Gay Marriage: Loving v. Virginia All Over Again
Foes of gay marriage — a shrinking cohort — do not like comparisons to interracial marriage. The reason is obvious: Everyone now recognizes that prohibitions against interracial marriage, which the Supreme Court struck down in the aptly named Loving v. Virginia, were completely irrational and thoroughly unjust. If the analogy with gay marriage is valid, then that debate is over.
It probably is anyway. But its demise could be hastened by federal District Judge Robert Shelby’s ruling against Utah’s amendment forbidding gay marriage, which invokes Loving time and again.
Utah’s marriage amendment parallels Virginia’s in many ways. Utah passed a law forbidding gay marriage in 1977, two years after Virginia did. In 2004, both states then doubled down by passing additional measures foreclosing the possibility of civil unions or other approximations of gay marriage. Utah then passed a constitutional amendment forbidding gay marriage that took effect in 2005. Virginians approved the commonwealth’s amendment the next year.
Shelby — an alumnus of U.Va. Law — notes that the developments in Utah were “influenced by a number of events occurring nationally,” including cases legalizing gay marriage in Vermont and Massachusetts. During debate over Virginia’s amendment, Republican Del. Bob Marshall decried “attempts to radically alter an institution that must antedate history. And this has come about by social engineering judges in Massachusetts, Vermont, and elsewhere.”
Arguments like that ring with historical echoes. “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,” decreed Leon Bazile, the judge who convicted Mildred and Richard Loving. “And but for the interference with his arrangement there would be no cause for such marriages.” God made Adam and Eve, not Adam and Steve.
Gay-marriage foes object that gender is central to procreation in a way race isn’t. This is true, but it ignores the legal parallels between gay marriage and racial intermarriage. Those parallels should especially trouble anyone who believes in limited government. Asking why gays should be allowed to marry asks the wrong question. The right question is: Why should government stop them?
Marriage, as Shelby observes, is a fundamental right — so fundamental that even prison inmates retain the right, despite their “reduced expectation of liberty” and the unlikelihood of jailhouse weddings producing offspring. Why then should a state deny free gays and lesbians a right it affords to inmates?
Defenders of Utah’s Amendment 3 respond that gays and lesbians enjoy the same right to marry as everyone else: the right to marry persons of the opposite gender. But the right to marry entails a right to choose whom you marry. If it didn’t, then the state could pick your spouse for you: “A person’s choices about marriage,” Shelby writes, “implicate the heart of the right to liberty.”
Utah’s defenders claim the amendment does not discriminate because it applied to men and women equally. But as Shelby notes, “The Supreme Court rejected an analogous argument” in Loving: “Virginia argued that its anti-miscegenation laws did not discriminate based on race because the prohibition against mixed-race marriage applied equally to both white and black citizens.”
Like Utah, Virginia claims same-sex marriage is not a fundamental right, but rather a new kind of right “first recognized in this country [only] a decade ago.” Shelby finds this argument unpersuasive: “The Supreme Court did not adopt this line of reasoning in” Loving: “Instead of declaring a new right to interracial marriage, the Court held that individuals could not be restricted from exercising their existing right to marry on account of the race of their chosen partner. … This right is … implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference. … Both same-sex and opposite-sex marriage are therefore simply manifestations of one right — the right to marry — applied to people with different sexual identities.”
Like Utah, Virginia argues that traditional marriage is the optimal arrangement for child-rearing — that the traditional definition of marriage is hallowed by time as “the ideal ordering of human relationships.”
Well. Set aside for the moment the profoundly authoritarian implications of assuming that “ordering … human relationships” is any part of government’s job. And that government can be trusted to know what is “ideal” and “optimal.” And that it should seek to enforce its vision of what is “ideal” rather than simply protect individuals’ liberty to pursue their own happiness as they define it.
Even if you accept such premises, Shelby notes that there is no evidence to think prohibiting gay marriage achieves any of the prohibition’s ostensible aims: “The court’s focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest.” Rather, “courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest.”
Virginia had an interest “in providing marriage to same-race couples,” Shelby noted, but “Virginia’s exclusion of interracial couples from marriage” had no bearing on that interest. Likewise, prohibiting marriage by gay couples has no effect on how many straight couples marry or have children: “In an amicus brief submitted to the Ninth Circuit Court of Appeals by the District of Columbia and fourteen states that currently permit same-sex marriage, the states assert that the implementation of same-sex unions in their jurisdictions has not resulted in any decrease in opposite-sex marriage rates, any increase in divorce rates, or any increase in the number of nonmarital births.”
In short, supporting straight marriage does not require stifling gay marriage. The only remaining reasons to stifle it, then, are reasons government cannot embrace: a desire to preserve the traditional institution of marriage and to express moral disapproval of homosexuality. But preserving tradition and expressing disapproval are not valid grounds for circumscribing individual rights.
Virginia’s arguments in Loving, Shelby concludes, “are almost identical to the assertions made by the State of Utah in support of Utah’s laws prohibiting same-sex marriage. … Anti-miscegenation laws in Virginia and elsewhere were designed to, and did, deprive a targeted minority of the full measure of human dignity and liberty by denying them the freedom to marry the partner of their choice. Utah’s Amendment 3 achieves the same result.”
So does Virginia’s marriage amendment. That is why the challenge to it could become a reprise of the Loving case — whether its defenders like that or not.
On Campus, Education Often Isn’t Liberal
Virginians who think of colleges and universities as bastions of free inquiry and no-holds-barred arenas for intellectual engagement might be shocked at how inaccurate that picture can be. Some of the state’s colleges and universities have put in place policies that make a mockery of such notions.
The Foundation for Individual Rights in Education (FIRE) has issued a report on the state of free speech on U.S. campuses. It makes for dispiriting reading. Fewer than half the institutions in America provide a robust defense of free expression. Virginia’s record is likewise mixed: Six of its public institutions – Christopher Newport, Longwood, Norfolk State, U.Va.’s college at Wise, VCU, and Virginia State — received the group’s lowest rating. Only three — James Madison, William & Mary, and U.Va. — received the highest.
The colleges receiving poor marks impose a combination of speech codes and prior restraint. For instance: At Christopher Newport, students are forbidden to post anything that might be deemed “disrespectful.” And anyone “wishing to exercise their freedom of speech … must register with the Dean of Students at least 24 hours in advance.”
Believe it or not, that represents a considerable improvement. CNU used to insist that groups wanting to demonstrate ask permission 10 days in advance. The school changed the policy after it accidentally redounded to a Republican’s advantage: In September of 2012, GOP vice-presidential nominee Paul Ryan made a campaign stop at the school. Some students wanted to protest his appearance, including the Feminist Alliance and the Gay-Straight Union. They weren’t allowed to. And even if they had been, they might not have been noticed, because the school permitted demonstrations only on its Great Lawn, far from where Ryan was speaking.
Yet the school still has a long way to go: CNU’s policy on computer communications prohibits — among other things —– “unwarranted annoyance.” Given the hair-trigger sensitivities encouraged by the hothouse atmosphere of modern higher ed, that could cover a heck of a lot.
But don’t think CNU is an outlier. Many state universities impose equally egregious limits on freedom of expression. Take Longwood University, which designates the sole “area … for speeches and demonstrations” as “the Lankford Mall which is a primary crossway on the campus and will consist of the patio and the surrounding area located on the south side of the Student Union.” That’s it. And you still have to get permission first.
At Norfolk State, anyone who isn’t on a list of officially recognized campus groups must obtain written permission before handing out literature. Remember, Norfolk State is (like CNU and Longwood) a public institution — so the prohibition is just as unconstitutional as if the city of Norfolk itself had passed it.
Virginia Commonwealth University? It prohibits “humor and jokes about sex that denigrate women or men in general.” And last month, Virginia State University earned the dubious distinction of making FIRE’s “Speech Codes of the Year” list. Its code of conduct says no student may “offend” any member of the university community.
Private institutions do not face the constitutional issues public ones do, but some are no more enlightened. The University of Richmond has a system that enables witnesses of “bias incidents” to report them to a “Bias Response Team.” Bias incidents are those that “do not appear to constitute a crime or actionable discrimination” but which nevertheless “may,” among other things, “mock” individuals or groups. (You can find all the speech codes at www.thefire.org.)
Some might think policies like these cannot be taken seriously; surely they must be honored more in the breach than in the observance. In some cases that might be true. Yet FIRE’s case histories — and they are voluminous — make it abundantly clear that many colleges and universities not only take them seriously, but pursue them to sometimes ridiculous extremes. Consider some of the recent cases FIRE has highlighted: A student group at Dixie State rejected because its name included Greek letters. Modesto Junior College forbidding a student to distribute free copies of the Constitution — on Constitution Day. A pro-life group at Johns Hopkins denied recognition because it might make some students “uncomfortable.”
Virginia has seen similar episodes, albeit not so many in recent years. For that you can thank the eternal vigilance of groups such as FIRE. In the future, you also should thank those state lawmakers who have joined the cause. This year, two Republican delegates — Scott Lingamfelter and Rick Morris — have introduced legislation in Virginia’s General Assembly to restore a modicum of free speech at the state’s colleges and universities. Lingamfelter’s would do away with “free speech zones” that deny free speech outside the zones. Morris’ would grant students facing non-academic disciplinary charges the right to attorney representation. Based on FIRE’s findings, the measures are sorely needed.
Free Speech Under Fire
Pre-script: A professor dares to criticize the NRA, and gets censured for it.
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“There’s just way too much money in politics,” said a candidate for governor earlier this month. Since the candidate was Terry McAuliffe, a political fundraiser of Brobdingnagian proportions, the remark could go down as the funniest line from this year’s contest.
McAuliffe had just been asked if he would support campaign-finance reform, so he may simply have been pandering to his audience. Unfortunately, many others who have said much the same mean every word of it. That spells bad news for ordinary citizens like Edmund Corsi.
Corsi lives in Geauga County, Ohio, where he strives to be a burr under the saddle of public officials who disregard the Constitution, which to Corsi means most of them. So a few years ago he started a blog (why should he be different?) and got together with a couple of like-minded folks. The called themselves the Geauga Constitutional Council.
One day Corsi was handing out pamphlets at a county fair. One of the people who took a flyer was Ed Ryder, a Republican and a member of the local Board of Elections. Corsi didn’t have much nice to say about Ryder. So Ryder did what any petty Napoleon would do: He went after Corsi using Ohio’s campaign-finance laws.
Long story short: Because Corsi spent money, no matter how little (his website cost all of $40), the Ohio Election Commission said Corsi should have incorporated his group and registered with the state as a political action committee — hiring a lawyer to help with the “very complicated” process. As far as Ohio is concerned a political action committee can consist of as few as two people. Besides, Corsi engaged in “express advocacy” about politicians. The horror.
Two courts have ruled in the commission’s favor. The Center for Competitive Politics, which is based in Arlington, has asked the Supreme Court to hear Corsi’s case. Let’s hope the justices agree to do so, because the Corsi case epitomizes a growing problem: the censoring of free speech through back-door regulation.
That was precisely the problem at issue in the scandal over the IRS’ treatment of tea-party groups: Organizations with certain political views were singled out for special scrutiny — their applications sidetracked, their activities probed, their members’ reading habits and religious practices investigated — at the behest of government officials such as Sens. Chuck Schumer and Al Franken. (A few progressive groups got caught up in the sweep. But like dolphins caught in tuna nets, they were not the intended target.)
Don’t let the IRS scandal lead you to believe shutting up political opponents is something only Democrats do, however. Just look at Wisconsin, where progressive foes of Republican Gov. Scott Walker have been holding “Solidarity Sing-Alongs” at the state capital ever since Walker signed anti-union legislation. NPR reports that “earlier this summer, the Walker administration apparently grew tired of the protests and ordered Capitol police to start arresting people.”
NPR says more than 300 protesters have been booked since “a federal judge ruled that groups with more than 20 participants must get a permit.” To that, retiree Ron Edwards offers this riposte: “We won’t get a permit because the First Amendment is our permit.”
In Norfolk, city officials who were trying to take Bob Wilson’s property through condemnation didn’t like the sign he put up protesting “eminent domain abuse.” So they threatened him with fines of $1,000 a day for improper signage. Officials in St. Louis pulled the same stunt on landlord Jim Roos, who put up a similar sign. When the city told him he needed a permit, he applied for one. The city turned him down. Last week in California, Modesto Junior College told a student he could not hand out copies of the Constitution — on Constitution Day.
In Minneapolis, officials wanted to stop Brian Johnson from handing out Bibles at a gay-pride festival (a festival organizer claimed that would cause “congestion”). A federal court agreed, but recently was reversed on appeal. And Minnesota state officials do not want to silence just Bible-thumpers: They want to silence everyone in the vicinity of a polling booth.
Minnesota law makes it a misdemeanor to wear any “political badge, political button, or other political insignia” to the polls. In 2010, a number of Minnesotans fell afoul of that rule. The Rutherford Institute, based in Charlottesville, and the D.C.-based Cato Institute have filed a brief asking the Supreme Court to hear their case.
The two organizations contend such passive political activity is protected by the First Amendment. Minnesota contends that it threatens the “integrity” of elections. In that regard, the Land of 10,000 Lakes has much company. Nothing is so threatening to the democratic process, the governing class seems to think, than letting ordinary citizens think they can run the show.
Court Makes Country Safe for Facebook
"Like" as much as you like — The Fourth Circuit says it’s your constitutional right:
“Liking” something on Facebook is a form of speech protected by the First Amendment, a federal appeals court ruled Wednesday, reviving a closely watched case over the extent to which the Constitution shields what we do online.
In doing so, the Fourth U.S. Circuit Court of Appeals sided with a former deputy sheriff in Hampton, Va., who said he was sacked for “liking” the Facebook page of a man running against his boss for city sheriff.
“Liking” the campaign page, the court said, was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”
Here’s something I like: Regardless of their ideological bent, courts across the country remain staunchly pro-speech. The Fourth Circuit has moved to the left in recent years, and the Supreme Court has moved to the right, but both keep standing up for the First Amendment.
'Scuse me while I go wave my American flag.
You Are Being Watched
During a visit to Richmond on Monday, his third day as FBI director, Jim Comey welcomed the current debate over the reach of government surveillance. “The pendulum swings back and forth” between liberty and security, he said. America benefits when those with differing views on the issue “bang it out.” Comey, whose modesty is proportional to his height (6 feet 8 inches ), did not remind those present of his own role in pushing the pendulum back toward the civil-liberties end of its arc during a now-famous showdown at the hospital bedside of former Attorney General John Ashcroft.
But Comey added that he didn’t always find the liberty-versus-security dichotomy helpful. Sometimes security and liberty move in tandem, he said. He offered the illustration of a police officer on a playground whose presence makes everyone in the vicinity feel both more secure and more free.
It’s a fair point. Yet if that were all there were to the matter, then the current debate would seem wildly overblown. Is it? Clearly not: Many serious, intelligent people find the recent revelations about domestic spying highly unsettling. Why is that?
Go back to Comey’s playground illustration. His point about liberty and security moving in tandem holds true — but it can cut both ways.
Suppose the police officer is not simply standing on the playground, warding off potential malefactors. Suppose he is also watching you: following you around, making notes, videotaping you, whispering into his microphone. Would you feel more secure then, or less?
Suppose the officer also tails you home. Suppose he follows you into your house and begins poking around in your closets, reading your mail, copying the contents of your computer’s hard drive, and taking notes about your dinner-table conversation with your spouse. Would you feel more at liberty, or less?
Just about anyone would find this highly unsettling. He or she would feel both insecure and inhibited: simultaneously less secure and less free. And that is how many people feel about the alarming expansion of government surveillance. It is, indeed, something the founders understood when they wrote the Fourth Amendment, guaranteeing the “right” — the liberty right — of the people to be “secure” from unreasonable searches by government authorities. The Fourth Amendment treats security as a component of liberty, not its opposite.
Among other things, the founders were concerned about “general warrants” — which allowed officials to search a person’s home and papers at whim. The founders insisted that warrants be issued only for “cause,” and that they must describe “the place to be searched, and the persons or things to be seized.” But the NSA’s vacuuming up of millions of Americans’ telephone records cannot be justified by any particular cause. Rather than develop a suspicion and follow it up with a particularized search, the NSA’s metadata program conducts a general search first, and then examines the results for reasons to suspect someone in particular.
And the NSA’s metadata program is just one among a rapidly proliferating population of surveillance programs. Through another program, the agency also has access to roughly 75 percent of Internet traffic. For the past six years, the FBI has been building a $1 billion database of physical characteristics, from iris scans to palm prints. The Labor Department maintains a nationwide registry of new hires; states use it to track down deadbeat parents. The Department of Homeland Security has compiled data on credit card transactions, rental car information, and email contacts. Border agents are empowered to search, without a warrant or even suspicion, everything from laptop computer files to “pocket litter.” (The federal government defines the “border” for this purpose as 100 miles wide; that covers 197 million U.S. citizens.)
Across the country, police departments are amassing records of Americans’ ordinary movements through the use of automated license-plate readers. Twenty-seven states are using facial-recognition technology to match surveillance footage with DMV mug shots. Just recently, a federal court ruled police departments did not need a warrant to obtain your cellphone records.
These are just a few of the ways government is keeping tabs on Americans, and there are more coming down the pike — from the insurance-reporting requirements of Obamacare to the proposal that all Americans carry biometric ID cards to improve immigration enforcement.
Supporters of all this government surveillance sometimes say that “if you have nothing to hide, you have nothing to fear.” The fallacy inherent in that statement entails its assuming people want privacy only to hide what is incriminating. But privacy is about much more than dirty little secrets. There is nothing incriminating about a prostate exam or gynecology checkup, for instance — but few people would want to have one on live TV. Some things are simply nobody else’s business.
Increasingly, however, government acts as though nearly everything is its business — from your phone calls to your driving habits. And that’s what has people so concerned. Americans don’t mind the cop on the playground. It’s the one camping out in their living room that worries them.
How the Right Learned to Love Gun Control
Conservatives took a break last week from their sensible skepticism toward big government in order to embrace the liberal logic of gun control. That logic is familiar to anyone who has ever spent much time kibitzing the gun debate, and it goes like this: Government should infringe on, or even abrogate, the rights of millions of law-abiding people in order to stop a minuscule fraction who use guns to commit mayhem.
Whether gun-control laws actually produce the desired results is a matter of great dispute. But liberals will happily cherry-pick the data that best make their case. (Why should they be any different?) They will then argue as The New York Times did in 2010, when it denounced a Supreme Court ruling upholding gun rights: “The arguments that led to Monday’s decision,” the newspaper intoned, “were infuriatingly abstract, but the results will be all too real and bloody.”
Translation: Don’t give us any of that airy nonsense about rights. People’s lives are on the line here. This, in essence, was how conservatives reacted last week when a federal judge said New York’s stop-and-frisk tactics were unconstitutional.
Stop-and-frisk was “a policy that has saved thousands of black lives,” wrote noted civil-rights icon Ann Coulter. The Wall Street Journal agreed: “If the judge’s ruling isn’t overturned, the victims won’t be in the tony precincts (but) in the barrios and housing projects.” Channeling The Times, Daniel Henninger of The Journal griped that “when liberals weigh the reality of physical threat … against hyper-abstract interpretations of constitutional rights, abstraction wins.”
According to National Review, “intelligent police work” had “reversed what seemed 20 years ago to be an inescapable descent into lawlessness, indecency, and chaos.” Writing in City Journal, Heather Mac Donald concurred: “New York’s 20-year reprieve from debilitating violence may well be over.” She fretted the ruling could “signal the end of the freedom from fear that New York’s most vulnerable residents have enjoyed.” In Commentary, Seth Mandel depicted stop-and-frisk as a “fight to keep the city’s minority neighborhoods safe.”
And, sure, that might be the intent. But then you can claim all sorts of policies will keep a city safe, including a total ban on firearms and surprise house-to-house searches for drugs. If the ends justify the means, then you can do just about anything you want. Conservatives usually like to think they’re a little more high-minded than that.
The other trouble with such consequentialist rationales is that they depend on producing the right consequences. So naturally, conservatives simply assume stop-and-frisk deserves the lion’s share of the credit for New York’s falling crime rate. But crime has fallen steeply across the country — including in many places that did not employ stop-and-frisk.
What’s more, conservatives seem to have forgotten their own prior explanation for the Big Apple’s progress: the broken-windows theory. That theory, popularized by the late James Q. Wilson, posited that tolerating minor crime such as turnstile-jumping and vandalism created an atmosphere major crime found inviting. To discourage major crime, therefore, crack down on petty crime. You can read volumes on how “James Q. Wilson’s thinking about crime and policing saved lives and transformed cities for the better” in the City Journal article “Man of Reason” (by Heather Mac Donald) — and several others just like it.
Mac Donald now defends stop-and-frisk by pointing out blacks and Hispanics are the primary perpetrators of violent crime in New York — so it only stands to reason that they should be the primary targets of stopping and frisking. This epitomizes the racial-profiling fallacy you also see in the debate over Muslims and terrorism.
It’s undeniably true that Muslims have committed most of the terrorist attacks against the U.S. in the past couple of decades. But this does not justify viewing all Muslims with suspicion, because while there have been only a handful of attacks, there are something like 1.6 billion Muslims. The odds that any one of them is a terrorist are, therefore, vanishingly small. (Not surprisingly, the same NYPD that carries out stop-and-frisk got into hot water a couple years ago for infiltrating mosques and other Islamic institutions.)
By the same token, just because most perpetrators in New York are black or Hispanic does not mean most blacks or Hispanics are perpetrators. After all, most homicides are committed with guns — but that does not mean most gun owners commit homicide.
The NYPD’s defenders also contend the police did not stop and frisk minorities at random; they stopped those who acted suspiciously. This is true only if you consider perfectly normal behavior suspicious. Judge Shira Scheindlin found, for instance, that (as a news account put it) “officers sometimes stopped people on the grounds that the officer observed a bulge in the person’s pocket; often it turned out that the bulge was caused not by a gun but by a wallet.” Other causes for suspicion: “being fidgety” and “walking in a certain way.” That sounds ironclad, doesn’t it?
In fact, stop-and-frisk is not a tremendous success but a tremendous failure, because such stops turn up contraband only 2 percent of the time. In other words: 98 times out of 100 the officer’s suspicion is unjustified.
If any other program had a 98 percent failure rate, conservatives would hold it up as a shining example of everything that’s wrong with big government. That they’re so eager to defend a failing program when it happens to target minorities makes their professed concern for “the most vulnerable” ring a trifle hollow.