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.

If we can keep it

From the founding of the American republic, we have had different views on policies to improve our “more perfect union.” That we have lived and flourished together is the result of several important features of American society that we should never take for granted.

The first is a constitution that establishes a limited government that provides maximum scope for each of us to live our individual lives as we see fit. The potential frictions from our different views are thus minimized.

But the individual freedom structure of our government and its accompanying laws are not enough to explain our relative success. Civil society can only flourish within that structure if our values are virtuous and our cultural norms support tolerance and cooperation. Such norms derive from tradition but evolve with experience of what works. This was the insight of Fusionism—the need for both freedom (limited government and free markets) and good values. “Popularizer [William F] Buckley and politician [Ronald] Reagan took the productive tension between freedom and heritage and translated it into political action under the term “fusionism.” “Conservative nationalist or fusionist manque”

“As far as viewing individual freedom as the supreme principle, Mr. Fusionism Frank Meyer explained in his “Western Civilization,” that freedom did rank first politically, as what he called the ‘criterion principle, the guide.’ But ‘the application of principle to circumstances demands a prudential art’ derived from ‘the intricate fibers of tradition and civilization, carried in the minds of men from generation to generation…. The compelling, if secondary, claims of other principles, though not decisive to judgment in the political sphere in the way that freedom is, do nevertheless bear upon every concrete political problem.’ So, practical action requires balancing freedom and beliefs.” 

Culture informs how we use our freedom. Our personal survival and flourishing (self-interest) naturally have priority. But our cultural and moral values help inform our behavior toward ourselves and toward our neighbors that best serve our flourishing and happiness. Our personal welfare also depends on how we treat others.  In the fusionist spirit, two of the critical elements of successful societies are trust in the institutions that govern them and respect for those with whom they disagree.

Political debate in America today is too often merely finger pointing and damning the other side as disingenuous—treating them as enemies rather than partners in brainstorming sessions to find the best solution to opposing views. The pros and cons of proposals and an understanding of the sincere needs and concerns of the other side and the development of compromises and consensus are not possible in such an environment. Our defense of free speech is critical but of limited value if we are just shouting at each other and forget that listening is an important part of a productive conversation.

More deeply disturbing and dangerous is the widespread loss of confidence in our institutions. How best to protect ourselves and our families and our community from Covid-19, for example, should not be a political issue. We should be able to rely on the best advice coming from our public health agencies as they gather and evaluate the evidence. But these institutions bent to political pressures and lost public confidence. “Should you get vaccinated for covid-19”   “The unnecessary fight over covid-19”

More disturbing still is former President Donald Trump’s persistent lies to his supporters that he actually won the 2020 election, thus undermining trust in our elections. That Trump makes such claims is less surprising than that so many of his supporter believe it despite the almost total failure of any evidence presented in court (thus under oath) to establish voter fraud or miscounting, and the rejection of such claims by Trump’s campaign manager, Bill Stepien, and  Trump’s appointed Attorney General, William Barr, who called the claims “BS.” There is no way anyone really seeking the truth can still believe Trump’s claim of a stolen election. But a lot of people still seem to.

Unfortunately, it gets worse. We all listened to Trump’s failed effort to persuade George Secretary of State Brad Raffensperger to find 11,780 more votes for him. “Trump-Raffensperger call transcript on Georgia vote”   When such efforts were exhausted, Trump explored ways to overturn the election results in Congress with the help of “legal” advice from John Eastman and Rudy Giuliani. The final desperate plan was to convince Vice President Mike Pence to reject the Electoral College vote and declare Trump President. The scheme was illegal. The Vice President’s legal adviser, Greg Jacob, explained the illegal nature of the plan to its author, John Eastman, and to the Vice President as did Judge Michael Luttig. VP Pence refused Trump’s pressure to overturn the election, for which we must all be very grateful.

In response to Pence’s refusal to violate the law, “Trump tweeted that Pence ‘didn’t have the courage to do what should have been done,’ prompting rioters Trump had sent to the Capital to “chant ‘hang Mike Pence’ and erect mock gallows.  Committee Vice Chair Liz Cheney has described testimony from Trump aides saying he responded by saying Pence ‘deserves it.’” “How did Trump respond when mob chanted hang Mike Pence?”

The mob that attacked the Capital on Jan 6, 2021 was sent by Donald Trump. “Five people died during the attack or in the immediate aftermath.”  “January 6 attack on capitol-guide to what we now know”  “A grand jury has accused Proud Boys leader Enrique Tarrio and four associates with seditious conspiracy tied to the Jan. 6 attack on the Capitol.” “Proud Boys leader charged with seditious conspiracy related to Jan 6”   “Stewart Rhodes, the founder and leader of the far-right Oath Keepers militia group, and 10 other members or associates have been charged with seditious conspiracy in the violent attack on the U.S. Capitol.”  “Stewart Rhodes arrested-Oath Keepers-Jan 6 insurrection” Two of them have pleaded guilty so far.

Trump’s behavior on Jan 6, such as his long delay in taking any action, remains somewhat cloudy because some of the key Republicans involved that day have refused the subpoenas to testify before the Jan 6 Commission:

“Those gaps are largely the result of the refusal of key Trump allies to participate in the investigation, a list that includes his former chief of staff Mark Meadows as well as his most prominent defenders on Capitol Hill: GOP Reps. Kevin McCarthy (Calif.), Jim Jordan (Ohio), Scott Perry (Pa.), Andy Biggs (Ariz.) and Mo Brooks (Ala.), all of whom have rejected congressional subpoenas to appear before the panel” “Jan 6 committee is telling a story but plenty of gaps remain”

This is an outrage. It is disrespectful to those of us, hopefully all Americans, who want and deserve to know the full truth of what happened that day (and before).

What if Trump is allowed to run again in 2024 and claims that he has won even if he hasn’t?  Will our institutions and public trust in them withstand the better trained and better prepared Trump insurgents next time. Judge Luttig issued a strong “warning to a country whose democracy, he said, is on ‘a knife’s edge.’”

 “Ignoring Jan 6 hearings Michael Luttig explains why you shouldn’t”   “Read Luttig statement”

Trump seems to be preparing for such an event.  “Speaking during a Faith and Freedom event in Nashville, Tenn., Trump said [of] the defendants charged in the Capitol riot… if I become president, someday if I decide to do it, I will be looking at them very, very seriously for pardons. Very, very seriously….” “Trump-says-he-would-look-very-very-seriously-at-pardons-for-jan-6-defendants-if-reelected”

I hope that he won’t be allowed to run:  “The criminal case against Donald Trump”

Econ 101: The Value of Money

During a discussion of Bitcoin with friends, it became clear to me that it might be helpful if I explained some fundamentals of how the value of money is determined. Like most everything else, money’s value is ultimately determined by its supply and demand.

Demand for money reflects the public’s need to keep an inventory of it in order to use it for making payments.  Bitcoin are generally held as a speculative asset rather than for payments as almost no one will accept them in payment. “Cryptocurrencies-the bitcoin phenomena”

The supply of money is determined by those who created it, generally central banks. Generally central banks issue their currency, thus increasing its supply, by lending it (generally to banks) or by buying assets, generally their government’s debt.  When anyone holding that currency no longer wants it and has the right to redeem it, the central bank takes it back in exchange for the asset it purchased in the first place, thus reducing the money supply.  Under the gold standard, currency was redeemed for gold.  The rules governing a central bank’s issuing and redeeming its currency defines the nature of its monetary regime.  That is the topic of this econ 101 lesson.

As none of us has ever redeemed our currency, it is understandable that my friends confused spending their money with redeeming it.  Spending it transfers it to someone else without changing its supply, while redeeming it reduces its supply.  Cryptocurrencies add a new category to our discussion of money.  As noted by “a billionaire hedge-fund manager… cryptocurrencies are a ‘limited supply of nothing.’”  “Crypto skeptics growing”

As discussed further below, the supply of Bitcoin increases slowly and steadily over time as determined by an unchangeable formula and Bitcoin cannot be redeemed for anything.  The U.S. dollar and virtually every other national currency in the world grow at more erratic rates as determined by their issuing central banks.  So what makes the value of the dollar relatively stable over long periods of time?  The fall in its value by about 8% over the last month is nothing compared to bitcoin’s fall of 23% over the same period and over 50% over the last half year.  Over the past 15 years the dollar’s value has declined less than 2% each year.  Unlike Bitcoin, dollars are widely accepted for payments that are denominated in dollars, including our taxes, and thus held (demanded) to make such payments.  Almost no Bitcoins are held to make payments as almost no one will accept them for payments.  But I want to focus on a currency’s supply.

There are fundamentally three broad approaches to determining the supply of a currency.  Historically, the supply of most currencies were determined by fixing their price to what they could be redeemed for, such as gold or silver. I have called such a system for regulating money’s supply, a hard anchor. “Real SDR Currency Board”  The value of a currency can be fixed (the price set) to something real such as gold or a basket of goods.  A country with a strict gold standard, which the U.S. never really had, issues its currency (dollars) whenever anyone wants to pay the fixed gold price for more of them.  If the dollar price of gold in the market rises above its official price, there would be an arbitrage profit from buying gold from the central bank at its lower official price.  Such gold could be resold in the market at the higher price.  But the key point is that this mechanism (what I call currency board rules) of redeeming currency reduces its supply and thus reduces prices in this currency in the market (deflation).  Several of the monetary systems I helped establish, work in this way (Bulgaria and Bosnia and Herzegovina). “One Currency for Bosnia”

The most common system of monetary control today is for the central bank to determine its currency’s supply by buying or selling it in the market (the Federal Reserve can buy treasury bills, etc. to increase the supply of dollars).  Most central banks today adjust their money supplies in an effort to achieve an inflation target (a much more complicated subject). “Czech National Bank: Inflation Targeting in Transition Economies”  Generally they do so by setting an intermediate target for a short-term interest at which market participants (banks) can borrow from the central bank.  Such fiat currencies, such as the U.S. dollar, are not redeemable but are widely accepted in payment for goods, services and debts.

This brings us to Bitcoin.  The supply of Bitcoin is determined by a formula that predetermines its gradual growth to 21 million by 2140.  There are currently about 19 million in existence.  The supply is increased by giving them to successful miners for verifying the legitimacy of each transaction (another complicated subject).  Thus, the issuer (the formula) received services (protection against double spending the same coin) but no assets such as gold or treasury bills for creating and issuing new Bitcoins.  Once created, an issued bitcoin can never be redeemed (i.e. the outstanding supply can never be reduced).  When you spend or give away your Bitcoins you are circulating them to other holders, not redeeming them.

When my imaginary aunt Sally discusses Bitcoin and cryptocurrencies more generally, she tends to mix up the marvelous new payment technologies for paying my dollars all over the world with private money such as Bitcoin and Tether.  She also doesn’t seem to quite understand that most money has always been privately produced including the U.S. dollars that we spend in various ways (occasionally even by handing over cash).  “A shift in monetary regimes”

But these distinctions are critical when considering what role the government should play in our monetary system.  The truly amazing technical progress we have experienced and the dramatic increase in the standard of living of the average person it has delivered over the last century was made possible by a government that provided a general framework in which we, the consuming beneficiaries of this progress, could make informed choices.  Our government, wisely, generally did not make such decisions for use.

With that in mind consider “a letter addressed to Senate Majority Leader Charles E. Schumer (D-N.Y.), Senate Minority Leader Mitch McConnell (R-Ky.), House Speaker Nancy Pelosi (D-Calif.) and other congressional leaders, [from 26 influential technology personalities that] outlined what it described as potentially grave dangers of cryptocurrencies.” They are absolutely correct to expose and condemn the technical and economic weaknesses of blockchain technology—the distributed ledger with which Bitcoin claims to avoid the need for trusted third parties to record and document payment transaction (as happens on a centralized ledger when you pay from your bank deposit). 

But the fact that foolish people invest in Bitcoin and other cryptocurrencies does not justify our government prohibiting and restricting them from doing so.  The government requires the banks in which we put our money to publish properly audited financial statements of the assets backing our deposits and to set minimum capital requirements to protect against the possible loss of bank asset value (e.g., loan defaults).  Cryptocurrencies claiming redeemability at a stable value (so called stable coins) should similarly be required to disclose the rules by which they operate and the composition and value of the assets backing their digital coins.  In short, government regulations should help us decide what we want to buy and/or hold without restricting the ability of fintech pioneers to explore and innovate products to offer.

Overly restrictive regulations create incentives for incumbents to create barriers to competition.  Large and intrusive governments tend toward corruption.  The Federal Reserve System seems quite aware of these risks as it cautiously explores whether to compete with the private sector in developing a central bank digital currency.  “Econ 101-Central  Bank digital currency-CBDC”

So when considering the government’s role in money and payments be sure to clearly distinguish money from payment technology and limit government to setting the rules of the game that maximize the ability of private consumers to make wise choices. But perhaps the biggest policy decision of all is how the government should determine/regulate the supply of its currency, most of which is privately created.  I support a currency whose value is fixed to something real (a hard anchor) and whose supply is determined by the market via currency board rules.  “A libertarian money”  

Social Media and Fake News

People’s political, cultural, and religious views can be partitioned by differing attitudes and preferences. One of these is whether a person looks first to the government or to themselves to solve their problems. Any society requires both, but where do you look first?

An important debate is currently raging over what to do about misinformation and fake news spread on social media. I have shared my views earlier that the rules for what can be posted and shared on a social media platform should be largely up to Facebook, Twitter, etc. “Social media and false information”  But what would we like them to do to solve this problem?

The right to state and promote any point of view should be defended at all costs. But what about lies, deliberately invented or foolishly believed and propagated? The government (ours or anyone else’s) is the last place to empower to determine what is true or not. I am also not thrilled at the idea of Facebook, etc., making such determinations. “What to do with social media?”  As one of those who look first to myself and my neighbors for help with problems, in this short note I want to put the spotlight on what can and should be done to better enable each of us individually to evaluate the accuracy of the information we read and especially information we might chose to pass on.

I spotlight (no more than that here) three areas. The first is education. Schools should provide our children with the critical thinking tools to evaluate the accuracy of the information we are reading or hearing. I don’t think that the importance of this can be over emphasized.

The second area is the importance of news reporting standards and related institutions that promote those standards and the importance of choosing information sources that we can trust. Jonathan Rauch has a very useful discussion of these points in The Constitution of Knowledge: a defense of truth“The sources of trust”

The third area is what social media itself does. It can best help our individual assessments of truth by supplementing posts with information on their source and perhaps with warnings of possible inaccuracy with links to other sources.  It is better for business for social media platforms to detect and block trolls and robo accounts and they should certainly be encouraged to do so. But they should not block former Presidents of the U.S. from saying what they want despite a well documented history of lying. They should and do have the right to do so, though in our traditional commitment to free speech, they should not do so. The government might require platforms to disclose their algorithms for how they direct traffic in order to benefit from public discussion of such internal rules. Taking down posts should be a rare last resort.

In short, we need better training in how to evaluate information however we encounter it. And the social media platforms should be as transparent about what is posted there and what is done with it as possible.

With that we more or less get what we deserve.

Roe v. Wade Part II

My previous blog on Roe v. Wade argued that the laws on abortion should reflect the democratic will of the public. “Roe vs Wade” I have personally always been pro-choice but also believed that that case needed to be made democratically. Before joining the Supreme Court judge Ginsburg stated that: “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” “Scholarship Law, UNC.edu” She added, “Roe v. Wade, in contrast, invited no dialogue with legislators. “Ruth Bader Ginsburg-Roe vs Wade”

Conservative columnist George F. Will wrote that rather than end the debate about abortion with Roe: “Instead, it inflamed the issue and embittered our politics — because the court, by judicial fiat, abruptly ended what had been a democratic process of accommodation and compromise on abortion policy . . . .   Before the court suddenly discovered in the Constitution a virtually unlimited right to abortion, many state legislatures were doing what legislatures are supposed to do in a democracy: They were debating and revising laws to reflect changing community thinking.” “George Will on Roe”

I also argued, quoting Justice Alito, that revoking Roe would not endanger the Obergefell v. Hodges decision, which legalized same-sex marriages, the Loving v. Virginia decision, which legalized interracial marriages, the Griswold v. Connecticut decision, which ban restrictions on contraception, and several other cases. These decisions were also based (in part) on the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution.  I argued that my right to marry a man was protected by the Equal Protection Clause of the Fourteenth Amendment. A lawyer friend, Jack Nadler, has raised some interesting challenges to this assertion and clarified for us non-lawyers the fuller meaning of applying the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.

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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. 

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A Response:  Why Overruling Roe v. Wade Threatens Marriage Equality

Jack Nadler  

I disagree with my friend Warren’s contention that a decision to overrule Roe v. Wade, based on the rationale in Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, would not threaten the right of same-sex couples to marry.  In particular, I do not agree that, even if the Court adopts the reasoning in the draft opinion, the courts would be likely to continue to uphold marriage equality under the Fourteenth Amendment’s Equal Protection Clause.

The rights of same-sex couples to marry, recognized by the Supreme Court in Obergefell, just like the right to abortion recognized in Roe, is grounded on the Due Process Clause, which provides that no State may “deprive any person of life, liberty, or property, without due process of law.”  Specifically, the right of same-sex couples to marry is based on the doctrine of substantive Due Process, which provides that the Due Process Clause’s protection of “liberty” precludes a State from infringing on certain “fundamental rights” that individuals possess, regardless of what procedures the State uses.

Justice Alito’s draft opinion in Dobbs is a direct repudiation of the doctrine of substantive Due Process.  The express rationale for overruling Roe is 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 Constitution does not expressly grant women the right to have an abortion, and because, prior to Roe, the United States did not have a long “history and tradition” of permitting abortion, the draft opinion concludes that the Constitution does not provide this right.

The same rationale is fully applicable to Obergefell, which held that the Due Process Clause precludes the States from depriving same-sex couples of their fundamental right to marry.  Indeed, in his dissenting opinion in Obergefell, Justice Alito applied the exact same standard and concluded that, because “[t]he Constitution says nothing about a right to same-sex marriage,” and because “it is beyond dispute that the right to same-sex marriage is not among those rights . . . deeply rooted in this Nation’s history and traditions,” the Court erred when it found that the Due Process Clause grants same-sex couples the right to marry. 

Warren’s reliance of Justice Alito’s assertion that the Court’s decision to over-rule Roe does not affect “any other right that this Court has held fall within the Fourteenth Amendment’s protection of ‘liberty’” – including the right of same-sex couples to marry – is misplaced.  The binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action.  The rest of the court’s opinion is non-binding dicta.  The reality is that Obergefell rests on the same substantive Due Process foundation as Roe.  The Court cannot demolish that foundation in the abortion context while simultaneously preserving it in all other contexts.  The Constitution either does – or does not – allow the Court to identify judicially enforceable rights beyond those expressly enumerated in the text or “deeply rooted in our nation’s history and tradition.”

I also disagree with Warren’s contention that overruling Roe and thereby “return[ing] the determination of the rules of abortion to the elected representatives in each state” is desirable because “policy in a democracy should be determined by voters and their representatives.”  This is precisely the argument that the marriage equality opponents made in Obergefell.  Indeed, in his dissenting opinion, Justice Alito contended that “[a]ny change on a question so fundamental [as the definition of marriage] should be made by the people through their elected officials.”  The Court rejected this argument, observing  that, “[w]hile the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”  Had the Court left the question of whether same-sex couples should be allowed to marry to the States, then even now the right of same-sex couples to marry likely would still be denied in many States.

The impact on marriage equality of the Court’s decision to overrule Roe must be seen in the larger judicial context.  At the same time the Court is contracting the scope of the Fourteenth Amendment’s restriction on governmental infringement on personal liberty, it is also expanding the scope of the First Amendment protections for the free exercise of religion.  A clash is inevitable.  Indeed, in a 2020 concurring opinion, Justice Alito joined Justice Thomas in declaring that Obergefell has had “ruinous consequences for religious liberty.” 

In order to address the perceived threat to freedom of religion, several of the Justices appear to believe that in any conflict between a religious person’s right to free exercise of religion and a same-sex couple’s right to marry, the “express” free exercise right must trump any “judge made” liberty right.  This could have significant adverse consequences for same-sex couples.  For example, a business owner could refuse to provide the same spousal health insurance coverage to a gay employee’s spouse that the company provides to its straight employees’ spouses on the ground that covering the gay employee’s spouse would violate the owner’s religious conviction that marriage is between one man and one woman.  If the Court adopts this “hierarchy of rights” approach, then the State in which the company is located would be constitutionally powerless to apply its non-discrimination law to make the employer provide coverage.

I agree with Warren that same-sex marriage supporters should not be “hysterical” about the Court’s decision to overrule Roe.  But I do think we should be very concerned about the potential of this decision, over time, to erode the LGBT community’s hard-won victories that have secured judicial protection of our fundamental rights, including the right to marry.

Discussion

The Equal Protection Clause

Warren:  As a legal layman, I always thought that my right to marriage equality rested on the Equal Protection Clause of the Fourteenth Amendment.   Didn’t Obergefell hold that the restrictions on same-sex marriage violated both the Due Process and the Equal Protection Clause?

Jack:  Ever since the Court struck down State prohibitions of private consensual same-sex sexual relations in Lawrence v. Texas, it has relied on substantive Due Process, rather than the Equal Protection Clause.  To be sure, there is a brief section in the Obergefell opinion that essentially says that there is a “synergy” between the Equal Protection and Due Process Clauses because the denial of marriage equality is a denial of the “fundamental right to marry” protected by the Due Process Clause and a denial of a fundamental right to a specific group also violates the Equal Protection Clause.  As the Court somewhat delphicly explained:

“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other.  In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.”

However, as I noted earlier, the binding part of a court decision is not what the court says; it is what the court actually does and the reasoning essential to support that action.  The rest of the court’s opinion is non-binding dicta.  The dissenters in Obergefell correctly observed that the Court had utterly failed to conduct an Equal Protection analysis, and, in any case, this finding was not necessary to resolve the case.  Indeed, Chief Justice Roberts stated that the Court’s opinion had “fail[ed] to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions.”  Justice Thomas similarly observed that the Court had “clearly use[d] equal protection only to shore up its substantive due process analysis.” 

The bottom line is that, if you take the substantive Due Process analysis out of Obergefell, the Equal Protection Clause analysis does not provide an adequate independent basis on which to strike down State restrictions on marriage equality.  Consequently, if the Court eliminates substantive Due Process, the passing reference to Equal Protection in Obergefell would not be enough to support the result in that case.

Warren: Even if the Court in Obergefell did not adequately rely on the Equal Protection Clause as the basis for striking down restrictions on same-sex marriage, could the Court rely on that Clause in any subsequent challenge to marriage equality?   Do you think it is worth doing so?

Jack: Unfortunately, if the Court demolishes substantive Due Process, the Equal Protection Clause is unlikely to be able to fill the gap.  Under modern constitutional jurisprudence, when presented with the claim that a statute violates the Equal Protection Clause by impermissibly treating two groups differently, the Court conducts its analysis in different ways depending on which group is being treated differently.

Historically, the Court was very reluctant to find that a distinction between groups made by the legislature violated the Equal Protection Clause.  So, the Court applied what came to be known as “rational basis” scrutiny.  Under this highly deferential standard, regardless of the legislature’s actual intent, the Court upheld a statute if there was any possible basis on which the legislature rationally could have made the distinction.  Not surprisingly, applying this standard, the Court virtually never found a legislative distinction between groups violated the Equal Protection Clause.

The civil rights movement changed things.  Instead of analyzing race-based statutory distinctions under the rational basis standard, the Court ruled that such distinctions were subject to “strict scrutiny.”  This meant that a race-based statutory distinction would be found to violate the Equal Protection Clause unless the legislature actually intended for the distinction to serve a “compelling purpose” and the means it chose were “narrowly tailored” to achieve the stated purpose.  Very few race-based distinctions can be found constitutional under this standard.

Things got still more complicated with the rise of the women’s movement, when the Court had to decide whether to use rational basis or strict scrutiny to assess whether gender-based statutory distinctions violated the Equal Protection Clause.  The Court decided that challenges to such distinctions should receive “intermediate” scrutiny.  Basically, such distinctions need to serve an “important” purpose and the means used must be “substantially related” to achieving the stated purpose. 

The Court has never determined what level of scrutiny to apply in cases involving statutes that make distinctions based on sexual orientation.  In his dissenting opinion in Obergefell, however, Justice Alito briefly considered the Equal Protection argument, effectively applying the rational basis standard.  He concluded that the States had provided a sufficient justification for distinguishing between same-sex and opposite-sex couples because marriage is “inextricably linked to the one thing that only an opposite-sex couple can do:  procreate. . . . States formalize and promote marriage    . . . to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.”  Therefore, in his view, because same-sex couples cannot procreate, excluding them from marriage does not violate the Equal Protection Clause.

In order to use the Equal Protection Clause as a basis on which to uphold marriage equality, it would be necessary to convince the Court that distinctions based on sexual orientation should receive some degree of heightened scrutiny.  In light of the history of legal discrimination against gays and lesbians, heightened scrutiny clearly is appropriate.  But given that there are some objective differences between homosexuals and heterosexuals – especially the fact that our sexual unions cannot lead to procreation – some statutory distinctions conceivably could be legitimate, so strict scrutiny may not be warranted.   Moreover, the level of de jure discrimination suffered by gays and lesbians, while significant, is probably closer to the level suffered by women than by African Americans, making it hard to justify strict scrutiny.  Therefore, the most appropriate solution would be for the Court to apply intermediate scrutiny to sexual-orientation-based distinctions.  That said, as a practical matter, given its current make-up, there is no chance that the Supreme Court would add statutory distinctions based on sexual orientation to the short list of categories that receive heightened scrutiny.  A court that is prepared to shrink the reach of the Due Process Clause, is highly unlikely to expand the scope of the Equal Protection Clause.

Interstate recognition of same-sex marriage

Warren:  If marriage equality is overturned and returns to a state-by-state determination, the question arises what would happen if a same-sex couple legally married in Maryland and then moved to a state in which such marriages were not allowed? 

Jack:  We most likely would return to the situation that existed before Obergefell, when a lawful Maryland same-sex marriage would not have been recognized in the vast majority of States where same-sex marriage was not legal. This would lead to some horrific situations.  Here, based on actual experiences before Obergefell, are a couple of examples.

First, the ability of married  same-sex couples to travel would be limited.  Imagine that our lawfully married couple decided to go on vacation in Florida, which did not allow same-sex marriage.  During the vacation, one of the spouses is hospitalized with a life-threatening injury or illness and is unable to make medical decisions for himself.   If the hospitalized spouse had been married to a woman, the wife – as next of kin – would have the legal right to visit her spouse in the hospital and, if necessary, make life or death medical decisions for him.  However, because the hospitalized spouse is married to another man, Florida would not consider his husband to be next of kin.  As a result, he would not have the right to visit his critically ill spouse in the hospital.  Even worse, the right to make life-or-death medical decision for the incapacitated spouse would go to the person that Florida recognized as next-of-kin – who may be a parent, sibling, nephew, or child from a prior heterosexual marriage, even if that person disapproves of the spouses’ relationship.  That person could even requested the hospital to bar the spouse from visiting.

Second, getting a divorce would be a nightmare.  Let’s say that our married friends decide to retire to Florida.  However, after a few years of fun in the sun, the couple agrees to get divorced.  But, because Florida doesn’t recognize their marriage, Florida won’t grant them a divorce; the State cannot dissolve a union that it does not recognize exists.  Unfortunately, the couple can’t make a quick trip back to Maryland to get a divorce decree because they are no longer residents.  So, unless they are prepared to take up residence in a State that recognizes same-sex marriage, they’re stuck with each other.

Warren:  How could this be possible?  Wouldn’t the Constitution’s Full Faith and Credit Clause require Florida to recognize a marriage lawfully performed out of state?

Jack:  The answer, regrettably, is no.   The Constitution’s Full Faith and Credit Clause, Art IV Sec 1, provides that every State must give “full faith and credit . . . to the public acts, records, and judicial proceedings of every other State.” The Clause also gives Congress power to “prescribe    . . . the effects” of such State acts.  However, notwithstanding this Clause, the courts have long held that a State need not recognize an out-of-state marriage, lawful where entered into, that contravenes the State’s public policy – such as a polygamous marriage or a marriage involving a child or first cousins. 

Prior to Obergefell, a few States that did not yet have marriage equality recognized lawful out-of-state same-sex marriages.  However,  the vast majority did not.  Indeed, a large number of States adopted constitutional amendments expressly barring recognition of such marriages.  Moreover, when it enacted the infamous Defense of Marriage Act (DOMA), Congress, purporting to use its power under the second sentence in the Full Faith and Credit Clause, expressly provided that States did not need to recognize same-sex marriages lawfully entered into in other States. 

DOMA’s non-recognition provision was not challenged in the Supreme Court’s Windsor case and survived the Court’s decision to strike down the portion of the law that provided that the Federal Government would not recognize same-sex marriages even if they were lawfully entered into in a State that had marriage equality. One of the two questions that the Supreme Court subsequently agreed to consider in Obergefell was whether the Full Faith and Credit Clause required States that did not permit same-sex marriage to recognize lawful out-of-state same-sex marriages.  Because the Obergefell Court ruled that State had to allow same-sex couples to marry, it did not resolve the out-of-state-recognition question.  Thus, if Obergefell is reversed, a State could again decline to recognize same-sex marriages lawfully entered into in another State.

Conclusion

Warren:  It seems to me that if Obergefell is challenged on the basis that no explicit right to same-sex marriage can be found in the Constitution to which the Due Process Clause could be applied, a stronger case for applying the Equal Protection Clause could be made. If that failed, we would have to live with state-by-state determination of marriage equality and Congress could stipulate that the Full Faith and Credit provisions of the Constitution would obligate states that do not permit same-sex marriage to recognize such marriages legally obtained in other states. Public understanding of and sentiment toward LGBT people has evolved and progressed considerably from the earlier times in which restrictive and discriminatory legislation such as DOMA were first adopted. Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.

Jack:  Warren believes that times have changed and that, even if Obergefell were overruled, many States would choose to retain marriage equality.  He also believes that, pursuant to its express authority under the Full Faith and Credit Clause, Congress would adopt legislation requiring that every State recognize same-sex marriages lawfully performed in another State.  I am far less sanguine. 

Despite all the progress made, 27 States have not yet enacted statutes that expressly bar discrimination in employment, housing, and access to public accommodations on the basis of sexual orientation.  I do not want to count on these States to take affirmative action to preserve the right of same-sex couples to marry.  I am particularly concerned about the many States that, prior to Obergefell, had amended their constitutions to limit marriage to “one man and one woman.”  If Obergefell is overruled, these State constitutional prohibitions on same-sex marriage presumably would immediately come back into in effect.  In that case, same-sex marriage would be barred in those States until such time, if ever, as the State completed the often-arduous process of amending its constitution to remove the restriction. 

As for Congress, the prospect that 60 Senators would support legislation to restrict the historic right of a State to decline to recognize out-of-state marriages that contravene its public policy seems remote.

Warren:  As of the middle of last year 83% of Americans supported marriage equality. Support among Republicans has risen from 40% in 2016 to 55% in June 2021. “Support for same-sex marriage in the United States by political party” Thus, I think it is likely that marriage equality would be widely embraced in the democratic approach of legislation.

Even with regard to abortion, the most recent Pew survey finds that 61% of Americans support the legalization of abortion in all or most cases. “Majority favor legal abortion”  While support is stronger among Democrats, 38% of Republicans support it and almost half of Republicans under thirty do. “Senate Majority Leader Charles Schumer (D-N.Y.) late last week teed up a vote on the Women’s Health Protection Act, which would essentially codify Roe into law. The vote is expected to take place midweek. There is little drama surrounding the vote, as it will fail….” “The Hill”  Why it seems destined to fail is a mystery to me, but then life is full of mysteries.

Roe vs Wade

The debate for and against the legality of abortion has been around as long as I have, i.e., for a very long time. Quoting from Justice Alito’s leaked draft of a possible court decision: “For the first 185 years after the adoption of the Constitu­tion, each State was permitted to address this issue in ac­cordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U.S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one.” “Alito draft annotated”

Should the Supreme Court rescind Roe vs Wade, it would not make abortions illegal or necessarily restrict when they would be allowed. The current standard is that an abortion is permissible before the fetus becomes viable (likely to live if delivered). What rescinding Roe vs Wade would do is return the determination of the rules on abortion to the elected representatives in each state.  I have always been “pro-choice”, but I also believe that policy in a democracy should be determined by voters and their representative. I am comfortable with either a state-by-state determination or a federal determination, but I would like to see the status quo preserved. By that I do not mean that Roe vs Wade should be upheld, as it is simply an incorrect interpretation of the Constitution as Alito correctly claims: “even abortion supporters have found it hard to defend Roe’s reasoning.”

As Alito has also explained: “The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ Roe’s defenders char­acterize the abortion right as similar to the rights recog­nized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different.”  The Fourteenth Amendment provided for the protection of equal rights for all people. What any two straight, white people can do, black and/or gay people have the right to do as well, such as marry.

The almost hysterical reaction to the possibility of overturning Roe vs Wade is unwarranted. It will not make abortions illegal. As Alito stated: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Time and the Clock

At last, there is an issue on which the whole country agrees (and can fight about at the same time). We all agree that we should stop having to move our clocks up or back twice a year. That is wonderful news. Now the (I assume relatively harmless) debate has begun whether we should freeze day light savings time or standard time.

In today’s electronic era most of our clocks adjust automatically to the crazy rules of our government. For the others, including my car clocks, they are an hour off for part of the year as I have given up adjusting them long ago. I just have to remember which they are stuck at. Out of the wonderful blue, it would seem, the U.S. Senate unanimously approved a bill to make daylight savings time permanent. Apparently, “they basically like the idea of more sun later in the day — regardless of how it means sunrises arrive very late in the winter, approaching 9 a.m. in some northern states.” https://www.washingtonpost.com/politics/2022/03/17/senate-time/

We no longer (if the House also passes the bill) need to get angry at the absurd statement that DST gives us more daylight and can laugh at the joke.

More from the above Washington Post article playing along with the joke:

“’I was pretty surprised we had the power to change time itself,’ Rep. Jan Schakowsky (D-Ill.) said while leading last week’s hearing, reflecting on a previous vote to change the start and end date of daylight saving.

“Some lawmakers talk as if they have the power to alter the sun itself.

“’Let’s give Americans something to celebrate: longer days and more sunshine,’ Sen. Tommy Tuberville (R-Ala.), a co-sponsor of Rubio’s bill, said in a speech March 7.

“’Americans want more sunshine and less depression,’ Sen. Patty Murray (D-Wash.) said Tuesday in a speech.

“In fact, the days will not be longer and the sun will shine the exact same amount of time. The difference is how to set clocks for when the sun will rise and when it will set.”

So on with the debate whether to permanently adopt DST or ST. May the best man (or woman) win.

What to make of 2022?

Some ostensibly smart people believe some, well, unbelievable things.  Those who believe, I mean they apparently really do believe, that there are funny and dangerous things in the Covid vaccines are doing all of us harm. But the damage to the rest of us of such beliefs will be limited. Those tens of thousands of people who will die unnecessarily as a result of the unvaccinated, will largely, but not exclusively, be those refusing to get vaccinated.

But what about the 70% of Republican voters who still believe that Trump actually won the election despite the Trump team’s complete failure to present any credible evidence in any court, and even after the “Republican-dominated Arizona Senate hired Cyber Ninjas, a Florida cybersecurity firm with no prior election auditing experience, to review the 2020 election results in Maricopa County, where Phoenix is located,” which found that Biden actually won several votes more than the official count. “Fact-check Arizona audit affirms Biden’s win” Do such believers, in the face of the contrary evidence, constitute a danger to America?

“This isn’t some shrug-your-shoulders-and-roll-your-eyes partisan circus. How Americans understand Trump’s months-long, falsehood-fueled campaign to overturn the 2020 election, ultimately calling on supporters to march on the Capitol a year ago, remains a clear and present force shaping U.S. politics.” “Biden-Trump face off this week-jan-6”  Thousands of Trump supporters stormed the U.S. Capital on January 6 in an effort to get Congress to overturn Biden’s election in favor of Trump. “Federal prosecutors in the District have charged more than 725 individuals with various crimes in connection with the deadly Jan. 6 insurrection….” “Capitol deadly attack-insurrection-arrested-convicted”

While the investigation into this event is ongoing, public trust in the integrity of our elections has fallen. Laws in many states have been changed to take the oversight of state elections from public officials and give it to political bodies (state legislatures). What might happen in 2024 if Trump runs again and is again defeated? Or wins? Will the public accept the result or challenge it, and what form might that challenge take?

I was shocked to read that 1 in 3 Americans say that violence against the government might be justified.  “1-3 Americans say violence against government can be justified”  Congress is sharply divided and unable to pass legislation reflecting traditional bipartisan compromises. Senator Ted Cruz has stalled the Senate’s consent to a large number of President Biden’s state department appointments at a time when the strengthening of our diplomacy is badly needed in the national interest. “Senate confirmations stalled by Cruz” The winning party is (or these days we must say “should be”) allowed to appoint its own government. How will the public react to all of this? Is increased violence in prospect? Is civil war in the 21st century America possible?

It is time for the Republican leadership, who have cowardly fallen silent to Trump’s steady stream of lies, to speak up for the traditional values of the Republican Party. It’s time for all of us of all political parties to present and debate our views civilly with a reasoned presentation of the pros and cons of what we believe. We must stop labeling our opponents as enemies. We must find common ground where possible and live graciously with policies supported by the majority. We will and should continue to promote what we each think best for our country but within the commitment that we are all one big family.  The radicals of the right and left will still be there but hopefully on the fringes of a broad moderate middle. There is no silencing the Marjorie Taylor Greene’s of the world, but few take her wacky conspiracy theories seriously. If more of us were willing to say so, few would pay attention to such nut cakes.

Our diversity has been a strength and will be again when we recover our manners and treat one another respectfully and courteously even when we hold different views. The large sphere left to us each individually to do and live as we choose enables and supports that diversity. But we must change our tone and speak up in defense of our neighbors’ rights to their views. And we must ignore, if not condemn, the hopefully limited number of truly bad apples among us.

Where Does Senator Josh Hawley Stand?

Upon what basis should we make our decisions to do or not do something? Upon what basis should the government take the right to make decisions for us? The quality of our individual choices depends on the values and principles that guild us. These profoundly influence the quality of our lives in our given or chosen societies.  I have discussed this issue before:  “The great divide-who decides” 

The issue of Covid-19 vaccination mandates and related issues are currently providing vivid and noisy examples of these questions. A few of my reactionary libertarian friends (in contrast with more thoughtful libertarians) insist that it is their right to decide whether to get vaccinated or not. Perhaps, but it is not their right to knowingly infect others (the freedom to swing my fist ends at your face). Specifically, the unvaccinated do not have the right to be where they are not wanted or permitted by private establishments. Businesses (restaurants, theaters, sports events, etc.) should have the right to determine who they serve (subject to the sometimes problematic limitations imposed by the 1964 Civil Rights Act Virtually all such businesses wisely go out of their way to reassure potential customers that they are save places to visit. This generally takes the form of mandating that their employees and customers are vaccinated for Covid. In my opinion the government, in addition to collecting and disseminating the best possible information on Covid risks and how to minimize them, should protect the freedom of businesses to make Covid policies they consider appropriate to their own business and should mandate that all of the government’s own employees be vaccinated. Only specific health issues should qualify for potential exemption. Religious and other beliefs should not.

Sports, and the Beijing Winter Olympics in particular, also raise the issue of who decides to participate in the face of serious Chinese human rights violations. I generally think that sporting competitions should not be influenced by politics. So, should athletes participate in the upcoming winter Olympics and who should decide?

In his December 9 column in the Washington Post Josh Rogin makes a strong case for each of us to speak out against violations of our principles: “Enes Kanter Freedom takes bold stance on China” “’We must always take sides,’ Holocaust survivor Elie Wiesel said while accepting the Nobel Peace Prize in 1986. ‘Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented. Sometimes we must interfere.’”

President Biden recently declared a diplomatic boycott of the China games, meaning that the U.S. government will have no representatives there, though the American Olympic teams and individual athletes are free to make their own decisions. The Economist reported that “France will not join the partial boycott that America, Australia, Britain and Canada are calling against the Beijing Winter Olympics in protest at China’s treatment of its Uyghur minority and of Peng Shuai, a tennis star. President Emmanuel Macron complained that the Anglophone countries’ merely withholding diplomatic representation—while their athletes compete—is not an effective way to alter China’s objectionable policies.” “The Economist Morning Brief”

“Sen. Josh Hawley, R-Mo., [also] ridiculed the Biden move, echoing Hagerty’s claim that the diplomatic boycott did not go far enough.  ‘A diplomatic boycott of the Beijing Olympics is a joke,’ Hawley told the Daily Caller Monday. ‘China doesn’t care if Biden and his team show up. They want our athletes.’”  In short, Hawley wants a presidential mandate forbidding participation of American athletes in the Beijing Winter games. “Republicans blast Biden apos diplomatic”

On the other hand, Sen. Hawley opposes President Biden’s proposed mandate that every eligible person must receive an approved Covid-19 vaccination.  “Senator Hawley-Biden vaccine mandate shows contempt for religious liberty”  In this area the good Senator puts “choice” over “life.”  With regard to abortion Senator Hawley sides with “life” over “choice.”

“U.S. Senator Josh Hawley (R-Mo.) issued a statement in support of Missourians who traveled to Washington, D.C., today to participate in the 46th Annual March for Life. The group of nearly 3,000 Missourians represented all ages, from high schoolers to retirees and came from all over the state including Cape Girardeau, Jefferson City, Kansas City, Sedalia and St. Louis.

“’It’s incredible to see people of all ages and backgrounds, from Missouri and across the country, who have made the trek to our nation’s capital to speak their hearts, their minds, their faith – to tell their elected leaders that this nation was founded on the dignity of every person and that every life is worth fighting for,’ said Senator Hawley. ‘I am proud to stand for the right to life. Always.’”

“Senator Hawley commends missourians participating in march for life”

Where is Senator Hawley coming from and where is he going?  Regarding health and vaccination against Covid-19, Hawley is “pro choice” rather than “pro life.” Regarding the abortion of non-viable fetuses, Hawley is pro (potential) life rather than pro choice.  What are the principles guiding when he is one and when he is the other (beyond political expediency)? When should government mandate our choices and when not?

Which is it for gas prices?

“President Biden on Wednesday called on the Federal Trade Commission to launch an investigation into oil and gas companies, alleging that their “anti-consumer” behavior has led to higher gas prices…. ‘The bottom line is this: gasoline prices at the pump remain high, even though oil and gas companies’ costs are declining,’ Biden wrote in a letter to FTC Chair Lina Khan.” “Biden-FTC-gas-prices–Washington Post”

On the other hand, the Whitehouse website states:

“The United States has set a goal to reach 100 percent carbon pollution-free electricity by 2035,… America’s 2030 target picks up the pace of emissions reductions in the United States, compared to historical levels, while supporting President Biden’s existing goals to create a carbon pollution-free power sector by 2035 and net zero emissions economy by no later than 2050.”  Whitehouse fact sheet: President Biden sets 2030 greenhouse gas pollution reduction target

Which is it?  Does Biden intend to replace oil and gasoline (and coal) with carbon free energy, which would increase oil and gas prices (ultimately to infinity), or does he want to keep oil and gas prices low?

A market approach to phasing out petroleum products would be to increase their cost via a carbon tax–an approach that I support.