It appears that in Indiana and eventually everywhere, we are about to throw out the baby with the bathwater. In the name of expanding and securing gay rights under the 14th Amendment, we are prepared to give up people’s religious rights under the 1st Amendment. This is both unfortunate and unnecessary.
The hard case is the individual baker, photographer, florist or caterer whose religious beliefs hold that marriage is between a man and a woman and cannot in good conscience participate in gay marriage. On the other hand, the law increasingly says same-sex marriage is legally protected.
In a clash of constitutional rights, courts must decide. It seems like there is room to uphold gay marriage while allowing those who perform personal services and whose religious beliefs do not allow for gay marriage to decline to participate.
Gay rights advocates won’t like that, but the harm of finding a different baker seems less than forcing someone to violate religious conscience.
Link to Salem-Townhall audio: http://townhall.com/talkradio/dailycommentary/699514
The controversy over religious rights in Indiana presents an important “liberty moment” when the lights come on and we recognize that big government is in fact out to take away our freedoms.
Remember the promise about health care? If you like your policy, Obamacare won’t hurt you, you just keep your private policy. But no, millions of those policies were in fact declared illegal by Obamacare and people had to buy more expensive policies with mandatory coverages like pregnancy insurance for young males, they didn’t want or need.
That was the promise of same-sex marriage: It won’t hurt or affect anyone, it’s just extending a right for two people who want to marry. But no, in Indiana, Arkansas and elsewhere, it turns out that bakers, photographers, florists and caterers whose owners’ religious beliefs do not permit them to participate in gay marriage ceremonies must either violate their religious conscience or give up their business.
Attention 2016 voters: this is a liberty moment.
Link to Salem-Townhall.com audio: http://townhall.com/talkradio/dailycommentary/699512
You would think the sky is falling in Indiana. Hundreds of protestors carried signs at the state capitol Saturday: “hate costs the state” and “liberty for all Hoosiers.” The mayors of San Francisco and Seattle rushed to announce that city employees could not travel to Indiana on government money anymore. The new wise men of public policy—basketball analysts Charles Barkley and Reggie Miller and the Silicon Valley CEOs of Apple, Salesforce and Yelp—all decried hate and discrimination in Indiana.
But wait. What really happened in Indiana? The state enacted a Religious Freedom Restoration Act. The U.S. Senate voted 97-3 for such a federal law in 1993 and President Clinton signed it. Forty percent (19) of states have such laws, and others are considering them. These laws—including Indiana’s version—essentially do one thing: they set a legal standard in lawsuits where a defendant feels his or her religious freedom is being harmed by the application of a law or regulation. More specifically, these religious freedom laws require a showing that the government has a “compelling interest” in whatever regulation is in question and that it is meeting that interest in the “least restrictive way” to the individual’s religious practice.
The words “gay” or “gay marriage” do not appear anywhere in the law. A classic case under the federal law was whether members of a New Mexico church might imbibe psychotropic tea as part of their religious ceremonies in the face of a law against such substances. The Supreme Court said that the state did not have a compelling interest in preventing that kind of private religious practice. Or in Minnesota where a court said that a law requiring vehicles including Amish buggies to use bright fluorescent lighting should have used an alternative less restrictive to Amish religious practice such as reflective tape or kerosene lanterns.
But, of course, the knee-jerk reaction is that this law was passed to allow Christians to discriminate against gays and gay marriage and it is therefore hateful, discriminatory and unacceptable. So far, however, no such bill has actually trumped local nondiscrimination laws, such as exist in Indianapolis and a dozen other Hoosier cities. And in both the states of Washington (where a florist refused to serve a gay wedding) and Colorado (a baker did the same), courts have held that religious rights do not trump anti-discrimination laws against gays. Admittedly neither of these states had a religious freedom restoration law, but again that only provides a legal standard or balancing test, not necessarily implying any different outcome. How they are actually applied by courts vis-à-vis gay marriage is yet to be seen.
If the law on this is different than the protests suggest, so is the politics. The federal law was sponsored by then-Congressman Chuck Schumer, apparently in line to lead the Democrats in the U.S. Senate. And it was signed by Democrat Bill Clinton. Then state senator Barack Obama voted for Illinois’ version of the bill. Of course this was before his views “evolved” but it at least suggests that historically these bills have not been about hate and discrimination.
In the current white-hot debates over gay marriage, I submit that what the Indiana and other bills actually do is help manage an important policy dilemma. As a society, do we value gay rights? Increasingly the answer is yes. Do we value religious freedom and practice? Historically the answer is yes. We value both, but they do not always live easily together. What this bill does is help courts manage the dilemma—while protecting against discrimination, also protecting religious rights where the state has no compelling interest in violating them or where alternative policies less restrictive to religious rights should be pursued.
In a sense, there’s nothing to complain about in such a bill which sets up an appropriate constitutional balancing test. The proof of the test will be in its application in the courts, not in its enactment.
I am wary of a number of the adjectives used by recent Republican presidential candidates—adjectives modifying the noun conservative. George W. Bush ran as a “compassionate” conservative, and John McCain was a “maverick” conservative. Mitt Romney unsuccessfully tried to sell himself as “severely” conservative. Now the frontrunner for the 2016 nomination, Jeb Bush, has come out as a “reform” conservative.
Isn’t anyone content to be just a conservative anymore?
In Bush’s case, I’m concerned that “reform” indicates a willingness to accept big government solutions. His two major reform ideas so far, K-12 education and immigration, aren’t classically conservative. One would apply common core standards and more testing to a field that has always been under state and local control. And his immigration reform would legalize millions who came to this country illegally.
Big government conservatism isn’t really conservative. At best it’s conservatism lite.
Let’s hope candidates will stand up for individual liberty, limited government and true conservatism.
Link to Salem-Townhall.com audio: http://townhall.com/talkradio/audioplayer/699452
Tags: Healthcare Reform
This week the U.S. Supreme Court heard arguments in its most important case of the year: King v. Burwell.
In some ways, it’s a simple case: did Congress mean what it said when it provided for subsidies for low-income individuals in states that establish healthcare exchanges? Since two-third of states have chosen not to create exchanges, the Obama administration has decided state exchange includes the federal exchange. So the Supreme Court is asked to fix what’s presented now as a “glitch” or “drafting error” in the bill.
All courts are bound to the plain meaning interpretation of laws—that words take on their ordinary meaning unless the law provides a specialized meaning. So: state means state.
But if millions lose their subsidies over this, perhaps the Court becomes nervous and decides to rewrite the law. Maybe they fear a divided Congress won’t be able to fix it.
But the Court should do its proper job, the Congress should fix its own mistakes—and the administration should live with the consequences.
Link to Salem-Townhall.com audio: http://townhall.com/talkradio/dailycommentary/699414
Jeb Bush a ‘reform’ conservative? America doesn’t need conservatism lite (FoxNews.com) February 27, 2015Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
I am wary of the adjectives Republican presidential candidates like to place in front of the word “conservative.” George W. Bush ran as a “compassionate conservative,” though after 9/11, when his administration turned from domestic policy to national security, he became better known as a neoconservative.
John McCain was a “maverick conservative” and Mitt Romney, a pragmatic businessman without a clear political philosophy, tried to market himself as “severely conservative.” And now comes the leading candidate for the 2016 Republican presidential nomination, Jeb Bush, who has styled himself a “reform conservative.”
Isn’t anyone content to be just a conservative anymore?
Richard Nixon popularized the classic Republican campaign strategy: first run to the right to secure the party’s nomination, then run toward the center to win the general election. But today’s Republican presidential candidates apparently feel the need to build all that ambiguity into their stance from the start.
Yes, I’m a little bit right, but also leaning into the center. But it doesn’t really work. It leaves conservatives rightly feeling like they’re being served conservatism lite: a third less calories than your regular conservatism but also less filling. And in the general election, the adjectives disappear anyway as the liberal opponent attacks the noun: he’s a conservative.
So now I am wary about Jeb Bush proclaiming himself a reform conservative in his big speech in Detroit recently. I get the reform part—his two signature policy platforms have been education reform and immigration reform. But his positions on those issues are not classically conservative. His idea of reform conservative feels a little to me like one of those oxymorons: jumbo shrimp or virtual reality. The dictionary definition of reform is suitably vague: making changes in order to improve something. In that sense, everybody wants to reform something. But what is conservative reform, and is that what Jeb Bush is really about?
To me, Bush’s idea of reform conservatism sounds more like big government conservatism. Take education reform for example. For Bush, who famously led such reforms as governor of Florida, it meant more government testing and accountability. It was related to his brother’s No Child Left Behind and Common Core, movements under fire among conservatives for turning K-12 education, the classic responsibility of state and local government, over to the feds. If not a philosophical dilemma, this is at least a political problem for Bush, since polls show conservatives overwhelmingly (94% accordingly a Pew Research Center poll) oppose things like the Common Core curriculum. A Bloomberg/Des Moines Register Iowa poll of likely 2016 caucus participants shows nearly 2/3 feel Bush’s positions on immigration and education reform are problematic to them.
And let’s face it, big government conservatism did not work well for Jeb’s dad and brother. George H.W. Bush, seeking a “kinder and gentler nation,” ended up with sufficient government growth that he turned his back on his no new taxes pledge and was voted out of office. Similarly, George W. Bush’s No Child Left Behind and Medicare prescription drug coverage have grown into expensive federal expansions. So conservatives are right to be wary of Jeb Bush’s reform conservatism turning out to be another form of big government conservatism—essentially using the federal government for conservative policy ends, rather than limiting government power and size.
There is a more promising version of reform conservatism promoted by some young intellectuals and policy thinkers. Their view is that conservatives need to demonstrate more specifically how conservative ideas about free markets actually help the middle and lower classes better than an overgrown welfare state. They are enamored of using subsidies, tax credits and other government tools to help middle-income households, especially. One thing they have right, I think, is that the heart of conservatism, individual liberty, has become an abstraction and people need to see how it matters in their lives. But, at this point, these ideas are more of a conversation than a movement, and are not yet ready for a prime time race to the White House.
Barry Goldwater, in some ways the father of the political conservative movement, spent a lot of time and energy countering the influence of the Eastern liberal Republican establishment and remaking the party in a more conservative image. My fear is that all these adjectives attached to conservatism today will lead us back toward a form of big government Republicanism, not forward toward greater liberty.
Tags: Healthcare Reform
On Wednesday, the U.S. Supreme Court will hear oral arguments in its most important case of the year, King v. Burwell. The case is most obviously significant because it could invalidate subsidies for low income individuals covered by Obamacare in the approximately two-thirds of states that did not establish their own exchanges. This in turn could leave millions of people essentially without healthcare, unless and until Congress or the states did something to repair the problem, all of which is being worked on now.
But at a more subtle level, this case is an important indicator of what the Supreme Court is willing to do (and not do) in an era of deeply divided government in Washington. The question here is whether the Supreme Court should play the role of proofreader or auto-corrector when Congress legislates without sufficient care and is too conflicted to address the problem itself. You would like to think that a sweeping change such as Obamacare was worked through with great care, including lots of drafting, testimony, amendments and compromise, all the hallmarks of good legislative work. But if you think that’s how Obamacare was adopted, your memory is faulty. The bill itself was massive (one version ran over 2400 pages, the final 906 pages), prompting House Speaker Nancy Pelosi’s plea: “But we have to pass the bill so that you can find out what’s in it.” And the most sweeping social program since the 1960’s was slammed through on a straight party-line vote, with no Republican support.
Even when a bill is passed, it’s just the beginning. Various agencies then must adopt regulations and structures to implement the law (so far 10,000 pages and still counting). And, of course, in this case President Obama has weighed in through executive orders, unilaterally (and probably illegally) changing and delaying aspects of the law. Even Chief Justice Roberts took it upon himself in an earlier case to give the law an extreme makeover, transforming it from an unconstitutional penalty into a constitutional tax in order to save it.
So now the Supreme Court is faced with the clear provision in the law that subsidies are available to people who live in states with healthcare exchanges “established by the State.” Since most states elected not to establish their own exchanges, the plaintiffs argue that no subsidies should be available in those states. It has been described as a “glitch” or a “drafting error” by Congress. And so, the argument goes, the Supreme Court ought to fix it, and simply declare that state-run exchanges really meant to include federal exchanges as well. To refuse to do so would be, as New York Times commentator Timothy Egan put it, “one of the most brazen manipulations of the legal system in modern times.”
In fact, it is the other side that is straining to redefine clear terms. Courts are bound by the “plain meaning” rule of interpretation: unless a statute provides a specialized meaning, courts should apply the ordinary meaning of the word. Clearly, if Congress meant something other than “established by the State” it could and should have said so. And the obvious legal approach for any court to take in such a case is to rule that the law means what it says and send it back to the legislature if they want it to mean something else. Courts are not legislators—as Chief Justice Roberts famously said in his confirmation hearing, judges are more like umpires, calling balls and strikes.
Ah, but here’s the problem. By pushing the bill through without compromise or support from both parties, the bill lacks not only careful drafting but also bipartisan support. That is the blowback from a party-line vote: no one from the other side has enough ownership to help you fix it later. It’s like that old car mechanic commercial: you can pay me now (upfront, preventive maintenance) or you can pay me later (expensive, or in this case impossible repairs when it blows up).
California Legislature on the Bleeding Edge (National Radio Commentary / Salem-Townhall.com) February 26, 2015Posted by daviddavenport in Op/Eds, Radio Commentaries.
They say that California is on the bleeding edge of national change, so perhaps we should take a look at some of the 930 new laws that went on the books in 2015.
California struck its own blow for immigration reform by allowing driver’s licenses for undocumented residents. This will be expensive, with 1.4 million new applications to be processed by new offices and personnel.
But don’t worry if you take a naked selfie in California. A new law protects the privacy of such photos. Meanwhile, the state will be safe from plastic bags, banning them July 1 in groceries and pharmacies. Chickens are also safer, with roomier cages now legally required for egg-laying chickens, dog owners can take their pets to outdoor cafes, and thank goodness Confederate flags can no longer be sold in state souvenir shops.
What better case could there be for a part-time legislature?
As Mark Twain said, “no man’s life, liberty or property are safe while the legislature is in session.”
Link to Salem/Townhall audio: http://townhall.com/talkradio/dailycommentary/699370
The Era of Big Government is Back (National Radio Commentary / Salem-Townhall.com) February 13, 2015Posted by daviddavenport in Op/Eds, Radio Commentaries.
When President Obama released his record-breaking $4 trillion dollar budget recently, he basically announced to the world that the era of big government is back.
His fellow Democrat, Bill Clinton, famously proclaimed in his 1996 State of the Union message that “the ear of big government is over.” And Ronald Reagan inaugurated his presidency in the 1980’s by pointing out that:
Clip: “government is not the solution to our problem, government is the problem.” https//www.youtube.com/watch?v=6ixNPplo-SU
But Obama wants to roll the clock back even further, to Franklin Roosevelt and his New Deal, raising taxes on the rich, while increasing government spending and debt.
Apparently Obama has learned nothing from his earlier big government experiments: failed efforts to stimulate the economy and his signature Obamacare which is rife with problems and sinking in unpopularity.
Returning to big government progressivism moves the country further in the wrong direction.
Let’s hope the Republican House and Senate will stop it.
Link to Salem-Townhall Audio: http://townhall.com/talkradio/dailycommentary/699353
Time to Leave Federalizing of Education Behind (Forbes.com) February 10, 2015Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
Tags: Education Policy
Washington, D.C. has managed to take the most basic state and local responsibility—K-12 education—and federalize it at breathtaking speed over the last 12 years. Now, with the signature piece of federalizing legislation, No Child Left Behind, up for reauthorization in Congress, it is time to put the brakes on this failed and misguided federal experiment. In short, forget no child—what needs to be left behind is the federalizing of education.
How did this happen anyway? Although Lyndon Johnson stuck the federal nose in the K-12 education tent in the mid-60’s, providing special federal aid for poor and disadvantaged children in his War on Poverty, the real momentum developed when President George W. Bush sought to bring his “Texas miracle” on education to Washington as the “education president.” Bush and Senator Ted Kennedy famously got together and enacted No Child Left Behind (NCLB) in 2002, laying the groundwork for federal testing and accountability which now dominate the educational scene.
But wait, there’s more. When, by 2012, it was clear that 80% of America’s schools would not meet NCLB’s goal of proficiency for every student by 2014, with resulting embarrassment for politicians and draconian penalties for schools, U.S. Secretary of Education Arne Duncan began issuing waivers (to over 40 states) lifting NCLB’s requirements. If schools cannot reach the federal bar, well then the obvious solution was to lower or eliminate the bar. But Duncan did not just waive the requirements for states, rather he did so on the condition that states agree to new conditions he sought to impose that would further change the direction of K-12 education, including strong moves toward a national curriculum (Common Core) and teacher evaluation and accountability. These were debates properly taking shape in the states, but suddenly the Department of Education took sides and imposed a federal solution.
As South Carolina law professor Derek W. Black points out in a forthcoming issue of Vanderbilt Law Review, however, the Secretary’s conditional waivers were constitutionally problematic in two ways. First, imposing new educational policy requirements on states through conditional waivers was a step that, under the balance of powers between Congress and an executive agency, only Congress could approve. And second, this became a form of federal coercion on the states, essentially bribing the states with federal money to follow federal policy. Over 40 states succumbed. As Professor Black concludes: “With no more power than the authority to waive noncompliance with NCLB, Secretary Arne Duncan achieved a goal that educational equality advocates had long sought, but never secured: the federalization of aspects of public education.”
As Congress debates the reauthorization of No Child Left Behind, the real conversation should be about rolling back the federal role in K-12 education. Over half a trillion dollars in federal money has been spent on this experiment, with very little to show for it, according to the independent Center on Educational Policy and others who have studied the results. The federal Department of Education has become, in effect, what Senator Lamar Alexander has called “a national school board” micromanaging educational policy and outcomes. Finally states have awakened to what they have given up and there is a backlash against the Common Core, which is spreading to the NCLB reauthorization debate.
It’s time to admit a federal failure here. Unrealistic goals were set and federal officials have done unconstitutional hand-stands to mitigate the damage. Hundreds of billions of dollars have been spent. Teachers and students spend countless hours teaching to the new federal tests. Plenty of children have been left behind. Enough already.
Let’s return educational policy and authority close to home, to school districts and ultimately the states. Let’s not reauthorize No Child Left Behind and instead begin the painful and difficult shifting of both money and authority home to districts and states.