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Op-ed: Community-based solutions — A new vision of self-government

Originally published in the Deseret News.

At times, this election season has seemed like an exercise in how to most effectively undermine our national motto of e pluribus unum (“out of many, one”). Caustic rhetoric has alienated and divided voters nationwide, creating an environment that has made finding agreement on important issues like energy, the environment and public land management unnecessarily difficult.

But with the passing of Election Day comes the opportunity to move beyond failed politics and divisive mudslinging, toward elevated dialogue grounded in American principles and values, shared around dinner tables, across the fence with neighbors and in town meetings with locally elected officials. In these critical issue areas, that dialogue — and the practical solutions it generates — can be found by achieving community-driven solutions.

Community-driven solutions require a federal government that recognizes the harm that one-size-fits-all bureaucratic mandates do to people. Standardized mandates from Washington, D.C., crush cultural, social and economic diversity in local communities by elevating the interests of one group over another. Community-driven solutions embrace that diversity through balanced solutions that recognize the value and contributions of everyone in the community.

One-size-fits-all mandates stifle innovation by forcing all members of a community to conform to a rule determined by decision-makers thousands of miles away. Community-driven solutions recognize that innovative thinking, informed by people on the ground who understand local conditions and circumstances, is the best way to find solutions that both protect the environment and strengthen the economy.

Federal bureaucratic mandates demand that communities bow to the will of government. Community-driven solutions empower communities so that their government reflects the people’s will.

In energy, community-driven solutions means policies like the Re-empowerment of the States Amendment — giving states authority to block economic regulations that would be harmful to the men and women that they represent. It means devolving full authority over energy rules — such as the Clean Power Plan — from federal to state and local governments, trusting in the American principle that government closest to the people governs best.

In the environmental realm, community-driven solutions mean recognizing that local residents and decision-makers are best situated to know how to protect wildlife, conserve natural resources and encourage clean air and water. It means embracing the principle that no one has a stronger economic, environmental or cultural interest in protecting the beauty of natural landscapes and wilderness than the people who must live with the consequences of those decisions.

In public land management, community-driven solutions mean transferring the ability and authority to manage public lands to those whose livelihoods, communities and cultural heritage are rooted in the health and well-being of those lands. It means reforming laws like the Antiquities Act — which enables a single federal executive to restrict access and use of huge swaths of public land — so that local individuals representing a diversity of interests in public lands play the primary role in approving and managing national monuments.

In other words, community-driven solutions mean self-government — the foundational principle of the American model of government. This principle is the foundation of an elevated dialogue and practical solutions in the areas of energy production, environmental conservation and public land management. By applying the principle of self-government, we can move beyond a politics of Pyrrhic victories and ideological extremes to a system that actually protects the cultural diversity, economic prosperity and the natural beauty in our communities.

Those are outcomes we can all agree on.

Vertical toned image of George Washington Statue at Federal Hall in New York City. Washington was the first president of the United States. Actual tilt-shift lens used for selective focus.

Op-ed: The fallacy of the indispensable

Originally published in the Deseret News.

George Washington was an extraordinary leader, among the greatest in all of human history. Following the Revolutionary War he had access to absolute power. He could have been — and scores of Americans wanted him to be — king. Many declared him the indispensable and irreplaceable man.

Sadly, most men and women hearing such accolades of indispensability listen to that siren song, assume it is a choir of angels, and then begin to believe it and act on it. Washington knew better and rejected the throne of irreplaceability while setting a standard of servant-leadership for all to follow.

I regularly saw the fallacy of the “irreplaceable” in my work as a business consultant. Whenever I heard an executive say “Mary is irreplaceable,” or “Steve is indispensable,” I knew there might be a big problem. I would respond to such statements by asking what would happen if Mary quit tomorrow, or Steve tragically got hit by a bus. This usually drew a nervous laugh or long moment of silence as the executive realized the fallacy, risk and irresponsibility of allowing someone to become irreplaceable. (This is not to say that some people aren’t harder to replace, or that their absence would be difficult to deal with.)

The irreplaceable often became a constraint on innovation, growth and improvement in the organization. It also inhibited the development of other leaders, created a dependency culture, and in many instances undermined the mental muscle and personal commitment of others inside the company.

Sadly, the American people have also begun to buy in to the indispensable leader syndrome. Currently, the United States Congress has a 9 percent approval rating. Yes, that puts its popularity slightly behind that of the influenza virus. Yet incumbents in Congress are re-elected at a rate of about 94 percent.

Despite a presidential election that was a message from voters to change politics as usual and “drain the swamp” — the status quo was maintained in the U.S. House and Senate, with only a few seats changing hands, and fewer changes in the leadership of either party.

It is easy to cast aspersions on the rest of Congress while convincing your constituents they cannot survive without you. This attitude fosters the belief that some political savior can waltz in from Washington and fix all our problems — further weakening the nation as more and more citizens absolve themselves of personal responsibility. Ultimately this ends in an imperial presidency, with the president’s political pals and pawns running, and often ruining, the nation. This never ends well for everyday citizens.

If we begin to view political leaders as replaceable, they will be, and elections will become less consequential to our lives because we will make government less consequential in our lives.

During my time in Washington, D.C., I regularly walked through the Capitol rotunda late at night. I would always pause and spend a few moments gazing at the majestic painting of George Washington resigning his commission as general in 1783. In the quiet and stillness of the empty rotunda, you can hear and sense and know the principles that made Washington an authentic and extraordinary leader.

His resignation of his army commission was an ultimate act of servant-leadership. In one of the few such instances in history, the commander of a conquering army did not assume complete authority, control and power but instead returned it to the citizens and their representatives.

Any, and every, would-be leader — political or otherwise — ought to take note.

Washington clearly understood that power is not something to amass, barter with or cling to, nor is it a tool for pursuing political purposes and self-promotion. While many proclaimed him to be indispensable and irreplaceable, Washington knew the future of the nation wasn’t dependent on him. He believed America’s destiny would be secured, down through the ages, by individual citizens who would enter the world’s stage, make a contribution in their homes, communities and country, and then travel on.

Individual Americans, living and applying indispensable truths and irreplaceable principles, will be the force that guarantees America will remain a nation indivisible, with liberty, justice and opportunity for all.

Legal backgrounder: The Obama administration’s attempt to rewrite Title IX

When Congress enacted Title IX in 1972, it did not intend to give the president or executive agencies a blank check to write dramatically new social policy.

That, however, is precisely what the administration is doing today by announcing that it has reinterpreted that statute to require schools to create new policies on restroom use, so as to accommodate those who would like to use the restroom of the opposite sex.

The administration’s position goes beyond its legal authority. Only Congress can make so fundamental a change in the law. On issues of this magnitude, which implicate issues of the rule of law, safety, privacy, self-government, federalism, and more, the process is critical. The president cannot legislate with a stroke of a pen. Something this important cannot be a matter of bureaucratic fiat.

Forty years ago, Congress approved the Education Amendments of 1972 by 88 percent in the Senate and 69 percent in the House, sending them on to President Richard Nixon for his signature. The heart of that law is Title IX:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Congress has occasionally supplemented and modified the law in the ensuing decades, but in the last few years, something more troubling has begun to occur. It is nothing short of an attempt by the current presidential administration to rewrite this venerable statute without congressional oversight.

The attempt to remake Title IX began recently. In April 2014, the Department of Education issued “guidance” on enforcing Title IX, the law banning sexual discrimination in education, in the context of sexual violence. The 46-page document includes an interpretation of the statute that includes “gender identity”: “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR [Office of Civil Rights] accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.”[1]

In January 2015, OCR issued a dear colleague letter interpreting this document as requiring schools to provide all facilities and services based on the self-identified gender of students. This letter informed an unnamed school official (the information is redacted in the available copy):

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.[2]

The letter referenced two OCR investigations that resulted in out-of-court resolutions.

The first involved Arcadia School District in California. There, OCR investigated complaints of discrimination against transgender students, specifically that “the District prohibited the Student from using sex-specific restroom and locker room facilities designated for boys during his sixth and seventh grade years.”[3] The agreement between OCR and the District required the District to hire a consultant, create a support team at the parents’ request, and

  1. provide the Student access to sex-specific facilities designated for male students at school consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  2. provide the Student access to sex-specific facilities designated for male students at all District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  3. treat the Student the same as other male students in all respects in the education programs and activities offered by the District; and
  4. ensure that any school records containing the Student’s birth name or reflecting the Student’s assigned sex, if any, are treated as confidential, personally identifiable information; are maintained separately from the Student’s records; and are not disclosed to any District employees, students, or others without the express written consent of the Student’s parents or, after the Student turns 18 or is emancipated, the Student.

At the district level, the school agreed to implement new discrimination policies to “specifically include gender-based discrimination as a form of discrimination based on sex, and b. state that gender-based discrimination includes discrimination based on a student’s gender identity, gender expression, gender transition, transgender status, or gender nonconformity,” revise policies to “to ensure that all students, including gender nonconforming and transgender students, are provided with equal access to all such programs and activities,” provide training to employees on transgender issues and provide reports to OCR.[4]

The second resolution involved a complaint against Downey School District, also in California, and alleged more general harassment of a male student who now identified as female.[5] The resolution agreement requires the district to “continue to treat the Student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students at school, and at all District-sponsored activities, including overnight events, try-outs and participation in extracurricular activities on and off campus, consistent with her gender identity.”[6] The district was required to enact the same kinds of policies required of Arcadia.

In June 2015, the Department of Justice filed a “Statement of Interest” in a federal case in Virginia which argues the OCR position as the appropriate interpretation of the requirements of Title IX: “The term ‘sex’ as it is used in Title IX is broad and encompasses gender identity, including transgender status.”[7] The case was brought by the ACLU on behalf of a student, born female, but who now identifies as male. The student alleges she was allowed to use the boys restrooms for a few weeks but the school district then enacted a policy that specified bathroom assignments follow biological sex. For students with “gender identity issues” the district designated private facilities. The ACLU says this “segregates transgender students from their peers.”[8]

The district court actually dismissed the claim, saying the OCR interpretation is not a plausible reading of the law and conflicts with an earlier Department of Education regulation that says schools may segregate based on sex, which this court said must include biological sex.[9] The ACLU has appealed.[10]

In another case, in Palatine, Illinois, a boy who identifies as a girl sought access to the girls locker room rather than the private facilities offered by the school. The student filed a complaint with the Department of Education with ACLU help, and OCR told the school it needed to allow the student to use the girls locker room.[11]

These cases are having an impact on other schools’ policies. In Hillsboro, Missouri, despite a student walkout opposing the policy, the high school allowed a male student who identifies as female to use women’s facilities. A news report explains:

Districts that refuse to allow students to use a bathroom for the gender with which they identify could run afoul of the U.S. Department of Education’s Office of Civil Rights, said Kelli Hopkins of the Missouri School Boards’ Association.

“The Office of Civil Rights has issued an opinion that says, if you do this, you have engaged in gender discrimination,” Hopkins said. “At the same time, there is no case law or statute in Missouri that says this is against the law.”

Schools found to have violated a student’s civil rights are at risk of losing some of their federal funding, Hopkins said.[12]

Fairfax County, Virginia, also implemented a policy adding “gender identity” to the district’s discrimination policy after being told OCR could terminate federal funding if it did not.[13]

In December 2015, a federal court in California denied Pepperdine University’s motion to dismiss a lawsuit alleging the university’s basketball team discriminated against two lesbian players. The court concluded, “[S]exual orientation discrimination is not a category distinct from sex or gender discrimination. Thus, claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype. Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”[14] The court cited the EEOC guidance on Title VII as support for this conclusion.

Most recently, activist groups have set their sights on religious schools that have sought an exemption from these interpretations of Title IX. Title IX has long allowed schools to request an exemption from the statute if “application of the law would conflict with specific tenets of the religion” so as not to lose federal funding and open themselves to private lawsuits. The exemption will be granted as long as a school can show it is controlled by a religious organization and it identifies which applications of the law conflict with its religious teachings. At the urging of the Human Rights Campaign and others, the Department of Education announced earlier this year that it would “create a searchable database that reveals the names of colleges and universities that have received exemptions on religious grounds from federal civil rights protections.”[15]

Now, on May 13, 2016, the Department of Education and the Department of Justice issued another letter reiterating its claim that Title IX “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”[16] In fact, the letter brazenly asserts that it is not adding “requirements to applicable law.” The letter also specifically invokes the possibility that schools may lose federal funds if they are not in compliance.

Some excerpts from the letter illustrate how remarkably broad and novel the administration’s requirements are:

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.

A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.

**

The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.

**

Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

The provision getting the most attention relates to the use of locker rooms and restrooms and specifically precludes a solution where schools provide single-user facilities to a student to assuage privacy and safety concerns:

A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

On a subject of this importance, process matters. A massive shift in the meaning of federal law is not something to be done by a bureaucratic agency at the stroke of a pen.

[1] U.S. Department of Education Office for Civil Rights, “Questions and Answers on Title IX and Sexual Violence” April 29, 2014, pp. 5-6, at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.

[2] U.S. Department of Education Office for Civil Rights, Letter, January 7, 2015, at https://www.justice.gov/sites/default/files/crt/legacy/2015/07/09/gloucestersoi.pdf (Exhibit B).

[3] OCR Case No. 09-12-1020 (July 24, 2013), at https://www.justice.gov/sites/default/files/crt/legacy/2013/07/26/arcadialetter.pdf.

[4] Resolution Agreement Between the Arcadia Unified School District, the U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice, Civil Rights Division, OCR Case Number 09-12-1020, July 24, 2013 at https://www.justice.gov/sites/default/files/crt/legacy/2013/07/26/arcadiaagree.pdf.

[5] OCR Case No. 09-12-1095 (October 14, 2014), at http://www2.ed.gov/documents/press-releases/downey-school-district-letter.pdf.

[6] Resolution Agreement, Downey Unified School District, OCR Case No. 09-12-1095 (October 14, 2014), at http://www2.ed.gov/documents/press-releases/downey-school-district-agreement.pdf.

[7] Grimm v. Gloucester County School Board, Statement of Interest of the United States, Civil No. 4:15cv54 (June 29, 2015).

[8] ACLU, “G.G. v. Gloucester County School Board,” November 23, 2015 at https://www.aclu.org/cases/gg-v-gloucester-county-school-board.

[9] G.G. v. Gloucester County School Board, Civil No. 4:15cv54 (Eastern Dist. Va. 2015) at https://www.aclu.org/legal-document/gg-v-gloucester-county-school-board-opinion.

[10] G.G. v. Gloucester County School Board, Brief of Plaintiff-Appellant, No. 15-2056 (4th Cir. October 21, 2015) at https://www.aclu.org/legal-document/gg-v-gloucester-county-school-board-plaintiff-appellants-brief.

[11] Duaa Eldeib & Robert McCoppin, “Feds Reject School District’s Plan for Transgender Student, Locker Room” Chicago Tribune, October 21, 2015, at http://www.chicagotribune.com/news/local/breaking/ct-transgender-student-locker-room-palatine-met-20151012-story.html.

[12] Doug Moore, “Hillsboro High Students Walk Out Over Transgender Dispute,” St. Louis Post-Dispatch, September 1, 2015, at http://www.stltoday.com/news/local/education/hillsboro-high-students-walk-out-over-transgender-dispute/article_be488fab-d239-5944-9733-32f569dcdc32.html.

[13] Lauretta Brown, “Feds Forcing Schools to Adopt ‘Nondiscrimination’ for Transgender Teachers and Students,” CNS News, May 7, 2015, at http://cnsnews.com/news/article/lauretta-brown/feds-forcing-public-schools-adopt-nondiscrimination-transgender-teachers.

[14] Videckis v. Pepperdine University, Case No. CV-15-00298, (C.D. Cal. 2015) at https://scholar.google.com/scholar_case?case=17457110398961965746&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

[15] Liam Stack, “Government to Reveal Colleges With Title IX Waivers,” New York Times, January 21, 2016, at http://www.nytimes.com/2016/01/22/us/government-to-reveal-colleges-with-title-ix-waivers.html.

[16] U.S. Department of Education & U.S. Department of Justice, “Dear Colleague Letter on Transgender Students,” May 13, 2016, at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.

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.

Receive this broadcast each week directly to your iTunes by clicking here

SUTHERLAND SOAPBOX: There Will Be Order

This 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.

self-controlConservatism 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.

Receive this broadcast each week directly to your iTunes by clicking here

A right to discriminate?

ReligiousSymbolsA common accusation made by those who oppose robust protections for religious liberty is that proponents are seeking a “right to discriminate.” The common form this argument takes is that religious liberty is already protected (say, by the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) so any other concession is asking too much — it would be dangerous or scary, a license to pick and choose what laws to comply with*; it would be a right to discriminate.

Discrimination in this context is, basically, denying a person a job or a place to live or refusing to provide goods or services normally provided in the course of doing business.

To assess the validity of this accusation, some background is helpful, though necessarily I will paint with a broad brush. Religious people believe they are accountable to God in every aspect of their lives. Acting on this principle is what constitutes the “exercise of religion.” There are at least five possible categories of organizations or people who could benefit from religious liberty protections.

First are churches. The basic liberties they seek are to teach their doctrines, provide sacraments or ordinances, build and maintain places of worship and select official representatives (clergy) without interference. These aims, which may be thought of as the core religious rights, are typically protected by interpretations of the U.S. Constitution. For instance, in 2012, a unanimous Supreme Court rejected a claim from the federal government that it should be able to second-guess a church selection of a teacher in a religious school. The fact that the current administration pushed this attempt all the way to the Supreme Court is concerning, but that claim lost and there’s reason to believe that at least for now, these core religious functions are protected from direct government interference.

That’s not to say there won’t be non-governmental interference with these function, like vandalism, threats, slander, etc. Read more

‘Cromnibus’ and the emergent courtier society

"Prince Salim with a courtier and attendants in a tent," circa 1600, by Sur Das. (Source: Smithsonian's Museums of Asian Art.)

“Prince Salim with a courtier and attendants in a tent,” circa 1600, by Sur Das. (Source: Smithsonian’s Museums of Asian Art.)

Holiday feasts always remind me of that old Twilight Zone episode where aliens with sparkly robes, big eyes and knowing smiles show up with a book called “To Serve Man.” Everyone naturally assumes the book is a primer for saving us silly humans from our own ignorance and evil natures. This is during the Cold War, remember, when we all assumed we were going to blow each other to smithereens at any moment.

Naturally the best and the brightest humans line up for a trip to the home planet where further enlightenment undoubtedly awaits, and a select few will be chosen as mankind’s benevolent overlords: to serve their fellow man.

Unfortunately, though, “To Serve Man” turns out to be a cookbook and the best and brightest are on the menu instead of the guest list.

Maybe it’s just the Christmas sugar rush talking, but I think that’s where this country is headed as people and businesses line up for special treatment from an increasingly centralized, opaque and powerful federal government. At some point they’re going to find out that they’re dinners instead of diners.

Last weekend’s Cromnibus is a case study in how this happens. A huge unreadable bill covering everything from national defense to prairie chickens is ginned up behind closed doors and presented as a “must-pass” piece of legislation that no one will either read or debate before heading home for Christmas.

And who’s behind those closed doors? Only those who can afford their own D.C. lobbyist or, better yet, politician. The result, besides more spending, is a pact with the devil filled with restrictions, regulations, and costs that disproportionately fall on small businesses and families, and favoring inside interests and their benefactors.

Packing bills with favors has been going on for years, but it really reached an art form during the financial meltdown with Dodd/Frank. This “reform” resulted in taxpayers bailing out big banks to the tune of billions of dollars and includes massive increases in compliance, insurance and capital costs, along with giving politically favored large institutions a de facto “too big to fail” designation.

It’s a law that was written for big bankers by big bankers. They can absorb the increased compliance costs while small banks with much lower margins can’t. They can meet the capital and insurance requirements that stifle small banks’ ability to make local loans to farmers and homebuyers. And of course with an implicit government guarantee, big banks enjoy lower borrowing costs than small banks, giving them even more of a competitive advantage.

Big banks, like most big businesses, can absorb and pass along compliance costs and other regulatory burdens while smaller businesses, often operating on razor-thin margins as it is, cannot. That’s why box stores and big hospitals like Obamacare, why drug companies like the FDA, why big banks like Dodd/Frank. Expensive and byzantine regulations erect barriers to new companies entering the market and drive smaller players out completely.

But that’s not my point.

My point is that by centralizing and expanding government power we’re creating a courtier society, one where access to the King’s court is more vital to success than merit is. Read more

EPA's proposed carbon rule hits most vulnerable hardest

epa-logo_edited-1The U.S. Environmental Protection Agency’s (EPA) proposed carbon rule is the latest in a series of regulations that will increase the cost of electricity and natural gas at a time when wages are stagnant and a lot of people are struggling to get by.

According to a recently released study, if this new carbon rule is imposed, the average Utah family’s electric bill will go up by $124 and their gas bill will increase by $266 annually, for a total of $32.50 per month. If you don’t think that’s a meaningful amount, then you’re out of touch with a lot of Utah families that are living paycheck to paycheck and are all too often faced with a choice between heating their houses or buying groceries for their children.

These regulations are a backdoor tax plain and simple, and the most regressive and punishing kind possible. It may not hurt you or me to pay an extra few bucks a month to satisfy an environmental feel-good agenda, the results of which will have absolutely no measurable impact on the global climate. But it does hurt the most vulnerable among us. It forces them to pay a larger percentage of their paycheck for everyday needs like heat and electricity, cutting into what disposable income they may have and harming not just their quality of life but also their ability to live. It’s despicable and the height of hypocrisy for ivory tower do-gooders to inflict real pain and suffering on others so that they can enjoy a clear global warming conscience in the comfort of their beautiful homes and SUVs. Read more

How Silent Cal's 'normalcy' led to prosperity

President Calvin Coolidge in the Oval Office, 1923.

President Calvin Coolidge in the Oval Office, 1923.

Calvin Coolidge is often noted for his penny-pinching ways and “Silent Cal” demeanor. His administration came on the heels of massive government expansion that occurred as the U.S. entered World War I. While some natural spending contraction is to be expected as the war ended, Coolidge took it a step further – a giant step further.

While today our federal government doesn’t pass budgets for half a decade, President Coolidge met with his budget director every week with the express purpose of finding places to reduce spending. This allowed him to lower federal expenditures every year of his presidency, despite a Congress flush with tax revenue from a booming economy.

That’s right – government spending decreased and the economy improved. This allowed Coolidge to lower taxes as well, but always with an eye to keeping the budget balanced and paying down debt. His was a fiscal record second to no other U.S. president.

As important as Coolidge’s record on spending and taxes was, it may be another aspect of his terms in the White House that had the most impact.

Click here to read the rest of this article at Utah Citizen Network.

When the West is pushed, it turns right

Morgan_Farm_2Most people have heard by now that the locals out West are getting a little restless, as they have every other generation or so since the mid-19th century.

What’s less clear is whether this restlessness reflects a new conservative political tilt, or if it’s just the latest flare-up in a turf war over resources and real estate that’s been waged for over a century.

Are we looking at an ideological movement determined to turn this region to the right, or simply a periodic episode of sound and fury, signifying nothing?

Defining Western political forces has always been tricky because these forces so much depend on the current state of relations between the locals and their Washington, D.C., landlords. The federal government’s hand is especially heavy in a region where bureaucrats half a continent away control 50 percent of all lands and heavily regulate the state and private lands that remain.

Increasingly, though, Westerners’ political leanings can be pretty accurately guessed by how far their trade or their traditions lie from that heavy hand.

As in the blind men and the elephant parable, what an observer might “see” depends a lot on which part of the elephant he or she is sampling. A nurse in Seattle or a software engineer in Denver will perceive a much different Western political culture than will a rancher in Montana’s Missouri Breaks, or a roughneck in Utah’s Uinta Basin. They will also have significantly different public policy inclinations: not so much because their interests or goals vary so much they don’t. Their policy preferences diverge because of the angle and proximity of their viewpoint.

One perspective witnesses and experiences the rural production economy up close as a livelihood and a lifestyle, while the other has real memories or implanted images of an unspoiled and imperiled natural legacy.

This isn’t a left/right or Republican/Democrat divide, although that’s how it is manifested in the voting booth. It’s an urban/rural difference of perceptions more than of aims, and it is too often exacerbated by cooked-up controversies and outside agendas insisting that urban and rural values must be competing rather than complementary. But those perspectives are different, and they do make a difference. Read more