On Point video: Utah primaries and hot-topic court rulings, 6/26/14

In this episode of On Point, “Holly on the Hill” blogger Holly Richardson is joined by three lawyers – Michelle Mumford, assistant dean at the BYU Law School; Curt Bentley, Utah political blogger; and Bill Duncan, director of Sutherland’s Center for Family and Society – to discuss the recent primary elections, the 10th Circuit Court ruling on Utah’s marriage amendment, and two recent Supreme Court decisions.

You can watch the half-hour On Point videos here on Sutherland’s YouTube channel.

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Utah beware! A list of ‘extremists’ and potentially ‘very dangerous’ people at the World Congress of Families

Family_playing_a_board_gameYou may have heard a Human Rights Campaign (HRC) spokesman claim on Utah radio that Sutherland Institute will be bringing 3,000 “extremists” and “very dangerous” people to Utah to attend the ninth World Congress of Families (WCF) next year.

That struck us as an odd and rather irrational claim, given who has attended and spoken at WCF: presidents of nations, religious leaders and people of faith from most major religious denominations, widely published scholars and researchers, high-level government officials, and extraordinary people engaged in helping the less fortunate around the world. While this description evidently leads the HRC to see “extremists,” it reminds us of the majority of mainstream Utah.

In any case, we thought it would be useful to provide a brief list of some past WCF attendees, supporters and speakers. Continue reading

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States still need their own religious freedom laws – Mero Moment, 7/1/14

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

Green River Presbyterian Church in Green River, Utah.

Green River (Utah) Presbyterian Church.

The United States Supreme Court decided an important religious freedom case this week. In a 5-4 decision the court ruled that a privately held corporation is allowed its free exercise of religion. The landmark case, made famous by the mega-craft store Hobby Lobby, held that plaintiffs don’t have to comply with certain parts of Obamacare that offend their religious beliefs. Specifically, Hobby Lobby and two other plaintiffs are not required to pay for an employee’s abortion-related contraception such as the “morning after” pill.

The basis of this precedent-setting decision is a federal law known as the Religious Freedom Restoration Act, or RFRA.

RFRA states that the federal government shall not substantially burden a person’s free exercise of religion and the court held that a privately owned family business is a “person” in terms of this law.

Under RFRA, for the federal government to violate a person’s religious beliefs it has to demonstrate a “compelling government interest” and it then has to pursue a solution to enforce that interest in “the least restrictive means” possible. In other words, to force Hobby Lobby to pay for its employees’ abortion pills, the federal government would have to prove why abortion pills for employees are more important than the religious beliefs of employers and, even if that were possible to prove, the federal government would have to enforce its mandates in the least restrictive means possible. The court properly acknowledged that requiring Hobby Lobby to pay daily fines of $1.3 million, or nearly a half-billion dollars a year, in noncompliance is a clear burden to its free exercise of religion.

Of course, the progressive left is going crazy implying (and sometimes outright lying about) what this decision really means. Continue reading

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How Supreme Court ruling supports integrity, tolerance

Hobby Lobby in Stow, Ohio. (Photo: DangApricot via Wikimedia Commons)

Hobby Lobby in Stow, Ohio.

“Americans need to understand that religious liberty is good for the nation; it’s not just a form of right-wing special pleading,” writes Rachel Lu today in The Federalist. Her article gives the reader “3 ways of promoting religious freedom to your liberally inclined friends and relatives.”

It’s a great explanation of the principles behind the Supreme Court decision that can also help clarify in your own mind just why “[t]he Hobby Lobby decision is a win for personal integrity, cultural diversity, and tolerance”:

Sometimes deep and serious commitments run up against each other, as, for example, when one person’s family commitments conflict with another’s religious beliefs. Those are the hard cases, and we have to sort them out as well as we can. But it’s very hard to argue that anyone’s personal integrity is deeply threatened by an employer’s refusal to pay for their contraceptives. …

[M]odesty gives us an additional reason to be wary of curtailing religious practice. Wise people recognize it’s bad to fool around with things you don’t understand.

Great religious faiths offer their followers a complex and comprehensive metaphysical and moral outlook. It’s extremely difficult to judge from the outside how a given belief or practice fits into that wider perspective. The best policy, therefore, is to respect religious groups’ claims of conscience so far as circumstances allow.

Click here to read the rest of this piece at The Federalist.

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Sutherland applauds Supreme Court’s Hobby Lobby decision

800px-United_states_supreme_court_buildingSutherland Institute issued the following statement today, June 30, 2014, in reaction to the Supreme Court’s decision in the Hobby Lobby case:

The Supreme Court has done the right thing.

No one should have to choose between acting on their religious beliefs or paying crippling fines to the government, including business owners. The court has recognized the importance of the free exercise of religion, protected in the First Amendment of the U.S. Constitution, which is good news for the principles of religious liberty and limited government.

However, supporters of religious freedom can’t let down their guard. Four justices would have allowed the government to force private companies to act against their beliefs. Today’s decision is a welcome reprieve but no reason to relax our vigilance in protecting religious liberty. Utah can help by passing comprehensive state religious liberty protections as soon as possible.

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Podcast: the states vs. the feds on public lands

Sutherland-Coalition-Self-Govt-Logo-200Listen to Carl Graham, director of Sutherland’s Coalition for Self-Government in the West, in a podcast about control and use of public lands. Utah state Rep. Ken Ivory, Donald J. Kochan of Chapman University School of Law, and David Garbett of the Southern Utah Wilderness Alliance also participated in the teleforum, sponsored by The Federalist Society, earlier this week.

Here’s a description of what they tackled during the teleforum:

The state of Utah now has statutory authority to sue the federal government for return of its lands in January, 2015. How sound is the legal case, and what are the economic implications for the Western states – as well as the country in general? What are the environmental policy issues and is state stewardship of these lands best?

Click here for the podcast at The Federalist Society website.

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Analysis of 10th Circuit’s radical ruling on marriage amendment

Wedding ringsEditor’s note: Utah is now at the heart of the debate over same-sex marriage. The state’s Amendment 3, which defines marriage as between a man and a woman, was challenged in court as unconstitutional and was subsequently struck down by a federal judge in 2013. Utah appealed that verdict. On Wednesday the U.S. Court of Appeals for the 10th Circuit ruled against Utah, 2-1. If this case is appealed to the Supreme Court, which appears likely, the court’s decision may decide the future of marriage for decades – for the entire country.

Does the right of self-determination extend to voters’ decisions to protect children’s entitlement to be reared by a married mother and father? We learned this week that two judges on the 10th Circuit Court think the answer is no. One of their colleagues, however, wrote a strong dissenting opinion highlighting just how radical that answer is.

The majority opinion is something of a departure from previous cases. The judges admit that Utah voters cannot be accused of hatred or animus just because they wanted to retain the child-centered understanding of marriage.

The crux of their opinion is the novel claim that the Constitution has, since 1868, contained an unwritten “fundamental right” to same-sex marriage. They try to disguise the radicalness of that claim by saying that they are only applying the right to marry that has been previously recognized by the Supreme Court. That’s an implausible claim given that no state had redefined marriage to include same-sex couples until 2004, long after the court’s latest right-to-marry case.

To reach the result the 10th Circuit judges did in this case requires first redefining marriage to mean something it has never meant before — the right to choose one’s life partner of either sex. Only after marriage is understood in that way (in contrast to the virtually universal understanding of marriage as the union of husband and wife that prevailed just over a decade ago) can it make any sense to say that there is a right to marriage that includes same-sex relationships.

A major problem with that approach is that the U.S. Supreme Court has said that if a new right is to be recognized by the federal courts, it must be identified as precisely as possible and must be implicit in the history and tradition of the nation. The “right” the 10th Circuit majority has announced, precisely identified, is a right to same-sex marriage. Why? Because when the Supreme Court recognized a right to marry, the only kind of legal marriage in the United States was the union of husband and wife. To recognize the new right to same-sex marriage, the judge needed to show that this “right” is part of the nation’s history and traditions. That is an insurmountable obstacle for an innovation introduced a mere decade ago by the Massachusetts Supreme Judicial Court.

The court also rejects the state’s reasonable concerns about what will happen if the state is forced to abandon the ideal that children should be raised by their own married mother and father whenever possible, or another married mother and father when that’s not possible. It does so only by relying on its own unsupported assumptions that an official government message that men and women, mothers and fathers, are interchangeable and that neither is essential to child well-being will have no effect. Our experience with nearly 40 years of government endorsement of the idea that marriage is binding only until one party is dissatisfied should cause us to be very suspicious of that claim.

The dissenting opinion in the case is very important. Judge Paul Kelly notes: “The starting point for a claim that same-gender marriage is required by the Constitution must be the Constitution.” He points out what should be obvious to the most casual observer, “The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees.” Since all right-to-marry cases have involved opposite-sex couples, what the majority is arguing for is a new, judicially created, right.

This is problematic for a number of reasons. “If the States are the laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of a limited national government on its head.” Judge Kelly warns: “[W]e should be reluctant to announce a fundamental right by implication. Not only is that beyond our power, it is completely arbitrary and impractical; as in this case, a state should be allowed to adopt change if desired and implement it.” He concludes: “We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.”

What does this decision mean for the future? A media talking point has been that same-sex marriage is on a roll, having received the support of a couple dozen federal judges in the last year. Thus, the argument goes, a national mandate for redefinition is inevitable. The problem with that line of reasoning is that all of the court decisions to this point rest on an interpretation of implications of last year’s Supreme Court’s decision on the Defense of Marriage Act (the decision itself said nothing about whether states had to redefine marriage). If the judges took the wrong cues from the Supreme Court’s silence, every one of the decisions mandating marriage will be meaningless.

There is a definite bright side in the timing of the 10th Circuit opinion. This is the first federal appeals court decision striking down a state marriage law. The only other circuit opinion on the issue, from the 8th Circuit in 2006, held that states were free to retain the understanding of marriage as the union of a husband and wife. This case creates a conflict among the federal courts on the matter, so the Supreme Court should feel obligated to resolve that conflict and correct the misinterpretation of its June 2013 decision.

The Utah case is a good vehicle for doing that. Unlike other states where government officials are refusing to defend marriage, Utah has provided a robust defense of its laws. Utah is also unique among states in that its people are more likely, on average, to live out their commitment to the ideal that children deserve a mother and father.

So, the 10th Circuit decision is disappointing, but not unexpected, and it allows the legal process to move forward to the U.S. Supreme Court. The increased attention to this matter that will come from this next stage will provide more opportunities to stand for the truth about marriage and family. These opportunities are not to be missed.

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A disappointing 10th Circuit ruling; on to Supreme Court

scalesIt’s disappointing to have a few federal judges decide that they can unilaterally override the decision of Utah voters to preserve marriage as society’s way of preserving children’s opportunity to be reared by a mother and father.

We’ve long known that this issue will have to be resolved by the U.S. Supreme Court. We’re grateful that Utah will have the opportunity to make its case to the top court that Utah voters deserve self-determination to decide a matter crucial to the state and its citizens.

Any appeal at the U.S. Supreme Court is the main event and may decide the future of marriage for decades. Defenders of marriage must be prepared and Sutherland Institute has laid the groundwork ensuring that top legal minds have compiled every constructive and effective argument to give our side the best chance of winning.

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John Paulk and the politicization of homosexuality – Mero Moment, 6/24/14

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

GayBusEarlier this month, the Texas Republican Party adopted as a part of its latest platform a provision in support of what is called “reparative therapy,” whereby individuals struggling with homosexuality can receive professional counseling to help distance themselves from that behavior – if that is what they truly desire.

You might wonder what any of this has to do with politics, and the answer is that homosexual activists and their progressive friends have politicized “gay rights” so much that there’s hardly anything about homosexuality that remains a matter of privacy. The Texas Republican Party included this provision in its platform precisely because homosexual activists insist that homosexuality is immutable – and, if immutable, deserving of all civil rights protections and a matter of law and politics.

Most people don’t want to talk about this stuff. After all, it’s private. Most of us believe in live and let live. But when the Texas Republican Party did its thing, the liberal online report Politico ran a big story about a homosexual man named John Paulk who, for years, had a revolving door on his sexual closet and, in his estimation, finally came to realize that none of this so-called reparative therapy actually works. The fact is we talk about this stuff because these issues are symbolic of huge cultural shifts in the American psyche about right and wrong.

As fate would have it, I first met John Paulk in 1997 at the campus of Focus on the Family in Colorado Springs. Back then, John was a bit of a cause célèbre having renounced his homosexuality, crediting faith-based reparative therapy for helping him overcome his struggle. He was big news. He even made the cover of Time magazine in 1998. But shortly after that, in 2000, his world came apart at the seams. He was photographed at a homosexual bar in Washington, D.C., and not only was his reputation in ruins, the reparative therapy he had championed, even written a book about, was seriously questioned in the media.

Frankly, it all seemed a bit odd to me at the time. Too much in the debate over “gay rights” seemed to be riding on this one guy. Not to mention, I’ve never thought that a person can “pray away” such difficult personal struggles – a person’s faith can be important, but real professional help is needed for matters like addictions and depression-related behaviors. Continue reading

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A reminder of Utah’s lost energy opportunities

UtahTarSandsThis just in! There’s energy in the ground, and there’s money and jobs to be had in energy. OK, maybe that’s old news.

Not that it matters that much in Utah anyway, where the ground is mostly owned by the federal government, and it’s not letting the energy, the jobs or the money out.

North Dakota, which is about 3 percent federally owned, just passed the million-barrel-a-day mark for crude production, making it one of the top producers in the nation. Meanwhile Utah, which is over 60 percent federally owned, produces about a tenth that amount but is sitting on the potential for $7 billion annually in economic value, a billion or so in tax revenues, and over 50,000 jobs, according to an analysis by Sutherland’s Coalition for Self-Government in the West. But, while oil production on private lands has increased by about a million barrels a day since 2009, production on federal lands has been flat. That’s bad news for Western states that are mostly controlled by D.C. bureaucrats.

And it’s a lot of lost opportunity.

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Deseret News op-ed: Healthy Utah plan would hurt the most vulnerable Utahns

Waiting Room, by Vincent van Gogh

Waiting Room, by Vincent van Gogh

Good public policy requires three elements: doing the right things for the right reasons in the right ways. These elements are the difference between good policy and bad.

The proposed Healthy Utah Plan does some of the right things and for the right reasons. It seeks to help uninsured individuals acquire private health insurance (the right thing) for the sake of their own health as well as that of Utah’s economy (the right reasons). However, Healthy Utah would do this by pushing the most vulnerable Utahns further back in the health care access line.

It also relies on federal funding that cannot be sustained — jeopardizing funding for government services like education and transportation. You simply cannot do the right thing in the wrong ways and make good public policy.

Healthy Utah proposes to subsidize private health insurance for some 55,000 uninsured Utahns in the Obamacare “coverage gap.” In short, it takes them from the back of the line for access to health care and puts them at the front.

But what does that mean for the more than 300,000 low-income children, single parents and disabled Utahns — the most vulnerable of Utahns — who are on Medicaid now?

Click here to read the rest of this op-ed by Sutherland’s Derek Monson on the Deseret News website.

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Our generous presidential pensions

presidential sealU.S. presidents make a lot of money when they leave office, both in their private endeavors and in terms of government pension and expense reimbursements. Private wealth among presidents was never uncommon, but no post-presidency pension existed until 1958, when Congress passed the Former Presidents Act, providing a yearly salary equal to that given a current member of the Cabinet (currently about $200,000), as well as providing for office, travel and personnel expenses.

While there had been talk of creating a presidential pension for some time, the impetus for passing it in 1958 was President Harry Truman’s financial struggles after he left office. In his final year in office, President Truman earned $100,000. The next year his income dropped to $34,000, and then to $13,000 the year after that. That is a precipitous drop in annual income. However, adjusted for inflation, $13,000 would be roughly equal to $114,000 today, putting Truman in the top 10 percent of earners of his day. He certainly wasn’t destitute. To his credit, Truman had numerous offers for executive positions and membership on boards of directors, but he turned them down because he didn’t want to profit from the office of the presidency after his term was over. Instead, he focused on building his presidential library, and in 1953 he sold his memoirs for what amounts to $4 million in today’s dollars.

There are four living ex-presidents today, each participating in the Former Presidents Act pension and expense reimbursement program. None of those ex-presidents is in dire financial straits. All were wealthy before assuming office, and all have remained so after leaving the White House. President Clinton, for example, made over $100 million between 2000 and 2007. Yet all former presidents ask for and are given their full $200,000 pension each year. And that’s not all. Taxpayers also pick up the bill for travel, rent, telephone, postage, and various other expenses incurred by ex-presidents, amounting to about $3.5 million a year. In all, since 2000 taxpayers have spent $60 million (adjusted for inflation) on presidential pensions.

Public office should be public service. While there are some expenses presidents incur after they leave office that are unavoidable and a direct result of their public service, why should taxpayers be footing the expensive rent bills of multimillionaires? Especially when those multimillionaires left taxpayers with a $17 trillion debt while they were in office?

Want to know more? Dig deeper here at Utah Citizen Network.

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In search of best income equality? Utah’s the place – Mero Moment, 6/18/14

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

Mind_the_income_gapIncome inequality is the new buzzword for progressives in their never-ending assault on the character of America – not that America doesn’t need a mirror held to its face every now and then. But progressives seem to relish every opportunity to remind Americans that we’re not that special after all.

Admittedly, I am an unabashed cheerleader for Utah exceptionalism. Last year, I wrote a short book about how Utah leads the nation in faith, family and freedom. Little did I realize at the time that Utah is also the most equal state in the Union in terms of income.

It turns out the research on income inequality has been ubiquitous for several years now, a new best-selling book on the subject has made it a cause célèbre once again. Progressives are eating up Thomas Piketty’s new book, Capital in the Twenty First Century, and use it now in conjunction with liberal Senator Elizabeth Warren’s push for a living minimum wage.

As it turns out, much to the chagrin of progressives everywhere, Utah is the most income-equal state in the Union. The goal of income equality is a large middle class where the divide between the rich and poor is at its absolute minimum. Utah is the best in this category. Yes, homogenous, patriarchal, church-going, Republican-dominated, liquor-hating, federalism-loving, politically conservative Utah does income equality better than any blue state in the nation. Continue reading

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The blind spot of same-sex-marriage advocates

Photo credit: cesarastudillo

Photo credit: cesarastudillo

The optic disc is the point at which the optic nerve enters the retina. The optic disc is insensitive to light. It has no rods or cones and, therefore, cannot detect any images. The optic disc is also called the “blind spot.” By way of analogy, we use the blind spot to describe many things in life to which we’re simply insensitive and, ironically, over-sensitive to the point at which we’re not willing to see what is real.

Parents are particularly susceptible to blind spots regarding their children. For instance, some kids just aren’t gifted athletically or in the arts despite their parents’ insistence. Politics has its blind spots, usually in the form of obligatory optimism (wherein a true believer can’t face the reality of defeat) or extreme ego (wherein an unqualified or unprepared candidate for elected office convinces himself he is ideal).

Giving others the benefit of the doubt, the debate over same-sex marriage has its blind spots too – perhaps nowhere more pronounced than the inability of many same-sex marriage supporters to see the rational basis within the state interest over the definition of marriage.

The description of this blind spot does not include willful ignorance or callous disregard motivated by ideology or even an honest disagreement about what legal arguments trump another (e.g., equal protection or a state interest). This blind spot regards the inability of same-sex-marriage advocates to even see a state interest in Utah’s marriage law.

In candor, I admit my incredulity about this blind spot. It’s increasingly hard for me to give advocates of same-sex marriage the benefit of the doubt for this blind spot when they so easily and consistently argue for the socio-psychological benefits of marriage. “We just want what you have.” “We want to be happy like you.” Frankly, it’s hard to believe that these advocates can’t see the state interest in marriage when they clamor to get married on multi-grounded justifications rooted in the general welfare of men, women and children, and exemplified, at least partially, in amicus brief after amicus brief currently filed by friends of the plaintiffs at the 10th Circuit Court of Appeals.

The state interest in the definition of marriage is otherwise self-evident and has been so, whether or not formally recognized under law, since the time families created communities that needed governing: Society has a fundamental stake in demographic progress and the welfare of men, women and children. If people aren’t reproducing or, when they do, aren’t doing so in the optimal setting to maximize the general welfare of men, women and children, state measurements of progress (economic, social, health, psychological, physical, etc.) decline. The intact, two-parent (male/female) family produces the best results in both of these criteria. The state interest is the best interest requiring, ipso facto, the adoption of policies reflecting what’s best.

But, as I mentioned, giving others the benefit of the doubt compels us to advance the idea that same-sex marriage advocates who cannot see the state interest in the current definition of marriage must have a significant blind spot. These advocates seem to have 20/20 vision for their own self-interest but suffer an insurmountable blind spot regarding the general welfare and the common good – what we refer to as the state interest. Continue reading

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Sign petition: Let Herbert, Reyes know we stand with them in defending marriage!

Wedding rings

Gov. Gary Herbert and Attorney General Sean Reyes are being bombarded by voices demanding they give in and stop defending Utah’s law preserving marriage between a man and a woman.

The silent majority needs to stand up and let them know we support their efforts to preserve marriage in Utah.

Click here to sign the petition and we’ll hand-deliver it to Gov. Herbert and AG Reyes.

Thank you for your support!


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