject to the whim of a head of state be s/he a monarch, czar, dictator, emperor, etc. James Madison and the framers of the U.S. Constitution wisely determined that the document would be the “supreme law of the land” and everyone from the President to the peasant would be subject to the same law.

But what happens to the Rule of Law when the laws become too vague, too numerous, too unpredictable, and too unjust? According to a 2008 Louisiana State University study (referenced in this article), there were over 4,500 federal crimes on the books. This does not include the thousands more regulations that also carry criminal penalties.

So my question to conservatives and some libertarians who have been critical of President Obama’s executive order to allow individuals who were brought illegally across the border as children under the age of 16 to have temporary work permits is as follows: Do you believe that the president should enforce each and every one of the over 27,000 pages of federal code and prosecute everyone who can be accused of any of the 4,500 + crimes? Should the president send uniformed men with guns to raid the Gibson Guitar Corp, dairy farms who sell raw milk to the public, and medical marijuana dispensaries which operate pursuant to state law? If the argument is that the president is shirking his responsibility by picking and choosing the laws he will “faithfully execute,” the answer necessarily must be “yes.”

Obviously, the federal government even as large as it is could not possibly enforce every single federal law. Assuming for a moment the federal government could enforce every single federal law and regulation, as people who claim to value personal liberty above all else, is this something that would in any way be compatible with liberty?

I think not.

When the federal code is so full of laws and regulations, it’s the same as having no Rule of Law at all. The president necessarily must decide which laws to enforce and which to ignore or at the very least prioritize how he will execute the law. As immigration laws go, it seems to me that deporting individuals who were educated here, not criminals, and pay taxes should be a much lower priority to be deported or jailed than someone who as an adult illegally immigrated, stole someone’s identity, and committed a host of other crimes.

Beyond the sheer volume of laws and regulations, I do think there are instances when the president should NOT enforce the law if he, in good faith, believes the law violates the constitution and/or is unjust. Who among us today would argue that when the Fugitive Slave Act of 1850 was in force that a president who refused to enforce such a law was acting like a king because he was usurping the “will of the people”? I would also point out that when the Fugitive Slave Act was the law of the land, it wasn’t at all unconstitutional even though most sane Americans today, regardless of political affiliation and/or philosophy would say the law was immoral. If the constitution itself violates Natural Law (i.e. does not recognize the rights of life, liberty, and property for all human beings), then it too should be nullified in those instances.

Nullification presents problems of its own, however. I recognize that nullification of laws passed by congress presents a possible constitutional crisis. We certainly do not want an all-powerful executive branch that can ignore the congress and the courts, so what is the solution?

The solution, however politically difficult it would be, would be to repeal the vast majority of the federal criminal code and much of the remaining 27,000 pages of statutes. The most sensible place to begin would be with the federal criminal code. Most criminal law should be dealt with at the state level anyway. I haven’t checked recently but I’m pretty sure that rape, murder, burglary, assault/battery, and fraud are crimes in all 50 states and in all U.S. territories.

Additionally, even those who believe the war on (some) drugs is good public policy, most states would most likely (unfortunately) continue locking up non-violent drug offenders without Washington’s help. The country we love would not descend into chaos if criminal law was dealt with almost entirely by the states. If we cannot trust the states to handle protecting individuals inside their borders, what is the point of even having states?

If the federal criminal code only dealt with crimes such as counterfeiting, treason, enacting legitimate interstate commerce regulations (to keep the trade among the several states “regular,” not what the interstate commerce clause has become thanks to SCOTUS), and yes, immigration policy, the president could and should conceivably enforce all the federal laws that are neither unconstitutional nor immoral. The president would no longer have the discretion to enforce the laws he favors and not enforce the ones he does not.

Rasmussen Poll: 61% of 500 Likely Voters in Colorado Support Regulating Marijuana Like Alcohol (Amendment 64)

This is one of the most encouraging polls I’ve seen in a long time. Honestly, I didn’t think that Amendment 64 [full text here] would have much chance of being approved by the voters, especially since a similar measure, Prop 19 failed in California in 2010. The Huffington Post reports:

The survey of 500 of likely voters in Colorado conducted on June 6, 2012 shows sixty-one percent are in favor legalizing marijuana if it is regulated the way that alcohol and cigarettes are currently regulated.

[…]

That is the highest percentage of Colorado voter support that any marijuana legalization poll has shown to date. In December of 2011, a similar poll from Public Policy Polling showed only 49 percent in favor of general legalization of marijuana.

I also found this to be interesting (continuing the same article):

Amendment 64 also recently received support from both Republicans and Democrats — in March, 56 percent of the delegates at the Denver County Republican Assembly voted to support the legislation, and in April, the Colorado Democratic Party officially endorsed Amendment 64 and added a marijuana legalization plank to the current party platform.

Bipartisan support for legalizing marijuana and regulating it like alcohol in Colorado? This is quite encouraging and fascinating (in California, you may recall, there was bipartisan opposition from the blue and red teams).

This isn’t to say there that Amendment 64 will sail through unopposed. There are anti-64 groups mobilizing so those of us who want to see 64 pass cannot be complacent. Also, with about five and a half months until election day, anything can happen.

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