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.

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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.

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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

Reduce poverty with free market

Poverty is not created – it is the natural state of man. For proof, see human history.

The question then becomes: How do we reduce poverty? This is the heart of economics: the study of rationing limited resources among unlimited desires.

From feudal systems to mercantilism, all historic economic systems had one thing in common: Poverty was the norm; wealth was the exception; and the definitions of neither poverty nor wealth changed very much.

Then came the chance for a fledgling country to decide what economic system it would adopt. Fortunately, the ideas of Baron de Montesquieu, John Locke and other great thinkers permeated the minds of the Founders of the United States. They took the position of certain thinkers that all men were created equal, and that the notion of the divine right of kingship was false.

After much debate, James Madison’s view that no economic system should be enshrined in the Constitution won the day. Instead, the people were left to themselves to create wealth … and create wealth they did.

From the time of the first human on earth until roughly 200 years ago, humanity has never known wealth like we do today. Only the most recent humans have enjoyed electricity, healthy and convenient water and plumbing, easy long-distance travel on land, air and sea, property and home ownership, and, most importantly, cronuts. For an inspiring illustration of this breathtaking change to the human condition, watch Hans Rosling’s 200 Countries, 200 Years, 4 Minutes on YouTube.

The reduction of poverty requires the ability to meet the demands of those around you – and to the extent you help others, you help yourself. That’s the beauty of the free market system: It incentivizes imperfect humans to succeed through helping others.

Of course, because we are all imperfect, humans have never created a perfect economic system. Though it’s the best economic system in history, injustice and suffering still exist in the free market. Some of us sometimes need extra incentives to not behave badly. The trick in a free society is balancing the need for an equal playing field that maximizes freedom to invent, grow, live, adapt, and so on against the reality that humans do bad things. A free and humane society needs to protect the freedom of others from the evils of a few. Thus we have things like laws, fines, jail time, and government regulations.

But government involvement can also cause harm. Instead of reasonable guidelines, government sometimes imposes excessive regulations. Take the Tesla car manufacturer for instance. Existing Utah auto dealers have worked with Utah lawmakers to make it impossible for businesses like Tesla to do business in the state. Government can also intervene in the market to pick winners and losers by giving them unfair advantages over their competitors. One Utah example of this would be the tax-incentive deals offered by the Governor’s Office of Economic Development. That needs to change.

And remember Solyndra? The company received more than a half a billion dollars of taxpayer money as the first recipient of President Obama’s economic stimulus program. Solyndra then went bankrupt, and the half billion dollars of taxpayer money vanished. The government could not know that market conditions would change, or what impact new technologies would have, or a million other factors that exist in the marketplace.

That’s why efforts by governments to control or influence the free market are so pointless and so harmful. No one person or group can possibly predict the future. Let the market handle it by simply getting out of the way. Keep regulations reasonable, don’t try to pick winners and losers, and don’t arrogantly act like government leaders always know best. Humans tried that for thousands of years with overwhelming poverty and lack of innovation as the result. Let’s not go back to the dark ages.

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 at the bottom of this post.

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

Photo credit: Infrogmation of New Orleans

liberty statue

Tolerance and equality in a progressive liberal world

A recent Gallup social ideology poll reported that for the first time since its polling began in 1999, an equal portion of Americans identify as social liberals as identify as social conservatives. In part, this may be because younger generations are sympathetic to the criticism of the conservative social order from progressive liberal ideology: namely, that it passively undermines or actively discards tolerance and equality for the vulnerable and minorities in society. Given the ascendance in the Gallup polling of social liberalism, it seems reasonable to examine what the cherished values of tolerance and equality might look like in the progressive liberal social order.

Consider a few examples with me. In recent weeks, a series of letters and petitions have been written by supporters of gay marriage protesting the fact that university-affiliated individuals at Utah State University, Utah Valley University and the University of Utah signed a legal brief in support of traditional marriage for the current Supreme Court marriage case.

In the UVU letter, various university professors wrote that while “all of us … have the right to speak publicly as private citizens on controversial issues … [the president of UVU] has a special responsibility to avoid public pronouncements that would harm his ability to carry out his duties.” In the University of Utah letter, medical students posed a series of questions to a medical school professor who signed the brief, including a question regarding his ability to work with LGBT patients or students.

In both instances, these actions on their surface would seem to further the values of tolerance and equality for the LGBT community, reflecting the progressive liberal position. But their preferred tactic is to imply that those who publicly voice an opposing opinion to the progressive liberal view are also expressing a professional deficiency that suggests they may not be capable of being an effective university leader or trustworthy doctor. This kind of rhetorical attack is designed to marginalize those who voice opposition to the progressive liberal line, and to encourage others who hold such views to keep them in the closet, as it were.

Now of course, such attempts to socially marginalize a targeted group and to prevent them from living authentically through social limitations on public expression based on how someone identifies themselves is exactly the kind of behavior that progressive liberals decry as promoting intolerance and inequality, when it is connected to the conservative social order. And yet, there was a stunning lack of critique of the letters from progressive liberal leaders both in the state and nationally.

This point is critically important, because it suggests that such actions of intolerance and inequality would, in fact, be tolerated in the progressive liberal order, ironically, in the name of tolerance and equality. Evidently, as long as the rhetorical attacks of intolerance and inequality are targeted at the “right groups,” they suddenly mutate from an ugly expression of hate and bigotry into an acceptable form of debate and expression. This, of course, is wonderfully convenient for the cause of progressive liberal ideology.

Now it should surprise no one that such inconsistency and incoherence, if not hypocrisy, should come to exist in a progressive liberal social order. This is because such outcomes are a natural result of the imperfect aspects of human nature that have existed and been documented in all of recorded human history. Authentic conservatism and reasonably informed political philosophies tend to recognize this reality. Progressive liberal ideology, on the other hand, seems to willfully blind itself to it amidst the aura of its noble goals and values. Tolerance and equality are good in the progressive liberal social order, and so it stands to reason that all that is done in the name of tolerance and equality is also good, even appropriately targeted intolerance and inequality.

For the sake of the country, we should hope that progressive liberal ideology comes to a better understanding of both human nature as well as the ugly intolerance that would use progressive liberal ideology as a political screen, and embraces the humility of thought that should result. Otherwise, it risks destroying the very values and freedoms that it claims to cherish.

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. 

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


How did we get here? had the opportunity last week to participate in a panel discussion at the Family Research Council in Washington, D.C., on the influence of the ideas and culture of the 1960s on the family policies pursued by the government today. The conference was sponsored by the journal The Family in America.

The other panelists were Ryan MacPherson, who talked about how no-fault divorce became entrenched through a combination of inaction by religious groups and an aggressive push by the legal industry; and Anne Roback Morse of the Population Research Institute, who talked about the powerful forces behind the United States’ aggressive promotion of contraception and sterilization, sometimes without consent, in minority communities and in other nations.

My portion of the discussion focused on how, in the 1960s, the U.S. Supreme Court began actively promoting in its decisions the ideologies associated with the sexual revolution. Where before the 1960s, what I described as Act I in the drama of marriage and family in constitutional law, the Supreme Court had pretty consistently recognized the inherited wisdom about marriage and family, specifically: “[S]exual expression was a moral act with significant consequences. Marriage was the only licit setting for sexual expression. It united two very different types of people, a man and a woman, and the union was not merely an expression of momentary desire or even of calculated bargaining but a real joining which created reciprocal obligations and obligations to the children the union alone could create. Though the act of marrying was freely chosen, its consequences could not really be. Children born to married couples enjoyed the blessing of belonging and a setting of stability, complementarity and usually biological connectedness.”

In the mid-1960s, the intermission of the play, the Court began to talk about marriage in a radically different way. The most famous Supreme Court case referred to marriage as an “association” rather than a union of two people which was “hopefully” enduring.

When the curtain went up for Act II, the Court’s treatment of family was now nearly the polar opposite of what it had been. The Court’s decisions began to treat marriage and non-marriage as essentially equivalent, marriage and family as mere lifestyle choices important only to the degree they allowed individuals to express themselves in increasingly idiosyncratic ways.

The Court’s logic followed a predictable pattern, endorsing contraception for married then unmarried couples, creating a right to abortion, requiring the state to facilitate contraceptive access, striking down distinctions between households of families and households of unrelated people (like “hippie communes”), and on and on; most recently striking down the federal law definition of marriage as the union of a husband and wife.

The ideology the Court majority now seems to endorse “imagines no differences of significance between men and women. Sexual expression is a means of obtaining pleasure, though it may rise to an act of self-creation since it is the most potent item in the toolkit of expressive individualism. By rights, it ought to have no consequences that are not freely chosen by the consenting individuals. Thus, each has a right to be shielded and, indeed, the state has a duty to shield individuals, from those consequences (by increasing access to contraception or streamlined divorce). If consequences—pregnancy or unhappiness, for instance—still show up, the state must provide other escape routes. No freely chosen sexual coupling is illicit and none should be privileged above another. Civil marriage is but a manifestation of individual will, valuable because it allows the state to bestow dignity on individuals by valorizing their intimate choices. If the parties desire, marriage could be useful to the project of “defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  Secondarily, marriage may be accessorized by children who may provide personal satisfaction to the spouses. These children will presumably be benefitted by access to the resources of two adults and to the government benefits provided to married couples.”

The same-sex marriage cases the Court is now considering give the Court an opportunity to step away from its ideological project of reframing norms of morality and redefining marriage and an opportunity to decentralize decision making power regarding the family.

Whatever the Court does, the current ferment over marriage provides an opportunity for other institutions, like churches, to champion the competing model of marriage and family rooted in experience and inherited wisdom.

An archived version of the lecture can be found at

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 at the bottom of this post.

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

Chloe Valdary,

Condescenders, patronizers, and the soft bigotry of low expectations

You know that saying, “Boys will be boys?” You might hear someone say it after they see some hormonally charged teenage boy say something crude to a passing girl. “That was rude,” the person might say. “But boys will be boys!” What you are hearing there is the soft bigotry of low expectations. This demeans women, who are just expected to “put up with it,” just as it demeans men who are seen as incapable of doing better.

In short, this type of bigotry means you believe that a person or group of people are acting inappropriately, or are inept at some level, but that they just can’t help it. “That’s just how they are, and we need to just let it go, or make special exceptions, or look the other way.”

Whether they are aware of it or not, people expressing such views believe they are superior to the person or group that they pity. They often express compassion for “the poor souls” who just can’t help themselves.

You see this everywhere. “Joe Biden maybe shouldn’t have given that man’s wife a shoulder massage but that’s just Ol’ Joe. You know how he is!”

Or, it’s well-meaning folks from first-world countries imposing their supposed “solutions” on people in third-world countries.

And some, even on the left, argue that the entire concept of affirmative action is the epitome of the soft bigotry of low expectations.

Chloe Valdary, a senior at the University of New Orleans, shared some insightful commentary on this issue via the Prager University website. Chloe wonders why her white professor believes the rioting in Ferguson was acceptable. Here she is:

Rioting and looting are acceptable forms of behavior? … Does this apply to all ethnic groups? Hispanics? Southeast Asians? Pacific Islanders? Of course not.

But we — the enlightened ones — are ready with a pre-packaged list of excuses when blacks riot and loot. Worse, when it comes to judging black behavior, even facts don’t matter. All that matters is the skin color of the teenager and the skin color of the cop.
Well, not in my world. If a white cop kills a white kid, the facts matter. If a black cop kills a black kid, the facts matter. If a black cop kills a white kid, the facts matter. And if a white cop kills a black kid, the facts matters. To suggest anything else is to perpetuate discrimination, the very thing that those who espouse social justice claim to want to end.

Anyone, whether white or any other color, who excuses blacks for bad behavior just because they are black obviously doesn’t consider blacks their equal. Rather, they view blacks, in effect, as children who are unable to adhere to the standards to which every other group is held. Think carefully about that. The only difference between this view and that of white supremacists is that white supremacists are honest and open: in their view blacks are inferior to whites. Period.

But those who condescend to blacks cloak themselves in self-righteousness.. The bad behavior happens — a riot in Ferguson — and they nod knowingly: “They couldn’t take it anymore. Who can blame them?” I’ll take the white supremacist any day. First, there are very few of them and they have no power. Second I can easily prove them wrong. But how do I shake off the Condescenders, the Patronizers? There are a lot of them, they have a lot of power and they think they mean well. How do I convince them that, as a black human being, I want to be — I must be — judged by the same standards as everybody else?

So, how about this for a change? Treat blacks equally. Always. In every way. Not differently. Not better. Not worse. Not like we’re demons. Not like we’re angels. Is that so hard to do?

What do you think? Should we hold each other to the same standards?

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

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.

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