A possible Supreme Court twist in Utah’s marriage case

800px-United_states_supreme_court_buildingLast week, Utah asked the U.S. Supreme Court to review a decision by the U.S. Court of Appeals for the 10th Circuit that Utah’s marriage amendment (approved by the Legislature and two-thirds of voters in 2004) is unconstitutional because the 14th Amendment (ratified in 1868) requires all states to redefine marriage to include same-sex couples. The plaintiffs in the lawsuit plan to support the request.

If all goes as intended, the Supreme Court would consider the request (and similar ones from Oklahoma and Virginia) at the outset of its October term.

Much of the press and activist commentaries are treating a judicial redefinition of marriage for all 50 states as a foregone conclusion, but that analysis misses a very interesting twist in the legal arguments the court will hear that could dramatically impact the result.

In last summer’s Supreme Court decision (United States v. Windsor) invalidating the federal Defense of Marriage Act, the court characterized that law as unique in that it involved a federal definition of marriage in contrast to the typical pattern of federal laws deferring to state definitions in the realm of domestic relations. Given that, and the court’s belief that the law was motivated by “animus” on the part of members of Congress, the 2013 decision may be an anomaly.

Why? Because the cases currently being considered by the court are quite different.

For example, the 10th Circuit decision on Utah’s marriage law finds the law was not motivated by animus. The panel was even more emphatic in rejecting the claim in the Oklahoma case, with a long concurring opinion addressed to the accusation. The 4th Circuit does mention animus only in passing in describing another court decision. Continue reading

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UtahPolicy.com poll: Most Utahns oppose same-sex marriage

Wedding ringsA new Dan Jones/UtahPolicy.com poll shows that a majority of Utahns are “completely opposed” to same-sex marriage – and “completely support” Utah’s legal defense of Amendment 3:

A new Zions Bank/UtahPolicy.com poll conducted by Dan Jones and Associates finds 53% of Utahns say they “completely oppose” same-sex marriage while another 8% say they are “somewhat opposed.” Just 24% say they “completely support” same-sex unions while another 5% say they are “somewhat supportive.”

This is not a surprise. Although those in favor of “gay marriage” often seem omnipresent in their unbending demands, Sutherland has maintained that there is a large silent majority of people who not only support traditional marriage but outright oppose same-sex unions. They are underrepresented in the media. And they don’t want to be “Eiched” for their views.

See the full story here on UtahPolicy.com.

Click here to sign a petition supporting Gov. Gary Herbert and Attorney General Sean Reyes in their defense of Utah’s marriage law! The petition will be hand-delivered to the governor.

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Human rights court: Civil unions are good enough

Wedding ringsThe European Court of Human Rights has ruled in a case involving a Finnish transsexual that there is no legal right to “gay marriage” and that a civil union is sufficient for same-sex couples. From the LifeSite website:

The European court was unequivocal. It not only said that European human rights law does not contemplate same-sex marriage, it said that civil unions are good enough for same-sex couples.

The court confirmed that the protection of the traditional institution of marriage is a valid state interest—implicitly endorsing the view that relations between persons of the same sex are not identical to marriage between a man and a woman, and may be treated differently in law.

The judgment says that European human rights law recognizes the “fundamental right of a man and woman to marry and to found a family” and “enshrines the traditional concept of marriage as being between a man and a woman.”

Let’s hope the U.S. Supreme Court will hear Utah’s case and come to a similar conclusion.

The full ruling from the European Court of Human Rights may be read here.

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Border security isn’t the problem – Mero Moment, 8/12/14

People cross the Rio Grande into Big Bend National Park in Texas.

People cross the Rio Grande into Big Bend National Park in Texas.

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

James O’Keefe is known for his short films exposing liberal hypocrisy and corruption. His most famous film was an undercover recording of corruption inside the offices of the Association of Community Organizations for Reform Now (ACORN). O’Keefe’s revealing video footage resulted in ACORN shutting down its operations.

His latest video shows O’Keefe crossing the U.S./Mexico border unmolested by U.S. border patrol. He did it twice – the second time dressed in Army fatigues and wearing a Halloween mask of Osama bin Laden. His point was to show how unprotected our southern border really is.

The border between the United States and Mexico runs nearly 2,000 miles. Picture standing on the shores of Imperial Beach, California, and walking east/southeast 2,000 miles to the Gulf of Mexico. That’s a lot of ground to cover. Most undocumented immigrants enter the United States at population rich spots – like the border at Tijuana. Understandably, U.S. border patrol is concentrated in those areas. Not so much in the desert areas.

But there’s James O’Keefe – I’m sure a very well-meaning fellow – standing in the middle of nowhere, on the Mexican side of the border, videotaping how he can saunter across the shallow river about 20 feet to the Land of the Free on the other side. He looks into the camera and says, “There’s not a border agent around for miles.” Continue reading

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Poll: 82% of Utahns support right to work


nefwRoughly 4 out of every 5 Utah adults support allowing union employees to leave their union without force or penalty, a concept generally referred to as right to work. That’s the finding of a new poll, released today by Sutherland Institute as part of National Employee Freedom Week (NEFW). NEFW is a grassroots campaign of 81 organizations in 45 states dedicated to helping union employees learn about their right to leave their unions. This poll headlines the activities of NEFW, which runs from August 10 to 16.

The poll was conducted by Google Consumer Surveys between July 11 and July 31, 2014, and has a margin of error of 3.76 percent. The poll surveyed 500 adult Utah residents with the following question: “Should employees have the right to decide, without force or penalty, whether to join or leave a labor union?”

The coalition also released a poll showing 82.9 percent of Americans nationwide support the right-to-work principle. Currently 24 states have passed right-to-work laws which allow workers to leave their union with penalty or having to pay dues to an organization they choose not to belong to. To find out more about Utah’s specific right-to-work policies, you can read the “Utah Right To Work Law.” Continue reading

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Another angle on natural law

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

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

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

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

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

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Make marriage easy to break, and guess what? – Mero Moment, 8/5/14

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

If you make something easy to break, it gets broken. This is self-evident. It’s why poorly made toys break more often and poorly made clothes shrink, tear and wear out more easily. The principle applies in the business world, too. Why do you think cell phone companies make it so hard and costly for you to break your cell phone contract? Because the harder it is to do, the fewer cell phone customers will do it.

Why, then, as a society, have we decided to make marriage, one of our most fundamental structures, so easy to break through no-fault divorce?

First, some background. The concept of no-fault divorce originated in the 1960s with a group of California lawyers who were tired of the bitterness of the combative divorce process.

Legislatures considering bills that dramatically shifted their marriage policies treated the issue as a “routine policy refinement, rather than controversial social reform.” As Maggie Gallagher puts it: “It was not an anguished public, chained by marriage vows, that demanded divorce as a right. The revolution was made by the determined whine of lawyers, judges, psychiatrists, marriage counselors, academics, and goo-goo-eyed reformers who objected to, of all things, the amount of hypocrisy contained in the law.” Thus, “[i]n a single generation, marriage ha[d] been demoted from a covenant, to a contract, to a private wish in which caveat emptor is the prevailing legal rule.”

Utah, unfortunately, is no exception to the general trend toward weakening the legal status of marriage. Continue reading

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What is marriage – and why is it a matter of public policy?


I’m not going to say anything about morality, anything about theology or anything about tradition. There are some people who talk about marriage and talk about the same-sex marriage debate in terms of a moral argument, a theological argument or a traditional argument. A Burkean conservative might say, ‘Because marriage has been this way, this is how it ought to be.’ None of those arguments will be ones that I’ll be making.

With these words, Heritage Foundation scholar Ryan T. Anderson began his presentation on the pressing topic “What is Marriage?” in remarks delivered at the “Communicating Values: Marriage, Family and the Media” conference hosted by the Stanford Anscombe Society at Stanford University in California.

Anderson continued,

I’ll be making a philosophical argument with some appeal to social science largely to get at a public-policy purpose of marriage. The question I want to ask and then answer is, ‘What is marriage from a policy perspective? What is the state’s interest in marriage? How does the state define marriage? How should the state define marriage and why?’

Now I would imagine that everyone in this room is in favor of marriage equality. The other side uses that slogan, and it’s a great slogan. It’s a wonderful piece of advertising. It fits on a bumper sticker. You can put an “equals” sign up as your Facebook icon and yet it’s completely vacuous. Everyone in this room is for marriage equality; we all want to treat all marriage equally. What we may disagree with each other about is “What sort of relationship is a marriage?” because that’s the question you have to answer before you can then get to considerations of equality. Because even those who want to redefine marriage to include a same-sex couple will draw certain lines between what sort of relationship is a marriage; what sort of relationship is not a marriage. And if we’re going to draw a line based on principle, if we’re going to draw lines that reflect the truth, we have to know what sort of relationship is a marriage and what sort of other consenting-adult relationships are non-marital.  …

I’ll place a challenge…when we get to the Q&A, I invite you to give an answer to these questions: If you want to redefine marriage to include the same-sex couple, why would marriage – how you understand it – require that that relationship be permanent, monogamous and exclusive, and be the type of relationship a government takes interest in? … Because on this account of marriage, where marriage is an intense emotional union of consenting adults, that’s something that can be formed by more than two people. There’s nothing about intense emotional union, just as such, that says it has to be between two and only two. Threesomes and foursomes can just as easily form an intense emotional and an intense romantic and intense care-giving relationship. There is nothing in principle that would require twos.

In his incisive prepared message and in the extended Q-and-A interaction with conference participants, Anderson presented cogent arguments. As importantly, he did so with an attitude of civility and respect that elevated the dialogue in this very challenging contemporary issue to levels essential for sound decision-making by citizens, policy leaders, elected officials and all public servants.

Anderson is the William E. Simon Fellow at the Heritage Foundation and editor of Public Discourse, the online journal of the Witherspoon Institute of Princeton, N.J. He also co-authored What Is Marriage? Man and Woman: A Defense (2012), with Princeton Professor Robert P. George and Sherif Girgis. Justice Samuel Alito cited the book two times in his dissenting opinion in the U.S. Supreme Court case about the Defense of Marriage Act.

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U.N. Human Rights Commission defends the family unit

Flag_of_the_United_Nations.svgIn a post titled “No Good Document Goes Unpunished,” Laura Bunker of United Families International points out that even the United Nations recognizes the family as the fundamental unit of society. She writes,

In observance of the 20th anniversary of the International Year of the Family, the UN Human Rights Council recently adopted a resolution on the “Protection of the Family.”

This remarkable, family-affirming UN document recognizes:

•    “that the family has the primary responsibility for the nurturing and protection of children and that children, for the full and harmonious development of their personality, should grow up in a family environment and in an atmosphere of happiness, love and understanding,”
•    “that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,”
•    “that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

Perhaps even more significant than the language this resolution contains is what it does not contain. The Human Rights Council rejected an amendment that has been adopted in other past UN documents, endorsing “various forms of the family.”

Of course, there are those who object to this most natural, commonsense, human concept:

Opponents claim that the countries who voted for the resolution “betrayed their responsibilities as members of the Council,” and describe the document as “censorship,” “divisive,” “problematic,” “deeply flawed,” and “appalling.” …

For example, a Joint Statement opposing the resolution expresses concern that, “some states will seek to exploit it as a vehicle for promoting a narrow, exclusionary and patriarchal concept of ‘the family’” and “the family is also a setting in which human rights abuses sometimes take place.”

For our part, we’d like to applaud the U.N. Human Rights Council for getting this one right.

Click here to read “No Good Document Goes Unpunished” on the United Families International Blog.

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Is it to be civil debate or ‘stamp-’em-all-out’?

ArgueIn a revealing Twitter exchange, Heritage Foundation’s Ryan Anderson and The New York Times’ Josh Barro debated whether human beings who support traditional marriage are “people unworthy of respect” and whose attitudes should be “stamp[ed] out, ruthlessly,” in Barro’s words.

The duo also sparred on what the marriage debate is really about: the “definition of marriage” (Anderson’s view) or “equal rights” (Barro’s view).

It is a fascinating exchange that offers useful insight into the thinking of many leftists who believe that the marriage debate is simply about “equality” – instead of a fundamental change to what marriage is and means for society – and that those who don’t support their cause are bigots unworthy of respect.

Anderson also delivered an incisive speech at Stanford, along with a compelling Q-and-A session. Both are worth your time.

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Will U.S. intervene in the Middle East? Mero Moment, 7/29/14

Missile_attack_on_Sderot_in_2014This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

As I speak these words the Gaza Strip in the Middle East is literally exploding. Even a cursory review of the news demonstrates how crazy this world has become. Amidst ongoing international turmoil, the United States has some important decisions to make – not the least of which is the answer to the question of our role in the world.

The state of Israel is capable of taking care of its own defense in limited ways. But what would the United States do if the entire Muslim world united in Israel’s destruction? Would we step back and watch the entire Middle East become engulfed in the chaos created by tactical nuclear war? Would we intervene on behalf of Israel? In other words, would we send American men and women to fight and die in Israel’s defense? We have sent Americans to fight and die for a lot less reason than Israel’s future.

Early America was distinctly non-interventionist. George Washington famously warned about foreign entanglements in Europe. James Monroe created a doctrine of foreign policy that limited U.S. interests to the Western Hemisphere. Only more progressive leaders began to intervene in world affairs – Woodrow Wilson in World War I and Franklin Roosevelt in World War II. And, even then, conservatives were hard to convince that America should step foot on European soil. Of course, few of us today would look back on those events and regret our involvement.

Evidently, the justness of the cause determines our involvement. Or not.

As an example, I remember counseling my congressional boss in 1991 to vote no on the resolution to support President Bush’s decision to engage the first Gulf War. I felt strongly that the war was simply about blood for oil. I thought it was immoral. By the time of the second Gulf War, I had changed my mind. The threat of weapons of mass destruction made all the difference in the world to me.

So what cause reaches the threshold for Americans to engage overseas? Is it the million-plus genocide in the Sudan? Is the current threat from North Korea any less than the threat posed formerly by Saddam Hussein? Continue reading

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How Silent Cal’s ‘normalcy’ led to prosperity

President Calvin Coolidge in the Oval Office, 1923.

President Calvin Coolidge in the Oval Office, 1923.

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

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

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

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

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

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Hobby Lobby issues demystified

questionBloomberg View writer Megan McArdle calmly answers some of the wild questions zooming around the Internet in “Answers to All Your Hobby Lobby Questions.” For instance:

1) What can stop a company from arguing that it is against the owner’s sincere religious beliefs to pay workers a minimum wage?

The Religious Freedom Restoration Act is not a blank check to religious groups to do what they want. The law says that the religious belief must be sincerely held, and also that the government can burden the exercise of that belief if it has a compelling state interest that cannot easily be achieved in any other way. That’s why no one has successfully started the Church of Not Paying Any Taxes, though people have been trying that dodge for years.

Click here to read the rest of McArdle’s article.

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6 doctrines of freedom – Mero Moment, 7/22/14

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

382px-U.S._flags_-_Washington_Monument_baseThere is a truism in some religious circles: Teaching doctrine changes behavior better than teaching behavior changes behavior. My business at Sutherland Institute is to teach freedom and I’ve long believed that freedom has doctrines just like a religion.

So here is my attempt to share with you some doctrines of freedom.

First, freedom has context. While everyone may have an opinion, freedom cannot mean whatever anyone needs it to mean. Freedom has a broad context that transcends even important liberty interests. Freedom can be achieved even if your individual liberty is somehow proscribed. Freedom transcends utility. Freedom’s context is that delicate balance between order and liberty.

Second, freedom requires a conscious choice to place family at the center of society. In context, family is the fundamental unit of society. It cannot be the individual, church, corporation or state and still strike an appropriate balance between order and liberty. Only the family unit provides both social stability and personal autonomy necessary for maximum freedom.

Third, because of the second point, a culture of marriage is vital to freedom. And moreover today, we need to understand the meaning of marriage. If marriage can mean anything, it means nothing. And if marriage means nothing, so does family, and then freedom means nothing. Anybody who believes in the separation of marriage and state misses the context of freedom. Marriage is an irreplaceable factor in the freedom equation. For instance, it’s why Utah argues that marriage is child-centric, not adult-centric. Its context, just like freedom, is futurity.

Fourth, freedom requires citizens to elevate civil society. The intermediate layer of society that buffers the individual from the state – faith, family, community, neighborhood, voluntary associations, etc. – must be vibrant for freedom to thrive. Without this buffer of civil society, the state not only would run roughshod over individual liberty, it would, as history has proven, become the final moral arbiter for individuals and, thus, could lead to mass human suffering.

A fifth doctrine of freedom is the healthy integration of government in our lives. Freedom requires us to see the possibility of good government – government as an extension of the values of the people. We often hear the expression, “America is great because America is good.” That is the truth. If we see government as evil or even as a necessary evil, we fail to understand why we have government in a free society. If the proper role of government is simply to enforce market contracts, we miss the big picture – we miss the true proper role of American government, the role it plays in support of human happiness. If we deny that role, we will lose our freedom.

Likewise, if we pervert that role, we will lose our freedom as well. A sixth doctrine of freedom complements the fifth point: Freedom requires limited government. When government is massive and concentrated, freedom is strained. Self-government, local government, subsidiarity and a broad sharing of powers will keep us free.

Freedom is a sacred American icon open to easy rhetorical abuses. The “what” and “how” of freedom matter. But the “why” of freedom matters most.

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

Receive the Mero Moment each week directly to your iTunes by clicking here.

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Utahns have 6 weeks to give Gov. Herbert feedback on Common Core

800px-School_bus_invasionGovernor Gary Herbert recently introduced a robust process by which state education policy, including the controversial Common Core State Standards, will be carefully reviewed. Of great importance, the process includes the means by which

…parents, teachers, community members and other concerned citizens and organizations across the state have the opportunity to provide feedback on these standards. To give us your feedback, we’ve created a webpage, www.utah.gov/governor/standards, where anyone with a concern can review the current standards and give us their opinion. This can be either positive or negative feedback, but it needs to be specific. If there is a standard or grade level benchmark that you disagree with, I want to hear about it. This input will be shared with Dr. Kendell’s work group and will be invaluable, as the group completes its evaluation. This site is now open for comments and it will be open through the end of August. (emphasis added)

As has become his pattern, Gov. Herbert outlined principles that will guide the review process. Specifically, the state must:

  1. Maintain high academic standards in all subjects, not just math and English, and for all students.
  2. Monitor and limit the federal government’s role in education.
  3. Preserve state and local school district control of our education system, including curriculum, materials, testing and instructional practices.

Last week’s introduction of Utah’s review process comes at a time when an increasing number of states are carefully evaluating the Common Core in the context of their public-education policy. Continue reading

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