Category Archives: Equal Protection

5 Thoughts On Ferguson And Mike Brown

1407789637002-SLP2014081110

As the country has watched the events unfold in Ferguson over the past week, we have been horrified by the rioting and the wanton destruction of property in the wake of the grand jury’s decision to not indict Ferguson police officer Darren Wilson on criminal charges for the shooting of Michael Brown. Tempers have been flaring as people have taken to social media to argue their side of the case. I’ve been trying to figure out what to write on this and putting together what to say on this. So here we go:

1) The Grand Jury Came To The Right Decision

After looking at the evidence, here’s what we have essentially; some eyewitness testimony that claimed Mike Brown was essentially murdered by Darren Wilson, most of which was proven false; Officer Wilson’s version of events; eyewitnesses that corroborate Wilson’s events; and finally an autopsy and forensic evidence which also corroborate Officer Wilson’s version of events that showed a struggle for his gun and that Brown was shot in the front.

Given all of this, there was no basis for an indictment for anything. Even if he was indicted, there was no basis for a conviction so a trial would’ve simply been a waste of taxpayer money.

2) Having Said That, There Should’ve Been A Special Prosecutor Appointed In This Case

I agree with Stephen Littau that the outrage here is not that the grand jury was through in the Darren Wilson case, it’s that they indict everyone else. No wonder why many people protesting can see a possible conflict of interest.

If it’s even possible to appoint a special prosecutor, this is such a case. It may have lessoned the charges of impropriety and conflict of interest.

Criticizing the process is not grounds for calling for an indictment though, it’s just grounds for calling for a special prosecutor. I think the special prosecutor would’ve come to the same conclusion as this prosecutor and grand jury did.

3) Anyone Calling For Violence Or Making Excuses For It Is Disgusting And Morally Rephrensible

One of the things that has been disturbing in this case is the calls to violence in the media. An anarchist magazine says we need to stop “riot shaming.” An op-ed writer in Time wrote a defense of rioting. A libertarian blogger called the rioting and violence “just and necessary.”

These people and others like them who are supporting the riots are disgusting. There is no excuse for the destruction of private property and businesses. These riots have runied the livilihoods of the employees and business people, most of whom are black. These people didn’t kill Michael Brown.

A brief look around shows that there are non-violent alternatives to pursue change. Civil rights laws were enacted in the 1960s and legislation defending the right to vote was enacted as a part of it. If you want to change the law and how policing is done, get out there organize and vote for candidates who agree with you.

4) Ferguson Not Only Demonstrated The Worst Of America, But The Best Of America As Well

Enough about the riots. Let’s talk about how people have come together in the aftermath. One of the businesses destroyed in the Ferguson riots was a black-owned bakery. They’ve raised $200,000 in donations from a GoFundMe page to enable them to rebuild. The store that Michael Brown allegedly robbed before his encounter with Officer Wilson was also looted. They too have setup a GoFundMe page which has raised almost $25,000 in two days. Please give some money to them.

The people that gave money to these two minority business owners were of all races and creeds. The attempt by many of the Ferguson rioters to start a race war failed miserably.

Other Ferguson businesses have setup GoFundMe pages and in a future post, probably tomorrow, I will feature everyone I can find. Let the best of America outshine the worst of America.

5) Although Mike Brown Is Not The Proper Poster Boy For Corrupt And Racist Policing, We Need To Address Police Brutality

Mike Brown most likely died assualting a police officer and going for his gun. Darren Wilson most likely did nothing wrong when he killed Michael Brown. However, police brutality is a real problem, especially in minority communities.

We need to ask ourselves why African-Americans are so afraid of law enforcement and work together to change it. We also need to end or rein in police militarization and the Federal government does need to get involved to create stricter oversight of local police departments. There will most likely always be police officers who abuse their authority, but right now we have too many on the force. We’re not going to solve this by blocking freeways, annoying Black Friday shoppers, and rioting; we’re only going to solve this by dialogue.

In the end, what we have here is a tragedy all around. An 18 year old young man is dead and regardless of the circumstances, it’s still a tragedy. We have a police officer who had to take that young man’s life. I hope and pray that the family of Michael Brown and Officer Darren Wilson find peace. I pray that the business owners of Ferguson have their shops restored and I pray for peace and more importantly, for understanding and that out of this tragedy, some change that ensures something like this never happens again.

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 IJ Review.com and Rare. You can also find me over at the R Street Institute.

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.

_____________________________________

[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.

Idaho Gay Marriage Lawsuit Moot – City Backs Down

I’ve covered the Idaho “Hitching Post” gay marriage case. I started with a relatively in-depth look at the legal issues involved on Monday, and then covered some inconsistencies in the history of the Hitching Post’s religious designation yesterday.

Today, though, it has all been resolved. The Hitching Post’s recent change from performing civil marriages as well as religious marriages to performing ONLY Christian religious ceremonies, and explicitly forming themselves as a religious business 3 weeks ago, have now exempted them from the anti-discrimination ordinance.

From Boise State Public Radio:

Initially, the city said its anti-discrimination law did apply to the Hitching Post, since it is a commercial business. Earlier this week, Coeur d’Alene city attorney Mike Gridley sent a letter to the Knapps’ attorneys at the Alliance Defending Freedom saying the Hitching Post would have to become a not-for-profit to be exempt.

But Gridley said after further review, he determined the ordinance doesn’t specify non-profit or for-profit.

“After we’ve looked at this some more, we have come to the conclusion they would be exempt from our ordinance because they are a religious corporation,” Gridley explained.

Now, it’s partly incorrect to draw some links between this case and Hobby Lobby. That of course involved a federal law whereas this is a city ordinance, and that case was decided on the grounds of the federal RFRA, where the religious exemption is what protects the Hitching Post here. (That said, Idaho has an RFRA, and virtually everyone is in agreement here that forcing the ministers themselves to officiate the ceremony would violate it.)

But at the same time, there were a few things in that decision (and the precedent discussed in the decision) that are instructive.

The first is that Hobby Lobby held that a “closely held” corporation could have religious beliefs, in the sense that it was the direct expression of a very small-knit group of owners. While a publicly-traded corporation wouldn’t have the same protection, a corporation held by a small religious family is entitled to the same protections under RFRA that the owners themselves would be, because the corporation is not truly separable from them as owners.

The second is that under previous RFRA cases, generally any sincerely-held religious belief is taken at face value. The Court isn’t in the business of deciding what religious beliefs are “valid” and what religious beliefs aren’t. Thus, as long as the actions of the Hitching Post are consistent as a religious corporation, forcing them to offer services to same-sex engaged couples violates their religious freedom. Thus, from the Boise article again:

Leo Morales of the ACLU of Idaho said the exemption makes sense as long as the Hitching Post primarily performs religious ceremonies.

“However, if they do non-religious ceremonies as well, they would be violating the anti-discrimination ordinance,” Morales said. “It’s the religious activity that’s being protected.”

So while some of the red-meat Conservatives were hoping that this would be the wedge that destroys gay marriage, I think everyone’s out of the water.

And to the Knapps, while I profoundly disagree with your belief, and sincerely hope that you come to my side of the aisle on this one, I am glad that you won’t be going to prison or subject to fines. As a libertarian, I think you’re wrong, but as you haven’t taken anyone’s rights away by failing to offer them services, I’m not in the camp that wants to throw you in a cage for it.

H/T: Reason

Hey FCKH8, I Have a Few ‘F-Bombs’ of My Own!

If you thought modern progressive feminists couldn’t be any more childish, you haven’t seen FCKH8’s latest viral video entitled: “F-Bombs for Feminism: Potty-Mouthed Princesses Use Bad Word for Good Cause.”

In the video (below), girls aged six to thirteen repeat progressive feminist bromides and talking points along with some F-bombs (as advertised) in an attempt to get this message to go viral (mission accomplished). As expected, the response by many is to be offended by having these ‘princesses’ use such foul language for any reason.

Personally, I think the whole thing is awful. I don’t like it when children are used for any cause foisted on children by adults, regardless of how noble the cause might be. It even turns my stomach a little when I see politicians use their own children in their campaign ads. It’s even more tacky to hear children speak about such things they most likely have no clue about. My daughter is pretty intelligent and the same age as some of these girls but I’m fairly sure she doesn’t even think about the ‘equal pay’ or ‘rape culture.’ Why should she? She’s nine years-old for crying out loud!*

So here’s the full uncensored version. If this is too much for your ears to handle, go here for the censored version.

Now, wasn’t that just precious!

More important than the shock value of elementary shool girls cursing like sailors…are the things these girls saying true? For the most part, no, these are the same old progressive feminist myths repackaged yet again. I’ve already dealt with the ‘equal pay for equal work’ nonsense here and here. You can also read this article 5 Feminist Myths that Will Not Die. I’ll let Julie Borowski take care of the rest as only Julie Borowski can – dropping her own F-bombs (Fact bombs, I should say) without actually cursing.

I have a few other F-bombs about gender disparities progressive feminists almost never bring up (and I’ll do so without exploiting any elementary age children to make my points):

A young man is required by law to sign up for Selective Service by his 18th birthday. In the event Congress decides to reinstate the draft, men exclusively are conscripted to risk life or limb for ‘his country.’ Also, of those who have died in all the U.S. wars (declared and undeclared) since the American Revolution, 99.99% were men. When men’s rights activists say that society has long decided that men are the ‘disposable gender’ this is one example of what they are talking about.

When young girls are circumcised we call it ‘genital mutilation’ and we are rightly scandalized by this barbaric practice. When baby boys have their genitals mutilated, we call it circumcision because either the boy should ‘look like his father’ or because some women prefer their partner to be circumcised. So much for ‘my body, my choice.’ And imagine the outrage if even one man said that because he preferred the look of a woman’s vagina without a clitorous, baby girls should have it removed?

When it comes to parenting and divorce, mothers get custody of the children roughly 84% of the time.

Let’s call this the gender ‘crime/time’ gap. For Similar crimes under similar circumstances, on average women serve 18.51 months vs. 51.52 months for men.

Since 1976, 15 women (2.9% of the executions) have been executed even though women are responsible for 10% of murders. While I am unapologetically opposed to the death penalty, as long as this barbaric practice is part of the system, this punishment should be an equal opportunity punishment without regard to sex, race, religion, economic or political status, or creed.

At least 3 states (California, Tennessee, and Kansas) require men to pay child support to his statutory rapist.

I could go on but I think I have made my point. There is inequality between the genders and both have their challenges. Personally, I would like to look at the individual rather than who is on ‘team penis’ or ‘team vagina.’ But first, we need to elevate the debate above the elementary school playground.

*This isn’t to suggest she isn’t already very opinionated or doesn’t care about important issues. That’s right, my daughter already has an issue she cares deeply about. Her issue: the alarming decline of the ‘big cat’ populations. According to National Geographic, there are as few as 3,000 tigers, 7,500 snow leopards, 10,000 cheetahs, and 30,000 lions left in the wild. I had no idea about this until my daughter started writing out a script she wanted to read over the intercom at her elementary school to collect money to help ‘save the big cats.’ I suggested that she should ask for donations to the local big cat sanctuary for her birthday instead of presents. Would you believe she was actually thrilled with this idea and followed through? I couldn’t be more proud of her. If she wanted to make a viral video about saving the big cats, I might make an exception to my ‘no kids’ rule because this is an issue that she actually cares about.

That Idaho Gay Marriage Lawsuit? It Just Got Murky.

On Monday, I posted about the Idaho pastors who filed a lawsuit as Couer d’Alene’s anti-discrimination ordinance threatened them with large fines and possible jail time for a refusal to perform same-sex weddings at their chapel, The Hitching Post.

As background, I posted excerpts from the Hitching Post’s lawsuit regarding their employee policy:

Then, the Employee Policy specifies the following Rules and Regulations:
• Only the Hitching Post owners and employees may perform wedding ceremonies at the Hitching Post Chapel and other locations scheduled by the Hitching Post. Outside ministers may not perform wedding ceremonies at the Hitching Post Chapel or other locations scheduled by the Hitching Post. Brides and grooms may not invite outside ministers to perform such ceremonies. Outside ministers may come and stand alongside the Hitching Post owner or employee who performs the wedding ceremony. But only the Hitching Post owner or employee may perform the ceremony.
..snip..
• In accordance with the religious beliefs and ministerial vows of the Hitching Post owners, Hitching Post owners and employees will perform ceremonies for those of different faiths and religious beliefs (so long as those marriage ceremonies are consistent with the beliefs set forth herein) because marriage is a common grace and creational gift bestowed by God upon all humans for the benefit of human society.

And my analysis, with a bit of added emphasis which will soon be clear:

Is the Hitching Post a religious entity, or is it a non-religious business? I have a feeling it’s going to come down to under what circumstances they’ve turned away traditional couples based on other violations of their Christian beliefs. If they have a history of turning away open atheists, or turning away Muslims, or perhaps frowning on Christian/Muslim unions, they may have a leg to stand on. In that case, they can show that they’ve turned away opposite-sex couples (and their dollars) based upon the sincere religious nature of their business.

But if they’ve got a history of taking money from pretty much any opposite-sex couple that walks through the door and it’s only the gays that they turn away, I think they may be considered a public accommodation. Even then, they have an extrajudicial way out. If they do allow same-sex couples to bring their own officiant, they would thereby be excluded from having to do the specific act (solemnizing the wedding before God), which I think many courts would view as not substantially burdening their Free Exercise.

So, what’s the history of the Hitching Post? Well, that’s where it gets murky. Walter Olson of Overlawyered tipped me off on this one.

You see, the lawsuit pointed out all the ways in which the Hitching Post was a deeply religious business, using their ceremony as ministry to bring couples to the Lord.

Only, the Operating Agreement was signed on October 6, 2014. It was submitted as an exhibit to the lawsuit here (scroll down to page 91). Now, it’s one thing to find a document with a date on it… After all, for all we know, the previous Operating Agreement might have been substantially the same as this one.

But Google Cache doesn’t lie. Jeremy Hooper from Good As You points out that as recently as Oct 9, the Hitching Post web site said that they offer marriages of both the religious and civil variety, and even of ceremonies of other faiths. (Screen shots available at that post).

Some “ministry”.

Now, I still don’t doubt that the Knapps have sincere religious beliefs against gay marriage. But it certainly seems that the Hitching Post, as a legal entity, just seems to have found God recently.

And it seems to me that the ADF is manufacturing a victim of the Couer d’Alene ordinance.

I’m finding my sympathy level for all parties involved is beginning to wane.

1 2 3 14