Saturday, February 15, 2014

An Analysis of the Decision to Overturn Virginia's Marriage Laws

I knew the Bostic v. Rainey opinion would be a doozy before I even got to its substance. Excerpted at the very beginning—before the “Introduction” even—was this quote from Mildred Loving, the plaintiff in Loving v. Virginia (in which the Supreme Court struck down laws forbidding interracial marriage):

“The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone, they have a right to marry.”

This quote (part of a slightly longer excerpt) was troubling to me for two reasons. First, I have read hundreds—maybe thousands—of court opinions, and I have never seen one begin with a layperson’s analysis of fundamental rights. Second, the quote was a clear indication that the federal judge was in tune with this mushy, over-simplified construct of civil marriage being all about “me and the person I love.”

My suspicion was confirmed shortly into the substance of the opinion.

The judge explicitly framed the issue of the case as “who may enjoy the right to marry.” (Actual answer: “Anyone who is of the proper statutory age can enjoy the benefits of the relationship the Commonwealth defines as marriage.”). But the issue actually decided in the opinion was “may the State restrict marriage to the kinds of unions that effectuate its purpose for regulating marriage?” Answer of the court: No. Another way of phrasing it would be, “does the State have to endorse my relationship with whomever I love as a “marriage” upon my request?” Answer of the court: Yes.

Listening to some people talk, one would think that Virginia law actually forbade a homosexual person to marry. Of course, it doesn’t. But it also doesn’t guarantee to anyone a right to “marry the person he or she loves.” What if the person I love doesn’t want to marry me; is already married; is 11 years old; is my brother; is actual three persons, or is a cat? While I might prefer to marry my first cousin, I will have to settle for someone else. In short, if I want to qualify for the benefits that flow from a government-recognized marriage, I have to make a selection that qualifies. The State—as the entity conferring benefits—gets to decide which type of familial relationships to incentivize based upon its assessment of their benefits to society.

So, some will ask next, what about the old laws forbidding inter-racial marriage? Weren’t they unjust? The answer is: yes, they were unjust, because the color of skin of the respective spouses has nothing whatsoever to do with the kind of relationship formed. The requirement of racial sameness was both arbitrary and animus-based. Not so with the requirement of sexual complementarity, which is neither.

At one point in the opinion, the judge correctly states, “[Virginia’s] laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse.” Well…yes. And also to “only those Virginia citizens willing to choose” a non-family-member, a person of suitable age (again, by the Commonwealth’s standards), a person who is not already married, and a human.

She goes on to conclude from this that “These laws interject profound government interference into one of the most personal choices a person makes.” Wait a minute! Government interference? Who is seeking a marriage license from whom?

Curiously, Judge Wright Allen goes on to acknowledge that Virginia specifically allows all religious persuasions to adopt their own regulations for solemnizing marriages. She does not allege (nor could she) that anyone is being precluded from forming intimate personal relationships with the person(s) of his or her choice.

And yet, troublingly, the decision to strike down Virginia’s marriage laws is unmistakably couched in terms of “choice,” adding this decision to the long line of judicial disasters which brought us legalized—constitutionalized—abortion-on-demand and totally misunderstand the role of government and the nature and limitations of “liberty.” For this judge, “The ultimate exercise of our freedom is choice.”

Before this new, dreadful decision, gay couples in Virginia were perfectly free to solemnize their relationships in religious ceremonies, enter contracts regarding the disposition of their property, execute powers of attorney for purposes of medical-decision-making, etc. After this dreadful decision (unless it is overturned on appeal), what gay couples have is not more liberty, but a government rubber stamp defining their intimate association as “marriage,” despite the fact that the people who comprise their government definitively determined that this kind of relationship is not “marriage.”

It is difficult to see what would preclude a court, on this liberty-means-government-owes-me-something logic, from overturning prior decisions holding that while a woman may have a “right” to abort her unborn child, the government has no corresponding duty to ensure that she has the means of exercising this right (i.e., by providing funding for the abortion or a physician willing to perform it). Now gay couples not only have the “right” to form their intimate relationships—they have an artificial endorsement of it from “We, the People,” and the special privileges that had heretofore been reserved for one particular kind of human relationship that is, in fact, different in kind from the type they have formed.

From a constitutional perspective, another deeply troubling aspect of this opinion is the judge’s outright rejection of the mass of scientific and sociological evidence relied upon by the legislature in restricting marriage to heterosexual unions for the benefit of children. Without explanation, she simply concluded that the evidence did not support the Commonwealth’s stated interest. By so doing, she blatantly usurped what the judiciary has long considered to be a legislative function—weighing evidence and drawing conclusions from it before adopting specific legislation or public policy.

While it certainly is the province of the judiciary to protect the minority from arbitrary regulations that one can only conclude have been based upon a discriminatory animus, it is decidedly not the province of the courts to second-guess good-faith, evidence-based determinations reached by the legislature on important public policy questions. This is gross judicial overreach.

As I have stated, this court decision cannot seriously be based upon commitments to “liberty” or “due process” or “equal protection.” What it really is? A potentially fatal blow to any public policy with overtones of Absolute Truth. A resounding societal determination that there is an “optimal” situation for rearing children is dismissed not for being incorrect as an objective matter, but because it is “hurtful” to those who—through the exercise of their own choice—do not offer that situation.

Fairness, by the standards of this precedent, has been re-defined. Treating people the same under the law (as, in fact, our current marriage laws do) isn’t enough if it means some of those people—through the exercise of their own choice--don’t end up with the same certificate as others.

In Planned Parenthood v. Casey, the U.S. Supreme Court perplexed legal scholars when it declared that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Judge Wright Allen quoted this passage in this new decision that builds upon the terrible legacy of “choice” perpetuated in Casey. But according to Judge Wright Allen, at the heart of liberty is not only the individual’s “right to define” these concepts; for her, at the heart of liberty is the individual’s “right” to have the government approve.

Tuesday, February 11, 2014

Liberty--or Fear?

I am convinced that an Article V Convention of States may be our nation’s last hope for preserving liberty and returning an out-of-control federal government to its proper, constitutional place.

As a lover of our Constitution, I can appreciate genuine concerns about the adequacy of procedural safeguards to ensure that this great bulwark of self-governance does not become the victim of some “runaway convention” or leftist conspiracy. The proper response to such genuine concerns is the provision of accurate information. So, to those who have expressed such concerns to me, I have responded by providing historically accurate data which demonstrate that: (a) our current Constitution is decidedly not the product of a “runaway convention,” but is absolutely legitimate; (b) there is no real mystery as to the methodology of an interstate convention, because such conventions were prevalent at the time Article V was drafted; and (c) there are incredibly strong safeguards in place to ensure the demise of any conspiracy to subvert the will of the States that issue the call for restraining federal power.

Of course, at the end of the day, no one can provide the fearful fretters with an ironclad guarantee about any future event. At the end of the day, each of us must choose whether we will take what tools we have been given and use them to repair the damage that ill-conceived, anti-historical interpretations of our Constitution have done to the social compact our forefathers constructed, or whether, instead, we will bury our heads in our hands, insisting that the tools provided in the Constitution itself are dangerous and that there are insufficient competent laborers to perform the commission.

Great men and women will choose the former. They will choose to act.

They will tremble at the gravity and enormity of the task. They will consider carefully the textual provisions of the Constitution that have been perverted to facilitate federal aggrandizement and the alternative textual antidotes that would best clarify—in black and white--the actual intentions of the noble, learned drafters of the original text. They will labor diligently to educate constituents, friends and neighbors so as to foster educated, informed participation and ownership by the people. They will count the cost.

But in the end, great Americans will be driven to action by the conviction that a nation aspiring to be a self-governing people under God cannot also be a nation of people who passively succumb to tyranny because they are afraid of wielding the very weaponry provided to preserve their liberty. They will ascribe to Dietrich Bonhoeffer’s view that the right path is the path of Action:

“Daring to do what is right, not what fancy may tell you,
Valiantly grasping occasions, not cravenly doubting—
freedom comes only through deeds, not through thoughts taking wing.
Faint not nor fear, but go out to the storm and the action,
Trusting in God whose commandment you faithfully follow;
Freedom, exultant, will welcome your spirit with joy.”

Monday, January 27, 2014

An Open Letter to our Attorney General

As a Virginian and an attorney, I am alarmed by the violence you have done to the integrity of the legal profession and to the institution of marriage by pitting the authority of your office directly against Virginia’s Constitution.

As your office’s website explains, it is your duty to serve as “the Commonwealth’s law firm.” Every attorney has a duty to zealously advocate his client’s position in court, and while there are limited circumstances in which he may be permitted to withdraw from representation, it would be inconceivable for him to then actively participate in the case being made against his client. In submitting a brief that argues that Virginia’s Marriage Amendment is illegal, this is, effectively, what you have done. And for no good reason.

Contrary to the spurious claims of some, this constitutional provision is not some relic of bigotry, oppression, or injustice. By declaring that “only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth,” Virginia’s Marriage Amendment merely affirms the most basic criteria for a functional definition of marriage that corresponds with the purposes of the state’s regulation of it.

This provision does not “ban” intimate gay relationships any more than it “bans” friendships. Rather, it recognizes that traditional marriages are unique in terms of their particular role in society.

Consider that when the government offers tax advantages to environmentally conscious businesses or homes that meet specified criteria, it does not, by so doing, “ban” those who do not meet those standards, nor even express disapproval of them. But it reserves a special benefit to those who are behaving in a way that benefits society as a whole. It incentivizes those who provide an essential public good.

In the same way, Virginia’s Marriage Amendment preserves the legal benefits of civil marriage for those who form the particular kind of permanent, exclusive union that is best suited for producing and rearing the citizens of tomorrow. Others may raise children with love and do it well, but the best available evidence indicates that there is simply no alternative family arrangement that rivals traditional marriage in the ability to prepare children to flourish in a world populated by both men and women.

While your brief seeks to analogize the Marriage Amendment to old, unjust laws against interracial marriage, this logic does not withstand thoughtful analysis. A requirement of racial sameness for spouses is arbitrary; it has nothing to do with the purpose of state regulation of marriage--providing an incentive for those whose union is likely to produce offspring to stick together and raise them. The requirement of gender complementarity, on the other hand, is unquestionably central to the fulfillment of the purpose of civil marriage laws, because it is precisely the union of a man and woman that produces the children who will benefit most from the permanence and exclusivity of their parents’ union.

Eliminating these criteria from the definition of civil marriage is appropriate only if we, as a society, determine that the purpose of civil marriage is fundamentally different from what it has always been. If, however, we still regulate civil marriage on the basis of its unique potential to benefit society, then it is properly limited to the one kind of relationship that is so clearly shown to do that.

The great, lasting societal harm you are inflicting in waging this battle against your client, Mr. Herring, is this: the reduction of civil marriage to a mere stamp of government endorsement on individual “choice.” For the 57% of Virginians who voted in favor of the Marriage Amendment, marriage is something much different—much farther reaching—than that.

Mr. Herring, if you are utterly unable to discern the reason and rationality behind the expressed will of the people of Virginia with regard to defining marriage, and if you are unwilling to zealously advocate the best possible case for our Constitution when it is challenged due to your own personal, philosophical beliefs or desires, then I respectfully request that you resign your office.

Tuesday, January 21, 2014

Abortion Unveiled: An Ironic Injustice

The global tragedy of abortion is that, behind the thin veils of human flesh, it accomplishes an ethnic, racial, and gender purging of such efficiency and scale as to make Adolf Hitler appear inconsequential. In the United States, the most recent data indicate that 64% of abortions are obtained by black, Hispanic, and other women of color, despite the fact that they only account for 28% of the population. (Guttmacher Institute; U.S. Census Bureau).

As if that data were not disturbing enough, consider this statistic: since ultrasound technology has enabled parents to identify the gender of their unborn child, 160 MILLION girls have been lost to abortion in Asia alone, triggering a staggering gender imbalance that has demographers wringing their hands.

C.S. Lewis saw through the game of “choice” long ago, as he warned that “[T]he power of Man to make himself what he pleases means, as we have seen, the power of some men to make other men what they please. … [T]he man-molders of the new age will be armed with the powers of an omnicompetent state and an irresistible scientific technique: we shall get at last a race of conditioners who really can cut out all posterity in what shape they please.”

If anyone were to posit a plan to systematically annihilate non-whites and females, imagine how he would be received in our enlightened society where equality and diversity are so highly prized. But as long as this same result is accomplished through the “choice” of members of the affected populations, our society doesn’t mourn the slaughter, but celebrates it.

Our collective ignorance of history has made fools of us. For in fact, what we identify today as merely unfortunate statistics are really the indicia of success of the careful plans and propaganda created by those who sought to mold the human population to their liking.

The organization that is today Planned Parenthood and now trumpets women’s “right to choose,” gave birth to its deadly “Negro Project” in the 1930’s, hoping to stunt the growth of black families. It is surely no accident that today, a whopping 80% of Planned Parenthood abortion clinics are located in minority neighborhoods.

Other American population activists collaborated to combat the “problem” of unbounded population growth, which they believed would strain world resources and exacerbate poverty in developing nations. John D. Rockefeller III organized a "Conference on Population Problems" in Williamsburg, Virginia in 1952, then went on to work with the Ford Foundation, the World Bank, the United Nations Population Fund, the U.S. Agency for International Development, and the International Planned Parenthood Federation to sell Asian nations on the concept of population control. Their message was simple: lower birth rates lead to richer people.

Of course, some "population activists" had more sinister motivations. In her book, Unnatural Selection, journalist Mara Hvistendahl posits that, privately, "Western donors worried less about poverty than they did about the global balance of power and specifically about what they believed to be one of poverty's effects: communism." Many American elites worried that rising birth rates in developing nations would make these regions more susceptible to communism and less likely to become American allies.

As these wealthy, Western organizations succeeded in selling developing nations on their "less is better" pitch, baby girls were the casualties.

So here is the great irony: on a personal level, women may believe that exercising their “right” to have an abortion is an act of liberation and power, but on a larger scale abortion is a hallmark of manipulation and subjugation.

Every abortion is equally tragic, whether its victims are white, black, red or yellow, male or female. But as a society, we are blind if we fail to see that there is no racial, ethnic or gender “equality” in the practice of abortion. Behind millions upon millions of thin veils of pregnant tummy flesh, the beautiful, natural diversity of mankind is being destroyed, one “choice” at a time. And this was always part of a plan.

We should mourn and expose this great injustice.

Wednesday, December 18, 2013

Considering "Marriage"

Pasted below is the text of my op-ed, which was published in the Roanoke Times today. The link is here.

As Virginia’s Marriage Amendment comes under attack both in the courts and the legislature, Virginians should be critically examining the question of why the state regulates marriage and whether its definition should be stretched to encompass committed same-sex couples. Having done that, we should consider what our answers mean for all marriages.

Those who favor expanding “marriage” have framed the issue as one of “equality” or “non-discrimination.” While these labels are incredibly effective at winning popular support for the cause, they are misplaced in this debate.

“Inequality” and “non-discrimination” are repugnant when they involve making arbitrary distinctions between like things; not when they distinguish between things that are, in fact, different in relevant ways. So sound public policy on marriage—as with any other regulated good—requires that it be defined to include whatever qualifications are necessary to effectuate the purpose of state regulation, but to exclude any that are arbitrary.

Historically, the purpose of civil marriage has been to provide societal incentives for those who unite physically and produce children to stick together and raise them. The best scientific evidence supports what society has historically intuited: that the nurturing and training of children is optimally performed by both biological parents. This is not to say that others who undertake the task should not be commended and supported, but rather to recognize that there is an ideal situation for children which should be encouraged. Males and females offer different, yet equally vital, strengths to parenting; neither gender is dispensable.

As long as the primary purpose of civil marriage is to foster optimal child-rearing by the very individuals whose union has produced the children, defining marriage as a specifically heterosexual bond is not an act of invidious discrimination toward other kinds of relationships, because heterosexuality is a necessary definitional component.

While many support same-sex “marriage” out of a desire to demonstrate goodwill and support for the intimate relationships of LGBT persons, redefining the venerated institution of marriage is unnecessary to this goal. Traditional civil marriage laws do not brand homosexual relationships as “bad”; they brand heterosexual marriage as being “unique” to society in ways that justify its civil recognition—leaving gay couples in good company with every other non-regulated relationship in society, including friendship.

But redefining marriage is also harmful, because it would signal a fundamental change in the purpose for state regulation of all marriage that could ultimately render marriage irrelevant. Defining marriage to encompass same-sex couples (thus eschewing objective characteristics such as gender) means defining marriage on the strength of two individuals’ emotional bond and subjective desires rather than on their potential to benefit society by creating an ideal situation for nurturing children. Once this is done, on what fair, rational basis could the benefits of civil marriage fairly be denied to brothers, roommates, or best friends—relationships that offer no unique societal benefits?

Once relational configurations that are inherently unlike traditional marriages are brought within the fold of “marriage,” the definitional enclosure will serve little public purpose. As explained in the recent book by Girgis, Anderson and George, What Is Marriage?, “Laws that restrict people’s freedom for no deep purpose are not likely to last, much less to influence behavior.” Expanding the contours of civil marriage beyond those dictated by its societal purpose will stretch the institution to pointlessness.

The flavor of marriage has changed over time. The historical conception of marriage was more focused on duty, commitment, and sacrifice than self-fulfillment and personal happiness. This attitudinal shift may explain the universally sorry statistical condition of the institution of marriage today. But it also explains why, to many, expanding marriage seems appropriate. If marriage is about having society’s stamp of approval on the relationship that brings me the most joy and fulfillment, then why shouldn’t my own desires determine what kind of relationship that is?

Marriage is at a crossroads not only because allowing for gay “marriage” means formally changing what marriage is, but also because retaining the old definition requires us to admit that our contemporary, self-centered attitudes about marriage have informally effected such a change already. For those who support the traditional definition of marriage as oriented toward the public good, integrity requires us to rebuild this attitude toward marriage as well.

Monday, December 2, 2013

Caring for the Poor

As Virginia’s leaders wrangle over the question of Medicaid expansion, conservatives who oppose expansion risk exacerbating a stubborn problem of public perception: liberals care about the poor, and conservatives care about money.

Republicans are aware of the problem. After last year’s election, the Republican National Convention released a “Growth and Opportunity Project” report, which concluded that “The perception that the GOP does not care about people … must be addressed.” They are right. In reality, this is more than an image problem for Republicans; it is an impediment to meaningful policy discussions about the real differences between liberals and conservatives on this issue. And the kick is, the public perception is dead wrong.

According to extensive research by Arthur C. Brooks, the cold, hard, data indicate that political conservatives are far more charitable than political liberals. In his book, Who Really Cares, Brooks reported that in 2000, households headed by a conservative gave, on average, 30% more money to charity than those headed by a liberal, even though liberal families earned an average of 6% more each year than conservative families.

Brooks found that of four groups (religious conservatives, secular conservatives, secular liberals and religious liberals), religious conservatives are the most likely to give away money each year—even to secular charities. They also volunteer at a higher rate than the general population.

Earlier this year, Michele Margolis and Michael Sances tried to debunk the importance of Brooks’ eye-opening conclusions by “adjusting for differences in income and religiosity.” But isn’t this like trying to explain away statistical partisan trends in firearm expenditures by adjusting for differences in income and NRA membership?

In the Gospel of Matthew, Christ instructed his followers to care for the poor, saying, “[W]hatever you did for the least of these … you did for me.” While Christian conservatives are frequently labeled as hypocrites for failing to support the governmental programs that would fulfill this mandate, the objective data reveal that devout conservatives are fulfilling the mandate. In other words, the statistics prove that there is more to the story than a lack of compassion among conservatives.

The missing link in the prevalent framing of the public policy debate is something fundamental to the conservative worldview: the conviction that human needs require human caring. While the liberal philosophy might rightly be framed as “government should care for the poor,” the conservative counterpart is that “individuals and communities should care for the poor.” Conservatives don’t advocate neglect of the needy, but rather posit that we are effectively neglecting them when we leave the work to an impersonal, distant government bureaucracy.

While it may be necessary for government to provide a last-resort source of protection for those who can’t get help anywhere else, the system we have today puts government “care” before personal, local care, effectively deterring the needy in our own community from turning to us—their neighbors—for help. But when getting help becomes a matter of filling out paperwork in exchange for a check from a government bureaucracy rather than turning to friends, family, neighbors, or churches, much is lost.

The person in need loses the opportunity to have her own community rally around her, providing emotional support as well as financial assistance and practical helps like warm meals, child care, or transportation to a job interview. The caring members of the community lose the opportunity to give from their own personal bounty and experience the joy of giving. Ultimately, society as a whole loses an essential component of healthy, human community.

Casting conservatives as heartless and greedy may be effective in channeling votes to liberals, but the data do not support such a dismissive, polarizing conclusion. This is good news, because it shows that the two parties share a basic concern for the needy. When we rightly discern the actual point of disagreement—the narrower questions of who should care for the poor and how it can be done—collaboration appears within our grasp. Meaningful progress toward our common goal of being a compassionate society should not be stymied by conversation-stopping worldview assumptions that are, ultimately, incorrect.

Wednesday, November 20, 2013

A Great Disappointment from Ohio

On Tuesday, the Ohio Supreme Court affirmed the lower courts in upholding the Mount Vernon City School District's termination of 8th-grade science teacher John Freshwater. (If you missed the background of my involvement with this case, click here and here.)

A "loss" was the expected result, at least before the oral arguments last February. But the great disappointment is that the Ohio Supreme Court disposed of the case without ruling on its core, substantive constitutional issues--whether or not Mr. Freshwater "injected his personal religious beliefs into the classroom" by allowing his students to critically examine the evidence for and against evolution theories. Instead, the Court decided the case based solely on the narrow, subsidiary issue of "insubordination."

The insubordination allegation stems from a principal's order for Mr. Freshwater to remove certain religious items from his classroom, including some book covers that listed the Ten Commandments, some posters quoting from Proverbs and Confucious, and, most importantly, Mr. Freshwater's personal Bible, which he often read quietly during his own free time, when students were not in the classroom.

Mr. Freshwater responded to the order by removing everything mentioned except for his personal Bible (which he purposefully refused to remove) and a poster behind his desk which depicted President George W. Bush and Colin Powell in the Cabinet Room with bowed heads (which he was never instructed to remove). Mr. Freshwater had also checked out two school library books--an Oxford Bible and Jesus of Nazareth, which investigators found strewn among papers, boxes, and films on a table in his personal work area.

Interestingly enough, the Ohio Supreme Court found that the order for Mr. Freshwater to remove his personal Bible from his desk was a violation of Mr. Freshwater's Free Exercise rights under the First Amendment (this part is a big win!). But the presence of the George Bush poster--which, incidentally, he had received from the school office and was hanging in at least 4 other classrooms at the time--and the religious school library books constituted "insubordination."

The decision was 4-3, and two of the three dissenting Justices wrote scathing dissents. Justice Pfeifer may have summed it up best:

"John Freshwater is not today’s big loser, because he fought to prove that he actually followed the rules, that he taught well, and that over a lifetime of dedication to the students in his classrooms he made a positive contribution to their lives. That proof is uncontroverted. In that most important measure of public education, John Freshwater is a winner and his final departure is a loss to the Mount Vernon schools."

I am hard at work now on a "Motion for Reconsideration." Please join me and many others in praying that perhaps one Justice, who may have been on the fence, will perceive the errors that I will be pointing out and choose to give the case one last look.

I am so grateful that God is a God of Justice, and that one day all things will be set right.

If you would like to read the majority and dissenting opinions, you can find them here.