The Separation of Church and State

The First Amendment to the Constitution of the United States states that:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

“The Supreme Court on Tuesday struck down a Maine tuition program that does not allow public funds to go to religious schools,…

“The vote was 6 to 3, with Chief Justice John G. Roberts Jr. writing for the majority and the court’s three liberals in dissent.”

“’There is nothing neutral about Maine’s program,” he wrote. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.’

“Justice Sonia Sotomayor, one of the dissenters, answered, ‘This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.’”  “Supreme court-Maine-religious schools”

Where public funds are provided to support the education of our children, they should not discriminate on the basis of religious beliefs. That is what the separation of church and state means to me. I don’t understand Justice Sotomayor’s position. Public funding of all schools except religious one is religious discrimination pure and simple. It is the State interfering in religious choices.

In my opinion, the relevant government authority choosing to support the education of children should provide the parents of each child with a tuition voucher that can be used at any certified school (including home schooling). As an aside, while I defend the right of parents to school their own children at home, I think it is a mistake to do so as the school experience is more than what is in the text books. Quite clearly, banning the use of such vouchers at Catholic, Hebrew or other religious schools would be discriminatory and should not be allowed (as the Court ruled).

I also support a Universal Basic Income. “Our social safety net” Disallowing its use to send your kids to a religious school would violate fundamental principles of equal treatment and religious freedom that we hopefully all believe in.

The Future of Marriage Equality

Preparing for Challenges to Marriage Equality If the Supreme Court Overrules Roe v. Wade

I have been exploring the legal aspects of the Supreme Court’s expected decision in Dobbs v. Jackson Women’s Health Organization to overrule “Roe-v-Wade” and Planned Parenthood v. Casey.  And with substantial input from my friend Jack Nadler and some of your comments, we have explored the potential implications for the Court’s marriage equality decision, Obergefell v. Hodges. “Roe-v-Wade-Part II.”  At this point, no one knows what the Court will actually do.  However, marriage equality advocates have good reason to be concerned that the Court’s expected decision in Dobbs will invite challenges to its earlier decision in Obergefell that States must allow same-sex couples to marry.  

As Jack and I explained in our previous blog, the Supreme Court grounded both the right of same-sex couples to marry recognized in Obergefell, and a woman’s right to an abortion recognized in Roe (and reaffirmed in Casey), primarily on the Due Process Clause –  the part of the 14th Amendment to the U.S. Constitution that provides that no State may “deprive any person of life, liberty, or property, without due process of law.”  On its face, the Clause appears to address only the procedures that a State must use before taking a person’s “life, liberty, or property,” such as providing adequate notice and holding a hearing.  However, over the years, the Court has repeatedly held that the Due Process Clause’s protection of “liberty” precludes a State from infringing on certain substantive rights that are not mentioned in the text of Constitution, but which the Justices believe are fundamental to an individual’s personal liberty.  This method of interpreting the Due Process Clause is often referred to as “substantive Due Process.”  Applying the doctrine of substantive Due Process, the Justices have identified a large number of “fundamental rights,” including the right to privacy, the right to use contraception, the right to custody over one’s children, the right to travel, and, of course, the right to marriage and the right to terminate a pregnancy.

Justice Alito’s draft opinion in Dobbs repudiated the doctrine of substantive Due Process.  The Justice argued that because “the term ‘liberty’ alone provides little guidance,” the Court had tended to “confuse what [the 14th] Amendment protects with [its] own ardent views about the liberty that Americans should enjoy” and engaged in “freewheeling judicial policymaking” guided only by “the policy preferences of the Members of this Court.” In the process, he added, the Court had “usurped the authority that the Constitution entrusts to the people’s elected representatives.”  Rather than continuing to use “such an unprincipled approach,” he concluded, the proper method by which to interpret the Due Process Clause is to limit the rights protected by that Amenment to those that are expressly granted in the Constitution or that are “deeply rooted in our nation’s history and tradition.”

Because both Roe and Obergefell were grounded on substantive Due Process, and because both cases took away the States’ authority to address a controversial issue historically within their jurisdiction, the Court’s expected rejection of substantive Due Process in Dobbs, and its emphasis on returning decision-making power to the States, is likely to invite challenges to Obergefell. 

Jack and I have joined together here to propose how marriage equality could be defended against challenges that might arise from such an overturning of Roe.  I say that we have joined together to indicate that we largely share the arguments presented below, but Jack has done all the work.  To keep things simple, for the balance of this blog we are going to describe the situation as if the Court had issued its decision in Dobbs, and had adopted the language and reasoning in the draft opinion written by Justice Alito that was leaked to the press several weeks ago.

 As discussed below, we believe that, even if the Court adopts the reasoning in Justice Alito’s draft opinion and overrules Roe, marriage equality advocates can persuasively make the following arguments to support preserving the Court’s decision that same-sex couples have a constitutional right to marry:   

  • Stare decisis.  The Court’s determination in Obergefell that States must allow same-sex couples to marry is binding precedent that the Court should not overrule without “special justification.”  Dobbs provides no such justification.  To the contrary, the Court expressly stated that the decision was limited to abortion and that the Court did not intend to “cast doubt” on other cases, including Obergefell, that have applied substantive Due Process.  In any case, none of the justifications that the Court relied on to overrule Roe is applicable to Obergefell.
  • Equal Protection.  State laws that make distinctions on the basis of sexual orientation should be subject to the same level of heightened scrutiny as State laws that distinguish on the basis of gender, which the Court often refers to as “intermediate scrutiny.”  Under that standard, State laws that allow heterosexual couples to marry, while forbidding gay and lesbian couples from doing so, violate the Equal Protection Clause because the differential treatment is not “substantially related” to an “important” State purpose.

Some of you may have thought that the 14th Amendment’s Equal Protection Clause must surely requires a State to treat gay and lesbian couples and heterosexual couples equally, by giving them the same right to marry.  But, as you will see, the Court’s application of the Equal Protection Clause is far more complicated than that.

There are several ways in which marriage equality opponents could challenge Obergefell.  But imagine the scenario below.

The Ballard of Adam and Steve

In late June, the Supreme Court issues its long-awaited decision in Dobbs v. Jackson Women’s Health Organization.  As expected, the Court strikes down Roe v. Wade.  The decision, written by Justice Alito and joined by four other Justices, repudiates the doctrine of substantive Due Process.  Instead, the Court rules that the Constitution only protects rights that are expressly granted in its text or that are “deeply rooted in our nation’s history and tradition.” Because the Court finds that the Constitution does not expressly grant women the right to have an abortion, and that, prior to Roe, the United States did not have a long “history and tradition” of permitting abortion, the Court overrules that decision (and its subsequent decision in Planned Parenthood v. Casey, which reaffirmed Roe).  The Court thereby “return[s] the authority to the people and their elected representatives” to decide whether to adopt laws that “regulate or prohibit abortion.” [Sidebar:  Justice Alito actually was wrong when he stated that the U.S. does not have a long history and tradition of permitting abortion, “What the leaked abortion opinion gets wrong about the founding era”, but abortion is not our subject here.]

On July 4, the socially conservative and politically ambitious Governor of the State of Texida, Serp Eden, holds a press conference.  Before a sea of reporters and cameramen, Governor Eden reads the following statement:

The Supreme Court’s decision in Dodd has finally put a stop to liberal judicial activism and has returned power to the States to regulate abortion as they think best.  The people of this State have made clear that they want to ban all abortions.  And that’s exactly what we’ve done.  

But we’re not going to stop there.  We will no longer allow unelected judges up in Washington DC to misuse the Constitution to make-up new rights and impose their elitist values on the rest of us.  Instead, “We the People” are going to take back the freedom to run our own State the way we think best. 

The reasoning that the Supreme Court used to overrule Roe applies equally to the Court’s gay marriage decision, Obergefell v. Hodges.  The U.S. Constitution doesn’t say anything about homosexuals having the right to go out and marry each other.  And it’s certainly not part of our “history and tradition.”  Maybe it is in New York or California.  But not down here in Texida.  So we get to decide whether people who choose that lifestyle can get married here in our State.

When the people of this State voted overwhelmingly to amend our State Constitution in 2014, they made clear that they believe that marriage should continue to be between one man and one woman, just like it’s always been.  However, since the Supreme Court’s decision in Obergefell, the Federal Government has been infringing on our State’s Rights by forcing us to issue marriage licenses to same-sex couples. 

Today, I’m putting a stop to that.  After I finish my statement, I’m going to sign an Executive Order that directs every marriage clerk in the State of Texida to do what the people told us to do:  issue marriage licenses only to couples that consist of one man and one woman.

We’re not prejudiced against homosexuals.  If the gays want to get married, they can hop on a plane and go to San Francisco.  We wish them well.  But the time has come for the States – including our great State – to once again exercise their sovereign right to decide for themselves how to regulate marriage, just like our Founding Fathers intended.

We know that some people are going to try to politicize this.  If we have to, we’ll take this all the way to the Supreme Court.  The Court was willing to overrule Roe, so I am sure it would be willing to overrule Obergefell

With cameras rolling, Governor Eden then signs the Executive Order.

Ten days later, two young men, Adam Gardner and Steven Appletree, visit their local marriage bureau.  They stand in line with all the other happy couples seeking to get married.  As each couple comes forward, the clerk issues them a marriage license.  However, when the men’s turn arrives, the clerk says: “I’m sorry.  I’d really like to help you boys.  But, under the Texida Constitution, I can only issue a marriage license to couples that have one man and one woman.”

Adam and Steve leave the marriage bureau.  The next morning, the couple do what any red-blooded American would do:  They hire a lawyer and sue Governor Eden and the State of Texida.

After reviewing the pleadings, the trial court issues a decision finding that,under Obergefell, the State must issue a marriage license to the couple but stays its decision in order to give the State a chance to appeal.  Some months later, the Court of Appeals issues a decision reversing the trial court.  In its decision, the court states that “We hold that, in light of the Supreme Court’s rejection of substantive Due Process in Dobbs, Obergefell clearly is no longer ‘good law’ and that, if presented with the question, the Court would overrule its decision requiring States to allow same-sex couples to marry.”  The Court therefore rules that the State does not have to issue a marriage license to Adam and Steve.

Disappointed but undeterred, Adam and Steve direct their lawyer to seek Supreme Court review.  The Court agrees to hear the case.  As discussed below, the couple, through their lawyer, can make two persuasive arguments – one based on stare decisis and the other based on the Equal Protection Clause –  as to why the Court should reverse the decision of the Court of Appeals and reaffirm its decision in Obergefell that the U.S. Constitution provides same-sex couples with the right to get married.  We also discuss a few strong counter-arguments that the State could make.

Obergefell is Binding Precedent; The Court’ Decision in Dobbs Does Not Provide the “Special Justification” Required to Overrule It

The first thing that Mr. Gardner and Mr. Appletree should do is to invoke the doctrine of stare decisis (literally, “stand by the decision”).  Stare decisis requires a court to act consistently with prior binding decisions, thereby ensuring that the law is stable and predictable.  In 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have a constitutional right to marry.  In deciding Adam and Steve’s case, the Court should act consistently with that decision.  Specifically, the Court should rule that, under Obergefell, the State of Texida’s refusal to issue a marriage license to the couple violates their constitutional rights. 

 The State is likely to respond that stare decisis is not – and should not be – absolute.  This is clearly correct.  For example, virtually everyone agrees that the Supreme Court acted correctly when it overruled Plessy v. Ferguson, which had upheld “separate by equal” racial segregation, and required public school integration in Brown v. Board of Education.  Indeed, because of the importance of the Constitution, and the difficulty of amending it, the Court has been more willing to overrule cases that interpret the Constitution than cases that interpret statutes, regulations, or other matters.  Nonetheless, as the Court recognized in Arizona v. Rumsey (1984), even in constitutional cases, “any departure from the doctrine of stare decisis demands special justification.” In particular, as the Court plurality observed in Casey, “a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

In light of the above, Adam and Steve should make the following arguments as to why the Court should not overrule Obergefell

  • The Court expressly stated in Dobbs that its decision was limited to abortion and that it did not intend to “cast doubt” on other cases, including Obergefell, that have applied substantive Due Process. 
  • The justifications that the Court relied on to overrule Roe are not applicable to Obergefell and, therefore, do not provide the “special justification” required to overrule it.

The Court expressly stated in Dobbs that its decision was limited to abortion and that it did not intend to “cast doubt” on other cases, including Obergefell, that have applied substantive Due Process.  In Dobbs, the Court rejected the doctrine of substantive Due Process.  However, the Court went out of its way to try to distinguish Roe from the many prior Court decisions that have applied substantive Due Process to identify “fundamental rights” not mentioned in the Constitution.  Indeed, the Court expressly stated that “what sharply distinguishes the abortion right” from the rights identified in other substantive Due Process cases is that “abortion destroys . . . the life of an unborn human being.  None of the other decisions . . . involved the critical moral question posed by abortion.”  Therefore, the Court continued, “our conclusion that the Constitution does not confer such a right does not undermine [those cases] in any way. . . . [O]ur decision concerns the constitutional right to abortion and no other right.  Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”  The Court expressly cited Obergefell as one of those precedents.

Slam dunk.  Game over.  Right?  Unfortunately, not.  As every first-year law student eventually learns, the legally binding part of a court decision – the part that becomes precedent – is not what the court says; it is what the court actually does and the reasoning essential to support that action.  This is known as the “holding.” The rest of the court’s opinion is non-binding obiter dictum (literally, “a thing said in passing”).  The State, therefore, is likely to argue that the Court’s statement that it did not intend to undermine Obergefell and other substantive Due Process cases was not essential to support the Court’s decision regarding a woman’s right to an abortion and, therefore, is non-binding dicta. As a result, this language does not preclude the Court from revisiting, and overruling, Obergefell.  The State will likely further argue that the Court’s rejection of substantive Due Process in Dobbs, and its determination that the Due Process Clause protects only those rights expressly granted in the Constitution or that are “deeply rooted in our nation’s history and tradition,” requires the Court to now eliminate the judicially created right to marry a person of the same sex.

The justifications that the Court relied on to overrule Roe are not applicable to Obergefell and, therefore, do not provide the “special justification” required to overrule it.   Adam and Steve should next argue that, even if a majority of the Justices now believe that because of its reliance of the doctrine of substantive Due Process the Court was wrong when it found that same-sex couples have a right to marry, there is no “special justification” for overruling that decision.  Indeed, none of the factors that the Court concluded “weigh strongly in favor of overruling Roe and Casey,” applies to Obergefell.  The three most important factors were: the nature of their error”; “the ‘workability’ of the rules they im­posed on the country”; and “the absence of concrete reliance.”  

Nature of the error.  The Court stated that Roe should be overruled because its “constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.”  By contrast, the Court’s application of substantive Due Process in Obergefell expressly relied on the Court’s 1967 decision in Loving v. Virginia, which recognized that the right to marry was a fundamental right protected by the Due Process Clause and, therefore, required States to allow people of different races to marry. 

Obergefell also was a logical extension of a line of cases, dating back to the Court’s 1996 decision in Roemer v. Colorado, that held that the Constitution barred government actions based on “animus” towards gay and lesbian people.  Indeed, in 2003, when the Court ruled in Lawrence v. Texas that the Due Process Clause barred a State from criminalizing private consensual sex between two adult men, Justice Scalia, in dissent, correctly recognized that if the Due Process Clause prevents a State from banning “homosexual sodomy” based on “moral disapprobation of homosexual conduct,” there could be no possible “justification . . . for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’”

“Workability” of the Rules.  The Court also concluded that Roe and Casey should be overruled because the rules that the Court had adopted pursuant to those decisions could not “be understood and applied in a consistent and predictable manner.”  For example, the Court wrote, the line that the Court drew in Casey between permissible regulations and those that impose an “undue burden” on a woman’s right to an abortion “has proved to be impossible to draw with precision.”  For example, different Courts of Appeal had reached conflicting decisions regarding the constitutionality of certain types of restrictions, such as waiting periods and parental notification requirements. 

Nearly seven years after its issuance, Obergefell has not created any similar implementation difficulties.  States have been regulating marriage, just as they always have, but expanding its reach to a relatively small number of same-sex couples who wish to participate in this long-established institution.  (According to the U.S. Census Bureau, fewer than one-half of one percent of all married couples are same-sex couples, although this percentage is expected to continue to increase over time as more gay and lesbian couples decide to marry.)

 If anything, the situation that existed prior to Obergefell – and which would exist again if the Court overrules that decision – is the unworkable one.  As we explained in our previous blog, before Obergefell, same-sex couples who got married in a State that had marriage equality, but then moved or even travelled to a State that did not, faced horrific challenges in critical areas, such as making healthcare decisions for an incapacitated spouse or obtaining a divorce.  The situation would be even worse if the Court now reversed Obergefell, leaving it to each State to determine the legal status of marriages involving same-sex couples that were performed after that decision.  In particular, reversing Obergefell would cause significant uncertainty in States like Texida that previously had adopted constitutional or statutory provisions limiting marriage to opposite-sex couple and that had only allowed same-sex couples to marry because the Court’s decision in Obergefell required them to do so.

Absence of concrete relianceFinally, the Court found that Roe could be overruled because no one had “concretely” relied on it.  While the Justices recognized that courts should be wary of overruling a prior case when doing so would “upend substantial reliance interests,” the Court stated that such interests must be “very concrete  . . . like those that develop in cases involving property and contract rights.”  The Court went on to conclude that Roe had not created any “concrete” reliance interests because, in the case of abortion, “advance planning of great precision” is not “obviously a necessity.” 

Whatever the merits of the Court’s analysis may be, its decision in Obergefell requiring States to allow same-sex couples to marry clearly created “concrete reliance interests.”  Marriage resembles a long-term contractual agreement between the two spouses.  Marriage creates obligation for each spouse, such as the duty to support the other spouse financially.  Married spouses also have important rights, such as right to make medical decisions for an incapacitated spouse.  Same-sex couples rely on these mutual rights and obligations.

Marriage also creates significant property interests.  For example, if two people are married, and one dies, the surviving spouses can inherit the deceased spouse’s assets tax free.  By contrast, if the law does not recognize the validity of a couple’s marriage, then the surviving spouse may be required to pay substantial taxes on the inheritance.  This is the exact situation that gave rise to the United States v. Windsor, in which the Supreme Court struck down the infamous Defense of Marriage Act, which had denied federal recognition to lawful same-sex marriages.  Same-sex couples, like all couples, clearly structure their financial arrangements in reliance on such property rights.

 In light of the above, Adam and Steve can convincingly argue that the Court’s decision in Obergefell finding that same-sex couples have the right to marry is binding precedent, and that – even if a majority of the Justices now believe that the case was wrongly decided – the Court’s subsequent decision in Dobbs does not provide the “special justification” needed to overrule it.

State Laws That Allow Heterosexual Couples to Marry, While Barring Gay and Lesbian Couples From Doing So, Violate The Equal Protection Clause

Mr. Gardner and Mr. Appletree also can persuasively argue that because the Texida Constitution allows heterosexual couples to marry, while prohibiting gay and lesbian couples from doing so, it violates the 14th Amendment’s Equal Protection Clause, which provides that no State may “deny to any person within its jurisdiction the equal protection of the laws.” 

Adam and Steve should first note that, while the Obergefell decision relied primarily on the Due Process Clause, the Court expressly stated that “[t]he right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection.”  However, the Court’s Equal Protection discussion was relatively brief, was not essential to its decision, was closely intertwined with its Due Process analysis, and did not apply the test that the Court typically uses to decide Equal Protection cases.  Therefore, the couple should make a detailed Equal Protection argument, using the Court’s established analytic framework.   Specifically, the couple should argue that:

  • State laws that distinguish on the basis of sexual orientation should be subject to the same level of heightened scrutiny as State laws that distinguish on the basis of gender, which the Court often refers to as “intermediate scrutiny.”
  • Applying intermediate scrutiny, the Court should rule that State laws that allow heterosexual couples to marry, while forbidding gay and lesbian couples to do so, violate the Equal Protection Clause because the differential treatment is not “substantially related” to achieving an “important” purpose.

While the couple will face some challenges, they should be able to prevail.

The Court’s established framework for resolving Equal Protection claimsDespite the unambiguous language of the Equal Protection Clause, the Supreme Court has been reluctant to “substitute its judgement” for that of an elected legislature as to when it is acceptable for a State to treat one group differently from another.  Therefore, the Court generally has used a very deferential standard to determine whether a legislative distinction violates the Equal Protection Clause.  [We use the term “legislative distinction” to refer to any legally binding constitutional, statutory, executive, or administrative act that treats different classes of people differently.]  However, the Court has recognized that legislative distinctions involving certain groups that historically have been the victims of discrimination should subject to more rigorous constitutional review.  At the same time, the Court has recognized that some of these groups have distinguishing features that could justify differential treatment in certain cases.  Consistent with this recognition, the Court has identified three levels of scrutiny:  rational basis review; strict scrutiny; and intermediate scrutiny.    

  •   Rational basis review. Because of its reluctance to “second guess” State legislative distinctions, the Court usually assesses the constitutionality of such distinctions using its most deferential approach, “rational basis” review.  In such cases, the Court will uphold a legislative distinction if there is a “rational relationship” between the distinction and any “legitimate interest” that the State conceivable might have, even if this was not the actual reason why the State made the distinction.  In such cases, the Court generally finds the distinction constitutional.
  • Strict scrutiny.   At the other end of the spectrum, if the Court finds that a legislative distinction adversely affects a group that has long been subject to discrimination – which the Court refers to as a “suspect class” – and that States usually make distinctions involving this class because of prejudice, it will apply strict scrutiny.  The Court has identified two significant suspect classes:  racial minorities and religious minorities.  When the Court applies strict scrutiny, it shifts the burden to the State to demonstrate that it actually adopted the distinction to achieve a “compelling” purpose and that the distinction is the “least restrictive means” to do so.  In such cases, the Court generally finds that the distinction violates the Equal Protection Clause. 
  • Intermediate scrutiny. Finally, if the Court finds a legislative distinction adversely affects a group that has long been subject to discrimination, but the group has distinguishing features that can sometimes justify differential treatment – sometimes referred to as a “quasi-suspect class” –  it will apply a somewhat less rigorous standard, often called “intermediate scrutiny.” The Court typically applies intermediate scrutiny in cases involving women and “illegitimate” children.  If the Court applies intermediate scrutiny, the State must demonstrate that it actually adopted the distinction to achieve an “important” purpose and that the distinction bears a “substantial relationship” to achieving that purpose.

For the reasons that we explain below, Adam and Steve should urge the Court to apply intermediate scrutiny to legislative distinctions that are based on sexual orientation.  

Same-sex marriage bans would likely survive rational basis review.  Given that the Supreme Court assesses most Equal Protection cases under the rational basis test, and has done so in prior cases involved sexual-orientation-based distinctions, Adam and Steve might be tempted to ask the Court to apply that standard.   In order to prevail under this highly deferential standard, the couple would have to convince the Court that Texida’s decision to restrict marriage to opposite-sex couples is not “rationally related” to any “legitimate interest” that the State could possibly have.  This could prove difficult to do.

To be sure, under the rational basis standard, the Supreme Court previously has struck down certain legislative distinctions based on sexual orientation.  In those cases, however, the Court did so because it concluded that the only possible reason why the State could have adopted the distinctions was animus towards gay and lesbian people, which is never a legitimate purpose.   For example, in Romer v. Evans, the Court held that a State constitutional amendment that precluded adoption of any law that gave gays and lesbians “minority status, quota preferences, protected status or [a] claim of discrimination” violated the Equal Protection Clause because the only possible purpose of the amendment was “to harm a politically unpopular group.” 

By contrast, in the present case, if the Court conducts a rational basis review, the State could effectively argue that restricting marriage to opposite-sex couples could serve some “legitimate purpose.”  The State would likely rely on Justice Alito’s dissenting opinion in Obergefell.  Effectively applying the rational basis standard, Justice Alito argued that the States had identified a legitimate purpose: “encourage[ing] potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.”  Limiting marriage to opposite-sex couples was rationally related to that purpose, he reasoned, because marriage is “inextricably linked to the one thing that only an opposite-sex couple can do:  procreate.” 

Of course, encouraging potentially procreative couples to get married was probably not the actual reason why the State excluded gay and lesbian couples from marriage.  And, in any case, excluding gay and lesbian couples from marriage because they are not able to procreate may not have been the only way, the best way, or even a particularly effective way to encourage couples who are capable of procreation to marry.  But that does not change the outcome.  In order to survive rational basis review, all that Texida would need to do is to convince the Court  that a State could rationally decide to limit marriage to couples that consist of one man and one women because the State believes that the purpose of marriage is to create a stable environment for any children that may result from a couple’s sexual relations, and that only sexual relations between a man and a women can result in a couple begetting children.

The Court is unlikely to apply strict scrutiny to distinctions based on sexual orientation.  In light of the above, Adam and Steve might decide to try to persuade the Court that, in assessing whether a distinction based on sexual orientation violates the Equal Protection Clause, it should apply strict scrutiny.  Application of strict scrutiny would almost certainly result in the Court finding that limiting marriage to heterosexual couples violates the Equal Protection Clause.  Denying gays and lesbians the right to marry plainly is not the “least restrictive” means to achieve the State’s purported goal of encouraging procreative couples to form stable unions.  Nonetheless, the couple should not take that approach because, for the reasons explained below, the Court is unlikely to apply strict scrutiny in this case.

The Court has identified two bases on which to apply strict scrutiny:  when the distinction denies a “fundamental right” to a specific group of people or when it involves a “suspect class.”  In light of the Court’s rejection of substantive Due Process in Dobbs, it would not be productive for the couple to argue that State restrictions on same-sex marriage should be subject to strict scrutiny because they deprive gay and lesbian couples of a “fundamental right” enjoyed by heterosexual couples.  Rather, the only conceivable way to get the Court to apply strict scrutiny would be to convince the Justices to add sexual orientation to the existing list of “suspect classifications” entitled to strict scrutiny.  Unfortunately, this would be almost impossible to do.

The Supreme Court has applied a number of different criteria to assess whether a particular group should be deemed a suspect class.  This includes whether the group:  possesses immutable and visible characteristics; has been discriminated against or subject to hostility or stigma; and lacks power to protect themselves through the political process.  The Court has concluded that laws that single-out groups with these characteristics for special treatment rarely serve a legitimate purpose. 

Gays and lesbians would appear to satisfy those criteria.  However, the Court is unlikely to add them to the two groups – racial minorities and religious minorities – that it previously has deemed to be suspect classes.  These two groups have a unique legal status and history.  In the case of racial minorities, the Fourteenth Amendment, which was adopted shortly after the Civil War, made formerly enslaved people citizens of the States in which they resided and sought to ensure that these States treated them in the same manner as other citizens.  However, States continued to adopt and enforce pernicious race-based distinction for another one hundred years, making it necessary for the Court to apply the Equal Protection Clause strictly when considering the constitutionality of race-based distinctions.  Similarly, the Constitution provides special protection to religious minorities, who have sometimes faced persecution, through the First Amendment guarantee that government will not infringe on the “free exercise of religion.”  The Court has expressly declined invitations to classify additional marginalized groups – including women, illegitimate children, and developmentally disabled people – as suspect classes.  And it has never expressly considered the possibility of including sexual orientation in this category. 

The Court should apply Intermediate Scrutiny and should rule that State laws that allow heterosexual couples to marry, while forbidding gay and lesbian couples from doing so, violate the Equal Protection Clause because the distinction is not “substantially related” to achieving an “important” purpose.  Given the possibility that the Court would uphold restrictions on same-sex marriage under the rational basis standard, and that it would not apply strict scrutiny, Adam and Steve’s best option is to try to convince the Court to subject distinctions based on sexual orientation to intermediate scrutiny.  If the Court agrees, the couple can make a persuasive argument that distinguishing between heterosexual and gay and lesbian couples regarding marriage eligibility violates the Equal Protection Clause because the distinction is not “substantially related” to an “important” government interest.

Justification for intermediate scrutiny.  Distinctions based on sexual orientation should receive intermediate scrutiny because gays and lesbians have characteristics similar to those that led the Court to treat women as a “quasi-suspect” class eligible for such scrutiny.  The Court based its decision on several factors.  First, gender is an immutable and visible characteristic – or at least one that a person cannot legally and visibly change without great difficulty.  Second, women have long been the victim of serious governmental discrimination, often based on unjustified stereotypes.  For example, for many years, women were excluded from many universities and occupations based on the stereotype that members of the “fairer sex” lacked the intellectual and physical capacity to participate.  Third, women often lack sufficient power in the political process to fully protect their interests.  Until the ratification of the 19th Amendment in 1920, many States did not allow women to vote.  While the number of women who have been elected to political office continues to grow, women still hold a disproportionately small number of positions at the highest levels of government. 

The same factors that make gender-based distinctions suspect provide a basis for the Court to apply heightened scrutiny to distinctions based on sexual orientation.  Being a homosexual is clearly an immutable characteristic; neither psychiatric therapy nor fervent prayer has proven effective at altering gay and lesbian people’s sexual orientation.  And, while a person’s sexual orientation may be less visible than a person’s gender, many gays and lesbians choose to be “out” to family, friends, and colleagues, while others are not able to conceal their sexual orientation. 

Gays and lesbian also have been the victims of serious governmental discrimination, often as a result of unjustifiable stereotyping.  Gays and lesbians have been depicted as “mentally ill,” “perverts,” “pedophiles” and – more recently – “groomers.”  Based on such stereotypes, the Federal Government and many States long prohibited gays and lesbian from serving in the military, working as a civil servant, or being a teacher. Gay men, in particular, were at risk of arrest for doing no more than congregating in a crowded bar (the event that gave rise to the Stonewall Rebellion, which began the modern gay rights movement) or engaging in consensual sexual activities within the privacy of their own homes (the event that gave rise to the Lawrence case).  At the same time, gays and lesbians were often discriminated against in private employment, housing, healthcare, and access to public accommodations.

Finally, while some homosexuals – especially affluent, white urban gay men – have successfully affected the political process, many gays and lesbians have been unable to secure passage of legislation to protect their rights.  Indeed, about half the States still do not have laws barring discrimination in employment, housing, and access to public accommodations on the basis of sexual orientation.

While these factors make distinctions based on sexual orientation suspect, such distinctions, like gender-based distinction, differ from race-based distinctions in at least two ways that justify applying a somewhat less strict level of scrutiny.  First, as with women, the level of discrimination against gays and lesbians, while significant, “has never approached the severity or pervasiveness of the historic legal and political discrimination” against racial minorities, especially African Americans.  (Mathews v. Lucas, 427 U.S. 495 (1976)).  Second, as with gender-based distinctions, objective differences between gays and lesbians and heterosexuals may justify different treatment in limited circumstances.  In the case of gender-based distinctions, for example, the Court ruled in Rosker v. Goldberg (1981) that differences in physical strength between men and women that could affect their performance in active-duty combat provided a permissible basis for Congress to require young men, but not young women, to sign-up for the military draft.  Similarly, in the case of distinctions based on sexual orientation, the inability of gay and lesbian couples to procreate might provide a permissible basis for a State to make certain substantially related distinctions.  For example, a State might be able to offer to provide costly genetic screening to heterosexual couples prior to issuing them a marriage license, while not offering this service to gay and lesbian couples.

While there are good arguments for expanding the list of categories for which intermediate scrutiny is appropriate to include sexual orientation, the Justices may be reluctant to do so.  After all, a court that is seeking to end the practice of identifying “fundamental rights” under the 14th Amendment’s Due Process Clause may be disinclined to protect the very same rights under the 14th Amendment’s Equal Protection Clause.  However, in light of the Court’s recent decision in Bostock v. Clayton County, Adam and Steve could make another argument yfor applying intermediate scrutiny to which a majority of the Justices might be receptive. 

In Bostock, the Court ruled that the language in Title VII of the Civil Rights Act of 1964 that prohibits an employer from discriminating “on the basis of . . . sex” includes discrimination on the basis of sexual orientation or gender identity.  The Court reasoned that an employer who fires an individual merely because that individual is gay or transgender is discriminating on the basis of sex because the employee’s “[s]ex plays a necessary and undisguisable role in the decision.”  For example, if the employer would not have fired a female employee for marrying a man, but the employer fires a male employee for marrying a man, the employer has discriminated on the basis of sex.  In light of Bostock, the couple could argue that, under existing precedent, legislative distinctions based on sexual orientation are gender-based distinctions and, therefore, already are subject to intermediate scrutiny.

Application of intermediate scrutiny.  If the Court agrees to subject distinctions based on sexual orientation to intermediate scrutiny, the State will need to demonstrate that its decision to issue marriage licenses to heterosexual couples, while denying them to gay and lesbian couples, was intended to further an “important” government interest by means that are “substantially related” to achieving that interest.  The State is likely to find it very difficult to do so.

The State did not bar gay and lesbian couples from marrying in order to advance an “important” governmental interest.  In Obergefell, the States claimed that the purpose of marriage is to encourage couples who are capable of procreation to enter into a stable long-term relationship in order to better care for any children that might result from their sexual congress.  Presumably, the State would make the same claim in the current caseThe State clearly has a compelling interest in fostering such stable relationships.  However, if the Texida constitutional amendment is subject to intermediate scrutiny, the burden will be on the State to demonstrate that it actually excluded gay and lesbian couples from marriage for this purpose. 

In the case of long-standing laws governing the marriage, it is hard to know the States’ original intent.  The reality is that, at the time the States enacted these laws, it was a given that only opposite-sex couples could marry; same-sex marriage was literally inconceivable.  However, in the years immediately prior to Obergefell, when some States began to legalize same-sex marriage, many other States adopted constitutional amendments and enacted statutes that expressly limited marriage to “one man and one woman.”  The couple should argue that, rather than seeking to incentivize heterosexual couples to marry, the actual reason why Texida amended its Constitution to limit marriage to “one man and one woman” was to show moral disapproval of the “gay lifestyle.”  As the Court has repeatedly recognized, animus against gays and lesbians is never a legitimate justification for State action.  

Excluding gay and lesbian couples from marrying is not “substantially related” to the State’s purported purpose.  Even if the Court accepts the State’s claim that it was seeking to encourage procreative couples to enter into a stable long-term relationship, the State still would need to demonstrate that the means that it chose – allowing heterosexual couples to marry, while refusing to grant marriage licenses to gay and lesbian couples – is “substantially related” to that goal.  There is a good chance that the State could not do so.

The Court first applied the “substantially related” test in Craig v. Boren (1976).  In that case, the State adopted a law that allowed females between the ages of 18 to 20 to purchase low-alcohol beer, while barring males from doing so until they reached the age of 21.  The stated purpose of the law was to increase traffic safety.  In enacting the law, the State relied on a study showing that 18 to 20 year old males in the State were approximately ten times more likely than females in that age group to be arrested for driving while under the influence of alcohol (2.0 percent of the males versus 0.18 percent of the females).  The Court nonetheless ruled that, while “not trivial in a statistical sense,” the evidence did not demonstrate a substantial relationship between “maleness” and “drinking and driving.”  The Court therefore held that this “unduly tenuous fit     . . . hardly can form the basis for employment of a gender line as a classifying device.” “Indeed,” the Court continued, “prior cases have consistently rejected the use of sex as a decision making factor even though the statutes in question certainly rested on far more predictive empirical relationships than this.”

There is barely a “tenuous fit” – much less a substantial relationship – between excluding gay and lesbian couples from marrying and encouraging couples who are capable of procreating to enter into a stable long-term relationship for the benefit of any resulting children who may result from the couple’s sexual liaisons.  Based on analysis of Census Bureau data, approximately 15 percent of the heterosexual couples who get married each year in the United States include a woman over 45 years old.  Those unions are presumptively incapable of leading to procreation.  In addition, about ten percent of younger heterosexual couples who get married cannot have children, because one member either is infertile or has had a medical procedure (such as a hysterectomy or a vasectomy) that precludes the couple from procreating.  Yet, no State has ever felt it necessary to exclude those types of non-procreative couples from marriage in order to encourage couples who have the ability to procreate to enter into stable long-term relationships for the benefit of any children that may result from their coital union. 

While reliable statistics about same-sex marriage are surprisingly scarce, it appears that less than two percent of the couples who get married each year in the United States are same-sex couples.  If it is not necessary for State to exclude from marriage the 25 percent of heterosexual couples who are unable to procreate in order to encourage potentially procreative couples to get married, the State cannot plausibly claim that there is a “substantial relationship” between excluding the two percent of couples who seek to get married who are gay or lesbian and achieving the State’s purported goal of encouraging procreative couples to marry.

Indeed, excluding gay and lesbian couples from marriage actually impedes the State from achieving what it claims to be its ultimate goal, ensuring that children are brought up in a stable environment.  As the Court recognized in Obergefell, “many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.”  Allowing gay and lesbian couples to marry, the Court continued, “affords the permanency and stability important to [those] children’s best interest,” while “[e]xcluding same-sex couples from marriage . . . harm[s] and humiliate[s] the children of same-sex couples.”

Epilogue

After reading the briefs, hearing oral argument, and taking the matter under advisement, the Supreme Court issues its decision in the case of Gardner v. Eden.   The Court rejects the State’s invitation to overrule Obergefell and, instead, reaffirms its holding that same-sex couples have a constitutional right to marry.  However, rather than relying on substantive Due Process, the Court bases its decision on the Equal Protection Clause.  The Court therefore reverses the decision of the Court of Appeals, remands the case, and orders the State to issue a marriage license to Adam and Steve.

Two weeks later, back home in Texida, the couple is married.

****************************

Jack Nadler is a Retired Partner in the Washington DC office of Squire Patton Boggs.  While at Squire, Jack served as outside counsel for SAGE (formerly Services and Advocacy for Gay Elders), which represents the interest of LGBT older adults.  Jack led the team that drafted the extensive friend of the court (amicus) brief that SAGE filed in Obergefell v. Hodges, the case in which the Supreme Court struck down State restrictions on same-sex marriage.  Jack previously taught law at American University’s Washington College of Law in Washington, DC and the China University of Political Science and Law in Beijing, and served as a Law Clerk to the Hon. Joel M. Flaum on the United State Court of Appeals for the Seventh Circuit in Chicago.  He is a graduate of Columbia Law School, the Columbia University School of International and Public Affairs, and Vassar College.

My 80th Birthday

Dear friends,                                                                         May 19, 2022

Life Begins at Eighty was a TV show in the mid 1950s. As our family only acquired a TV set later in the 1950s, I don’t think that I ever watched it. But I would like to take exception to its premise. For me, turning 80 is a time of reflection on a life well lived, no longer a continuation of the endeavor, or dare I say struggle, to achieve still more. As such it is a relaxed time of contemplation. I do not suffer Torschlusspanik. In fact, I am very grateful for having experienced a very interesting and eventful life.

When we are young it is all about preparing for and striving to do great things, or at least to realize our potential whatever that might be. As such it is a time of considerable tension. Will I make it? Will I graduate? Will I be hired/appointed? Will I get promoted? Will my project succeed? It is so nice to be beyond those.

I was born on my father’s birthday (what a gift) and raised in Bakersfield California. The first time I left my home state was also the first time I flew in an airplane, which was to New Jersey to prepare with others from around the country for a year abroad as part of the International Christian Youth Exchange (ICYE).

Two weeks of preparation later, we boarded the USS New York for a six-day Atlantic crossing to South Hampton then La Havre, France. In my case, at the age of 17, I traveled on by train to Kassel, Germany to meet the German family I would live with for the next year–my senior year of high school. Their house was in the nearby village of Rasdorf kreis Hünfeld in the Fulda Gap. My home for that year was a few hundred yards from the “ten meter strip” that marked the border with the DDR (East Germany)–the border dividing East and West Germany after WWII.

During that year in Germany (1959-60) I visited Berlin with my ICYE group. We attended my first opera in the Opera House located in what became East Berlin. The Berlin wall did not yet exist. I returned to Berlin and its Eastern Zone many times after the wall went up in 1961 and many times later after it come down in November 1989.

During that same year I graduated from Bakersfield High in absentia. When I returned home to the US, I attended Bakersfield College (the local Jr. College that allowed me to live at home for financial reasons for two more years) before transferring to the University of California at Berkeley. At Bakersfield College, with friends, I started and edited a politically conservative underground weekly paper we called the Weekly Blatt, thus launching a lifelong interest in public policy. It reflected the appreciation of the difference between free, capitalist economies and the repressive, impoverished communist ones that I saw and experienced from my year living on the edge of communist East Germany.

While at Berkeley, I was president of the University Conservatives and of my fraternity Alpha Tao Omega (ATO). When I heard Milton Friedman speak at Berkeley, I vowed to study under him at the University of Chicago. As the result of spending considerable time on the Free Speech Movement Council during my Senior year at Berkeley (1964) and misjudging the effort needed to slide through on a C in a very boring economic history class taught by a socialist, I was admitted on probation to the University of Chicago graduate program. But hard work and with Milton Friedman as Chairman of my dissertation committee (which also include Robert J. Gordon) eventually led to my PhD and an appointment as an Assistant Professor in the Economics Department at the University of Virginia in Charlottesville, Virginia.

While studying at the University of Chicago, Professor Friedman introduced me to and sponsored my membership in the Philadelphia Society, which in those years held its annual meeting in Chicago. He later did the same for the Mont Pelerin Society, an international organization founded after WWII by Friedman, Fredrick Hayek, and others to defend free markets and liberalism against the socialism sweeping Europe at the time. Before finishing at Chicago, I took a year off to teach at the University of Hawaii where I married Louise Wilkinson who had left her graduate studies in the English Department at Chicago to teach at the University of Hawaii.

As a Californian, where history is largely about cowboys and Indians, I found Charlottesville, the hometown of Thomas Jefferson, a beautiful place wonderfully rich in American history. I loved my time there. My son, Brandon, and daughter, Daylin, were born there, which were transformative events as every parent knows.

After five years as an Assistant Professor at UVA, I joined the International Monetary Fund (IMF) for twenty-six years. Eight of those exciting years were spent leading the SDR Division of the Treasurer’s Department and the balance providing technical assistance to central banks in what is now called the Monetary and Capital Markets Department (MCM).

With the collapse of the USSR at the end of 1991, I moved back to the MCM Department from the Treasurer’s Department and immediately led a team to the Bulgarian National Bank followed by multiple visits to Kazakhstan and Kyrgyzstan and a few years later to Moldova. The first half of 1992 we flew (back-to-back) to Almaty (Kazakhstan) and Bishkek (Kyrgyzstan) in chartered planes. Later in that year I was on the maiden Lufthansa flight from Frankfurt to Almaty. The institutions of the former Soviet Union were totally unknown to us, and our counterparts were very eager to learn the ways of capitalist economies. It was a very exciting time.

My earlier years at the IMF were also personally traumatic. I had hidden my sexual attraction to men from myself for years and I was beginning to lose that battle. I struggled to face up to the reality and implications of that fact. I was frightened. It was not at all an easy time. When it was no longer possible to deny or repress the truth, I separated from and later divorced Louise. Sadly, she moved with my two kids back to her home in Mercer Island, Washington. A new chapter of my life began. As we often said at the time, “God made me a homosexual, but I chose (finally) to be gay.”

The most important event of this new life was my introduction in 1999 to Dr. Ito Briones from the Philippines by my friend W. Scott Thompson (Jan 1, 1942 – Feb 19, 2017). After finishing a Master of Arts degree at Boston University, Ito relocated to Washington, DC and moved in with me. He received a PhD in Molecular Biology at Georgetown University and worked in the National Cancer Institute (NCI) lab in Ft. Detrick for five years. Yes, Ito is a renaissance man and a wonderful companion. We were formally and legally married on June 5, 2011.

At the request of the Board of Governors of the Federal Reserve System (coming from my former Chicago classmate David Lindsey who had tried to recruit me from UVA earlier), the IMF seconded me to the Board staff for one year (1979). That was the year Paul Volcker moved from President of the Federal Reserve Bank of New York to Chair the Board of Governors in the middle of my stay. The Board room went from a nonsmoking zone under Chairman Bill Miller to Paul’s big cigars. It was a very exciting year as the Fed crushed the 11.4% rate of inflation.

In 1989 I was also seconded to the World Bank to help write that year’s World Development Report (on Financial Systems and Development). It was like being back in graduate school. It was a wonderful experience led by Millard Long and Stan Fischer (WB Chief Economist at that time).

After 26 years at the IMF, I retired in 2003 at the Assistant Director level. During those years, I had led technical assistance missions to over 20 countries, primarily in the Former Soviet Union and post conflict countries such as Bosnia, Afghanistan, Iraq, and Kosovo. But being only 62 (I had met the IMF’s rule of 85 for maximum pension–age plus years of service) I was not about to stop working.

In June 2003, I joined the Coalition Provisional Authority (CPA) in Baghdad for the US Treasury (see my Iraq book below). At the same time, I joined the Board of Directors of the Cayman Island Monetary Authority (CIMA) for the next seven years. Following that I was a member of the Editorial Board of the Cayman Financial Review from March 2011 to May 2017. While I no longer led missions, I joined them as a consultant member for the IMF, ODI in London, and Deloitte Consulting traveling to Albania, Afghanistan, Bangladesh, Iraq, Kazakhstan, Kenya, South Sudan, Yemen (virtually), West Bank and Gaza Strip, and Zimbabwe. Between January 2002 and September 2013, I traveled to Afghanistan 20 times.

I spoke at conferences in Argentina, Bulgaria, Georgia, Greece, (Hangzhou) China, Paris, Ukraine, Freedom Fest in Las Vegas, London, Oxford, and the Eurasia Economic Forum in Astana, Kazakhstan.  I attended Mont Pelerin Society meetings in Guatemala City, Nairobi, Sidney, Prague, Galapagos Islands, Hong Kong, and Stockholm.

But it was not all work. I had a wonderful father-son trip with my son Brandon to Athens and the Greek Islands in 1992 and to London and around Ireland in 1994. My grandson Bryce came with me to Kenya for an IMF mission to the central bank in 2010 during which we spent a weekend ‎in the Maasai Mara National Reserve in the Rift Valley. The highlight was Bryce’s petting a live cheetah.

An almost annual highlight were the July gatherings at the home of Robert Mundell outside Siena, Italy, to discuss the international monetary system. In January 2015 my daughter Daylin’s marriage to Brett Baker in Las Vegas was great fun. In the summer of 2015 Ito and I spent a week in Southern Italy for the first time (Naples, Pompei, Sorrento, Capri, Sicily) following our usual Mundell gathering in Siena.  Ito and I attended the Edinburgh International Festival four times (joined on one occasion my granddaughter, Micaela in 2017) and spent several wonderful weeklong stays in Bruges for Ito’s art classes (2017 and 2019). Another highlight was the award ceremony in London in March 2019 at which I was presented the Central Banking Journal’s first “Award for Outstanding Contribution for Capacity Building of Central Banks, Especially in Demanding Circumstances.”

My work at the IMF (and elsewhere) and with the teams I led in the field was challenging, stressful, sometimes dangerous, and highly rewarding. I developed friendships with many central bank staff and officials in these countries and believed that my work and the work of the teams of experts I lead had made significant contributions to bringing more stable and efficient monetary and financial systems to the countries we worked in. It is highly disappointing to see the disintegration and backsliding of many of them (Bosnia, Afghanistan, South Sudan, Kyrgyzstan).

Except for Turkey, the backsliding has been political rather than in monetary stability.  To cite a few examples of dramatic central bank successes, the inflation rates dropped from 1,000% in 1998 to 1.2% in 2020 in Bulgaria, from 1,660% in 1993 to 6.8% in 2020 in Kazakhstan, and from 789% in 1993 to 4.4% in 2020 in Moldova. The lack of political healing in Bosnia and Herzegovina, where the annual inflation rate averaged 1.47 percent between 2006 and 2021, has been particularly disheartening. The messages I get almost daily from Afghanistan from friends wanting help in getting out are heartbreaking. And then, of course, the political environment in my own country has become dismal and divisive.

Were all my efforts for nothing? In fact, I am proud that I gave it my all whatever the result. I met and worked with wonderful people. The bonding with mission team members in the field, I imagine, was a bit like the war time bonding with your fox hole buddies. Life was not dull to say the least. I have written more extensively about some of these experiences in five books: “One currency for Bosnia-creating the Central Bank of Bosnia and Herzegovina”     “My travels in the former Soviet Union”   “My travels to Jerusalem”     “My travels to Baghdad” and “My travels to Afghanistan”.

So, as I reach 80 years of age I can rest and am grateful for the life I have led. It was filled with struggles, pain, adventures, and joy. I married a wonderful woman (Louise Wilkinson) who mothered my two wonderful children who in turn gave me seven wonderful grandchildren and two adorable great granddaughters. My painful struggle with homosexuality evolved (through several chapters) into a wonderful relationship with the loving and multitalented Ito. I have been blessed with wonderful friends and colleagues.

My life is certainly not over yet, the curtains have not yet fallen, but looking back at my life—I am grateful for the many adventures it has led me on.

Thank you all.

Warren

Hi Grandpa

The following story actually happened:

Around 10 am Wednesday morning the phone rang. I picked it up and said, “Hello”. “Hi Grandpa,” was the reply. There are few things that grandfathers like hearing more than that, though often with a bit of apprehension about the call’s purpose. I didn’t immediately recognize the caller and I didn’t want one of my grandchildren to think that I didn’t recognize their voice. I concluded that it must be my daughter’s oldest child.

“Is this you Bryce, you sound a bit different,” I said.

“Yes, sorry I have a cold,” he replied

Bryce proceeded to spell out, a bit hesitantly, the reason for his call. It was obvious that he was somewhat nervously working up to something.

“One of my coworkers caught COVID-19. On the way to get tested this morning I had an accident. I swerved into the car next to me. I had briefly taken my eyes off the road to check the GPS and hit another car. Unfortunately, when the police arrived, I told them that I had been on the phone, which, of course, is illegal. It was a mistake; I wasn’t on the phone, but now I am in jail. I want to transfer to you my lawyer to better explain things. Will you please talk to him?”

“Well, yes, of course,” I said anxiously.

The lawyer proceeded to explain that though the four people in the car Bryce struck (a man and his eight-month pregnant wife and three-year-old daughter) had been taken to the hospital, none were seriously injured. Bryce’s court date was set for the afternoon of December 15 and the lawyer was confident that Bryce would be cleared of any charges. However, as it was important to keep Bryce’s misstatement about being on the phone off the record, the lawyer had obtained a gag order prohibiting anyone from saying anything about the case. That included me.

The lawyer asked me if I was willing to put up the $16,000 bail required to get Bryce out of jail pending his court appearance. He then proceeded to ask me some “security” questions to verify my identity. For example, he asked if I could tell him Bryce’s address.

“Well, I am still in bed and I don’t have his address here, but it is off interstate 90 between Issaquah and Belview on the way to Seattle.” “So, you can confirm that he is in the state of Washington,” he asked. “Yes” I said.

The lawyer continued that Bryce was in the city jail in downtown Seattle. He explained that more local jails were full, and that the Seattle jail was the nearest one with room. He explained that while I could provide the bail money any way I wanted (and I would get all of the money back when Bryce appeared in court) anything other than cash would cause at least a two-day delay while the check or charge cleared. So obviously I would need to pay in cash if I wanted him released right away. After establishing that I was in Bethesda, MD (not Washington State) the lawyer said that he would need a bit of time to locate a bail bondsman in my area. During that time, he recommended that I take out the required cash from my bank. He stressed that because of the gag order I must not tell my bank the purpose of my cash withdrawal nor mention my Grandson’s name. He gave me the case number.  I asked him to email it to me with his name and phone number.

Before calling my bank for the appointment (currently required during the Covid-19 pandemic), I emailed my daughter: “Did you know that your son is in jail?”

The conversation with my bank was interesting. They said that they would not have that amount of cash to give me and would require several days to acquire it. I was shocked and distressed.

The lawyer called back an hour or so later to say that he had located three bail bondsmen in the Washington, DC area who could take the cash and forward the bond. When I explained that I couldn’t get that much cash for a few days he asked how much I thought I could get saying that he would go back to the judge and plead for a smaller deposit amount. I reminded him that I had not received his email yet. He said that he would check on it.

That was the last I heard from him. Moments later, my daughter emailed me to say that Bryce was at home in bed and would call me shortly, which he did. We had a fun conversation, and I was enormously relieved on several levels.

All of us have received fraudulent emails or phone calls. Of late I have had several from the “Social Security Administration” reporting fraudulent uses of my SS number. These scammers are pretty easy to spot and I never give any personal or financial information to them. I either hang up or waste as much of their time as possible. How was I tricked on this occasion? How did I so readily overlook obvious red flags?

Red flags:

When I received “Bryce’s” phone call at 10:00 am it was 7:00 am his time on the West Coast. I doubt that he has ever been out of bed that early much less to drive to a virus testing station. And I was told (and accepted without question) that he was already in jail by that time, that he had engaged a lawyer, that a judge had set the date for his court appearance, set bail, and imposed a gag order.

The gag order itself was strange.

Being jailed for talking on the phone while driving was even stranger.

The cash that must be paid to a bail bondsman is 10% of the bond and is nonrefundable (which I didn’t know at the time never having dealt with a bail bond).

How did I miss all of that? I feel like an idiot. That is what a voice saying “Hi Grandpa” will do to you.

By the way, the “lawyer’s” phone number in Banff, Alberta, Canada is +1 (403) 431-1517. Say hi for me.

The search for purpose: Nature and Nurture – Genes and culture

Every healthy boy and girl searches for the meaning and purpose of their lives. We ask why we are here and what we should do with our lives.  Where do we want to go and be in the future? How do we think we can best get there?  What should we strive for or should we strive at all?  The search for meaning can be agonizing but it is part of human nature to ask, “Who am I?”.

But we do not search in a vacuum.  That we search at all can be attributed to our genetic inheritance. Over the millennia our ancestors who pondered this question and chose and worked toward goals of mutual help and cooperation, prospered and multiplied relative to those who didn’t.  While personal and family survival and wellbeing come first, working together with others enhanced the wellbeing of both. In a fascinating presentation at the Cato Institution, Nicholas Christakis, Sterling Professor of Social and Natural Science, Yale University, discussed his new book “Blueprint: evolutionary origins of a good society”  He argued that the evolutionary survival of the fittest also favored (selected) those disposed to love, friendship, cooperation, and teaching. Homo sapiens with those qualities formed more successful and durable groups.

This happy genetic predisposition, however, was just the start, the foundation from which the search for the meaning of our lives was launched. The rest of the answer is the product of the values taught to us by, or absorbed from, our parents, family, and community and its religious and other institutions, and filtered by our reason, which is another capacity favored by evolution. The cultural values from which we learn what our peers value and respect in us can contribute to successful and prosperous societies (and their economies) or not. Children growing up in poor neighborhoods dominated by gangs are more likely to see success in terms of the demands of their gang. The esteem of their gang peers will be earned by very different behavior than in neighborhoods in which honesty and respect for the law are valued.  Gang culture does not contribute to safer, more prosperous neighborhoods or societies.

Cultures that reward cooperation, honesty, and trust enjoy more successful economies as well. Financial wealth is only one source of esteem, however, and after being well feed and well clothed, the respect of our communities probably tops the list of aspirations for our lives. The cultural values in which we map out our goals profoundly influence the choices we make.  Adam Smith’s “invisible hand” guiding our actions for our self-enrichment serves us individually and the society we live in best when functioning in a culture of mutual respect, honesty, and cooperation.  In free market, capitalist economies, individual workers and entrepreneurs profit by satisfying the wants of others. Thus, competitive capitalism encourages a culture of serving others and such a culture encourages successful economies.  These are win – win societies.

“The overwhelming weight of evidence supports the conviction that when human beings, created in the image of God as free, rational, social, and moral animals, are allowed to creatively serve each other’s needs and responsibly plan their own lives, they flourish. And when a nation’s citizens flourish, the nation as a whole flourishes as well.”  “Dylan Pahman: Why-economic-nationalism-fails-conservatism”

So where should today’s Generation Z and Millennials look to find meaning and purpose for their lives? Most of us want to “do good” for our community, country and the world as well as for ourselves and our families. Will today’s youth see this marriage of public and personal good in the world of personal freedom and responsibility described by Adam Smith, or in the world of greater central government assistance (control) advocated by Bernie Sanders?

Sanders says he is a socialist, but I doubt that he means government ownership and direction of the means of production, which is the traditional meaning of socialism.  Rather he seems to mean government provision of important goods in our lives (heath care, education, jobs, etc.)  But the provider also determines what and how to provide.  Are the key decisions in our lives to be made by each of us within the legal and cooperative framework of norms and support provided by our culture and government of limited scope, or to be determined centrally for our benefit by a larger more dominant government and its employees? Government employees no doubt feel good when they help others, but capitalism provides a financial reward for doing so as well. Human greed is more likely to be tempered by the requirements of success in free markets than in government bureaucracies.

Though the average family, and especially the poor, have never before had such wealth broadly defined, today’s world suffers many shortcomings. The social safety net of a properly limited government is not always effective or well designed.  Each person in our newest generation in seeking the esteem of its family and community will ask how best to fix these shortcomings and to address and reduce the barriers to their’s and their neighbor’s fulfillment of their potential for a rich and fulfilling life. Will they turn to the “socialism” of Bernie Sanders or the individual/family-based free market model of Adam Smith?

So called “socialism” is enjoying a resurgence of popularity among American youth today. Even before Trump’s election a majority of 18-29 year old’s viewed socialism favorably. “Why-so-many-millennials-are-socialists”  Why is this, given the strong theoretical and empirical case against it?  For one they were not alive to see its greatest failures (though we now have Venezuela and North Korea).  They seem to think of countries like Sweden as socialist. While the free market capitalist country of Sweden has a larger government than the U.S., it ranks only a bit below the U.S. on the Frasier Institute Index of Economic Freedom (8.07 versus 7.83 in 2015).  For example, Sweden adopted a nationwide universal voucher program (school choice) in 1992, well ahead of the U.S.  https://www.fraserinstitute.org/studies/economic-freedom

Like every generation before it, today’s youth wants to “do good.” They want to contribute to making the world better than it already is. Those of us who highly value our personal freedom as the basis of how we live and who have studied the weaknesses of government provided and guided economic resources [e.g., https://wcoats.blog/2020/01/25/crony-capitalism/] must take up the challenge of explaining the superiority of a family based social structure and honest, law abiding, mutual respecting, cooperative culture. While free market capitalism has produced incredible riches for almost everyone, its primary virtue, and potential appeal to Generation Z, is its promotion of caring for and serving our fellow man.

Paid Family Leave

The view that if something is good or beneficial the government should provide or mandate it is one of the attitudes dividing those who favor limited government from those favoring a more expansive and generous government. The following provides one example.

Ivanka Trump and others make a convincing case for generous paid family leave, Paid-family-leave-is-a-good-national-policy. Stephen A. Schwarzman, Founder, Chairman and CEO Blackstone, explained that Blackstone extended its paid maternity leave from 12 weeks to 16 weeks because it improved Blackstone’s bottom line – Paid-maternity-leave-is-worth-every-penny. But for all of the many reasons that big government should be resisted in general (inappropriate incentives for government bureaucrats and the public, special interest capture of policy—i.e. crony capitalism and other forms of corruption, limitations of individual freedom, inefficiency, etc.), there is not a good case for the government to get involve in mandating or subsidizing paid family leave.

Generous paid family leave programs provided by employers are smart business. Companies that offer them will have a competitive edge and thus free market firms will increasingly adopt them. Employers will be free experiment with what works best (for employees’ and companies’ bottom lines), which may well evolve over time as markets and technology change. Governments’ rarely enjoy such flexibility and are often captured by voters best able to influence government to protect their special interests, and that is never the poor. Those who are unemployed don’t need paid leave as they are already receiving unemployment compensation or welfare support for staying at home.

Maternity or family leave has facilitated bringing women into the labor force and thus increased family and national incomes. Given the importance of education to worker productivity and thus individual and national incomes, the state has also undertaken to finance (and unfortunately in most cases also to supply) education for all children from Kindergarten to 12th grade. While upper income families can easily afford to pay for this education for their children, lower income families generally cannot. Thus public financing of such education helps give all children a more equal start in live and also facilitates two worker families. A gap in such assistance exists for preschool children (age 0-5). Financial assistance should also be considered for day care or nursery schools for such children.

In most cases where a policy or practice is good for the general public, it will be adopted by free market participants and better fulfill its purpose than is possible or likely by government.

Balancing Religious Freedom and Civil Rights

The adoption last week of Indiana’s Religious Freedom Restoration Act (RFRA) has set off a loud public debate about religious freedom and civil rights. The debate is over the best balance between our cherished beliefs in both religious freedom and civil rights, which includes tolerance of those with religious beliefs different than ours. A standard formulation of the scope of individual freedom is that it is our right to live and do as we like as long as it does not infringe on the rights of others to do the same. How we should put meat on those bones is the essence of ongoing, serious public debate.

I have blogged on this challenging topic a number of times starting with the following in November 2008: https://wcoats.wordpress.com/2008/11/11/church-and-state-in-america/ and followed in April 2010 by: https://wcoats.wordpress.com/2010/04/18/when-values-clash/

and in August 2013: https://wcoats.wordpress.com/2013/08/30/liberty-and-the-overly-prescriptive-state/

and in December 2013: https://wcoats.wordpress.com/2013/12/20/more-on-the-balance-between-the-public-and-private-sectors/

and most recently in February 2014: https://wcoats.wordpress.com/2014/02/28/arizona-and-religious-and-person-liberty/

Indiana’s RFRA is similar but not identical to the law of the same name signed into law by President Clinton in 1993 with overwhelming bipartisan support. These laws and other efforts to balance religious and other individual freedoms against the expectation of tolerance are based on the First Amendment to the US Constitution reproduced below (the first item in the Bill of Rights) and the guarantee of equal protection under the law contained in the Fourteenth Amendment adopted after the Civil War, in part to remove discrimination against African Americans. Success in establishing a good balance is critical to a healthy, vibrant and free civil society and depends more on social attitudes than on laws. David Brooks provides an insightful and balanced discussion of this issue: http://www.nytimes.com/2015/03/31/opinion/david-brooks-religious-liberty-and-equality.html?_r=4

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First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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It is quite beyond my limited legal knowledge to tease out exactly what the Indiana law provided (it has already been amended to address the fears that it was an excuse for discrimination). Much has been written on the subject, some of it uninformative and/or inflammatory, others wise and insightful. I would like instead to outline the spirit and attitude of a proper balance between religious freedom and civil rights that makes sense to me.

Most of us assume that our freedom to believe what we choose and to express those beliefs publicly includes what some others might disagree with or consider “wrong” or obnoxious, such as racial prejudice. Freedom of speech means nothing if not the right to state what most of us consider wrong. The right to say stupid or repugnant things should never be confused with accepting or encouraging such views. Particular condemnation should be directed to those who use their freedom of speech purposely to offend rather than to defend their beliefs. The best defense against bigotry, whether racist or homophobic, is to use our freedom of speech to counter such views and to promote the virtues of respect, diversity, and tolerance of alternative beliefs (as long as they do not limit our own). In short, building broadly shared attitudes of respect toward the rights of our fellow men (and women) are necessary for the maintenance of a decent, free society.

What might this mean in practice? In my private life I should never have to associate with people I don’t like. I should not have to invite them into my home or my club. It was absolutely right that the Boy Scouts of America were allowed to exclude gays and that we were allowed verbally to attack them for such misguided behavior. They are gradually coming around to a more enlightened policy with better long run results than if forced by law to open up to members they did not want. Churches are quite rightly not forced to accept members that do not embrace their beliefs or otherwise satisfy whatever their membership requirements are.

The above examples are obvious. The difficulties begin to arise when we move outside our homes and private groups. Aside from the obvious question of why two lesbians in Texas insisted on the services of a photographer for their wedding who refused to accept their request (were they looking for a fight or the best photographer), I think any service provider should be free to choose their customers just as customers are free to choose where to shop. While mafia dons and other murderers and bad people have a right to legal representation, why should a particular objecting lawyer be required to provide it?

Should a Christian bookstore be required to sell the bible or whatever to atheists or Jews? For starters it would be quite contrary to their goals and evangelical nature to refuse to do so, but should they have the choice? Should Muslims be required to touch and serve pork or should Mormons be required to tend the cocktail and coffee bars of their employers? Once again it is hard to see why this is raised to the level of public policy. If a Mormon doesn’t want to serve alcohol (though it wasn’t a problem for the Mormon owned Marriot Hotel to do so), she doesn’t have to and shouldn’t work for a bar. For larger operations, such as restaurants with a bar, it is not that difficult for the manager to assign employees to tasks that respect their religious or ethical beliefs. The free market, profit motive would lead employers to do just that.

For many, the pace of progress against discrimination in the more public sphere of commerce and certainly in government bodies was not fast enough leading to the adoption of the 1964 Civil Rights Act, which outlawed discrimination based on race, color, religion or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce; but exempted private clubs and the renting of the bed room in my basement. If you are open for business to the general public you are not allowed to discriminate on the above bases. The LGBT community has been working to add sexual orientation to the above list, something that was missing in the original Indiana RFRA law.

The recent Hobby Lobby decision of the Supreme Court (Burwell v. Hobby Lobby) concerned the mandate in Obama Care for employers to provide government specified contraceptives as part of the employee health plans. The Christian family owners objected to the mandatory inclusion in the list of what is often called the morning after pill. Raising wages sufficient to compensate employees for the cost of buying their own insurance would sacrifice the tax exception (i.e., subsidy) of employee provided health insurance. The Court ruled to allow closely held for-profit corporations to be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest. Such exemptions are allowed for churches and directly religious organizations but this was the first time that the Court has recognized a for-profit corporation’s claim of religious belief.

This whole situation has more objectionable parts than I can count. First, it is bad policy to give a tax break for employer offered health insurance. For one thing, tying heath insurance to ones employer makes it more difficult for employees to change jobs and increases the cost to them of losing a job. Second, it is outrageous that the federal government is dictating the list of contraceptives that an insurance policy must provide and that everyone must have such policies. This is before we get to the issue of which, if any, private companies should be exempt from such requirements and for what reasons. Such micro management of our lives by the government has gone way too far and makes the balancing of rights I have been discussing much more complicated and difficult. A tradition of polite accommodation of differences generally trumps efforts to spell it all out in law.

Marriage equality, i.e., extending the same right to marry enjoyed by heterosexual couples, takes away no rights from traditional couples other than perhaps to be spared the anger/horror/sadness over something someone else is doing. Get over it. Having to serve LGBT couples commercially does not imply agreeing or disagreeing with their status. Fortunately society is moving rapidly to accept the virtue of extending the institution of marriage to LGBT couples. If marriage is a good thing for loving committed couples, it should be available to all such couples. Those people and religious groups that continue to disapprove are free to as long as they do not deprive others of their freedoms and rights.

More from Rosewood

As my United, Canadair flight from Denver descended over Bakersfield toward the Meadows Field airport, my phone indicated the arrival of a text message. My brother Gary was asking, “Where are you?”  I responded: “Just landing—early”. It was 8:10 pm Thursday (March 1) with a scheduled arrival of 8:25pm. I noticed that my Brother’s text was sent at 5:15 pm, a bit after my scheduled arrival in Denver of 5:04pm. He picked me up with a smile and no further comment.

Gary delivered me to my father at the Rosewood Retirement residence. My mother’s mother had lived and died there, as had her three daughters, including my mother two and a half years earlier. https://wcoats.wordpress.com/2009/09/30/notes-from-a-visit-to-rosewood/   https://wcoats.wordpress.com/2009/12/02/my-mother%E2%80%99s-funeral/   https://wcoats.wordpress.com/2010/05/22/breakfast-at-rosewood/

My dad’s door on the second floor was locked, which was very unusual. He let me in and explained that some lady down the hall kept coming into his room if he left the door unlocked. We hugged and he said, “You need to lose some weight.”

My dad has always had a very good memory. He has always been a great game player (especially bridge) and still wins regularly at Rosewood bridge games. But his memory is fading in some areas these days (he will be 95 in May). He had slipped in his bathroom some weeks earlier and hit his forehead on the sink on the way down. He lay there pushing on the emergency call button on his wrist wondering why no one came until (after 5 – 10 minutes he said but who knows) he realized that he was pushing on his watch on the other wrist by mistake.

He recently lost his address book of many years (the old paper kind), in which over half of the names are now crossed off, and was trying to recollect the missing phone numbers and addresses. He called a woman he had attended classes with in grammar school, now living in Northern California, chatted for a while, and then carefully wrote down her address information. An hour later he could no longer find it to put in his new address books, which he couldn’t find either.

But he forgets nothing in bridge. He runs a weekly group of two tables and complained how much work and time it takes him to keep two tables filled. People are always dropping out or forgetting to come. He told me that a women’s bridge group had started inviting him to join their group when one of their regulars couldn’t make it. Eventually they asked him if he would like to become a regular member.

He remembers the batting averages of the big baseball stars from before I was born and which team won the World Series each year for the last thirty years. He is also up to the minute on the accomplishments of our local teams. He eagerly told me that the Drillers (his and my high school teams) had won the wrestling tournament over the weekend, totally forgetting that I have no interest in wrestling, baseball, basketball, or football whatsoever.

Most of dad’s life he was happy to sit quietly by while mom ran his life. This was because he had no objections to the way she ran things. When he did, we all knew it. After she died, he stepped forward and became more extroverted. The monthly Rosewood newsletter listed him as Mr. Social. We are all kind of shocked.

He complains that he is very busy all the time. It seems that it takes him much of the day going through his mail. I have not been able to convince him that he does not need to open and read everything sent to him.

Major progress has been made, I think, toward separating him from his car (which, fortunately, he seldom drives). Rosewood provides a small bus for transporting residents to various places.  But he doesn’t always find that convenient and the idea of taking a taxi is totally alien to him. It really comes down to his sense of freedom. For several years I have been planting the seed that he should save all that insurance money and give the car to his grand-daughter (Gary’s daughter Kristin) who lives here in Bakersfield. He says that he will. Coming home from lunch Friday I said: “Dad, why don’t you bit the bullet and give Kristin the keys to the car when she comes over for dinner this evening.” He snapped: “I will give up the car when I am ready and I am not ready yet.” An hour later he said, “When I move into the new apartment next week with the larger refrigerator, I want to stock it with food and I will give Kristin the car after that.”  Stay toned.

Annual Christmas Letter

Dear Friends,                                                                                                           December 8, 2010

Seasons Greetings. I hope that it has been a good year for you and those you love. It has been for me, but it remains a troubled time for western economies and for those parts of the world in which we have militarily involved ourselves and in a few in which we haven’t. Here are the highlights of my year. You can read my more extensive comments on my travels, the economy, and other things that have interested me at https://wcoats.wordpress.com/).

My first trip of the year, as usual, was to Grand Cayman Island for the quarterly board meeting of the Cayman Islands Monetary Authority (http://www.cimoney.com.ky/). My trip there for the May board meeting was my last. Although I was reappointed to the Board for a third, three-year term, I resigned during the summer effective the end of this year. I have good memories and some lasting friends from the experience (Richard Rahn, Tim Ridley, Jane Wareham, and Bill and Patricia Gilmore).

My second trip of the year was to Nairobi, Kenya for the IMF to continue my technical assistance to the Central Bank of Kenya (CBK) on how to improve its formulation and implementation of monetary policy. But this year was very special because I brought my 16-year-old grandson Bryce with me. It was Easter break for him and the CBK was closed from Good Friday through Monday, which gave us a perfect opportunity to drive to the Masia Mara game reserve near the Tanzania boarder for three days and two nights. This added some memorable pictures to my collection, which you can see on my Facebook pages.

The spring also included some fun domestic trips. My long time friend Jim Roumasset and I went to Boston at the end of April for Peter Diamond’s grand retirement party at MIT. Jim and I had had several courses from Diamond at UC Berkeley in the mid 60s. Subsequently Diamond shared this year’s Nobel Prize in Economics. Our Congress is still trying to figure out if he is qualified to be on the Board of Governors of the Federal Reserve. In mid May I flew out to my hometown of Bakersfield for my 50th high school reunion and to celebrate my shared birthday with my dad (what a birthday present he got when I was born).

In July Ito joined me for a trip to Robert Mundell’s annual gathering of economist at his home near Sienna, Italy. We stopped in London to visit Ito’s niece and in Florence to sightsee. We made friends with Bill Middendorf and his daughter Frances, who are both fascinating and enjoyable people.

In early September I was sitting in my gazebo reading about the collapse of Kabulbank, Afghanistan’s largest bank, when the IMF called to ask if I could join the mission leaving that evening for Kabul to help the authorities manage the Kabulbank crisis and to negotiate a new program with the IMF. It was an intense visit with a great IMF team providing little sleep. I traveled from Kabul on to Juba, Southern Sudan (via Dubai and Nairobi), which I did again after returning to Kabul a month later October – November). You can read about Kabulbank in the NYT or Washington Post. I continue to advise the Central Bank of Iraq from afar for the IMF.

I met with Southern Sudanese officials four times this year, once in Nairobi (June) and three times in Juba (July, September and November) after giving up my determination not to go there. As their independence referendum in January gets closer they are paying more and more attention to the issues we (Deloitte/USAID) are advising on (setting up a new post independence central bank and issuing and managing a new currency). On our last visit (November) we were finally meeting with the actual decision makers and we are hoping to convince them to adopt currency board rules for their new currency.

Between my September and November trips to Kabul/Juba, I also managed to attend my nephew Scott Naninga’s wedding in Santa Rosa California, and visit Daylin and Brandon and my grandkids in North Bend, WA and Vancouver, WA while on my way to the Mont Pelerin Society meetings in Sidney, Australia, all in October.

In mid November while I was in Juba my father tripped and fell and sprained his shoulder in Bakersfield and for a few days I feared that I would have to cancel another Thanksgiving dinner, but he is doing fine. My final trip of the year will be to Paris Dec 9-12 for a conference on “The International Monetary System: Old And New Debates,” to discuss the SDR as an international reserve asset.

Ito continues to draw/paint, play the piano and violin, and write while searching for the cure to cancer on the frontiers of molecular biology research at the National Cancer Institute in Fredrick Maryland, thus providing some stability and continuity to the family. So life at home is good when I am there.

Best wishes,

Warren

Breakfast at Rosewood

May 21, 2010

My dad’s and my birthdays on the 19th two days
ago are an almost distant memory. I had spoken in the afternoon to a gathering
of Rosewood residents (the retirement community my dad lives in as had my
mother and her mother) about a few of my travel adventures for the IMF
(Kyrgyzstan, Bosnia, and Iraq) and this was followed by dinner in the Rosewood
dinning room. My brother and sister and I had wanted to take dad out somewhere
for the birthday dinner but he insisted on inviting relatives to join us for
dinner at Rosewood. He had booked the 4:30 pm sitting. Dad’s 93rd
birthday was announced during the regular activities announcement period as was
the remarkable fact that his visiting son was also celebrating his own birthday
on the same day. Balloons where delivered to our table and every one sang happy
birthday to us. We were all still there through the 5:00 sitting and another
birthday announcement and a second round of “happy birthdays to you,” as we
were through the 5:30 sitting and a third round of “happy birthdays to you.”

I don’t quite understand why my father preferred this to
going out to a restaurant, but the next day at my speech to the Quest Club (a
group of Bakersfield business leaders that has met monthly for 75 years), dad
related with pride that he had been sung happy birthday to three times the day
before. Who would have guessed?

Each day during my visit dad has taken me walking, saying
quite correctly that the exercise would be good for me. This is a task normally
performed at home in Maryland by my friend Will. Walking with my dad, while
pleasant, is of limited exercise value as his pace with his walker is rather
slow and he must sit down and rest every two blocks or so.

I missed breakfast with dad at Rosewood the previous two
days due to urgent deadlines for comments on notes being prepared for officials
in Southern Sudan by my Deloitte colleagues Steve Lewarne and James Dean. Their
workday in Juba ends about 4:00 am California time and I need the Internet
connection in my hotel room not available in my dad’s apartment in Rosewood to
respond to them. But today I made it in time for the 7:30 breakfast service at
Rosewood. I sat across the table from my dad and next to Mr. Hall, who told me
again (as he had at lunch the day before) that he had been called up twice by
the Army—WWII and the Korean War.

Dad told us once again that the very nice lady in the
kitchen had asked him what he wanted to eat for his birthday. Being caught by
surprise, he told her that he would like upside down pineapple cake. Later,
after the opportunity to think about it more, he told her that he would like
carrot cake. She service both he proudly told us. I decided not to mention that
I had eaten the carrot cake with him two days before. Dad was always the one
with the impeccable memory. Now, like my mom in her final months who lost her
short term memory but remembered clearly events from decades earlier, he
remembers earlier years clearly but is beginning to forget what happened
yesterday.

Like me, dad has always been the quiet one, letting mom do
most of the talking. Now, as if to fill the void, he has become rather chatty.
Mom had prepared his obituary as well as her own for our use, and he informed
me that he wanted to redo it himself and then proceeded to recall all of the
things he wanted to include.

In no time we returned to the dinning room down the hall for
lunch. Mr. Hall asked where I was from and told me that he had been in the Army
twice. Dad asked me again how far I lived from the Capital. People seemed more cheerful
and up beat than when I was here the last few times just preceding and just
after my mother’s death. The staff remain as cheerful and attentive and gentle
as ever.

When I arrived for this visit I found it a bit jarring to
see on my dad’s assisted living apartment door: “Sue and Warren Coats.” For a
few days I pondered how to approach the subject of its removal with my dad.
Seeing indications that he was moving on, tossing out one unused and useless
item of mom’s then another, I worked up my courage and asked him if he thought
we should remove mom’s name from door. Sure he said, and when we returned from
our walk it was gone.