Sorry, this is not ‘Jim Crow’ – Mero Moment, 4/22/14

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

JimCrowDrinkingFountainDuring the recent oral arguments before the 10th Circuit Court of Appeals regarding the marriage laws of Utah and Oklahoma, Judge Jerome Holmes, an African-American, entertained the plaintiffs’ comparison between prohibitions against marriages based on race and prohibitions based on same-sex relationships. Basically, he asked the defendants, “What’s the difference?”

Judge Holmes referred to a 1967 U.S. Supreme Court case addressing a Virginia law preventing a black woman and a white man from marrying. The Court overturned the state law and, in the process, described the fundamental right to marry under the law. Plaintiffs challenging Utah’s marriage law argue the same thing. They claim that two men or two women (or any consenting adults) have a fundamental right to marry, and the Loving case is Exhibit A to justify their claim.

Of course, the answer to Judge Holmes’ question and to the plaintiffs’ claim is that the Loving case was about racism, not marriage. Marriage has a specific definition that Loving did not change. Marriage is between a man and a woman. The Loving case was about marriage between a man and a woman. Once the Court conquered racism, it justifiably ruled in favor of the mixed-race couple.

But this whole analogy brings up the real question: Is there a legitimate argument in favor of same-sex marriage by equating racial civil rights and “gay rights”?

From the end of the Civil War until the passage of the Voting Rights Act in 1965, black Americans were subject to degrading and unjust “Jim Crow” laws that treated them as “separate but equal.” Here are some examples of how black Americans were treated under “Jim Crow” laws:

  • White female nurses were not allowed to treat black men
  • Bus stations were required to have separate waiting areas for whites and blacks
  • Railroad passenger cars were segregated
  • Restaurants had to have separate dining areas and entrances for whites and blacks
  • Cohabitation between the races was prohibited
  • Black children were separated from white children in public schools
  • Black and white public school children couldn’t even share the same textbooks – a textbook used first by a black child was forever to be used by black children
  • Public parks were segregated
  • Mixed housing was a crime
  • Not only were lunch counters segregated, so too were telephone booths Continue reading
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Elder Oaks urges mutual understanding on religious freedom issues

Elder Dallin H. Oaks speaks at Harvard Law School in 2010.

Elder Dallin H. Oaks speaks at Harvard Law School in 2010.

I have heard people rant and rave and bellow
That we’re done and we might as well be dead,
But I’m only a cockeyed optimist
And I can’t get it into my head

Elder Dallin H. Oaks quoted these lyrics from South Pacific last week in a speech at Utah Valley University, explaining that he is “optimistic in the long run” despite the current threats to religious freedom from our courts and popular culture.

Elder Oaks, a lawyer who served as a Utah Supreme Court justice before becoming a member of the Quorum of the Twelve Apostles of the LDS Church, said,

In this country we have a history of tolerant diversity — not perfect but mostly effective at allowing persons with competing visions to live together in peace. We all want to live together in happiness and harmony. We all want effective ways to resolve differences without anger or contention and with mutual understanding and accommodation.

There are points of disagreement between those who insist on free exercise of religion and those who feel threatened by it. Similar disagreements exist between those who insist on nondiscrimination and those who feel that some of its results threaten their religious liberty. There are no winners in such disagreements. Whatever the outcome in one particular case, other disagreements persist, and we are all losers from the atmosphere of anger and contention. In this circumstance of contending religious rights and civil rights, all parties need to learn to live together in a community of goodwill, patience, and understanding. …

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Bundy family: Right issue, wrong argument – Mero Moment, 4/15/14

Sutherland is focused on helping western states regain control of their land. Visit for more information.

Sutherland is focused on helping western states regain control of their land. Visit for more information.

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

Cliven Bundy’s family roots in Nevada stretch back to the 1880s but his awkward articulation of constitutional rights and federalism are hurting his case and the broader case for greater self-determination in western lands management. Our western states are severely handicapped by the federal government’s ownership of massive amounts of land. It is true. And it is high time that citizens in these western states do something about it. Unfortunately, Cliven Bundy’s justifications and methods are politically counterproductive and legally, well, wrong.

Our western states have plenty of tragic examples where federal encroachment is destroying economic prosperity and driving generations of families from the lands they’ve called home. Bundy’s mistake is that he’s shifted the focus from that legitimate argument to arcane constitutional polemics that few Americans understand or are comfortable with.

In complaining about the federal government to entertainment conservative Sean Hannity, Mr. Bundy stated, “What they have done is seized Nevada statehood, Nevada law, Clark County public land, [and] access to the land….” To The Guardian newspaper he’s quoted as saying, “We definitely don’t recognize [Bureau of Land Management] jurisdiction or authority….” During an interview on the radio program “The Dana Show,” Mr. Bundy told listeners, “I abide by all of Nevada state laws. But I don’t recognize the United States government as even existing.”

Well, he’s wrong. And even if he were right, he’d still lose with that argument. Continue reading

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Where your tax dollars are going … and what you’re (not) getting in return


A reminder of where your federal income tax dollars are going … and what you’re (not) getting in return.  Happy tax day.

Graph courtesy of this Cato Institute policy report.

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A review of the Utah marriage amendment oral arguments presented to the Tenth Circuit


Sutherland’s Director of the Center for Family and Society Bill Duncan reviews the oral arguments heard by the panel of three judges at the Tenth Circuit Court of Appeals, the judges’ questions and comments, and what it might mean for the expected June ruling.

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Filing taxes? Utah’s burden is 2nd highest among Mountain States

This time of year, most Utahns’ minds turn toward thoughts of … their state and federal income taxes.

state local tax burdens

During the joyful process of filing a tax return, it is natural (and healthy for the sake of freedom) to be a bit concerned about with how much time (e.g. filing taxes) and money it takes to fund government. And it’s natural to wonder whether government elsewhere requires a smaller bite of your income, even if you have no intention of moving.

Enter the Tax Foundation’s “Annual State-Local Tax Burden Ranking.”

According to this year’s Tax Burden Ranking (based on 2011 data – the most recent data available) Utah had the 28th highest state and local tax burden in the country, at 9.4 percent of income. This reflects the conservative lean of Utah policymakers relative to the rest of the nation, to the benefit of Utah taxpayers.

When compared only to its Mountain States neighbors, on the other hand, Utah’s state-local tax burden comes in second out of eight.

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Who’s next to be ‘Eiched’? – Mero Moment, 4/8/14

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


Brendan Eich, creator of JavaScript, was CEO of Mozilla for all of 11 days. He resigned after relentless hounding over a $1,000 donation he made to California’s Prop 8.

Here is a name you won’t soon forget: Brendan Eich. Like so many other success stories out of Silicon Valley, Brendan Eich is a computer programmer who struck it big. He created a popular web browser language called JavaScript. In 1988, Eich co-founded a tech project that turned into the Mozilla Corporation that owns the web browser Firefox. Mozilla named him its new CEO on March 24 where he remained for eleven days when he unceremoniously resigned his position on April 3.

After two decades of brilliant work inside a corporation he built, what sort of scandal must have befallen Brendan Eich to get him to resign his post in only eleven days? What caused him to resign his prestigious job is that six years ago he donated $1,000 to Proposition 8 in California – and, for that high crime, homosexual activists drove him from office. In his resignation letter, Eich said, “Under the present circumstance, I cannot be an effective leader.”

You won’t soon forget Brendan Eich’s name because, no doubt, it will assume immortality in the political lexicon as a verb – as in, “You’ve just been Eiched.” One important lesson for the rest of us is to not cower in the face of political correctness but to fight back and stand up for what you believe. It doesn’t mean you won’t lose your job but it does mean you refuse to be bullied – Brendan Eich never apologized for his Prop 8 donation.

As someone who plays in this sandbox daily, I can tell you what really rubs me the wrong way. It’s not homosexual activists. I expect them to behave this way. I certainly don’t blame Eich. He did what he felt was best for the good of the company he built. My problem is with Eich’s corporate colleagues who didn’t have his back. Those people are the cowards who flame irrational protests. Furthermore, they’re hypocrites. In the name of pushing Eich out the door, they invoke tolerance and inclusiveness as their motivating principle.

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Video: A citizen’s guide to the Utah marriage case, Part 2


Bill Duncan, Sutherland Institute’s director of the Center for Family and Society and executive director of the Marriage Law Foundation, provides a citizen’s guide to the key arguments before the 10th Circuit Court of Appeals in the Utah marriage amendment case. Below is an an outline of what Bill explains in the Part 2 video. (Click here to see Part 1.)

State replies to plaintiffs’ rebuttal

  • Race analogy doesn’t work because there are actual, meaningful differences between couples who can provide a mother and a father for children and couples who can’t.
    • Also doesn’t work because of the historical differences.
    • Infertile couples still support state’s ability to encourage mothers and fathers for adopted children, and also provide an example of faithfulness that’s crucial for a successful marriage culture.
    • A lot of precedent for a state’s residents to govern themselves; no clear constitutional provision that’s being violated by the state retaining the laws of marriage that have always existed.
    • State says the Supreme Court already decided this question in Baker.
    • Plaintiffs will say the Supreme Court’s intention in Windsor essentially decided the question.
    • Both sides will tell the 10th Circuit that it doesn’t have the authority to throw out previous Supreme Court decisions.
    • Issues of federalism might come into play.
    • Utah actually values marriage, doesn’t just provide lip service. It is the state with the highest rate of children being raised by their married mother and father. Can Utah continue to live by the things it cherishes most?
    • State points out there’s a lot of reason for uncertainty about what might happen if marriage is redefined. Social science points to evidence that children raised by their mother and father do best on a range of objective social measures. Continue reading
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Video: A citizen’s guide to the Utah marriage case before the 10th Circuit Court of Appeals

To help Utahns get a better grasp on this historic case, Bill Duncan, Sutherland Institute’s director of the Center for Family and Society and executive director of the Marriage Law Foundation, provides a citizen’s guide to the key arguments before the 10th Circuit Court of Appeals in the Utah marriage amendment case.

In part 1, Bill discusses most of the arguments presented by the state and the plaintiffs. In part 2, which will be released tomorrow, Bill discusses the likely oral arguments, the social science arguments and the history of the changes to marriage law and the resulting consequences.

Part 1


Bill tells us that the key question for the 10th Circuit to answer is: Has the Supreme Court already decided this issue? The State submits its brief first, which Bill outlines, and then the plaintiffs respond, which Bill also explains.

  • Why is the state interested in marriage?
  • Sound social science research shows children do better when raised by a mother and a father.
  • State shows how changes to state law alter the incentives and disincentives of people to marry or not to marry.
  • The state disagrees with the plaintiffs and Judge Shelby (the Utah federal judge who struck down Amendment 3, Utah’s marriage amendment passed by 66 percent of Utah voters in 2004) when they say the state’s primary role in marriage is to approve of the lifestyle choices of its residents. The state argues that that idea has negative consequences.
  • State cites Baker case as controlling, or the case that stands as precedent for this case. In the Baker case, the Supreme Court said it isn’t going to issue a complete opinion on the case because it is so obvious there is not even a constitutional issue here. The Court said there is no federal issue; there is nothing in the U.S. Constitution that requires us to weigh in; there’s nothing in the U.S. Constitution that requires same-sex marriage.
  • The plaintiffs, Judge Shelby and other federal judges say law and society are evolving in our notions of what the Constitution requires and so Baker shouldn’t be controlling. State says no, the Constitution doesn’t change meaning over time.
  • The state argues that state law should be the standard of law in this case and in most cases, and that people of the state should be able to govern themselves except in exceptional cases.
  • Plaintiffs argue that the state marriage amendment is essentially like racism, and therefore should be overturned by the courts. The state disagrees with the idea that treating same-sex couples as not married is the same as not allowing white and black couples to marry. State argues it’s not the same for several reasons.
  • State explains the rationale for why it treats human relationships differently.

Plaintiffs respond:

  • Baker v. Minnesota is outmoded; a lot of things have changed since then so there’s no point in applying that case to this situation.
  • Plaintiffs try to convince 10th Circuit that U.S. Supreme Court has already essentially decided this issue in the Windsor case and therefore the Constitution requires every state to change its laws to allow same-sex couples to marry.
    • Justice Kennedy said a lot of things in support of the authority of the states, which makes this argument a challenge for the plaintiffs as they try to convince the 10th Circuit to invalidate state laws.
    • Try to establish that the Constitution really does require states to allow same-sex marriage. Rely on recent cases, especially by Justice Kennedy, which isn’t surprising because all sides know they have to convince Justice Kennedy, as he is often the swing vote in close cases.
    • Try to show that all the reasons the state cites for defining marriage as it has are irrational at best or done out of spite, hatred and animus at worst.
      • Difficult because they essentially have to say the 66 percent of Utah voters who voted for the marriage amendment did so simply to persecute same-sex couples.
      • Plaintiffs argue that the state is in control of marriage and therefore has the power to get everybody to accept that one’s sexual attractions are no different than other human characteristics.
      • The infertile couple argument put forward by the plaintiffs, and the state’s response.
      • Plaintiffs argue that the 14th Amendment is being violated — states can’t deny to individuals due process of law and equal protection under the law.
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Unnecessary licensing restrictions raise cost of health care

Medical toolsWhy do we have licensing laws that restrict who can treat patients as a doctor and perform medical procedures?

Ostensibly, it is for the health and safety of people who need to visit the doctor (i.e. everyone). We don’t want John Doe off the street opening up a medical clinic, calling himself a doctor, and handing out drugs or performing surgery.

So what does it mean when we find out that some licensing rules meant to protect our health have no connection with health outcomes, and in fact harm us by making medical services more expensive?

A recent study published by the National Bureau of Economic Research reported that medical licensing rules that allow only physicians – not nurse practitioners – to prescribe drugs to patients “do not seem to influence health care quality.” Changing these licensing regulations does not seem to impact health outcomes such as infant mortality rates.

However, these licensing restrictions are connected with higher health care costs. For instance, the study “shows that more rigid regulations increase the price of a well-child medical exam by 3 to 16%.” This happens through various mechanisms, such as requiring a parent (or the parent’s insurance company, which charges premiums to cover those costs) to pay the more expensive rate charged by a physician for their child’s checkups, in order to access that physician’s ability to prescribe any drugs needed.

When nurse practitioners are allowed to prescribe drugs, the cost of a well-child exam goes down because the time of the nurse practitioner is less expensive than that of a physician. And as the study suggests, this less expensive medical option is likely to come without significant negative effects on health outcomes.

Why does this matter to Utah and Utah families? In every legislative session, without fail, there is a raft of new proposals to heighten licensing restrictions to prevent people from providing various services.

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Behind the Legislative Scorecard – Mero Moment, 4/1/14

sutherland file pictures 009This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

About 10 years ago, when Sutherland Institute made it a part of our mission to “constructively influence Utah’s decision makers,” we were very reluctant to create a legislative scorecard. For several years our thinking was that legislative scorecards tend to be more divisive – less constructive – than helpful. Several advocacy groups in Utah use these scorecards to demonstrate how aligned a state legislator is with whatever a particular group is advocating. At the time, we didn’t feel the need at Sutherland to become just one more “critic” of the Legislature.

That said, we were pressed increasingly by citizens to create a scorecard that would reflect the conservatism of the Legislature. Sutherland is Utah’s conservative voice, and the many requests for us to somehow measure the Legislature’s conservatism didn’t seem unreasonable. Still, and to this day, Sutherland Institute is sensitive to how these scorecards can be used by others for political and partisan purposes.

Two years ago we decided to try our hand at producing a scorecard that would measure the level of conservatism at the Legislature without encouraging its misuse by others. The 2014 Legislative Scorecard is our third iteration and we feel confident that we’ve accomplished our goal.

Of course, the Utah Legislature is a conservative body in a conservative state. And for that very reason, the term “conservative” is used broadly and indiscriminately. Evidently conservative can mean anything from a champion of government-generated economic development all the way to a libertarian. The Sutherland scorecard attempts subtly to help citizens understand that conservatism has specific meaning.

For the 2014 legislative session recently concluded, 784 bills were introduced at the Legislature. Sutherland tracked nearly 50 bills as a part of our regular work and we’ve isolated 17 Senate votes and 18 House votes for our latest scorecard. Our measurement is simple: Did a legislator vote the conservative way?

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Michigan judge’s dismissal of research was unbelievable

See_No_Evil,_Hear_No_Evil,_Speak_No_EvilThis op-ed by William C. Duncan, director of Sutherland’s Center for Family and Society, was published March 29 in The Salt Lake Tribune.

What does “unbelievable” mean? To most of us, it means that something is clearly not true or at least is so implausible as to justify our rejecting it as an explanation.

In his ruling last week that the United States Constitution requires Michigan to change its legal definition of marriage to include same-sex couples, Judge Bernard Friedman vociferously attacked four social scientists. The state had relied on their work to cast doubt on the notion that social science establishes that there are no differences in outcomes for children raised by a married mother and father and those raised by same-sex couples, of whom only one could possibly be the child’s biological parent.

Judge Friedman dismissed all of the witnesses, two for no real reason and the other two because the judge found their research “unbelievable.” Why?

In the case of Mark Regnerus, a sociologist at the University of Texas, the judge points to four factors. One is that his study has limitations, which is true of all studies and which Dr. Regnerus freely admits. Another is that it was funded by a third party who hypothesized that it would demonstrate what anyone with a cursory knowledge of family studies would guess — that children are likely to benefit from being raised by a married mother and father.

Then, the judge said the study has critics(!) who didn’t like the study’s design but who have yet to follow the credible scientific path: produce their own research with different results. This criticism is particularly interesting. The judge and the critics fault the study for not comparing children raised for long periods by same-sex partners (the fact that so few could be found in the random sample is itself telling). But earlier in the opinion, the judge said the social scientific consensus was that “there is no discernible difference in parenting competence between lesbian and gay adults and their heterosexual counterparts.” So, the judge’s favored evidence has nothing to do with children’s outcomes when raised by any kind of family form, but he is bothered that Dr. Regnerus didn’t study that question.

At least Dr. Regnerus’ study was actually relevant to the case since it looked at the effect of family structure on children rather than at the parenting skills of individuals with varying sexual attractions.

So, apparently, “unbelievable” to Judge Friedman means that he has been told something he didn’t want to hear.

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Sutherland releases 2014 Legislative Scorecard and Lifetime Legislator Scores

Photo Credit: Scott Catron

Photo Credit: Scott Catron

SALT LAKE CITY – Sutherland Institute released today its 2014 Legislative Scorecard. Using 17 pieces of legislation considered during the 2014 legislative session for the Senate and 18 for the House (not all bills overlap between chambers), Sutherland produced an individual score for each legislator and an overall score for each body. In 2014, the Utah Senate scored 79 percent on average (79 percent in 2013 and 81 percent in 2012) while the Utah House came in at 75 percent (58 percent in 2013 and 75 percent in 2012).

Of note during this session was the wide bipartisan agreement on several pieces of transparency legislation. Additionally, the so-called “moratorium” on bills dealing with religious freedom and nondiscrimination laws contributed to a less controversial session.

The 2014 Legislative Scorecard can be found here.

2014 Senate highlights:

  • “High Five”
    • 100%     Margaret Dayton
    • 100%     Mark Madsen
    • 94%       Deidre Henderson
    • 94%       Stuart Reid
    • 93%       Scott Jenkins
  • “Low Five”
    • 50%       Jim Dabakis
    • 56%       Patricia Jones
    • 59%       Gene Davis
    • 59%       Karen Mayne
    • 64%       Luz Robles
  • 20 of 29 senators scored 75 percent or better

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Twice as good, half as well, never enough

half loaf cornbreadIs it more important to stand on principle, or get while the getting is good? Is settling for half a loaf selling out, or a step in the right direction? Does mixing metaphors like concrete weigh prose down, or liberate the literary soul?

OK, no one but the grammar police really cares about that last one. But the first two will decide the limited government movement’s fate. That’s what’s splitting us right now, you see. Libertarian-leaners, classical liberals, and “establishment” conservatives are less divided by issues and objectives than we are about timelines and roadmaps. We all want to see the same movie, but we’re wearing ourselves out haggling over which showing and how to get there. And whatever we decide, the other guys will be there first. Let’s see if I can stick with one metaphor long enough to explain why.

The reason they’ll be there first is because they’re running the theater. Government employees are predominantly big government-type people. That’s not meant as a pejorative. It’s simple common sense. If you think government is the answer and you care about the question, you are more likely to migrate to government employment (it used to be government service, but the days of the dollar-a-year man are gone) than someone who sees government as the problem; or more likely, who sees private work or charity as the answer.

The simple fact is that when conservatives engage in the political and bureaucratic arena, it’s almost always an away game. One reason is noted in this excellent piece by Kevin Williamson: “[C]onservatives are forever in a position of running against handouts, and handouts are popular.”

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Obama: I don’t know anything, and what I say means nothing

800px-Barack_Obama_in_the_Oval_Office,_April_2010Back in November, I collected a few instances of the left calling out President Obama for his claims of ignorance on a spate of issues — NSA spying, Obamacare, IRS targeting, Fast and Furious gun trafficking, the AP reporter harassment and Benghazi. That post is below for your enjoyment. But now it’s becoming more and more clear that, in addition to apparently not knowing much about what’s going on with his administration, Obama does not expect to be held to what he or his administration says. The message from Obama is clear: What I say means nothing, and I don’t know anything anyway.

On Obamacare, the president’s administration has repeatedly delayed or changed what were once hard deadlines and clear policies, while also insisting that some deadlines could not be altered. The Heritage Foundation has a rundown of what happened to one of those “unchangeable” deadlines:

“We have no plans to extend the open enrollment period. In fact, we don’t actually have the statutory authority to extend the open enrollment period in 2014.” — Health and Human Services (HHS) official Julie Bataille, March 11

“Once that 2014 open enrollment period has been set, they are set permanently.” – HHS official Michael Hash, March 11

“March 31st is the deadline for enrollment. You’ve heard us make that clear.” – Press Secretary Jay Carney, March 21

“There is no delay beyond March 31.” – HHS Secretary Kathleen Sebelius, March 12

There was no delay … until there was. The Washington Post reported [Tuesday] that March 31 is not, in fact, the final word. To get more time, you tell the government that you haven’t been able to sign up yet:

Under the new rules, people will be able to qualify for an extension by checking a blue box on to indicate that they tried to enroll before the deadline. This method will rely on an honor system; the government will not try to determine whether the person is telling the truth.

OK, so everyone knows about the issues with Obamacare. But Obama certainly means what he says when it comes to foreign policy, right?

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