In the wake of the Supreme Court’s decision making gay marriage legal in all 50 states, the rally cry of many libertarians and conservatives is to get government out of marriage. Presidential candidate and Kentucky Senator Rand Paul wrote an op-ed suggesting just that. While that’s a tempting proposition, it’s probably not possible without a major overhaul of everything from government benefits to nearly the entire civil and family legal code.
The sheer volume of benefits offered to married Americans may make it difficult for the United States to disentangle itself from the “marriage business.” In the US, there are 1,138 benefits, rights and protections granted under legal marital status, based on federal law, according to the Human Rights Campaign. Benefits of marriage extend to areas of Social Security, tax law, immigration, employee benefits for federal workers, and health coverage to name a few.
Unless we repeal or modify every single one of these programs and rights, simply eliminating marriage will create new legal nightmares.
Jason Kuznicki of the Cato Institute found that while decoupling the Federal tax code from marriage is a good idea, there are many aspects of marriage related law that serve a valuable function in a free society. Among those are:
Ability to sponsor spouses for immigration visas.
The presumption of legitimacy that make child custody matters much easier for married couples.
Spousal immunity from giving testimony against each other.
Enrollment on a spouse’s insurance plan and other benefits.
Automatic right of visitation in a hospital or the right to make medical decisions as next of kin.
Can be held responsible for spouse’s debt.
Right of automatic inheritance if spouse dies.
The right to file joint petitions for adoption.
To get “government out of marriage” is a fantasy because it takes away an efficient way to handle civil and family matters. However, there is an alternative that libertarians and conservatives can support, which is a separation of civil and religious marriage. All references to “marriage” in the law can and should be replaced with “civil marriage.”
For legal purposes, only a civil marriage is required to access the spousal benefits and rights. That is granted by a marriage license issued by state governments and all that is simply signing a piece of paper and having it signed off on. All the state is doing is recording the marriage. It is not passing judgment on the wisdom of the ceremony. If they want an actual ceremony, they can pay more money for one.
A religious marriage is simply what it sounds like, a marriage performed by a minister or clergy and not merely signed off on by a bureaucrat. Those could be done by combining the religious ceremony and the minister signs off on it, just as done today or it can be done outside the religious ceremony.
Since it is impossible to “get government out of marriage”, libertarians and conservatives should concentrate on separating civil marriage from religious marriage.
[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?
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.
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.
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.
Earlier this week, the Supreme Court ruled 8-1 that the federal government must pay private property owners just compensation if it seizes their real property for the purpose of maintaining artificially high prices for consumers.
Worded that way, it seems surreal that there was ever any question.
But that is precisely what happened to Marvin and Laura Horne, the plaintiffs in Horne v. Department of Agriculture, and thousands of other farmers like them who have been forced to turn over portions of their crop yields year after year since 1937.
That year an act was passed allowing the Department of Agriculture to promulgate “marketing orders” to maintain stable markets for U.S. produce. That is newspeak for using a government-enforced cartel to maintain high prices. One such marketing order established a Raisin Administrative Committee. Think of the RAC as like the State Science Institute. The RAC sets annual “reserve requirements,” pursuant to which growers must turn over a percentage of their raisin crops to the government.
The government then disposes of those “reserve raisins” by selling them in non-competitive markets or donating them to federal agencies or foreign governments. The proceeds of the government’s sales pay for the administration of the program. Profits left after that, if any, are distributed back to the growers.
In 2002-2003, growers had to turn over 47 % of their crops to the government. In 2003-2004, it was 30%. In one of those years, they received no distribution of net proceeds at all. In the other, the distribution was less than the costs incurred in producing the raisins.
Starting in 2002, the Hornes refused to turn over any raisins to the government. The government sent trucks to their facility to take the raisins. The Hornes refused entry. The government assessed a fine equal to the RAC’s calculation of the fair market value of the withheld raisins, which was approximately $480,000, plus more than $200,000 in penalties for the Horne’s disobedience.
The Hornes sought relief in federal court, arguing that the fines and penalties were unlawful because the raisin reserve orders constituted unlawful takings without just compensation in violation of the Takings Clause of the Fifth Amendment to the Constitution. The Ninth Circuit sided with the government. The Hornes appealed.
In a decision written by Chief Justice John Roberts, the U.S. Supreme Court found 8-1 for the Hornes, reaching several holdings of interest to those concerned with private property rights.
Physical Appropriation of Private Property
All of the justices except Sotomayor agreed that the Fifth Amendment requires just compensation when the government takes personal property (just as when it takes real property) even if the property taken is a “fungible” commodity like raisins.
In reaching this holding, the Court distinguished between regulatory takings (requiring compensation when a regulation goes “too far”) and physical takings (where as in Horne title actually transfers to the government). Regulatory takings cases acknowledge different standards and expectations with respect to real and personal property. Physical takings cases do not.
The parties and the Court agreed that the government might achieve the same ends without running afoul of the Constitution by placing regulatory caps on the amount of raisins that producers could grow. The government attorneys and the dissent (Sotomayor) were baffled then that anyone could object to the reserve requirement on takings grounds. The majority responded (citations omitted):
A physical taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” … “[A] strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.”
This may not be the jenga block that topples Wickard v. Filmore as some libertarians no doubt hoped. But it is an important holding. The distinction—between taking a percentage of crop yields versus placing a regulatory cap on production—is more than formulaic. The latter does not involve the same perverse incentives as the former, which for 75 years subsidized a bureaucracy that eventually existed for no better purpose than to perpetuate itself.
This issue was illustrated by the Hornes’ evidence that contrary to the government’s account of massive oversupply, the RAC was able to sell the vast majority of the 2003-2004 reserve raisins for more than the field price, resulting in RAC income of over $99,800,000. This income was spent on exporter subsidies, administrative costs and other RAC expenses. In other words, the RAC appropriated raisins that, according to the government’s own numbers, could have been sold in an unregulated market for $747 per ton, and it paid the producers nothing. Similarly in 2005-06, 2006-07, 2007-08, and 2008-09, the RAC also sold reserve raisins for tens of millions of dollars but distributed no proceeds to the growers.
The Supreme Court’s holding in Horne will function as a restriction on this perverse incentive. Limited to regulatory caps, rather than confiscatory takings that fund the administrative bureaucracy, we can allow ourselves a glimmer of hope the government will finally end its maintenance of the raisin market cartel.
Quid Pro Quo
In an effort to avoid the foregoing result, the government made an argument that the Court characterized as the “let them sell wine” argument: If raisin growers did not like the nice, orderly market the RAC had created, they should grow other crops, sell their grapes as table grapes, or use them in juice or wine. But if growers voluntarily chose to enter the raisin market, they could be required to cede their private property as a condition of engaging in that market, pursuant to the vast authority Wickard gave the federal government to regulate interstate commerce.
If this argument had succeeded, it would essentially have disposed of the constitutional requirement of just compensation for physical and regulatory takings. The Takings Clause would have been swallowed by the broad power of the Commerce Clause as interpreted by Wickard.
If this does not keep you up at night, I don’t know what would. Only eight individuals (individuals whom candidates like Mike Huckabee want to disempower) stand between private property owners and Congressional failures of this magnitude.
Those eight agreed that business owners cannot be required to cede their constitutional right to be compensated for takings as a condition of engaging in interstate commerce. Property rights “cannot be so easily manipulated,” and basic and familiar uses of private property cannot be treated as “government benefits” for which one must pay with his constitutional rights.
Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is similarly not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.
The fines levied against the Hornes had been based upon the RAC’s assessment of the fair market value of the reserve raisins. The government nevertheless argued that, if the Court found a taking, it had to remand the case for a calculation of just compensation. It further contended that said calculation should take into account what the value of the reserve raisins would have been without the existence of the price support program, as well as all the other benefits of the regulatory program. The government actually suggested that it might turn out that the Hornes had actually received a “net gain” from the program.
The Hornes presented evidence challenging the government’s rosy assertion of benefits generated by the regulatory program. In some of the years, said the Hornes, raisin growers could have sold their entire yields at prices not much below and in some cases higher than those set by the RAC. Moreover, even where introducing additional yields to the market would have driven down prices, growers still would have made more money as a result of the additional sales, benefitting both growers and consumers (citations omitted):
Take the 2003-04 crop year as an example. That year, the field price for raisins (the price that handlers paid to producers for free-tonnage raisins, and the amount the USDA assessed the Hornes for their undelivered reserve tonnage raisins) was $810 per ton. The government’s brief tells us that according to the Secretary’s econometric model, the price would have been $63 per ton less without the reserve, or $747 per ton. … We believe the $63-per-ton figure is greatly inflated. But accepting the Secretary’s calculation for heuristic purposes, a producer of 1,000 tons of raisins in that crop year could have sold them in an unregulated market for $747,000, from which should be deducted the state mandatory advertising fee of almost $5 per ton. Under the marketing order, however, the producer could sell only 70% of his crop, yielding $567,000. He received nothing for his reserve raisins that year, meaning he was worse off by $175,000. This, again, is under the government’s own numbers.
Ultimately, the Court held the benefits of the program were irrelevant. The government had already calculated the amount of just compensation when it fined the Hornes $483,843.53 as the fair market value of the raisins. In any case, the reserve requirement was unconstitutional, so the Hornes could not be fined or penalized for failing to comply with it. The appropriate remedy was to relieve them of said fines and penalties.
On this issue, the breakdown of votes was different.
Breyer, Ginsburg and Kagan bought the government’s argument. These justices would have remanded the case to allow the government to demonstrate that it had already “paid” for the taking via the benefits generated by its regulatory scheme.
Sotomayor did not reach the issue at all. She found that the raisin reserve requirement did not constitute a taking and therefore did not require any compensation.
Only five justices—Scalia, Thomas, Alito and Kennedy, joining Roberts—stood between individual property owners and the notion that the benefits of regulatory activity could constitute just compensation for a physical taking of private property.
 Thomas wrote separately to argue that the RAC’s conduct was an unconstitutional taking irrespective of just compensation because the taking was not “for public use.” Instead the government gave the confiscated property to exporters, foreign importers, and foreign governments.
The country is still in shock after the mass murder of nine worshippers at a African-American church in Charleston, South Carolina. The Charleston shooting shakes us at our very core because these victims were truly innocent. The shooter, a 21 year old racist punk, specifically targeted the church because it was a black church.
This monster still went through with the shooting despite the fact the people at the church were “nice” according to a media report. He went to that church intending to kill people.
Many of the usual chattering heads have speculated he was “mentally ill.” But that’s hard to believe. He rationally thought out the attack and acquired the firearms to do it. I find it hard to believe we’re dealing with a “mentally ill” person as opposed to an evil one.
Many times, we’re quick to dismiss those who commit murder and other terrible acts as “mentally ill.” As a society we literally cannot comprehend someone doing such a thing. We have forgotten that evil exists and that people are not inherently good.
As a species, we continue to think we have evolved past the mere primitive notion that violence solves issues. We believe that in this culture of lawyers, contracts, and instant communication that we have evolved past violence. That’s an absurd analysis.
A modern Germany exterminated tens of millions between 1933-45. The Balkans, before they exploded in their wars of extermination in the 1990s, were a mostly developed region. The massive oil wealth of the Middle East hasn’t stopped that region of the world from having their own religious and ethnic conflicts. If wealth and technological progress are measures of civilization, then I would hate to see what is uncivilized.
Man is a fallen creature and capable of both good and evil. It’s best to view humanity through that lens. We should be wary of attempts to make men “better.” Mass graves from France to Russia to Cambodia are a testament to that fallacy.
There are only two approaches to dealing with evil. You either deter it or you destroy it. You can deter evil by making the consequences of doing their deed so high that is not worth it. You can also destroy an evil person when they act. However, we should not kid ourselves and believe we can “eradicate” evil from the world.
This piece doesn’t have any ideas on how to end racism (short answer you won’t) or what kind of gun control could stop this (short answer not much). Instead what we can do is not be blind to the reality of man. Instead of providing ourselves with the false comfort that people are inherently good, we should open our eyes to the fact that man is capable of both great and evil deeds.
Only by acknowledging the truth in ourselves can we move forward with discussions how to prevent future atrocities like this.
I originally wrote the following post in the very early days of the 2012 presidential campaign. At the time, Donald Trump was threatening to enter the race but decided not to do so. A little over four years later, Trump has decided to run in an already very crowded 2016 Republican primary. I have friends and family members who are intrigued (who ought to know better) with the Donald. The reason I decided to re-publish this post is to remind readers why a President Donald Trump would be no friend of limited government or liberty.
I do not like Donald Trump. I don’t dislike him because of his wealth; he probably earned most of his wealth honestly. Some dislike Trump because he is a self promoter. I don’t dislike Trump for this reason either. Many successful individuals are great at self promotion and developing a successful brand (a very good attribute to have to have a successful political campaign).
For those who don’t quite understand the difference between a capitalist and a corporatist, I highly encourage you to read Brad’s post “Mercantilism, Fascism, Corporatism — And Capitalism.” This distinction is an important one. Donald Trump is the poster child for what many on the Left as a greedy capitalist; a caricature of everything that is wrong with capitalism as preached by the Ralph Naders and Michael Moores of the world.
But those of us who know better know that Donald Trump isn’t a capitalist at all but a corporatist. Trump doesn’t try to work within a framework of a free market as a true capitalist would, but like far too many businessmen, he uses his wealth and influence to encourage the government to work on his behalf to his advantage (and at the expense of anyone else who would dare get in his way).
In the early 1990’s, an elderly widow by the name of Vera Coking was in the way. Coking’s home that she had lived in for 30 years was on a plot of land that the Donald coveted. The Donald wanted the property so he could add a limousine parking area to one of his Atlantic City casinos. When Coking turned down his $1 million offer to buy the property, the Donald decided to enlist the help of his goons on the New Jersey Casino Reinvestment Authority. In 1994, these government thugs filed a lawsuit to take Coking’s property for $251,000 and gave her 90 days to leave her property (if she were to stay beyond the 90 days, men in uniforms with guns would forcibly remove her from her home).
Fortunately, Coking’s case gained enough media publicity to gain the attention and help of The Institute for Justice (think a more libertarian ACLU with a focus on property rights). With the IJ’s help, Coking was able to keep her property. In 1998, a judge made a decision that turned out to be final finding that the Donald’s limousine parking area was not a “public use.”
John Stossel confronted the Donald about his failed attempts to take the widow’s home away; he reprinted this exchange in his book Give Me A Break on pages 152 and 153:
Donald Trump: Do you want to live in a city where you can’t build roads or highways or have access to hospitals? Condemnation is a necessary evil.
John Stossel: But we’re not talking about a hospital. This is a building a rich guy finds ugly.
Donald Trump: You’re talking about at the tip of this city, lies a little group of terrible, terrible tenements – just terrible stuff, tenement housing.
John Stossel: So what!
Donald Trump: So what?…Atlantic City does a lot less business, and senior citizens get a lot less money and a lot less taxes and a lot less this and that.
Earlier in the book (page 25) Stossel gives his impressions of this confrontational interview:
Donald Trump was offended when I called him a bully for trying to force an old lady out of her house to make more room for his Atlantic City casino. After the interview, the producer stayed behind to pack up our equipment. Trump came back into the room, puffed himself up, and started blustering, “Nobody talks to me that way!”
Well, someone should.
Had this case taken place after Kelo, the Donald may well have prevailed. In the wake of the Kelo decision, Neil Cavuto interviewed the Donald on Fox News (7/19/05) to get his reaction.
I happen to agree with [the Kelo decision] 100 percent, not that I would want to use it. But the fact is, if you have a person living in an area that’s not even necessarily a good area, and government, whether it’s local or whatever, government wants to build a tremendous economic development, where a lot of people are going to be put to work and make area that’s not good into a good area, and move the person that’s living there into a better place — now, I know it might not be their choice — but move the person to a better place and yet create thousands upon thousands of jobs and beautification and lots of other things, I think it happens to be good.
Donald Trump is not one who respects property rights (other than his own). “Tremendous economic development” and “jobs” are great reasons to employ the full police power of government to take away someone’s property in the Donald’s world view.
I shudder to think of what a Donald Trump presidency would look like. Imagine the Donald with control of our CIA and our military. The Donald doesn’t have any problem using force to get what the Donald wants.
Now consider President Trump with a vacancy on the U.S. Supreme Court. What sort of Justice would he appoint? Most likely one who would view Kelo quite favorably.
This bully, Donald Trump is the guy who is polling second place in some early Republican primary polls? Wake the hell up Republicans!