Another angle on natural law

Nature's_SymmetryIn our writings at Sutherland Institute we occasionally use the term “natural law,” referring to the common foundations of justice and fairness innate to each of us.

An article in the Intercollegiate Review (excerpted from The Perspective of Love: Natural Law in a New Mode by R.J. Snell) has an interesting angle on natural law:

[I]t might appear quite unreasonable to maintain belief in natural law or natural right, for the intellectual substructure is, as Alasdair MacIntyre put it, echoed by David Bentley Hart, “unacceptable by the dominant standards of modernity.” Yet the cultural and scientific developments noted by Strauss have not resulted in the withering away of either natural right or natural law but instead contributed to a renewed vitality as some thinkers deepen the commonplaces of the tradition while others develop or stretch the tradition in new directions. This is to be expected, for challenges to a tradition cause crisis, irrational and wooden traditions either capitulating or refusing to engage while more supple and reasonable traditions ask new questions, pose new answers, transpose old answers, and articulate themselves in new and productive directions.

This is not the first time that natural law has developed in response to a crisis presented by some theoretical or social challenge, so we should not be surprised to find it developing previously. And in each of these moments of challenge, I suggest, the crisis has been occasioned by the meaning of “nature.” What is so natural about the natural law; what is nature?

Click here to read more of “The Meaning(s) of Natural Law” at the Intercollegiate Review.

Swallow, Shurtleff, and a culture of corruption – Mero Moment, 7/15/14

downtownsaltlakecityThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

When I received news that former Attorneys General Mark Shurtleff and John Swallow had been arrested for alleged illegalities associated with their office, I felt a little sick. Serious allegations against these two men have been in the news for over a year now. And, frankly, I’m not surprised at this turn of events. But I know these men, and it’s a bit discomforting to actually hear they’ve been arrested.

Many people seem to think that everyone in politics knows everyone else intimately. We don’t. Typically, we know each other through the work we do. While my first encounter with Mark Shurtleff nearly a decade ago didn’t leave a good impression for me, I was pleased to get to know him better over the immigration debate. I found him to be intelligent, passionate and convincing on the issue. I was impressed he had authored a book about Dred Scott. I grew to like him personally.

I knew John Swallow through a mutual friend who had enlisted us some years ago to support his charity. Despite current allegations making it seem like Shurtleff and Swallow are two peas in a pod, I found the two men to be nothing alike. Swallow always seemed too guarded and stiff for an elected official – like there was more to him than appeared. Read more

Ignoring old truths to create a new reality

GavelIt’s easy to win an argument when you invent a new reality. In the case of same-sex marriage, plaintiffs simply argue that a definition of marriage that has existed, culturally and legally, for millennia is an old reality.

Proponents of marriage (i.e., the defendants) have a tough argument to make. We have to demonstrate a higher purpose for marriage. We have to show why it’s culturally sacred, why it serves the common good, why it elevates the lives of men, women and children and why law in a free society should lay out a clear definition of it. We have to explain what marriage is.

Plaintiffs have no such burden to demonstrate. They simply argue equality. How difficult is that? There is no sense of the sacred in marriage for plaintiffs. Only equality is sacred. There is no sense of the common good in marriage for plaintiffs. Equality is the only common good. Only equality elevates men, women and children. And law in a free society has one purpose: Equality.

Carrying such a light intellectual load explains why federal judges, anxious to be on the so-called right side of history, can so casually accept this new reality of same-sex marriage. This new reality explains why a federal judge accepts that “the right to marry” applies to everyone – despite the fact that every legal precedent prior to the invention of this new reality viewed marriage as between a man and woman. Pick the marriage precedent cited by plaintiffs, and every precedent, until now, referenced marriage between a man and woman. The Loving case? A man and woman. Prisoners? A man and woman. Sterile couples? A man and woman.

This new reality describes “marriage equality” as anything that consenting adults agree to – and for any arbitrary reason (e.g., psychological or emotional). What an easy argument! For heaven’s sake, the entire campaign of plaintiffs fits neatly on a small bumper sticker – that is how unsubstantive their 14th Amendment argument really is. Read more

States still need their own religious freedom laws – Mero Moment, 7/1/14

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Green River Presbyterian Church in Green River, Utah.

Green River (Utah) Presbyterian Church.

The United States Supreme Court decided an important religious freedom case this week. In a 5-4 decision the court ruled that a privately held corporation is allowed its free exercise of religion. The landmark case, made famous by the mega-craft store Hobby Lobby, held that plaintiffs don’t have to comply with certain parts of Obamacare that offend their religious beliefs. Specifically, Hobby Lobby and two other plaintiffs are not required to pay for an employee’s abortion-related contraception such as the “morning after” pill.

The basis of this precedent-setting decision is a federal law known as the Religious Freedom Restoration Act, or RFRA.

RFRA states that the federal government shall not substantially burden a person’s free exercise of religion and the court held that a privately owned family business is a “person” in terms of this law.

Under RFRA, for the federal government to violate a person’s religious beliefs it has to demonstrate a “compelling government interest” and it then has to pursue a solution to enforce that interest in “the least restrictive means” possible. In other words, to force Hobby Lobby to pay for its employees’ abortion pills, the federal government would have to prove why abortion pills for employees are more important than the religious beliefs of employers and, even if that were possible to prove, the federal government would have to enforce its mandates in the least restrictive means possible. The court properly acknowledged that requiring Hobby Lobby to pay daily fines of $1.3 million, or nearly a half-billion dollars a year, in noncompliance is a clear burden to its free exercise of religion.

Of course, the progressive left is going crazy implying (and sometimes outright lying about) what this decision really means. Read more

Sutherland applauds Supreme Court's Hobby Lobby decision

800px-United_states_supreme_court_buildingSutherland Institute issued the following statement today, June 30, 2014, in reaction to the Supreme Court’s decision in the Hobby Lobby case:

The Supreme Court has done the right thing.

No one should have to choose between acting on their religious beliefs or paying crippling fines to the government, including business owners. The court has recognized the importance of the free exercise of religion, protected in the First Amendment of the U.S. Constitution, which is good news for the principles of religious liberty and limited government.

However, supporters of religious freedom can’t let down their guard. Four justices would have allowed the government to force private companies to act against their beliefs. Today’s decision is a welcome reprieve but no reason to relax our vigilance in protecting religious liberty. Utah can help by passing comprehensive state religious liberty protections as soon as possible.

A disappointing 10th Circuit ruling; on to Supreme Court

scalesIt’s disappointing to have a few federal judges decide that they can unilaterally override the decision of Utah voters to preserve marriage as society’s way of preserving children’s opportunity to be reared by a mother and father.

We’ve long known that this issue will have to be resolved by the U.S. Supreme Court. We’re grateful that Utah will have the opportunity to make its case to the top court that Utah voters deserve self-determination to decide a matter crucial to the state and its citizens.

Any appeal at the U.S. Supreme Court is the main event and may decide the future of marriage for decades. Defenders of marriage must be prepared and Sutherland Institute has laid the groundwork ensuring that top legal minds have compiled every constructive and effective argument to give our side the best chance of winning.

A win for public prayer, and freedom, at Supreme Court – Mero Moment, 5/13/14


This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.


In the May 5 U.S. Supreme Court decision City of Greece, New York v. Galloway, the court saved public prayers in legislative settings and, in doing so, reminded Americans that freedom transcends modern progressivism.

In the court’s decision, Justice Anthony Kennedy wrote for the majority, “The Court is not persuaded that the town of Greece, through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings, compelled its citizens to engage in a religious observance.”

Secularists, represented by Americans United For the Separation of Church and State, claimed that public prayer violated the Establishment Clause and offended the sensibilities of non-believers.

The court responded, “As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of this Court’s sessions.”

The court continued, “It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews. That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content.”

The court concluded, “The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.”

Early in my career I had the privilege of working on legislation to reinstate prayer in public schools. Our argument was simple: Prayer, in any public setting, is an acknowledgement of a higher authority and this acknowledgement is essential to freedom. In fact, this acknowledgment has a very secular justification for public prayer.

Opponents of public prayer are concerned with any gesture that suggests a preference for one religion over another religion. Indeed, many opponents of public prayer, especially atheists, cringe at the idea of any acknowledgement that, to them, seems irrational. But, irrational or not, recognition of a higher authority in government has its virtue. It regularly reminds legislators – hopefully even humbles legislators – that the exercise of their political power has limits.

Opponents of public prayer also claim that such religious expressions are divisive. But any divisiveness exists from opponents only. They choose to be offended and freedom will not long endure if a choice to be offended is the governing doctrine in a free society.

The new progressive religion worships idealistic harmony and seeks to enforce its sensitivities very insensitively upon anyone who disagrees with them. Conservatives believe in “live and let live.” The new progressive religion does not. The court is right to defend a rational basis in public prayer.

For Sutherland Institute, I’m Paul Mero. Thanks for listening.

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This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. – See more at:
This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. – See more at:

Sutherland applauds Supreme Court decision on town-meeting prayer

800px-United_states_supreme_court_buildingSutherland Institute believes the United States Supreme Court made the correct decision in Town of Greece v. Galloway. In ruling that government should not become “supervisors and censors of religious speech” when it comes to prayer offered at the start of a legislative meeting, the court both rightly affirmed past Supreme Court precedent and bolstered protections for religious freedom and freedom of speech.

The court wisely rejected the feigned tolerance so prevalent in politics today – claiming “tolerance” on the one hand while striving to silence dissenting views on the other. Instead, the court stated that such prayers represent “the idea that people of many faiths may be united in a community of tolerance.”

In doing so the court embraced an authentically tolerant perspective: one in which members of society seek for ways to maintain civil and healthy relationships despite publicly expressing and maintaining fundamentally opposed views, and while defending each other’s right to hold and express those views.

The court also recognized the reality that ceremonial prayer and the laws that allow them were not established to “exclude or coerce nonbelievers.” They are natural community expressions of faith that provide “civic recognition” to the benefits of religion in society by “acknowledge[ing] religious leaders and the institutions they represent.”

We hope this ruling will encourage Utahns and their elected officials to genuinely tolerate opposing political and philosophical views and engage them in candid debate and dialogue, rather than seek to marginalize, delegitimize and silence them.

Michigan judge’s dismissal of research was unbelievable

See_No_Evil,_Hear_No_Evil,_Speak_No_EvilThis op-ed by William C. Duncan, director of Sutherland’s Center for Family and Society, was published March 29 in The Salt Lake Tribune.

What does “unbelievable” mean? To most of us, it means that something is clearly not true or at least is so implausible as to justify our rejecting it as an explanation.

In his ruling last week that the United States Constitution requires Michigan to change its legal definition of marriage to include same-sex couples, Judge Bernard Friedman vociferously attacked four social scientists. The state had relied on their work to cast doubt on the notion that social science establishes that there are no differences in outcomes for children raised by a married mother and father and those raised by same-sex couples, of whom only one could possibly be the child’s biological parent.

Judge Friedman dismissed all of the witnesses, two for no real reason and the other two because the judge found their research “unbelievable.” Why?

In the case of Mark Regnerus, a sociologist at the University of Texas, the judge points to four factors. One is that his study has limitations, which is true of all studies and which Dr. Regnerus freely admits. Another is that it was funded by a third party who hypothesized that it would demonstrate what anyone with a cursory knowledge of family studies would guess — that children are likely to benefit from being raised by a married mother and father.

Then, the judge said the study has critics(!) who didn’t like the study’s design but who have yet to follow the credible scientific path: produce their own research with different results. This criticism is particularly interesting. The judge and the critics fault the study for not comparing children raised for long periods by same-sex partners (the fact that so few could be found in the random sample is itself telling). But earlier in the opinion, the judge said the social scientific consensus was that “there is no discernible difference in parenting competence between lesbian and gay adults and their heterosexual counterparts.” So, the judge’s favored evidence has nothing to do with children’s outcomes when raised by any kind of family form, but he is bothered that Dr. Regnerus didn’t study that question.

At least Dr. Regnerus’ study was actually relevant to the case since it looked at the effect of family structure on children rather than at the parenting skills of individuals with varying sexual attractions.

So, apparently, “unbelievable” to Judge Friedman means that he has been told something he didn’t want to hear.

Read more

Hobby Lobby at the Supreme Court

Hobby Lobby in Stow, Ohio. (Photo: DangApricot via Wikimedia Commons)

Hobby Lobby in Stow, Ohio. (Photo: DangApricot via Wikimedia Commons)

The Supreme Court decision in the Hobby Lobby religious freedom case is important for many reasons; I’ll just cite a couple. First, the precedent set in the law because of the decision will either strengthen or weaken the ability of business owners to run their business according to their consciences (religious or otherwise).

Second, and related to the first, is the signal the Supreme Court’s decision will send to lower courts about its view of religious freedom. A ruling in favor of Hobby Lobby and religious freedom could stem the recent tide of state-level decisions against religious freedom, in which small business owners face fines or even jail time for declining to participate in same-sex marriage ceremonies based on the First Amendment rights to the free exercise of religious freedom and freedom of speech.

Opponents of Hobby Lobby’s position argue that, as a corporation, Hobby Lobby is not entitled to the same protections that individuals receive. However, the Supreme Court ruled in the Citizens United case that corporations have substantially the same rights as individuals in the eyes of the law. This makes sense. Simply because a business owner takes the necessary legal steps to form a corporation shouldn’t suddenly strip the business owner of the ability to run the business as they see fit.

Yes, all freedoms have limits, and in the early ’90s Congress passed the Religious Freedom Restoration Act (RFRA) with lots of bipartisan support to define those limits and freedoms. RFRA strengthened religious freedom by prohibiting government from unduly burdening the practice of religion without demonstrating a compelling state interest, and even then, it must do so using the least restrictive means possible.

Some would find fining Hobby Lobby an estimated $475 million per year for failing to comply with the Obamacare mandate a bit excessive.

Additionally, National Review points out:

While claiming the mandate is necessary for women’s health, the Obama administration has exempted the health-care plans of tens of millions of women from the HHS mandate — often for merely political or commercial reasons. But the government is unrelenting in enforcing this mandate against a relatively small number of family businesses that simply want to provide health care without being forced to violate their conscience under threat of heavy fines.

Hobby Lobby offers 16 of the 20 mandated contraceptives under the Affordable Care Act. The company objects to the other four. The question is who should pay for one of those four if it is what the Hobby Lobby employee wants to use as a contraceptive. It seems reasonable that the employee should find an alternative method to pay for that particular contraceptive after rejecting the other 16.

Surely, no one is forcing an individual to work at Hobby Lobby and, if that person does work at Hobby Lobby, he or she understands the Christian values in play (one of which, incidentally, compels Hobby Lobby to pay wages 80 percent higher than the federal minimum wage). In other words, the employee knows what to expect, which should help inform his or her employment decisions.

It is ironic that a corporation like CVS Pharmacy is widely applauded for making a business decision based on health to no longer sell cigarettes, but when the Hobby Lobby corporation makes a decision based on religious beliefs not to offer four of 20 mandated contraceptives, it is roundly criticized by the left. Both are corporations (run, of course, by people); both make business and moral decisions that affect employees and customers; and both should be free to do so.