How elastic can the Constitution be?

With serendipitous timing, [Tuesday] morning the online journal Public Discourse published an excellent article by Professor Steven Smith, a law professor at the University of San Diego. In the article, Professor Smith notes that while during the middle period of the Roman Empire, “the outward forms of the ancient republican constitution were largely preserved … these forms were a mere façade.” He quoted Edward Gibbon’s observation that what was left was the “image of liberty.”

The timing of the article is striking because [Tuesday] a federal court judge in Utah has ruled that the state’s governor is barred, by the Constitution(!), from declining to have the state serve as a middleman in funneling federal tax dollars to the local Planned Parenthood affiliate.

This may seem like a pointless question when the U.S. Supreme Court has decided it has the power to decide for the states how they will define marriage, but where in the Constitution is the provision that requires states to give funding to Planned Parenthood? Is there really a constitutional right to government funding?

Put another way, how elastic can the Constitution be?

Its Framers might actually have answered that it can be quite elastic but in a very different sense. One of the many elements of real genius in their design was that the Constitution could be changed to address varying circumstances. To this end, they included Article Five, which provides two ways to change the Constitution. In doing so, they wanted to ensure that the Constitution’s true authors, the people, would be involved in the change. Thus, the people themselves must either convince their state representatives to call for a convention to propose amendments or convince their representatives in Congress to propose amendments. Then, these amendments would have to be ratified by the states, again through representative bodies.

Since the Constitution would be the fundamental law of the land, the Framers ensured major changes would be made deliberately. They required supermajority votes both to propose amendments and to ratify them. The two-step process also ensured broad participation in the decision.

In contrast, in our current system, when many would prefer not to follow this cumbersome process, we have acceded to an extra-constitutional process whereby a super-minority of federal judges may make significant changes in the constitutional order.

The “amendments” in this new system are “proposed” by litigants, often recruited for that purpose by activist groups.

Take this new lawsuit. According to news reports, the judge accepted the argument of Planned Parenthood, represented by the attorneys who successfully sued to have same-sex marriage mandated in Utah, that the governor’s decision to stop funding the group deprives them of equal protection of the laws and due process of law guaranteed by the 14th Amendment.

To assess this claim, imagine a different scenario. Imagine a company that contracts with the state to provide weapons used by law enforcement officers. Then, imagine this company was discovered by investigative reporters to be running a human trafficking operation. Would anyone believe that a subsequent decision by a state not to do business with that company somehow violated a constitutional right? How different is this situation?

Executives of Planned Parenthood have been recorded speaking in callous and shocking ways about a callous and shocking business they are engaged in—selling body parts obtained through abortions of unborn children. The governor of Utah has decided, as have other states, that Utah will no longer do business with a company tainted by such practices. (Parenthetically, it would seem that it need not have taken this additional disclosure for the state to know that doing business with an abortion provider was sketchy.)

Now, is it really possible that an organization like this has a constitutional right to public financial support and to have the state of Utah facilitate that support? Such an assertion beggars belief.

It’s even more surprising that a judge would apparently give credit to such an argument.

Reports on the lawsuit portray Planned Parenthood as trying desperately to establish some sympathy by claiming that they are just looking out for the welfare of their female clients and suggesting the governor’s decision hurts these people. Yet the same reports say the contracts at issue have been awarded for STD testing and providing sex education (interesting choice of vendors).

Surely, the state is entitled to find vendors for these projects who are not tainted by their association with practices so fundamentally at odds with basic standards of human decency. Perhaps – novel thought – the education could be done by parents and save a lot of money all around.

For the sake of the rule of law, and indeed for the sake of moral sanity, we can only hope that the judge will rethink this decision or that cooler heads will prevail on an appeal. A right to government funding for Planned Parenthood would make the Constitution unrecognizable.

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

This post is an expanded transcript of the Sutherland Soapbox, a weekly radio commentary aired on several Utah radio stations. The podcast can be found below.

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


New Medicaid expansion framework ignores the moral issue

What is the moral issue behind Medicaid expansion under Obamacare? Is it a lack of health coverage or access to health care? At Sutherland Institute, we believe that the moral issue is not health coverage, but poverty.

I mean, think about it: Is the source of moral outrage on Medicaid expansion the fact that some people are uninsured, or the fact that uninsured are in poverty? Let me ask it differently. If millionaires or the children of millionaires were uninsured and would be covered by Obamacare’s Medicaid expansion, would the moral outrage exist? Of course not, because it is the poverty of Utah’s uninsured, not their lack of insurance, that makes Medicaid expansion a moral issue.

So how does expanding Medicaid under Obamacare address the moral issue of poverty? Well, it doesn’t really. I mean, having state-subsidized health insurance just doesn’t translate into a better job or a big raise for most people in poverty. Of course, there is a group of Utahns in poverty who are there because a lack of health insurance and a health condition that takes away from their economic opportunities. But as national poverty scholars* recognize and as state government reports confirm, the reasons most people end up in serious poverty are a lack of formal education, insufficient employment, and family structure issues, such as single parenting before marriage. For example, according to state reports, most Utahns in multigenerational poverty are unmarried women with children, and the most prevalent risk factors for children in these poverty scenarios are “living in single-parent households and households in which the parent(s) lacked employment in the past twelve months.” Additionally, only a small portion of adults in multi-generational poverty have any amount of college or technical education, and one-third have not completed high school.

So what does Medicaid expansion do about the lack of education, employment problems, and family struggles of Utah’s poor? It pretty much ignores them, except perhaps through indirect means. The primary direct impact of Medicaid expansion is to make poverty more livable by ensuring that uninsured Utahns in poverty have access to health insurance. But is that really the moral thing to do? Let’s think through a few examples to see if we can find the answer to that important question.

Imagine you had a sister who had been abused by her boyfriend and was at risk for further abuse. Would the moral decision be to make her more comfortable in her dangerous relationship, or help her get herself out of it? Or imagine you had a child who thought lying or stealing was acceptable. Would the moral decision be to make your child more comfortable in his mindset, or help lift him out of it? Clearly, making your sister or your child more comfortable in these harmful situations would not be the moral thing to do. That would be the immoral thing to do, in fact, from the perspective of someone with compassion for their sister or child.

But that is the exact path of Medicaid expansion under Obamacare when it comes to Utahns in poverty. And then we are told by Medicaid expansion supporters that making poverty more comfortable in this way is what compassion and “doing the right thing” looks like.

In truth, the moral and compassionate approach to Utah’s low-income uninsured population is to craft an anti-poverty agenda that helps lift Utah’s poor out of poverty, through what poverty scholars call the “success sequence.”** That sequence includes getting through school, going to work, getting married and having children … in that order. If Utah policymakers are seeking the compassionate and moral approach to uninsured Utahns in poverty, then Medicaid expansion is really just a waste of time because it ignores the real problem while fooling us into thinking we’ve solved it.

In fact, helping Utah’s poor feel more secure in poverty is not compassionate or moral, but just the opposite. As in our hypothetical about our sister or our child, the moral approach to poverty is to help lift people out of a bad life situation. And as they say in that classic movie Princess Bride, “Anyone who says differently is selling something”— Obamacare, in this case.

For Sutherland Institute, I’m Derek Monson. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a weekly radio commentary aired on several Utah radio stations. The podcast can be found below.

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

*Lawrence M. Mead, From Prophecy to Charity: How to Help the Poor, 2011, American Enterprise Institute: Washington, D.C.

**Ron Haskins and Isabel Sawhill, Creating an Opportunity Society, 2009, Brookings Institution: Washington, D.C.

Arthur Brooks at U.

Arthur Brooks – a new vision for conservatism: head and heart

Last week, Sutherland Institute was pleased to welcome Arthur Brooks to Salt Lake City. A frequent traveler to our great state, during this visit Dr. Brooks was the featured speaker at a University of Utah Hinckley Institute Forum, co-sponsored by Sutherland. Arthur C. Brooks is president of the American Enterprise Institute, in Washington, D.C. He has been published widely in publications that include The New York Times, The Wall Street Journal, and The Washington Post and is the author of 10 books. In his 2012 best-seller, The Road to Freedom, Brooks focused on three traditions at the heart of the free enterprise system: entrepreneurship, personal responsibility and upward mobility.

In his remarks last week, Brooks offered a new vision for conservatism, referencing his most recent book, The Conservative Heart: How to Build a Fairer, Happier, and More Prosperous America, released in July.

I want to talk about the conservative movement in America today. I’m not going to make the assumption that you’re all political conservatives – you might be or you might not be; either way, it doesn’t really matter. I know that we live in a country that has a conservative movement in it and it’s a troubled movement. And I want to talk about how the country could be a lot better off if it [the conservative movement] were more effective. What I’m going to do today is try to convince you, even if you’re a progressive, even if you’re a liberal, that this would be a good thing – if we had a competition of ideas around a fundamental moral consensus about how to lift people up more in America…. That’s what’s in the book and why I wrote it.

Brooks then shared insights captured in a recent distillation of The Conservative Heart.

Many Americans feel caught between two dispiriting political choices: ineffective compassion on one hand and heartless pragmatism on the other.

Progressives have always presented themselves as champions of the poor and vulnerable. But they have not succeeded – more and more people are hopeless and dependent on government. Meanwhile, conservatives possess the best solutions to the problems of poverty and declining mobility. Yet because they don’t speak in a way that reflects their concern and compassion, many Americans don’t trust them.

Americans know that outmoded redistribution yields poor results and does little for the pursuit of happiness. But there seems to be no conservative alternative that looks out for those struggling to get by.

These ideas will sound familiar to those paying attention to the messaging and efforts of Utah’s Senator Mike Lee. For example, in An Agenda for Our Time, the published transcripts of four speeches wherein Sen. Lee presents a diagnosis of current government dysfunction and some potential remedies.

As also noted in the summary of the message Brooks is sharing, by means of his presentation last week and in The Conservative Heart:

Drawing on years of research on the sources of happiness and the conditions of human flourishing, Brooks presents a social justice agenda for a New Right. He extols the four “institutions of meaning” – family, faith, community, and meaningful work; lays out the kind of constructive government safety net that works to lift people up; and designs a policy agenda of true hope through earned success. [He] argues that it is time for a new kind of conservatism – a conservatism that fights poverty, promotes equal opportunity, and extols spiritual enlightenment. It is an inclusive, optimistic movement with a positive agenda to help people lead happier and more fulfilling lives.

Listeners are encouraged to view and listen to the complete Sept. 8 Arthur Brooks Hinckley Forum address, available on the Sutherland website.

For Sutherland Institute, I’m Stan Rasmussen. Thanks for listening.

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

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

Bev Adair-Beets

World Congress of Families: stories of hope and happiness

This is the story of a little girl whose mother is an alcoholic and a prostitute. Her father is an alcoholic who beats her. Her brothers hunt and beg for food out on the streets. She is removed from her home and placed in foster care. She is abused by her foster care family. As a teen, in a moment of desperation, she prays and has a spiritual experience. Her name is Bev Adair-Beets, and she’s from New Zealand. Sutherland Institute worked with Bev to put her story on video as part of the upcoming World Congress of Families IX event Sutherland is putting on this October. As a WCF partner, Bev is a great example of the work being done across the world to help children, women, men and families live healthy, happy lives. Let’s take a listen to Bev’s story:



Bev is an inspiration to me. She didn’t let a horrific childhood dictate the rest of her life. She overcame one of the ugliest upbringings a child could ever endure to now give back, using hip-hop to reach troubled youth and help them overcome their own challenges.

And Bev’s story is just one of dozens of examples of the great work being done by WCF partners around the world. You are invited to attend the conference from October 27 to 30 at the Grand America Hotel in Salt Lake City. At the event, you’ll get to meet many of these amazing people working on issues such as child sex trafficking, abortion, forced sterilization of women, pornography addictions, religious liberty and much more. You’ll also hear from inspiring speakers such as Stephanie Nielson, who was terribly burned in a plane crash and has since overcome enormous challenges to become one of the country’s most inspiring authors and bloggers. Nick Vujicic, an Australian motivational speaker born with no arms or legs will also speak, as will Elder M. Russell Ballard of the LDS Church. You’ll be entertained by groups such as the world-famous Piano Guys and Mormon Tabernacle Choir.

I really hope you can make it. We are running a special promotion right now worth 50 percent off on your tickets. To get your tickets at half price, head to wcf9.org and enter the discount code “Sutherland.” Again, go to wcf9.org, register, and use the discount code “Sutherland.” There is so much being done around the world to combat the challenges facing our children and our families. Come be inspired and find out how you can join in the critical effort to strengthen the most important building block of society—our families.

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

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found below.

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


wedding cake

How is this not an example of ‘compelled speech’?

Justice Antonin Scalia has noted how normal legal rules have been inexplicably distorted or even ignored in order to protect the U.S. Supreme Court’s indefensible decision on abortion. This “abortion distortion” has led the court to uphold restrictions on how ordinary citizens may protest at clinics that would have been unthinkable for anti-war or other protests. Perhaps the court senses the weakness of its position and is thus willing to go to special lengths to insulate it from criticism.

Something similar is going on in some courts over the newest legal revolution against traditional moral standards.

Just last week, the Colorado Court of Appeals affirmed the decision of an administrative agency to punish a Christian baker for declining to create a wedding cake for a same-sex wedding. The opinion is full of fascinating legal contortions.

For instance, the crux of the court’s opinion is that the baker should not be able to distinguish between the status of the men requesting the cake and their conduct. In other words, he had argued that he was willing to serve any person who came into his business regardless of “sexual orientation” but was just not willing to facilitate conduct (the same-sex marriage) to which he conscientiously objected. The court would not allow this, saying that the status and conduct are too tied up together. (Of course, they overreached even there since two men or two women could marry one another under the law regardless of the attraction they feel towards one another, such as for tax purposes.)

Think of the implications of that logic. It would stagger belief to say that a religious nurse who did not want to participate in an abortion (a decision protected by the law) because she believed taking an unborn life was wrong was engaged in sex discrimination since only women can have abortions. But this is precisely what the court is saying when it says: “discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.”

The court itself engages in the exact kind of distinction it decries in the baker, insisting it is not punishing him for his Christian faith, only for acting on that faith.

The logical gymnastics get worse, though. At one point, the court feels it must distinguish a previous case. In the first, the administrative agency found that a bakery “did not discriminate against a Christian patron on the basis of his creed when it refused his requests to create two bible-shaped cakes inscribed with derogatory messages about gays, including ‘Homosexuality is a detestable sin. Leviticus 18:2.’” At first glance, that sounds about exactly what the baker has done here—decline to create a cake whose message (support for same-sex marriage) he disagrees with.

Here’s how the court gets around this case:

The Division found that the bakeries did not refuse the patron’s request because of his creed, but rather because of the offensive nature of the requested message. Importantly, there was no evidence that the bakeries based their decisions on the patron’s religion, and evidence had established that all three regularly created cakes with Christian themes. Conversely, Masterpiece admits that its decision to refuse Craig’s and Mullins’ requested wedding cake was because of its opposition to same-sex marriage which, based on Supreme Court precedent, we conclude is tantamount to discrimination on the basis of sexual orientation.

But this is precisely what the baker in this case had shown — that he was willing to serve gay and lesbian customers, stopping short only of participating in sharing a message with which he could not agree. For the bakery that didn’t want to include a Bible verse on a cake, that conviction was enough to insulate them from liability, but the precisely opposite result obtained for the baker who engaged in the precisely same conduct but had the opposite viewpoint.

When the operative difference in legal treatment is the content of the owner’s beliefs, we can assume that the court’s analysis is itself not viewpoint neutral.

There is more in this vein, but one more example will suffice. The court rejects the baker’s claim that he is being compelled to express a message celebrating same-sex marriage by facilitating the wedding using his talent. The court denies there is any compulsion to send a message:

[T]he compelled conduct is the Colorado government’s mandate that Masterpiece comport with CADA by not basing its decision to serve a potential client, at least in part, on the client’s sexual orientation. This includes a requirement that Masterpiece sell wedding cakes to same-sex couples, but only if it wishes to serve heterosexual couples in the same manner.

So, the court thinks it’s OK to make someone send a message as long as the message is mandated by the government? How is that not compelled speech? What does compulsion mean if it doesn’t mean being forced to do something by force of law?

The court even goes so far as to claim that the baker’s freedom of speech can be preserved by “posting a disclaimer in the store or on the Internet indicating that the provision of its services does not constitute an endorsement or approval of conduct protected by [Colorado law].” Surely someone at the court could have seen the irony in suggesting that the baker’s freedom of speech could be preserved by saying that the only reason he is sending the message is that the law requires him to. Is a person any less a hostage when their captor forces them to make a video saying everything’s great?

It says something that courts like this one have so little confidence in the public policies they would impose on others that they must punish dissenters by creating new legal standards that don’t apply to those who agree with the new morality.

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

This post is an expanded transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found below.

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

Photo credit: Amy Quinn via Wikimedia Commons


Open season on tolerance

As noted in a recent Sutherland Daily article, within days of the Boy Scouts of America’s July 27 decision rescinding the ban on gay adult Scout leaders, several commentaries by prominent LGBT-rights advocates declared open season on religious-freedom-based exemptions to newly declared rights based on same-sex attraction.

Shortly thereafter, in a Catholic News Agency (CNA) report, writer Kevin Jones described very similar efforts being pursued in the gay-rights fundraising arena.

A leader in LGBT grant-making has told business leaders that he wants to shut down the political fight for religious freedom exemptions in the U.S. within three years.

And these words are not empty rhetoric. A CNA investigation has found that millions of dollars have been poured into efforts to combat religious freedom exemptions in the United States.

“We are at a crossroads where the choices we make will mean we will fight religious exemptions for two to three years or have a protracted twenty year struggle on our hands,” Tim Sweeney told leading business executives and others attending the Out & Equal Workplace Advocates executive forum, held in San Francisco in late March 2015.

Sweeney is a former program director of the Evelyn & Walter Haas, Jr. Fund and a former president and CEO of the Gill Foundation, which he left in 2013.

Both non-profit foundations are involved in funding LGBT advocacy…and have begun to target religious freedom. …

The San Francisco-based Evelyn and Walter Haas, Jr. Fund is one of the major funders. [A] private family foundation with half a billion dollars in assets[, it] has made at least $685,000 in grants opposed to a broad understanding of religious liberty….

The Colorado-based Gill Foundation is both a recipient of grants and a maker of grants that target religious freedom. The foundation’s tax forms show it made a $100,000 grant in 2013 to give general support to the American Civil Liberties Union Foundation and to support a “religious exemptions project” at the foundation.

Mr. Jones continued,

[Another] foundation involved in the grant making is the David Bohnett Foundation, whose website lists a May 2014 grant of $150,000 over two years to the Columbia Law School’s Public Rights / Private Conscience Project [that] gathers together scholars to oppose religious exemptions.

[Foundation founder David] Bohnett has been an outspoken critic of religious groups who are not aligned with LGBT advocacy. In an Oct. 9, 2009, acceptance speech for the [Gay, Lesbian and Straight Education Network] he characterized Catholic, evangelical and Mormon leaders as “among our greatest adversaries” and said that “evangelical and fundamentalist groups that teach homosexuality is a sin” are those who “stand in the way of fairness and equality.”

[In February 2015 CNA reported] that the Ford Foundation and the Arcus Foundation have committed over $3 million in combined spending to target religious exemptions and other protections for religious freedom. …

(“LGBT grant-maker wants to win religious liberty fight within three years,” by Kevin Jones, Catholic News Agency [CNA]; July 29, 2015)

Again, reiterating the question we posed in late July:

Is this really what we want? And if not, where do we want to be as a culture? If we are genuinely committed to preserving a truly pluralistic, actually tolerant society wherein people can be validated and safe in living – and others can allow, with no requirement to embrace – a breadth of deeply held beliefs, then what we seek must resemble the culture envisioned by President John F. Kennedy:

“Let us not be blind to our differences – but let us also direct attention to our common interests and the means by which those differences can be resolved. And if we cannot end now our differences, at least we can help make the world safe for diversity.”

(American University, Washington, D.C., June 10, 1963.)

For Sutherland Institute, I’m Stan Rasmussen. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found below.

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

Neon Canyon, Utah

Conservative environmentalism

This week Utah Governor Gary Herbert sent a letter to President Obama to “strongly urge [him] to not use unilateral executive authority to designate a national monument in Utah.” What Governor Herbert is really asking President Obama to do is avoid the damage done to the environment, the economy, community and freedom by the progressive ideological and political tactic of unilaterally designating a new national monument. Instead, he’s asking the president to pursue conservative environmental stewardship, tapping into rather than circumventing the free market and local communities of free citizens, inherently limiting the government’s role in the process.

Utah’s experience with national monuments makes Governor Herbert’s request eminently reasonable. Remember when President Clinton designated Grand Staircase-Escalante National Monument in southern Utah in 1996? It was so controversial and unpopular that news of it permeated all the way down to me as a new high school student in Cache Valley. That one decision and the process that generated it guaranteed distrust and acrimony toward the federal government from an entire generation of Utahns, as Governor Herbert notes in his letter.

As an up-close observer of the process which led to the passage of Utah’s Transfer of Public Lands Act several years ago, I can also say that President Clinton’s monument designation added significant fuel to the land transfer fire. It was one of the things that made the legislation and the subsequent land transfer movement possible, even nearly 20 years after Grand Staircase was designated.

National monument designations are problematic from a policy, social, and philosophical perspective because they are fundamentally just a naked imposition of political power from one elected official onto all the people. Frankly, that’s one reason they fit so well into the menu of tactics of progressive ideology and politics, consumed as they are with exercising power for the sake of the cause, regardless of the consequences in reality. But this expression of radical progressivism dissolves trust between policymakers, economic interests, and environmental interests in a storm of divisiveness and politicization. One side claims total political victory while thumbing their nose at anyone with a legitimate differing viewpoint and celebrating their vanquished opponents’ loss to boot.

Just like court-imposed environmental policies – another favorite and misguided tactic of the radical progressive left – unilateral monument designations harden political battle lines and prevent the lasting policy solutions that come about through trustworthy compromise and cooperation. Eroding trust also has harmful side effects. Without trust, genuine community between differing viewpoints is impossible, which weakens one of the foundations of American freedom.

Contrast this harmful progressive approach to the conservative environmentalism that Utah has pursued in the last decade or so. The conservative approach in action can be found in agreements governing the management of various public lands in Utah facilitated by Governor Herbert and other elected leaders between economic, environmental, cultural and recreational interests. Some of the outcomes of these agreements include oil and gas businesses financing environmental conservation, or land swaps between the state and the federal government. All of them have achieved environmental conservation while building trust and community through a spirit of cooperation and compromise between seemingly disparate sectors of the free market, such as businesses and nonprofit advocates. In so doing, this approach has inherently limited government’s role and the use of its power, instead of jamming that power down everyone’s throat as the Obama administration is considering.

In other words, radical progressive environmentalism prioritizes power and ideology over the common good, treating trust and community as necessary casualties for the sake of the cause. Conservative environmentalism, on the other hand, prioritizes freedom and the common good by building trust and community through compromise between competing interests and balancing environmental, economic, cultural and recreational goals. The conservative approach is harder, of course, but the pursuit of genuine balance is exactly what protects freedom and achieves such worthwhile outcomes.

For Sutherland Institute, I’m Derek Monson. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found below.

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

Photo credit: John Fowler from Placitas, N.M., via Wikimedia Commons.

Leonardo da Vinci, "Views of a Fetus in the Womb."

Abortion’s deserved decline

The recent uproar over Planned Parenthood’s callous treatment of unborn babies has certainly been appropriate. How can you not be outraged when one of Planned Parenthood’s top official’s words and demeanor convey a repulsive message along the lines of, “You know, I crush below and I crush beneath so I can preserve the organs, and, wow, this salad is amazing!”

Rightfully so, millions of people have been outraged by a mindset that treats human beings like junk cars, valuable only for their “parts.” But, perhaps overshadowed amidst all of the debate about Planned Parenthood, is the heartening fact that abortions are declining in practically every state in the country. So, yes, we need to continue to investigate Planned Parenthood, but we also need to continue to pursue other avenues to even further reduce the number of innocent lives lost to abortion. And, in many ways, Utah is leading the nation.

According to an Associated Press survey of states released last month, Utah’s abortion rate dropped 16 percent between 2010 and 2014, while the country as a whole saw a 12 percent decrease. Data from the Centers for Disease Control and Prevention ranks Utah seventh for lowest abortion rate in the country.

Utah is in the top third of states for number of major restrictions placed on access to abortion. In 2012, for example, the Utah Legislature enacted a law requiring a woman to wait 72 hours after a face-to-face meeting with an abortion provider before proceeding with the abortion. Representative Steve Eliason (R-Sandy), told The Salt Lake Tribune the law is intended to provide a “‘a cooling-off period,’ during which [Eliason] hoped women who felt pressured to get an abortion by a husband or boyfriend would be able to reconsider.”

But it’s not just states with a high number of restrictions on abortion that have seen a decrease. All of the 18 states with three or fewer abortion restrictions also saw major declines in the abortion rate. Hawaii, for example, saw a decline of 30 percent, and New York’s abortion rate declined 15 percent.

So the decrease in abortions can’t just be attributed to public policy. Other possible factors include things like the economy. In hard economic times, many couples might be more sensitive to the costs of having a child, and so will try all that much harder to avoid becoming pregnant. But abortion rates don’t always decline with a declining economy.

Others point to increased use of contraceptives, and there is evidence that supports the idea that as contraceptive use increases, abortion rates decrease. Implicit in the use of contraceptives is the idea that if a child is not desired, it is better not to get pregnant at all. The reasoning for some might be one of convenience. But for others, the desire to avoid pregnancy when a child isn’t wanted is due to the reality that an unborn baby really is a human being, and killing that child is a repulsive idea.

And, lastly, here in Utah at least, we can safely say there exists a culture that values life. Once again, Utah is leading the nation in this regard. As the second most religious state in the nation, Utah is full of communities that believe unborn human life deserves protection. Take Utah County. It is one of the most religious counties in the state, and has an abortion rate of 22.9 abortions for every 1,000 babies born. In contrast is the much less religious Summit County, where the abortion rate is seven times as high as Utah County’s.

But you don’t have to be religious to believe abortion is wrong. As Timothy Jackson adroitly explains in an article on The Federalist blog, “If the unborn is not alive, an abortion would not be necessary. If the unborn is not a human being, what kind of being is it?”

In the end, whatever the reasons, there are fewer babies being killed via abortion in the United States. I, for one, fail to see how anyone could consider that a bad thing. For Sutherland Institute, I’m Dave Buer. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found below.

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

Photo: detail from drawing by Leonardo da Vinci, Views of a Fetus in the Womb.

Closeup of human hands pointing towards business man

The ‘bigot’ tactic

Two weeks ago, I participated in a debate with someone from Equality Utah about religious liberty and public accommodations protections for LGBT individuals. After the moderator asked why they are pushing the public accommodations law, the other side opened by saying that he didn’t think a gay couple wanted “a homophobic florist, or cake baker, or wedding photographer to shoot their wedding.”

Now, it has always been curious to me how LGBT activists, and the left in general, are so willing in political debates to stereotype and attempt to socially marginalize those who don’t think like they do. Self-identified advocates for equality embrace intolerance as a political strategy, without any recognition of the contradiction it creates and the hypocrisy it suggests.

Progressive listeners out there might be objecting right now saying something like “hey, we don’t embrace intolerance. We are fighting intolerance.” But look at it this way: What would you accuse a conservative of if her approach to winning any issue was to use arguments and rhetoric that stereotyped and socially marginalized LGBT individuals without genuinely considering their views on their own terms? It’s OK, you can go ahead and admit it: You would call that intolerance, hate, bigotry, or something similar. And that kind of intolerance is exactly what LGBT activists are doing as a matter of political strategy. What that strategy looks like is stereotyping as “a homophobe” or “a bigot” any individual who seeks legal tolerance and equality for their identity as a religious supporter of traditional marriage, which is the same kind of protection that LGBT individuals seek for their identity of sexual orientation.

“But wait!” I can hear my progressive friends saying. “Your religious-based arguments are just echoes of racism. They are like the arguments used to support segregation and Jim Crow laws.”

Now everyone, of course, is entitled to their opinions. But when historically uninformed arguments are put forward, their inaccuracy needs to be recognized in a society seeking to preserve authentic freedom, which must be grounded in truth and reality. And this argument is one of the more historically uninformed ones that exist in politics today.

Religious belief in man-woman marriage has existed since the founding of Abrahamic religion – thousands of years ago. So-called “religious arguments” in support of segregation, on the other hand, are grounded in antebellum America a couple hundred years ago. Religious belief in man-woman marriage has been universally embraced by religion over almost all of its multi-millennial existence. On the other hand, just as a portion of America was discovering a so-called religious basis for racism, the rest of the country were using the same religious foundations to show how misguided this pro-racist basis was and instead support abolition and emancipation.

In other words, perhaps the only thing illuminated by equating religious grounds for traditional marriage and so-called religious arguments supporting segregation is that the person making these comparisons knows nothing about the histories they are comparing.

Perhaps the oddest thing about LGBT advocates embracing intolerance as a part of their cause is that it effectively ends any chance of getting what they want. If the last session of the Utah Legislature taught anything, it is that the only way to enact new legal protections for the LGBT community is to balance them with similar protections for religious liberty. In the end, people in Utah do not want the inequality that unbalanced versions of these laws bring. In Washington state, for example, their state government is going after a grandmother who owns a flower shop and serves LGBT customers for thousands of dollars, simply because she prefers the financial penalty of losing same-sex wedding business instead of violating her core beliefs that define who she is. Confusingly, Washington state is pursuing legalized anti-religious discrimination in the name of anti-discrimination.

Now that they are a part of a national cultural majority, Utah’s political left has to choose whether they want to mature politically or embrace the role of the intolerant bully who isn’t satisfied with simple victory and instead tries to annihilate a beaten opponent. Reasonable thought, human decency and their own values of equality and tolerance suggest they do the former.

For Sutherland Institute, I’m Derek Monson. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found below.

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

Photo credit: Simone Lovati via Wikipedia


What happens to rule of law when court interprets statute to be different than what it says?

Law classes for non-lawyers sometimes begin by addressing this question: What is the law? It’s not a philosophical question: We really do need to know where we would look if we wanted to know what are the legal demands our government makes on us.

If someone has put a lot of thought into the question, they will sometimes point to statutes—the formal rules adopted by legislative bodies as the source of the law. Another might point to the Constitution, the basic charter for determining how laws will be made.

It gets more complicated from there. We know that the other branches of government have something to do with it but precisely what is not always clear. So we take a few minutes to talk about things like administrative regulations, the voluminous body of rules made by administrative branch agencies that purport to apply the statutes to specific circumstances. These rules have mushroomed, at times because Congress specifically punts to the agencies difficult decisions of enforcement and application. We don’t usually talk about how advisory opinions or “dear colleague” letters from these agencies also take on the force of law.

Then there’s the Supreme Court. We know they go around striking down laws here and there but how exactly is that “the law?” The answer is that when the Court hears a dispute, they have to decide how to apply the other sources of law to a specific situation. They don’t just vote up or down, though, they issue “opinions” about how a law should be interpreted and those opinions become binding rules in future cases involving the same issue.

So, if you want to find out what the law is, you have a lot of places to look.

This is important because it’s really crucial that we can know what the laws are. (Of course, it will increasingly take specialized legal help to sort through all these sources.) It’s at the foundation of our concept of the rule of law. Laws need to be reasonably consistent; their application has to be predictable; they have to have be made in a way that ensures some accountability. Without these kinds of attributes, law becomes tyranny — made at the whim of a ruler or group of rulers, subject to change at any time, applied randomly. Under these conditions, one cannot be sure he or she is not doing something that may run afoul of the law.

When John Adams created a constitution for Massachusetts in 1780, he included a strong protection of the principle of separation of powers — each branch of government must fulfill its role and not those of other branches — and tied it explicitly to the rule of law: “to the end it may be a government of laws and not of men.” That’s an admirable summary of the concept. Under the rule of law, legal principles apply to everyone consistently.

Which brings us back to the Supreme Court.

What happens to the rule of law when the Court interprets a statute to mean something significantly different than the language of the statute says? What happens when the Court’s opinions are marked by vague, philosophical pronouncements, the meaning of which is almost impossible to tie down?

Thus, just a few weeks ago, the Court said that a provision of the Constitution ratified in 1868 to end disparate treatment based on race required each state to redefine marriage. That opinion began with this statement: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Later, the Court said: “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

It’s impossible to imagine exactly how this analysis could apply in any other context. What is the limiting principle for a right to “define” your identity or to “express” it? Could the Framers of the Constitution really have meant to write a blank check to future generations to “learn” the meaning of its provisions and change it at will? Why would they have bothered to write anything down if so?

People ask whether this decision will lead to legal recognition of group marriages or similar innovations. It’s a reasonable question since surely there’s no limit to what a person can claim as self-definition. But the process of deciding this case makes the outcome really impossible to predict. The Court’s language could mean anything, the only thing it preserves is the discretion of Court majorities to do what they would like in future cases.

However you feel about the result, surely this is not a good precedent.

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

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found below.

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