Hysteria over Indiana’s protection of religious liberty: Elites take leave of their senses

A_frightened_and_an_angry_face,_left_and_right_respectivelyThe reaction to the Indiana Legislature’s enactment of a generic religious liberty law seems increasingly unhinged. The long knives of business, entertainment and political elites are coming out. Even, amusingly, “gamers.” This does little to assuage concerns that proponents of sexual revolution are motivated by animus towards people of faith.

The basic reality is that the law passed by Indiana is almost the same as a law approved by the U.S. Congress in 1993 with overwhelming bipartisan support. The bill simply directs courts considering religious liberty claims to ensure that when the government, or a private party bringing a lawsuit, does something that creates a “substantial burden” on the exercise of religion, it is doing so to further a “compelling interest” in the narrowest way possible to protect that interest. At least 19 other states have similar laws.

Indeed, the legal rule codified in Religious Freedom Restoration Acts reflects the U.S. Supreme Court’s interpretation of the First Amendment for decades (before the court abandoned the principle). The federal RFRA was Congress’s attempt to restore the old rule.

Law professor Daniel O. Conkle, who notes his own support for gay rights and same-sex marriage, showed great integrity recently by pointing out that labeling Indiana’s law “a license to discriminate” does not comport with reality.

One will search far and wide for any example of people being thrown out of restaurants because of a state or federal Religious Freedom Act, though that is being urged as a foregone conclusion by opponents of the law. Why would Indiana’s law create a different result than any other state’s laws, or the federal government’s for that matter? As Stanford Law Professor Michael McConnell notes: “In the decades that states have had RFRA statutes, no business has been given the right to discriminate against gay customers, or anyone else.”

In fact, Professor McConnell and Professor Conkle both note that courts are likely to prioritize discrimination laws over religious liberty if there were to be a conflict.

That may be why Utah opted to pursue a different approach to religious liberty protections this last session. Rather than leave to courts to balance religious liberty with conflicting claims, Utah’s law straightforwardly limited the application of laws that might otherwise impact religious liberties to prevent the litigation in the first place.

But whatever approach a state chooses: stating a principle for courts to apply, like Indiana, or creating rules to prevent attacks, like Utah — protecting religious liberty is not an attack on the rights of others, whatever demagogues may claim to the contrary.

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Turn off the lights … why?

Led_LightingThis weekend, many environmental activists are urging people worldwide to participate in Earth Hour by turning off their lights from 8:30 to 9:30 p.m. on Saturday night. The purpose of this effort is to “use your power to change climate change.” According to the organizers, “Earth Hour aims to encourage an interconnected global community to share the opportunities and challenges of creating a sustainable world.”

If sitting at home in the dark for an hour to show support for theories of radical environmentalists isn’t your idea of fun, then you might choose instead to participate in Human Achievement Hour, an event organized by the Competitive Enterprise Institute.

Participants in Human Achievement Hour will leave their lights on Saturday at 8:30 p.m. to celebrate “the human innovations that have allowed people around the globe to live better, fuller lives, while also defending the basic human right to use energy to improve the quality of life of all people.”

With the lights on, the possibilities are endless. You might create a work of art, read a good book or get to know a neighbor. What will you do Saturday night?

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Research: Consumer-driven health plans help ‘bend the cost curve’

Aesculap-serpentineHow do we reduce unnecessary or wasteful health care spending so that we can increase health care access and reduce the cost of health care? This is a policy question that has vexed policymakers for many years. But new research suggests that market innovations such as health savings accounts paired with high-deductible insurance coverage (collectively referred to as “consumer-driven health plans,” or CDHPs) may hold part of the answer.

The study, just published by the National Bureau of Economic Research, looked at a dataset of 13 million individuals employed at 54 “large U.S. firms” to see how making CDHPs available to employees influenced health care spending and costs. The researchers note that “there is robust empirical evidence” from previous studies that CDHPs “effectively incentivize patients to change their health care use and reduce costs in the first year” by reducing spending between 5 and 24 percent, according to past research. But, they continue, “the effects of CDHPs on spending in the longer term are … ambiguous and the empirical evidence … is limited.”

The researchers also explain how the longer-term CDHP studies also suffer from methodological limitations that make generalizing their results a questionable enterprise. Hence the justification for their study, which looked at health care spending up to three years after CDHPs are offered by employers to their employees and used better data than the previous studies, with a stronger statistical methodology.

The study found “that spending is reduced … in all three years” after an employer in their data began offering CDHPs to their employees. Continue reading

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Marriage and our nation’s destiny – Sutherland Soapbox, 3/24/15

Family picture seattleThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

In a recent message, I referenced Senator Mike Lee’s January 2015 Heritage Foundation address wherein he focused on a matter of critical importance.

There are many pressing issues that deserve our attention and require action – so many in fact that it can sometimes be difficult to keep them straight.

But as I see it there is one issue – one challenge facing the American people today – that rises above the rest in its complexity, its magnitude, and the reach of its consequences. Directly or indirectly it affects nearly every other public issue you can think of, and should therefore be placed squarely at the center of our reform agenda.

… that issue is the family – its increasing importance and its declining stability – and I believe it may be the single defining challenge of our time.

The family is the first and most important institution of our society – and the foundation of American exceptionalism. …

The family has always been the linchpin of American life, but today more than ever the health of the family is indivisible from the destiny of our nation. (“Putting Families First,” delivered January 13, 2015, at The Heritage Foundation in Washington, D.C.)

Underscoring the importance of these concerns is information and data presented at the Wheatley Institution Roundtable on the Family, hosted March 19 and 20 at BYU. Recapping the conference, Deseret News writer Wendy Leonard reported that

The decline of the family in America is real, and researchers hope that a better understanding of what is happening to the fundamental unit of society will help to turn the trends.

“Marriage is viewed as a capstone rather than a cornerstone, as it used to be part of setting up your adult life,” said Sam Sturgeon, a senior research manager with Bonneville Communications and president of Demographic Intelligence. …

He said more people marry when they are finished with school or are well into their careers, and that fewer are having children.

According to U.S. Census Bureau data, fewer people ever marry, including 20 percent of men and 5 percent of women; and more people cohabit – a more than tenfold increase in the past 50 years.

Continue reading

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Strong new defense of the constitutionality of marriage

courthouse17483The Heritage Foundation has just published a strong piece of legal analysis by Ryan Anderson and Gene Schaerr on the same-sex marriage issue. Anderson is a prominent defender of marriage as the union of a man and a woman, and Schaerr defended Utah’s marriage law in court at a significant professional sacrifice.

The analysis demonstrates that nothing in the U.S. Constitution requires states to redefine marriage.

Here are some highlights:

Those suing to overturn the marriage laws in the four states covered by the Sixth Circuit (Ohio, Kentucky, Michigan, and Tennessee) thus have to prove that the man-woman marriage policy that has existed in the United States throughout our entire history is prohibited by the U.S. Constitution.

The only way someone could succeed in such an argument is to adopt a view of marriage that sees it as an essentially genderless institution based only on the emotional needs of adults and then declare that the U.S. Constitution requires that the states (re)define marriage in such a way. Equal protection alone is not enough. To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely.

The U.S. Constitution, however, is silent on what marriage is and what policy goals the states should design it to serve, and there are good policy arguments on both sides. Judges should not insert their own policy preferences about marriage and declare them to be required by the U.S. Constitution any more than the Justices in Dred Scott should have written into the Constitution their own policy preferences in support of slavery.

That, of course, is not to suggest that same-sex marriage is itself comparable to slavery. The point is simply that, as in Dred Scott, this is a debate about whether citizens or judges will decide an important and sensitive policy issue—in this case, the very nature of civil marriage.


A legal challenge to these state marriage laws cannot appeal successfully to the text or original meaning of the Fourteenth Amendment. The text, invoking American citizens’ “privileges or immunities,” the “equal protection of the laws,” and the “due process of law,” nowhere mentions marriage. Back in the 1860s, could anyone who drafted that amendment or any of the citizens who voted to ratify it have reasonably thought that it could be used to invalidate state marriage laws defining marriage as a man-woman union?

Imagine, for example, how President Lincoln — an accomplished lawyer and an ardent opponent of Dred Scott — would have reacted if the amendment had been introduced before his death and someone had suggested that it might one day be interpreted to require states to recognize same-sex marriages. He would have viewed that suggestion as preposterous. There has never been any general right, he would have said, to marry anyone you claim to love, so a state’s rejection of that claimed “right” could not possibly be a denial of due process.

Lincoln would also have noted the similarities between Dred Scott and a decision imposing same-sex marriage. As distinguished law professor Michael Stokes Paulsen has elegantly argued, “in the structure and logic of the legal arguments made for judicial imposition of an across-the-board national rule requiring every state to accept the institutions [of slavery and the redefinition of marriage], the two situations appear remarkably similar.”[5]

Moreover, unlike miscegenation laws, the man-woman definition of marriage does not offend the Amendment’s equal-protection guarantee because it allows any otherwise qualified man and woman to marry, regardless of their sexual orientation or other circumstances. The fact that the institution of marriage, rightly understood, may be more attractive to some of a state’s citizens than others does not mean that a state violates the Fourteenth Amendment simply by refusing to redefine the institution to make it more attractive to more romantic partnerships.


Nor can a challenge reasonably appeal to the Supreme Court’s Windsor decision, which was written by Justice Anthony Kennedy and applied the Fourteenth Amendment’s protections in striking down a portion of the federal Defense of Marriage Act (DOMA). Whether it was right or wrong as to DOMA, Windsor strongly supports the authority of states to define marriage: Every single time that Windsor talks about the harm of DOMA, it mentions that the state had chosen to recognize the bond that the federal government was excluding. Every single time, Justice Kennedy expressly said it was Congress’s deviation from the default of deference to state definitions that drove his opinion.

Kennedy’s opinion for the Court hinged on the reality that “[t]he significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.”[9] “The definition of marriage,” Windsor explained, is “the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’”[10] . . .

Windsor also taught that federal power may not “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.”[12] Yet since that time, the federal government — through federal judges — has repeatedly put its thumb on the scales to influence a state’s decision about its own marriage laws — all the while claiming that Windsor required them to do so.


As the Supreme Court held in Glucksberg in rejecting a fundamental right to assisted suicide, fundamental rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.”[14]

Clearly, a right to marry someone of the same sex does not fit this description. As the Supreme Court explained in Windsor, including same-sex couples in marriage is “a new perspective, a new insight.”[15]Same-sex marriage is not deeply rooted in the nation’s history and tradition; thus — whatever its policy merits — it cannot be a fundamental right under the Due Process Clause. Windsor correctly observed that “until recent years…marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.”[16]

Whenever the Supreme Court has recognized marriage as a fundamental right, it has always been marriage understood as the union of a man and woman, and the rationale for the fundamental right has emphasized the procreative and social ordering aspects of male-female marriage. None of the cases that mention a fundamental right to marry deviate from this understanding, including decisions that struck down laws limiting marriage based on failure to pay child support,[17] incarceration,[18] and race.[19] Those decisions took for granted the historic, common law, and statutory understanding of marriage as a male-female union having something to do with family life. Thus, a challenge to state male-female marriage laws cannot appeal successfully to the fundamental-rights doctrine under Glucksberg.


To be sure, the Supreme Court has ruled that entering into and having the government recognize a marriage—understood as a union of husband and wife—is a fundamental right, but if this right is redefined to be understood simply as the committed, care-giving relationship of one’s choice, where does the logic lead? Justice Sonia Sotomayor asked this of Ted Olson, the lawyer for the same-sex couples, during oral argument in California’s Proposition 8 case, and he had no answer. If marriage is a fundamental right understood as consenting adult love, Justice Sotomayor asked, “what State restrictions could ever exist,” for example, “with respect to the number of people … that could get married?”[25]


From a policy perspective, marriage is about attaching a man and a woman to each other as husband and wife to be father and mother to any children their sexual union may produce. When a baby is born, there is always a mother nearby: That is a fact of biology. The policy question is whether a father will be close by and, if so, for how long. Marriage, rightly understood, increases the odds that a man will be committed to both the children that he helps to create and to the woman with whom he does so.[44] The man-woman definition of marriage reinforces the idea — the social norm — that a man should be so committed.

The man-woman definition, moreover, is based on the anthropological truth that men and women are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father. Even President Barack Obama admits that children deserve a mother and a father[.]


In addition to financial incentives, as ample social science confirms, this combination of state-sanctioned status and benefits also reinforces certain child-centered norms or expectations that form part of the social institution of marriage. Those norms — such as the value of gender-diverse parenting and of biological connections between children and the adults who raise them — independently encourage man-woman couples “to stay together for purposes of rearing offspring.” Given the importance of those norms to the welfare of the children of such couples, the state has a compelling interest in reinforcing and maintaining them.

Most of those norms, moreover, arise from and/or depend upon the man-woman understanding that has long been viewed as central to the social institution of marriage.[47] For example, because only man-woman couples (as a class) have the ability to provide dual biological connections to the children they raise together, the state’s decision — implemented by the man-woman definition — to limit marital status and benefits to such couples reminds society of the value of those biological connections. It thereby gently encourages man-woman couples to rear their biological children together, and it does so without denigrating other arrangements — such as adoption or assisted reproductive technologies — that such couples might choose when, for whatever reason, they are unable to have biological children of their own.

Like other social norms traditionally associated with the man-woman definition of marriage, the biological connection norm will be diluted or destroyed if the man-woman definition (and associated social understanding) is abandoned in favor of a definition that allows marriage between “any two otherwise qualified persons” — which is what same-sex marriage requires. And just as those norms benefit the state and society, their dilution or destruction can be expected to harm the interests of the state and its citizens.

For example, over time, as fewer heterosexual parents embrace the biological connection norm, more of their children will be raised without a mother or a father. After all, it will be very difficult for the law to send a message that fathers and mothers are essential if it has redefined marriage to make fathers or mothers optional, and that in turn will mean more children of heterosexuals raised in poverty, doing poorly in school, experiencing psychological or emotional problems, having abortions, and committing crimes — all at significant cost to the state.

In short, law affects culture. Culture affects beliefs. Beliefs affect actions. The law teaches, and it will shape not just a handful of marriages, but the public understanding of what marriage is. Consider the impact of no-fault divorce laws, which are widely acknowledged to have disserved, on balance, the interests of the very children they were supposedly designed to help. By providing easy exits from marriage and its responsibilities, no-fault divorce helped to change the perception of marriage from a permanent institution designed for the needs of children to a temporary one designed for the desires of adults. Thus, not only was it technically much easier to leave one’s spouse, but it was psychologically much easier as well, and the percentage of children growing up with just one parent in the home skyrocketed, with all of the attendant negative consequences.

This analysis also explains why a state’s decision to retain the man-woman definition of marriage should not be seen as demeaning to gay and lesbian citizens or their children and why it satisfies any form of heightened scrutiny. In the early 2000s, in the face of state judicial decisions seeking to impose same-sex marriage under state law, the definitional choice a state faced was a binary one: Either preserve the man-woman definition and the benefits it provides to the children (and the state) or replace it with an “any two qualified persons” definition and risk losing those benefits.

There is no middle ground. A state’s choice to preserve the man-woman definition is thus narrowly tailored — indeed, it is perfectly tailored — to the state’s interests in preserving those benefits and in avoiding the enormous societal risks that accompany a genderless-marriage regime. Under a proper means-ends analysis, therefore, a state’s choice to preserve the man-woman definition passes muster under any constitutional standard.

Continue reading

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An open letter to Utah legislators

March 20, 2015

Dear members of the Utah Senate and House of Representatives,

Thank you for your service in the recently concluded legislative session. As we reflect on the important policy decisions you made this year, we wish to acknowledge – without regard to your philosophy or political party – the significant sacrifice it required from you in time away from your families, neighbors, workplace associates and many other priorities. Over the course of 45 days, you successfully resolved a raft of difficult and sometimes contentious issues: balancing protections for religious liberty and the LGBT community, increasing funding for public education, equalizing property taxes, strengthening accountability in public education, addressing the transportation funding gap, and reforming the criminal justice system, just to name a few.

Of course, not everyone – including Sutherland Institute – agreed with every particular of how these issues were resolved. Nevertheless, to your credit you sought to take these issues on rather than avoid them, and more often than not did so with prudence, graciousness and good humor amid seemingly endless meetings, thousands of emails, phone calls, tweets and handwritten notes, and hundreds of people daily importuning you for your time and support. Such is not the case in many legislative bodies, whether national, state or local, and the fact that you choose to do things differently here is something for which every Utahn can and should be grateful.

As policymakers, you fulfill the vital responsibility of the legislative branch in our inspired, distinctly American form of self-government. This includes the often-thankless task of maintaining the proper balance between paying careful attention to the views of those who elected you, and living up to your role and duty as elected representatives, well described by the great Irish-born statesman and member of British Parliament:

Your representative owes you, not his industry only, but judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

– Edmund Burke, 1729-1797; Speech to the electors of Bristol, November 3, 1774

Because of our focus on promoting conservative principles, encouraging sound public policy, facilitating robust public dialogue and maintaining good policymaking processes, we are pleased to acknowledge the careful attention, passionate engagement and thoughtful debate you contribute toward making Utah a better place to live, work and raise a family.

– Sutherland Institute

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Why should we embrace religion?

Because freedom is the combination of liberty and virtue, religion provides a natural and voluntary source of moral guidelines to assist us in living virtuous lives.

Human beings need and want to belong in communities. In a free society those communities are natural and voluntary: family, friends, religion, neighborhoods, community groups, etc.

Tyrants understand that to take control of any people the tyrant must become the “community” for the people. Hence, dictators such as Hitler and Stalin first sought to erase the intermediate layer of society that stood between the individual and the state. Only then – only after family, religion and natural communities are destroyed – can a tyrant assert moral authority. Healthy religion is the enemy of an overreaching state.

Of all natural moral influences within a free society, the positive and constructive influence of religion is second only to family.

For more on this topic (and others), visit Utah Citizen Network.

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Why legal effects of marriage case matter to everyone – Sutherland Soapbox, 3/17/15

scalesThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

At the end of April, the U.S. Supreme Court is scheduled to hear arguments about whether states may retain the definition of marriage as the union of a man and a woman or whether they must redefine marriage to include same-sex couples. All of the legal briefs (an oxymoron, given the number of trees that have to die to allow a lawsuit to move forward) in favor of same-sex marriage have been filed. Around 70 different parties have piled on in favor of same-sex marriage.

From the arguments that have already been presented to the court, two themes are prominent. One is that the state marriage laws should be struck down because they are motivated by animus. The other is that any legal classification that could impact a person based on the new legal category of sexual orientation has to be treated in the same way the courts would treat classifications in the law based on race.

The animus argument is a tricky one because it requires the challengers to prove that the millions of voters who voted in favor of marriage laws being challenged were acting out of some motive of ill will or spite. Even assuming such an accusation could possibly be true, it is hard to imagine what kind of evidence could be brought to establish such a claim.

Of course, it is obvious that voters will have had many reasons for supporting marriage quite apart from any hostility towards any group or individual.

To get around this problem the legal argumentation has focused on a novel understanding of hostility: It is not, the argument goes, that voters necessarily were acting from bad motives but that the laws have the effect of creating disadvantage for a group of people here by not allowing them to get the political result they would have wanted and the mere fact that some were disappointed by the results in an election is enough to show that they are the victims of hostility.

The advantage of this departure from the plain meaning of the concept of animus for those challenging the marriage laws is that they don’t have to show hostility for the court to determine there was hostility. In fact the argument allows for non-hostile hostility. Showing this kind of animus only means convincing a court that a law creates a disadvantage for you (including a sense that your dignity is being impugned).

The second argument urges the court to decide that any law that arguably creates a disadvantage for people based on “sexual orientation” has to be treated the same as a law that denies a group of people a right or benefit because of their race. This is a far-reaching result because it would have the effect of branding those who believe that marriage should continue to be understood as the union of a husband and wife (and the correlated belief that children are entitled to be reared by a married mother and father) as morally equivalent to racists.

In one swoop, not only is the question of whether same-sex couples can access marriage licenses resolved, but the Court can also lend its support to the idea that any disagreement with new norms of sexual morality drastically at odds with those held by nearly every society throughout time, and still by the vast majority of the world’s religions, is out of bounds.

Now those who have read the actual Constitution might be confused at this point. Where does it talk about animus or sexual orientation? Continue reading

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Top 5 highlights from the 2015 Utah legislative session

sutherland file pictures 005Of the 833 pieces of legislation that were introduced this session, below are five that are especially noteworthy.

HB 333—Budget Reserve Account Amendments

Utah lawmakers once again showed they are serious about their fiscal stewardship by raising caps on state “rainy day” funds. HB 333 will put more taxpayer money into savings, instead of using it to grow government via new state programs or agencies. The result will be a state government that is able to sustain critical services that Utahns rely on – like public education, transportation and public safety – rather than being forced to cut them or to raise taxes when lean economic times lead to falling tax revenues.

HB 348—Criminal Justice Programs and Amendments

With this bill, legislators enacted serious criminal justice reforms that will reduce costs to taxpayers from Utah’s state prison system, while simultaneously helping low-level offenders change their lives and become productive members of society. Additionally, as similar reforms in Texas and Georgia have demonstrated, Utahns will see less crime, reduced prisoner recidivism and improved public safety. In short, with HB 348 everyone is genuinely better off – something that can be said of very few pieces of legislation.

SB 104/SB 195/HB 186—State School Board Election Bills

After a federal judge signaled that Utah’s existing state school board elections process was unconstitutional, a flurry of alternative proposals made their way through the Legislature. SB 104 called for partisan elections. SB 195 would have implemented partisan elections unless an amendment to the Utah Constitution passed to create a governor-appointed school board. HB 186 would have established nonpartisan elections. Ultimately, none of these bills passed, so this issue will receive a lot of attention in the interim.

SB 164/HB 446—Medicaid Expansion Bills

Members of the Utah House wisely rejected a plan to expand Medicaid under the provisions of Obamacare, commonly called the Healthy Utah plan. Despite enormous pressure from the governor’s office and some of Utah’s largest, most well-financed special interest groups, representatives rejected the program’s financial unsustainability and harmful impacts on the low-income children, single parents and disabled Utahns currently on Medicaid. Over the next several months, a select group composed of legislative leaders, Gov. Herbert and Lt. Gov. Cox will work to develop a proposed resolution. In late summer, the full Legislature will be convened to consider the proposal.

SB 296/297—Nondiscrimination and Religious Freedom

SB 296 created protections in employment and housing on the basis of sexual orientation and gender identity to address the needs of lesbian, gay, bisexual and transgender individuals, while including religious liberty protections for religious organizations, employers, and employees. SB 297 ensured that couples seeking marriage licenses would have access to an authorized government employee to perform that service, while allowing government employees the ability to designate someone other than themselves to perform that duty if they prefer. The two bills did not attempt to nor did they address all the questions arising from a federal judge’s decision striking down Utah’s marriage law, and there are sure to be continued efforts to resolve these issues in the future.

Utah’s elected officials displayed remarkable statesmanship as they dealt with hundreds of important – often contentious and sometimes historic – issues during the 2015 session. We are fortunate to live in a state that, more often than not, values prudence, freedom and compassion.

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The pies of March

pidayTucked in between today’s ominous Friday the 13th and the ill-fated Ides of March on Sunday is a cozy little day celebrating math and dessert: Pi Day.

Learn more about it here!

And if you want to go out and celebrate, The Leonardo museum in Salt Lake City is having a Pi Day event (“Celebrate the Irrational!”), with admission at (of course) $3.14 apiece.


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Why Senate Bill 297 is necessary

sutherland file pictures 007At this time, the state of Utah has been required to recognize same-sex marriages by court order. The court order did not address some of the foreseeable consequences of redefining marriage in the state, such as implications for religious liberty.

By contrast, the anti-discrimination legislation (SB296) contains provisions that attempt to balance the response to mistreatment of individuals in housing and employment with the need to preserve crucial religious freedoms.

The fact that same-sex marriage has come to Utah by court order has prevented this kind of balance, so the Legislature needs to act to ensure that religious liberties are considered in the context of same-sex marriage.

SB297 provides necessary religious liberty protections:

  • No public official will be forced to perform marriages if it would violate their religious beliefs (while still allowing any person to get their marriage solemnized).
  • Religious officials and religious organizations will not have to recognize or perform marriages that conflict with their teachings.
  • Religious officials and religious organizations will not be prohibited from solemnizing marriages just because they will not perform marriages that conflict with their teachings.
  • Religious officials and religious organizations will not be forced by the state to “provide goods, accommodations, advantages, privileges, services, facilities, or grounds for activities connected with the solemnization or celebration of a marriage that is contrary to that religious official’s or religious organization’s religious belief.”
  • Religious officials and religious organizations will not be forced to promote marriages that conflict with their teachings in any programs or activities.
  • Government cannot penalize a religious official or religious group for exercising these rights.
  • Licensing, certification and accreditation processes can’t be used to punish people for their beliefs about marriage, family and sexuality.
  • Religious officials and religious organizations will not be forced by individuals to “provide goods, accommodations, advantages, privileges, services, facilities, or grounds for activities connected with the solemnization or celebration of a marriage that is contrary to that religious official’s or religious organization’s religious belief.”

The bill also provides legal remedies for those whose rights are violated under the new law.

Of course, these are not the only religious liberties that need protecting (note: there are also significant exemptions and religious speech protections in SB296) but SB297 is an important start to minimize the potential harms of radical court decisions on marriage.

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There will be order – Sutherland Soapbox, 3/10/15

self-controlThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

When it comes to figuring out how to live together in society, there’s one thing we can all be sure of. It’s this: There will be order. One of conservatism’s icons, Edmund Burke, captures this concept beautifully in a 1791 letter:

What is liberty without wisdom and without virtue?

It is the greatest of all possible evils; for it is folly, vice, and madness, without restraint.

Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites; inproportion as they are disposed to listen to the counsels of the wise and good in preference to the flattery of knaves.

Society cannot exist, unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without.

It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.

So many great little gems there from Edmund Burke. Liberty, he argues, if it is not bridled by wisdom and virtue, can run unrestrained into folly, into any number of vices, and finally into unrestrained madness.

Conservatism holds that ordered liberty is the optimal way to secure freedom while maintaining order in a civil society. But in order to maximize freedom, each of us must control our appetites and our passions. Because if we don’t, some external force will control them for us.

If we cannot rely on self-control; if our families are too broken to love us and teach us and nurture us; if our religions are too corrupt to call from within us the better angels of our nature, or if we are too corrupt to hear that call; if our schools are ineffective wrecks; if all of this is true, if these little platoons, as Burke called them, fail us, we will still have order.

Society might, as it has throughout history, devolve for a time into chaos. But some one, or someones, will seize control in the chaos and produce some form of order. It might be a dictatorship. It might be an oligarchy. It might be socialism.

Some may say America is now no better than any other country, and worse than a lot of them at maximizing freedom. It is true, in the U.S., we have seen the rise, for instance, of the police state and the diminution of individual rights. Partly, we can blame this on the natural desire of man to rule over man, but also partly, we can safely say, this is the result of the failure of individuals, families, churches and the other “little platoons” to sufficiently self govern. As families and churches fail, government will naturally, and with little encouragement, fill the void.

But there is hope. The United States, along with many other countries, was created as a nation of laws, and not of men. And, fortunately, the foundational laws that created our republic, and the free market economic system built alongside it, both reflect the realities of the inherent good and evil of human nature. Other ideologies actually try to change human behavior, which is why they always have and always will fail. So, yes, ordered liberty does require some government coercion, but in a free society, that coercion conforms to human nature.

No system is perfect. But America is built on the most solid foundation yet devised by humankind. The responsibility, therefore, lies with us. If civil society is crumbling around us, the repairs must start with us, with our families, with our little platoons. Because there will be order. How much freedom we will have to go along with it is up to us.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

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Research: Public health policies work – and probably help the economy too

Alcohol_y_TabacoNewly published research about the effects of anti-smoking policies have found such policies effectively incentivize the desired social behaviors, and it also suggests that they create more benefits than costs for society. While this study focused only on anti-smoking policies, the results are relevant to ongoing debates in Utah about loosening state alcohol control laws and, now, legalizing marijuana.

The study, published by the National Bureau of Economic Research, applied a benefit-cost analysis methodology to U.S. anti-smoking policies from 1964-2010. They found that: (1) these policies “reduce[d] total cigarette consumption by 28 percent,” and (2) the “consumer benefits from anti-smoking policies through 2010 is estimated to be $573 billion,” in 2010 dollars. The researchers further note that they were unable to come up with a similar estimate of the hard costs of these policies, but they “discuss evidence that suggests the consumer benefits substantially outweigh the costs.”

While the study’s finding about the net impact on the economy is unclear without a better cost estimate, the impact of anti-smoking policies on smoking behavior in this research seems quite significant and definitive. The lesson for policy-makers should be clear: public policy can significantly impact and incentivize the behavior of individuals on potentially addictive and socially harmful behaviors like smoking (or, I would add, drinking or illicit drug use) to the benefit of both society and, in some cases, the individuals themselves.

Does this reality of public policy justify government attempts to regulate any and every behavior “for the good of society”? Of course not, though fully fleshing out why not is a subject for another post. But does this reality support regulating – sometimes heavily – behaviors that harm society and freedom, such as smoking, drinking and illicit drug use? Indeed it does, and this new study is one piece of evidence among many illustrating why.

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Sutherland Institute endorses SB 297

Photo Credit: Scott Catron

Photo Credit: Scott Catron

In our statement about SB 296 yesterday, we noted a need for additional religious liberty protections for “the ability of people of faith to act on their beliefs related to marriage without fear of retribution.” Today, Senator Stuart Adams introduced SB 297, which does precisely that.

SB 297 provides important protections for the religious liberty of churches, religious organizations and individual people of faith.

Some of these key protections relate to those who might be asked to solemnize a marriage inconsistent with their beliefs; those who are threatened with retaliation for expressing or acting on their beliefs; and the professional and business licenses of those who speak up for marriage. It further prevents any coercion of religious organizations or officials to facilitate marriages contrary to their beliefs.

It is a robust protection of a foundational freedom: the ability of all citizens to hold, express and live in accordance with their core beliefs about marriage.

Taken together, SB 296, SB 297 and HB 447 represent a sound, balanced approach to protecting the rights of all Utahns. We encourage their passage.

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Sutherland Institute statement on SB 296

At the time of the press conference by leaders of The Church of Jesus Christ of Latter-day Saints on religious liberty, Sutherland Institute expressed its support for the principles those leaders outlined. Today, SB 296 has been introduced in an effort to (1) address concerns about mistreatment of individuals in housing and employment, and (2) ensure that the religious liberty of those who recognize and honor standards of morality related to marriage and sexuality are not sacrificed.

As a statement from the Church notes, SB 296 is an effort to balance those considerations. It is clearly a significant improvement over the token religious liberty protections in previous proposals, and it deserves thoughtful consideration from policy-makers.

If this housing and employment law goes into effect and the provisions of SB 296 in practice prove to be inadequate protections for religious liberty, the Legislature will need to act to correct the problem. At that time, we hope we can expect the support of those who have been calling for changes in discrimination laws to remedy any unintended consequences.

Additionally, it is important to recognize that the protections in SB 296 are limited to the context of a discrimination law. We hope that in the short time remaining in the session, or as soon as possible, the Legislature will address other significant religious liberty concerns not confined to the employment and housing context.

For instance, the ability of parents to pass on moral standards to their children; the ability of people of faith to act on their beliefs related to marriage without fear of retribution; and the ability of all citizens to be free of coercion to participate in or endorse conduct contrary to their consciences.

For Sutherland Institute, the crucial issue is that people of faith must be free to teach about and maintain standards of conduct related to marriage and sexuality. This is a fundamental tenet of a free society.

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