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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

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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

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How did we get here?

http://commons.wikimedia.org/wiki/File:Severan_Basilica_01.JPGI 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 www.frc.org/university.

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, http://bit.ly/1QqL4nX

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

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Crowdfunding and ‘little platoons’

Want to see what a strong civil society looks like in practice? Then you need to meet Austin Niehus. Austin was born with Goldenhar Syndrome. The National Craniofacial Association defines Goldenhar syndrome as:

A congenital birth defect which involves deformities of the face. Characteristics include:

  • A partially formed or totally absent ear
  • The chin may be closer to the affected ear
  • A missing eye

Because of the Goldenhar Syndrome Austin is dealing with, he has undergone 52 surgeries. His mom, Kera, set up a fundraiser to help pay for surgery number 53. Kera described 14-year-old Austin’s journey this way:

[His surgeries have included] cleft lip and [palate] repair, G-Tube, Tracheotomy, Bone anchored hearing aid, external ear reconstruction, Bone Grafts, Orthodontia, and multiple Mandible Distractions.

Austin has grown into a kind, intelligent and gentle young boy even after enduring bullying most of his life. He has a great future in front of him, as well as many more surgeries.

Austin’s next surgery will be his 53rd. It is a major surgery to repair his open palate. Insurance won’t cover the plate they will be using to close his palate. It costs $4,000.

As I record this, the campaign has raised $87,542 from 4,034 people. Simply beautiful. And Kera’s right. Watching Austin on his video, I see a kind, happy, beautiful human being.

And his story is evidence of civil society in action. I’ve talked before about what English statesman Edmund Burke called the “little platoons” of society that need to be strong in order to meet the needs of our family, friends and neighbors. Austin’s story is the story of individuals, you and me, uniting to form a little platoon to help, in this case, a complete stranger.

Screenshot 2015-04-10 09.29.36Think of the results. Those who donate feel great for helping out in their own small way. For their part, Austin and Kera say they feel deep gratitude toward this little platoon of strangers. They feel the love of 4,000 people saying, “Austin, we love you. Kera, it must be so hard to handle the financial and emotional burden. You are both awesome. I can’t do much, but I want to help. Here’s my donation.”

Another consequence of sturdy little platoons is that they reduce the need or opportunity for government to grow in its size, scope and services. Smaller, more focused government means less taxes, less waste, less need for the impersonal bureaucracy of government to enter into the delicate details of people’s personal lives.

Think of practically any government program — youth detention centers, prisons, police, food stamps, Medicaid. Now, think about this. Instead of those government programs, what if we met those needs? What if family, friends, and churches nurtured their children so they stayed out of government correctional programs and prisons? What if neighbors kept an eye out for each other and their kids and banded together to share their food, money and resources with those in need? Wouldn’t the care given to our neighbors in need be more personal, more loving? Wouldn’t your life be more deeply enriched this way, instead of just paying more and more in taxes to “let government take care of it?”

Some neighborhoods already work this way. Let’s do our part to spread it, to build our own little platoons. Find a community nonprofit, or a church, or a club that you can be a part of. Find a cause to which you can donate your time or money. The more we can help our neighbors, or even strangers like Austin, the less we’ll have to depend on the impersonal, often unreliable arm of government.

If you want to learn more about Austin’s story, search for “Support Austin Our Hero” on the gofundme.com website.

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

ON POINT: Women running for office; financial planning

Holly Richardson, author of the “Holly on the Hill” blog, is joined by Sarah Nitta, CEO of Radiant Advisors, as they discuss issues ranging from the 2015 session and women in political races to the world of financial planning.

On Point, presented by Sutherland Institute, is the state’s only show hosted by and focused on the leading women in Utah policy and politics.

Click here to watch the video on Youtube.com, or listen to the podcast below.

Photo credit: Gage Skidmore

Strategy vs. principle in protecting religious liberty – Sutherland Soapbox, 3/31/15

The various approaches to creating additional legal protections for religious liberty is a particularly relevant issue this week, given the passage of Indiana’s new religious freedom law, the subsequent protests of that law by the left, and Utah’s own unique approach to the issue. But before getting there, it’s important to understand why religious freedom needs such protections at all.

For instance, many on the left have taken to opposing religious liberty legislation by arguing that we have the First Amendment to protect religious liberty. Now that may sound good on the surface, but it’s kind of like arguing that we don’t really need anti-discrimination laws because the 14th Amendment guarantees that everyone has “equal protection of the law.” I think most reasonable people would agree with Abraham Lincoln’s point to his opponent for the U.S. Senate when he asked him “Do you support the Constitution if, knowing or believing there is a right established under it which needs specific legislation, you withhold that legislation?”

The repeated instances in recent years of individuals being fired or retaliated against for expressing religious beliefs outside the workplace or in political causes, and even being taken to court by their own government for trying to reasonably apply their moral conscience in their lives illustrates that religious freedom needs specific legislation. For anyone who would claim to support the freedoms guaranteed by the Constitution, the facts would seem to suggest that it’s both a matter of integrity and logical consistency to see a need for legislation protecting religious liberty.

One approach to doing so is to create blanket protections for religious belief and expression. This is the approach of Indiana’s new religious liberty protection law, which is patterned after 31 similar state and federal laws that exist due to actions taken either by legislatures or state courts. These laws exist in a diverse range of states – from red states like Texas, Arizona and Alabama to purple states like Virginia, Pennsylvania and Ohio, and even to blue states like Washington, Massachusetts and Illinois.

Another approach can be called the context-specific approach, which is reflected in Utah’s recently passed laws. In this approach, the law establishes religious liberty protections based on specific contexts that people and organizations experience. For example, Utah’s new laws protect some of the conscience rights of individuals as employees, employers, public officials or religious officials.

The goal of either approach is the same: to protect religious freedom and give people of faith the space to live according to their moral conscience – or in more progressive terms, to protect a religious worshiper’s right to be who they are in the various aspects of their lives. But each approach has its upsides and its downsides. The advantages of the blanket protection approach are its simplicity and the breadth of religious liberty protection. The disadvantage is its public perception problem, caused largely by a political left that has become expert at emotional manipulation and exploitation.

On the other hand, the advantage of Utah’s approach is its potential to establish a workable order and balance between the sometimes incompatible values driving sexual politics and religious liberty. Its disadvantages are its need for a new law for every new context, and its potential to be exploited to undermine a sound cultural understanding of the importance of religion and morality to a free society.

For advocates of religious liberty, the presence of two approaches can present some difficulties. After all, the blanket-protection approach is a known quantity, while Utah’s approach has yet to be fully fleshed out in contexts such as the exchange of goods and services in the marketplace. But this is a question of strategy and approach, not of how principled you are as a supporter of the American Constitution or as a conservative. In other words, it’s a matter of pursuing a strategy that creates substantive and sustainable victories for religious freedom. And in the light of Indiana’s new religious liberty law, this will be an increasingly important distinction.

For Sutherland Institute, I’m Derek Monson, and 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.

Rotterdam_kunstwerk_meer_van_genesareth

Strategy vs. principle

Rotterdam_kunstwerk_meer_van_genesareth

The various approaches to creating additional legal protections for religious liberty is a particularly relevant issue this week, given the passage of Indiana’s new religious freedom law, the subsequent protests of that law by the left, and Utah’s own unique approach to the issue. But before getting there, it’s important to understand why religious freedom needs such protections at all.

For instance, many on the left have taken to opposing religious liberty legislation by arguing that we have the First Amendment to protect religious liberty. Now that may sound good on the surface, but it’s kind of like arguing that we don’t really need anti-discrimination laws because the 14th Amendment guarantees that everyone has “equal protection of the law.” I think most reasonable people would agree with Abraham Lincoln’s point to his opponent for the U.S. Senate when he asked him “Do you support the Constitution if, knowing or believing there is a right established under it which needs specific legislation, you withhold that legislation?”

The repeated instances in recent years of individuals being fired or retaliated against for expressing religious beliefs outside the workplace or in political causes, and even being taken to court by their own government for trying to reasonably apply their moral conscience in their lives illustrates that religious freedom needs specific legislation. For anyone who would claim to support the freedoms guaranteed by the Constitution, the facts would seem to suggest that it’s both a matter of integrity and logical consistency to see a need for legislation protecting religious liberty.

One approach to doing so is to create blanket protections for religious belief and expression. This is the approach of Indiana’s new religious liberty protection law, which is patterned after 31 similar state and federal laws that exist due to actions taken either by legislatures or state courts. These laws exist in a diverse range of states – from red states like Texas, Arizona and Alabama to purple states like Virginia, Pennsylvania and Ohio, and even to blue states like Washington, Massachusetts and Illinois.

Another approach can be called the context-specific approach, which is reflected in Utah’s recently passed laws. In this approach, the law establishes religious liberty protections based on specific contexts that people and organizations experience. For example, Utah’s new laws protect some of the conscience rights of individuals as employees, employers, public officials or religious officials. Read more

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more

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

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

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

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

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

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

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

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

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

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

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