Category Archives: The Bill Of Rights

In the Wake of Obergefell v. Hodges: Gay Marriage, Religious Liberty, and the Free Markets

Church of the Pilgrims, Washington DC

[Photo: Church of the Pilgrims, a Presbyterian USA Church in Washington DC, via Wikimedia Commons.]

On Friday, June 26, 2015, the Supreme Court held in Obergefell v. Hodges that under the Fourteenth Amendment, states are required to license marriages between same-sex partners and to also recognize same-sex marriage licenses from other states. The topic of same-sex marriage is probably one of the most polarizing topics in modern-day America. Over the past several days I have seen dozens of people, both for and against same-sex marriage, acting hateful to one another, unfriending and/or blocking people on social media because they have different views, and just having a very nasty tone. But why? Why can’t we have a dialogue on the topic? Let’s face it. Obergefell is now the law of the land. The purpose of this post is to try to open that dialogue. So now that gay marriage is legal in all 50 states, what comes next?

Gay Marriage

Contrary to what many may think, the Supreme Court did not create new law here. They did not legislate from the bench. The Supreme Court has a long history of recognizing marriage as a fundamental right and has held that the states cannot discriminate against consenting adults with regard to this fundamental right. The Supreme Court has held this time and time again. As Justice Kennedy noted in his majority opinion:

[T]he Court has long held the right to marry is protected by the Constitution.
In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause.

– Obergefell (slip op., at 11)

Furthermore, the right to marry is guaranteed under the Equal Protection Clause of the Fourteenth Amendment. Anytime that a fundamental right is restricted to a group of people, the government bears the burden of proving that the law is necessary to meet a compelling government interest, that it is narrowly tailored to meet that interest, and that the means of implementing the law is the least restrictive means available. The Court found that there is no compelling government interest in denying same-sex couples the fundamental right to marry solely because of their sexual orientation. This is not creating new law. This is the Supreme Court telling the states that any law which restricts fundamental rights between consenting adults is unconstitutional.

Another argument that I often hear is that people think that this should be left up to the individual states to decide. That would be true under the Tenth Amendment. However, the Tenth Amendment only applies to powers not delegated to the United States by the Constitution. The Supreme Court has the power to interpret these laws under the Fourteenth Amendment. So the states’ rights argument doesn’t apply. Bans on same-sex marriage also violate the Privileges and Immunities Clause of the Fourteenth Amendment. This means that citizens who move to a new state are entitled to the same rights and privileges of citizens in the new state. The state cannot discriminate against them. Therefore, a marriage license that is valid in Massachusetts is also valid in Mississippi. A state cannot discriminate against people who move from other states.

This is not a legislative issue either. As Justice Kennedy stated:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. Obergefell (slip op., at 24)

So even though the ideal process may be to go through the democratically elected legislature, this does not preclude one from raising the issue before the Court if his or her fundamental rights are abridged.

Therefore, the Supreme Court did not create a new law. They did not legislate from the bench. This is not a case of judicial activism run amok. Even if you do not agree with gay marriage, at least understand that the government cannot deprive others of fundamental rights that are given to the rest of us.

Religious Liberties

Rest assured that just because same-sex couples can now marry in all 50 states, it does not mean that the government can discriminate against religious institutions. The government should not force any particular denomination, pastor, priest, or clergy to perform a same-sex wedding against their will. This would violate the Free Exercise Clause of the First Amendment.

I don’t foresee this as much of an issue. Most gay people that I know would get married outside of the church anyway. But if a same-sex couple does want to get married in a particular denomination, their right to marry is not infringed by a pastor’s denial to perform the service. The same-sex couple is still free to seek out another pastor. If a Southern Baptist church does not want to perform the ceremony, the couple can go to an Episcopalian church. If a pastor with the Presbyterian Church of America (PCA) declines to perform a ceremony based on his religious conviction, the couple can seek a pastor with the Presbyterian Church USA (PCUSA) willing to perform the ceremony.

Therefore, I don’t see this decision as an attack on our religious liberties. Every denomination should be able to exercise their faith and religion as they see fit under the Free Exercise Clause of the First Amendment. If you do agree with gay marriage, at least understand that the government cannot infringe on a clergy’s right to exercise his or her faith by declining to perform a same-sex marriage.

Free Markets

Okay. So now same-sex marriage is legal in all 50 states. How does this affect the markets and what does it mean for all of the bakers, florists, photographers, et. al who decline their services to same-sex couples? As a Christian AND a libertarian, I sometimes find myself at odds with…myself. Even if I disagree with something that goes against my convictions, it doesn’t give me the right to deprive another of their rights or hate on them for their choices. So I want to view this topic in two lights. How should this be handled with regard to the free markets and the courts? And how does this appear in the eyes of God?

Over the past several years, Christian wedding service providers, such as bakers, florists, and photographers, have declined to provide their services to same sex weddings. In Colorado, Masterpiece Cakeshop was sued for failing to make a wedding cake for a same-sex reception. Despite the owner’s willingness to serve homosexuals in his establishment, he believes that making the wedding cake means that he is participating in the union and it goes against his convictions. More recently, in Oregon, an administrative judge proposed that Sweet Cakes by Melissa pay a same sex couple $135,000 for refusing to bake a cake for a same-sex marriage. Then of course, there was the New Mexico case where the NM State Supreme Court held that Elane Photography discriminated against a same-sex couple by refusing to record their wedding, despite their policy on welcoming gay couples for other services.

From a free market, libertarian position, I disagree with all of these decisions. In each of these cases, the business owner was willing to serve gay couples, but did not want to participate in the wedding ceremony. Businesses are rewarded or punished in the marketplace for their stances and services. If a customer doesn’t like their stance, s/he does not have to give them business. Let the markets dictate what happens to the business. I also understand the business point of view that their services are forms of expression. They should be protected from being forced to cave on their religious convictions. If they don’t want to express themselves in that manner, I don’t agree that they should be forced to. But does that mean that it’s the right decision?

As Christians, is this the way that we are to show our love to the world? In Matthew 22:36-40, Jesus tells us that we are to first, love the Lord our God with all our heart, soul, and mind and second, that we are to love our neighbors as ourselves. When we decline these services to others, are we loving our neighbors as ourselves? Are we reflecting the love of Jesus as we are called to do? I don’t think so. Jesus never really hung out with the religious folks. He was always meeting with, preaching to, and loving on the fishermen, the taxcollectors, the prostitutes, the dregs of society. Jesus said that he didn’t come for the righteous or powerful, but to save those who are lost. When we refuse services to same-sex couples, are we drawing them closer to God, or are we just pushing them further away?

I think that it’s time that we love our neighbors as ourselves.

 

Albert holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son, named Albert, and a black lab puppy, named Lincoln. In his spare time, he plays and coaches soccer.

Conservative Blogger Advocates Religious Oppression in America

first-amendmentNot much shocks me anymore but once in a while, I run across something that is so idiotic I wonder if there some sort of serious glitch in the matrix. It wasn’t but a few weeks ago that conservatives were standing up for private business owners’ right to discriminate against gay people on religious grounds. The rights of individuals to practice their religion as they see fit trumps nearly all else according to Christian conservatives.

What I’m about to share with you next may well make your head explode (it might be a good idea to get some duct tape to prevent your brains from splattering all over the place).

Ready?

Conservative blogger writing for Western Journalism Steven Crowder is praising China for “banning” Islam within its borders. Not only is he praising China, Crowder also believes the same policies should be enacted here in the U.S.

So what is China doing? It’s declaring an all-out war to make sure Islam doesn’t take over and never gains the strength to attack them. So let me simplify it:

– Female head-coverings are banned. Period.

– Men are discouraged from growing long beards (often poorly grown ones, might I add).

– Even Islamic restaurants are forced to sell cigarettes and drinks. And …

– They must display them prominently. Any business owner who does not follow this order…will lose their business. Gone.

[…]

In other words: China learns. Unlike our inept government, it realizes, ‘Hey, Islam wants destroy us.’ It realizes that Islam is political in nature, not just religious. Don’t get me wrong: communism is terrible, but it’s also what absolves China from the shackling burdens of political correctness. They’d rather survive than be politically correct.

Full disclosure: I have not checked out for myself if China is actually implementing these policies. It wouldn’t surprise me but whether or not China is oppressing Muslims is beside the point. What concerns me is the idea that there are certain Americans who would cheer these kind of policies here (provided that it doesn’t apply to their faith, of course). I never thought I would see the day when conservatives would praise China for religious oppression.

To Mr. Crowder’s point about our “inept government” in how Muslims are being allowed to freely exercise their religion. In most cases, I would not argue against the notion that our government is inept but this isn’t the case this time. You see, Mr. Crowder, here in America we have something China does not. It’s called the First amendment. What part of “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” do you not understand? And no, the First amendment does not just apply to Christians but everyone.

As bothersome as this is that someone would write such inane garbage on a conservative* website, it’s even more concerning that there are so many people agreeing with him in the comments section. These people are a much greater threat to our liberties than a minority of American Muslims ever could be.

Yes, There Really Are Two Americas. Look At How Different The South Is

sss4

This year marks the 150th anniversary of the end of the War Between the States. The Northern states, fighting to preserve the Union and (later) to end slavery, defeated the Southern states in a war that resulted in over 600,000 dead.

The war all but ended the concept of state soverignty as the question of secession was decided on the battlefield. The war also gave birth to concept of American nationalism as Americans began to consider themselves as American before being a citizen of their state.

However, America is probably now divided more than it has been in decades. The nation seems to be hopelessly gridlocked politically. Meanwhile, the culture wars are in full swing with social justice warriors going to war against traditionalists and libertarians. There really are two Americas.

What explains the division? I argue that culture and region probably provide the best clues to the division of America.

The Economist had an excellent article earlier this month describing how the South is still culturally different from the rest of the country. Why is that the case?

 

The dividing line is actually religion.

Religion is a better explanation of southern exceptionalism. The civil war divided most of America’s Protestant sects, says Mark Noll of the University of Notre Dame. Both the Presbyterian and Methodist churches split into northern branches, which opposed slavery, and southern branches, which did not. Even after slavery ended, theological divisions persisted. In the north, which saw mass immigration from all over the world in the decades after the war, Protestant churches had to find some accommodation with Jews, Catholics and, eventually, non-believers.

 

 

In the South the share of those born outside America (which was low to begin with) actually fell after the civil war. New migrants moved west or north but rarely south. Because of this, southern churches could hold more traditional views without challenge. Those tented revival meetings that were such a feature of southern Protestantism were not intended to win converts so much as to purify and strengthen beliefs that were already there.

 

 

The Southern Baptist movement, which is strongly associated with the “values voters” who favour the Republicans, has its origins in support for slavery. Southern Baptists have long since updated their views on race, as the many black Southern Baptist pastors attest, but the movement’s social conservatism endures. And southerners are unusually observant: Utah is the only non-southern state where church attendance is as high as in Dixie.

 

 

Southerners are also known for being fiercely individualistic. As the rest of America becomes more secular, it should be no surprise that the region still strongly believes in the Protestant work ethic and tends to be more supportive of limited government. They’re also willing to forgo a large portion of the safety net because religious charities will largely step up and fill the role.

Another interesting thing about Southern culture is how it tends to leave its mark on surrounding cultures. There are reasons why in particular heavily Catholic south Louisiana, pre-dominately Catholic Hispanics in Texas, and the Catholic Cuban-American community in Miami are more conservative than Catholics in New England and the Midwest. Those Southern values of individualism, hard work, personal responsibility and family values have rubbed off on those communities.

Here’s an interesting map from The Economist article.

Courtesy: The Economist

Courtesy: The Economist

A lot of the orange on the map corresponds to the red state/ blue state maps on presidential elections. The more secular states tend to vote Democratic while the more religious states vote Republican. The views on abortion and gay marriage also tend to align with religious viewpoints.

As you can see, America is deeply divided between a more religious and ironically more individualistic South and Midwest and the more secular coasts. Could the differences between these two Americas lead to secession and civil war? Who knows.

Now, I don’t believe you have to be religious to be moral and that all religious people are moral. But I do believe that a free society only survives when it’s populated by a moral people. The purpose of this post is not to pass judgement on anyone’s religious beliefs.

Let me close with something. We have quite a few non-religious and atheist contributors here who believe in free markets and secular values. I value them all and I’m proud to call them friends. I also know they’re the exception, rather than the rule among secularists. Most atheists generally lean to the left and conservative and libertarian atheists tend to be the exception than the norm.

Here’s an exit question: do you think many secularists replace religion with a belief in the state and social justice and that’s why they’re hostile to limited government? Let us know in the comments.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.

Gun Control and Electoral Math – The Scoreboard

Two years ago, I wrote a piece about electoral math and gun control, and how it was unlikely that we would have any serious national level gun control… and we have not (state level is another story unfortunately).

In that, I included a list of democratic senators who were up for re-election this year, their position on gun control, and how “at risk” their seat was:

Stupidity, Politics, and Electoral Math

So, now that we have the results of all of their elections, let’s see what the last two years hath wrought among them:

XX = Unelected (or resigned and replaced by Republican)

  1. XX – Alaska – Mark Begich – Very Pro Gun – very unsafe seat
  2. XX – Arkansas – Mark Pryor – neutral – very unsafe seat
  3. XX – Colorado – Mark Udall – neutral – not a safe seat
  4. Delaware – Chris Coons – Very anti-gun – safe seat
  5. Hawaii – UNKNOWN (special election to replace Daniel Inouye) – safe seat
  6. Illinois – Dick Durbin – Very anti-gun – safe seat
  7. XX – Iowa – Tom Harkin – Very anti-gun – iffy, can’t afford to screw up
  8. XX – Louisiana – Mary Landrieu – neutral – very unsafe seat
  9. Massachusetts – UNKNOWN (special election to replace John Kerry) – safe seat
  10. Michigan – Carl Levin – very anti-gun – safe seat
  11. Minnesota – Al Franken – very anti-gun – not a safe seat
  12. XX – Montana – Max Baucus – very pro-gun – iffy, can’t afford to screw up
  13. New Hampshire – Jeanne Shaheen – very anti-gun – not a safe seat
  14. New Jersey – Frank Lautenberg – very anti-gun – safe seat
  15. New Mexico – Tom Udall – slightly anti-gun – safe seat
  16. XX – North Carolina – Kay Hagan – very anti-gun – not a safe seat
  17. Oregon – Jeff Merkley – very anti-gun – safe seat
  18. Rhode Island – Jack Reed – very anti-gun – safe seat
  19. XX – South Dakota – Tim Johnson – very pro-gun – very unsafe seat
  20. Virginia – Mark Warner – very pro-gun – not a safe seat
  21. XX – West Virginia – Jay Rockefeller – moderately anti-gun – very unsafe seat

Lotta XX’s there… 9 actually, out of 21 (10 of those 21 were considered safe seats, barely challenged by Republicans). Pretty much every anti-gun democrat that wasn’t in a safe seat, except Shaheen and Franken (and they’re kinda weird cases).

And THAT folks, is why we will not have any significant gun control on the national level any time soon.

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 Senate Torture Report Will Change Nothing

I realize this is from Abu Ghraib, but at this point, does it matter?

I realize this is from Abu Ghraib, but at this point, does it matter?

The recently released report on CIA-authorized torture of detainees and prisoners includes everything we’ve known about our tortu– *ahem*, enhanced interrogation techniques of people at places like Guantanamo Bay, and then some. Featuring gruesome descriptions of waterboarding, beatings and “rectal feeding” – I didn’t know you could feed someone through their asshole1 – I’m not sure if the most shocking thing is the descriptino of what happened, or the fact that the reports we got – 600 out of 6,000 pages, and heavily redacted – is just the tip of the iceberg. Simply put, between this and the ongoing protests over the deaths of Michael Brown and Eric Garner, it’s not a good month so far for the government at virtually any level.

One would expect, after hearing “we’re not torturing people”, then seeing a report blatantly state that we’re definitely torturing people, that this would spur Congress to action, and if they wanted to drag their asses, the American people would spur them on, right?

If only it was that easy. Nothing will happen as a result of this. In fact, I wouldn’t be surprised, as I write this on Tuesday night, if this was completely out of the news by the time the weekend comes. There are numerous reasons why I believe this disgusting report will ultimately blow over.

The release of this report wasn’t about policy. It was payback. – While Senator Dianne Feinstein (D-CA) was in front of cameras, accusing the CIA of lying to the President, the Senate, and just about everyone else it came across, all I could do was remember back to March, when she was going after the CIA for improperly accessing Senate computers as the Senate Intelligence Committee was preparing its report of detention and interrogation policies. The release of this report – the last chance to do so, by the SIC’s outgoing chairperson before Republicans take over the Senate – is a giant “fuck you” to John Brennan and the rest of the CIA. It’s a political receipt. At no point did transparency for the sake of improving our standing in the world and with our country’s citizens come into play, no matter how it’s spun.

Also, for all of Feinstein’s grandstanding, it should be noted that she’s probably the National Security Agency’s biggest cheerleader, and is perfectly fine with government agencies spying on ordinary Americans.

No one wants to set the precedent of trying major political figures – President Obama – who campaigned on transparency, fixing clandestine government actions, and ending wars – backed off of going hard after Bush Administration officials who started most of our torture programs after 9/11. He kept that limp-wristed, wishy-washy tack yesterday, praising the “patriots” who protected America after the attacks. Of course Obama doesn’t want to look back; if we decide to look back at his own Presidency in eight years, chances are very good that his two wars in Iraq and Syria, as well as his actions in Libya, would not survive scrutiny. In fact, if one looks back, the only President I can find who wasn’t guilty of either a war crime or a domestic action that could bring a death sentence is Carter. If we were to start trying major political figures, especially with a partisan bent, at what point do we cross the line from righteousness to Nixonian? No matter how much we want blood – a sardonic statement, given the circumstances – the political cost is too great.

It’s this reality that the ACLU’s Anthony Romero concedes to in his NYT Op-Ed stating that we should pardon Bush, Cheney, Rumsfeld and others guilty of torturing or overseeing said torture. Romero’s intentions are noble – partly to shame Obama, partly to allow some the authority to talk without fear of retribution, and partly to further stain the names of Cheney and others – if not satisfying. We’re still prosecuting low-level Nazis 70 years after World War II, and we’re expected to pardon people who tortured people within the past ten years?

We’ve done this for years – Here is a brief summary of what our government is capable of: Operation Condor, Japanese-American Internment, Project ARTICHOKE, MKUltra, COINTELPRO, the Tuskegee syphilis experiment, the My Lai massacre, Iran-Contra, and more political overthrows than I can count… and that’s just since World War II. Shoving hummus up someone’s ass doesn’t even make the top five of that list, and that’s before I get to the Trail of Tears.

Most damningly…

Most Americans don’t give a shit – This is the most depressing part. I expect conservatives to beat the “kill the raghead!” drum, but it’s the liberals I’m most disappointed in. Outside of the Glenn Greenwald/Edward Snowden crowd2, there’s not much noise because everyone’s too busy with other issues. Today, it’s mostly the deaths of Garner, Brown, Tamir Rice and others that are starting to cause overreactions. Most liberals who are making noise about this are forgetting everything that’s happened since January 20th of 2009, preferring to put 100% of the blame on Bush and his people. In short, when it’s not a convenient partisan talking point, it’s a “they” problem, not a “we” problem, with “they” being those unfortunate enough to be threatened with their families being raped. Put simply, the only people that really care are the sadists, and those that cater to them. While it’s fun to watch Andrea Tantaros have a meltdown on national TV, it’s important to remember that her views are shared by almost half the country. And then we wonder why ISIL is beheading Americans.

I love America, but I’ve never been more ashamed of my country. It’s depressing to know that despite pretty clear indications of war crimes, no one will go to jail for it except those that reported it in the first place, no policy will change as a result of the torture report, and there’s a strong chance that by this time next week we’ll all be talking about the “War on Christmas” or some other made-up bullshit. We are too ill-informed, too shallow, and too lazy for any other result to come about from this.

2 – This is your friendly reminder that while the architects of torture since 9/11 still walk free, Edward Snowden is in Russia, John Kiriakou is in prison, Chelsea Manning is in prison, and Wikileaks’ Julian Assange is being held at the Ecuadorian Embassey in the United Kingdom on trumped up sexual assault charges

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.
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