the Richmond Times-Dispatch
Email Facebook Twitter Mobile RSS
Posts tagged constitution
5:44 pm - Sun, Apr 13, 2014
11 notes

Does Anyone Like Free Speech?

Do conservatives owe the Dixie Chicks an apology? It sure looks that way. Liberals, meanwhile, owe some apologies too.

A little over a decade ago the Chicks’ lead singer, Natalie Maines, told a London audience: “Just so you know, we’re ashamed that the president of the United States is from Texas.” This was less than two weeks before the shooting started in the Iraq war, and patriotic fervor was running high. Blowback came swiftly. Country-music stations stopped playing the Dixie Chicks. Their No. 1 single “Travelin’ Soldier” fell off the charts. Critics started calling them the “Ditsy Twits” and the “Vichy Chicks” and even less flattering things. They received death threats.

To the left, this epitomized the “stifling of dissent” that all truly patriotic Americans should abhor. To conservatives, this was simply the free market in action. As a later piece in National Review put it, “fans were also only exercising their own freedoms, in choosing not to buy albums. Radio stations were exercising their business freedom in choosing not to play songs that outraged their listeners and repelled their advertisers.”

Back then, you didn’t see conservatives expressing the sort of alarm they have been voicing ever since Brandon Eich resigned as head of Mozilla. Six years ago Eich donated to California’s Proposition 8, upholding traditional marriage. His recent elevation to CEO ignited a debate over that. Within days, Eich bowed to the pressure and stepped down.

To the right, this was a “purge” carried out by the “thought police” and the “gay mafia” that banishes the “politically incorrect” to the “liberal gulag.” Not quite government censorship — but certainly a dangerous stifling of dissent and an example of, in Virginia Congressman Frank Wolf’s words, “mob rule.” On the other side, many liberals defended the ouster as entirely appropriate. As one piece in The New York Times put it, Mozilla had simply realized its “CEO’s worldview is completely out of touch with the company’s — and America’s — values and vision for the future.” Companies have a right to live their values, after all.

Really? As Jonathan Tobin pointed out in Commentary, that’s hardly the orthodox liberal view of Hobby Lobby. According to the liberal view, Hobby Lobby’s desire not to arrange contraception for its employees is not an expression of the corporation’s viewpoint, because corporations aren’t people and they don’t have any rights. Rather, liberals say Hobby Lobby is forcing its owners’ values down its employees’ throats. By that reasoning, Mozilla was forcing its values down an employee’s throat — Eich’s — and violating his right to have his own political opinions.

Liberals have not been so understanding of other corporate entities, either. Two years ago the breast-cancer charity Susan G. Komen for the Cure found itself instantly reviled when it halted grants to Planned Parenthood. The blowback was so intense 26 U.S. senators signed a letter urging Komen to recant — which it did only three days later. Komen’s president and founder, Nancy Brinker, stepped aside. Conservatives were aghast.

Nor were liberals overly worried about the free-speech implications of the backlash against Chick-fil-A two years ago, when president Dan Cathy provoked outrage by expressing his own personal opposition to gay marriage. Conservatives, on the other hand, declared this a dangerous development in a culture war that threatened to silence anyone who strayed from the progressive party line.

This is a strange position for conservatives to take — and not simply because of the Dixie Chicks episode. As a general rule, conservatives think social norms are best upheld not through government coercion but through the moral suasion of community mores. Since Hobby Lobby is the only case involving government compulsion, conservatives ought to feel sanguine about the other developments: Americans are working out their differences through the marketplace of ideas, even if the process sometimes looks rather unpretty.

Of course there is more to it than that. Even when the First Amendment isn’t implicated — as it isn’t in the Mozilla case — it’s reasonable to wonder where lines should be drawn. Few would object if a company fired a Nazi or a member of the Klan. But as Glenn Reynolds of Instapundit notes, Eich has been ousted for a 2008 view shared at the time by Barack Obama. (Obama, unlike Eich, has changed his position since then.)

If companies start policing executives’ beliefs, then there is no reason to limit the scrutiny to one issue. Suppose abortion becomes a litmus test — with some companies firing pro-life executives and others firing those who are pro-choice. Should companies vet their leaders’ views on gun rights? Or drug legalization? What about universities — many of which already view any conservative as barely tolerable? Should nonprofits and civic groups also enforce ideological conformity? They certainly have a right to. But having a right to X does not make X the prudent thing to do.

People have a right to express — and advocate for — their opinions, and other people have a right to object. But there also is something to be said for the principle of live and let live: It’s possible to disagree about an issue without despising those you disagree with.

Unfortunately, as Barton Swaim put it in a recent Wall Street Journal review, America increasingly resembles a place where people “speak of their country as if it has been overtaken by a hostile force with whom they share no premises or aims.” If we all start excommunicating one another at the first sign of apostasy, it’s going to become a very cold and lonely place.


1:31 pm - Wed, Apr 2, 2014
21 notes

Zoning’s Racist Roots Still Bear Fruit

“Blacks,” said Mayor Barry Mahool, “should be quarantined in isolated slums in order to reduce the incidents of civil disturbance, to prevent the spread of communicable disease into the nearby White neighborhoods, and to protect property values among the White majority.”

Mahool was the mayor of Baltimore who, in 1910, signed into law a racial zoning ordinance. According to Christopher Silver’s “The Racial Origins of Zoning in American Cities,” he was also “a nationally recognized member of the ‘social justice’ wing of the Progressive movement.”

The cities employing racial zoning included many Southern ones: Norfolk, Atlanta, Louisville, Birmingham and more. But they were not limited to the South: Chicago practiced a form of racial zoning, too. San Francisco and other California cities used it to keep Chinese laundries in their place.

Yet the ball really got rolling in Richmond, where a 1911 zoning ordinance made it illegal to sell a house on a majority-white block to a black person, or a house on a majority-black block to a white person.

Even back then, the only color that some people cared about was green. The ordinance was challenged by whites and blacks who wanted to do business with one another. In 1915 it was upheld. “There is no discrimination between the races,” a Richmond court ruled in Hopkins v. City of Richmond, because the law applied to blacks and whites alike. What’s more, the ordinances were written “to do a public good” by keeping “one race from encroaching upon the other. The ordinances are intended to protect each race from harm from the other.”

That justification held for two years, until the Supreme Court struck down racial zoning in Buchanan v. Warley — a case George Mason University law professor David Bernstein has called “one of the most significant civil rights cases decided before the modern civil rights era.” As he wrote at SCOTUSblog back in 2004, the “right at issue” was the “civil right” of property — a right enjoyed equally by both whites and blacks: “ ‘Colored persons,’ Justice [William R.] Day wrote for the court, ‘are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color.’ ”

Regrettably, the highest court did not get the last word. No longer able to enforce explicitly racial zoning regulations, many cities used “expulsive” zoning to the same effect, by putting factories in certain neighborhoods to drive blacks out.

They also used other, indirect methods — such as housing betterment. According to Silver, “Richmond’s reform movement produced its own catalog of housing horrors when the Society for the Betterment of Housing Conditions published [a] graphic depiction of the city’s dilapidated black neighborhoods. [The] report made no direct reference to racial zoning as a remedial action but, instead, concentrated on housing codes [and] building regulations.”

Ancient history? Hardly. Progressivism likes to think of government as defending minorities from discrimination by private enterprise. But time and again, history has shown progressive ideas marching in lockstep with racist motives.

In 1954, the Supreme Court allowed the District of Columbia to use eminent domain to eradicate blight. The court’s language was high-toned: “The concept of the public welfare is broad and inclusive,” it ruled. “The values it represents are spiritual as well as physical, aesthetic as well as monetary.” The victims, however, shared mostly skin tone: The “urban renewal” district to be bulldozed was 97.5 percent black.

In the 2005 eminent domain case Kelo v. New London, the Supreme Court allowed government to seize private property for someone else’s ostensibly higher use — condemnation in the name of social progress. Dissenting Justice Sandra Day O’Connor warned that “the fallout from this decision will not be random.” She was right. An Institute for Justice study of 184 eminent domain cases occurring since the 2005 decision in Kelo v. New London found condemnation was used disproportionately against minority property holders.

Another study, in 2009, found “a strong and significant … relationship” between low-density zoning policies and racial segregation. Yet another paper, published last year, found that “over half the difference between levels of segregation in the stringently zoned Boston and lightly zoned Houston metro areas can be explained by zoning regulation alone.”

That would not be news to the Bukharian Jews of New York — immigrants from Central Asia whose voluble architectural tastes offend the more subdued sensibilities of their neighbors in Queens. As Melinda Katz, head of the New York City Council’s land-use committee, complained in 2008, the houses in the area “have a specific aesthetic character” and “a lot of the houses that are [now] going up there are just simply too big. … They are out of character.” Oh, gracious.

To Boris Kandov, head of a Bukharian association, the issue looked rather different: “Why are we in America? Because we’re dreaming of this freedom! We were dreaming to build big house!” (New York to immigrants: Dream on.)

Related concerns are now raising hackles in Fairfax County. On Sunday, The Washington Post reported that longtime residents of some neighborhoods have taken to calling or emailing the county’s code-enforcement division with complaints about too many cars in certain driveways and too many people in certain houses. By an amazing coincidence, the objects of the complaints are always immigrants — usually large Asian or Hispanic families. As Tim Cavanaugh observed in Reason three years ago, the attraction of urban planning is that it “allows discrimination but dresses it up as discriminating taste.”

But to the complainers, the issue isn’t race or ethnicity — it’s “quality of life.” You can’t have a bunch of people sharing a house, fixing cars in the yard and so on. It’s out of character with the neighborhood. It causes tensions and creates civil disturbance. And it’s bad for property values. There’s no discrimination in simply wanting the rules enforced, right?

Baltimore’s Barry Mahool would certainly agree.



2:04 pm - Tue, Apr 1, 2014
1,350 notes

The greatest roadside checkpoint stop in history, bar none.


9:46 am - Thu, Mar 27, 2014
1 note
But - but - corporations can’t have rights!
A fascinating exchange during oral arguments in the Hobby Lobby case.

But - but - corporations can’t have rights!

A fascinating exchange during oral arguments in the Hobby Lobby case.



11:26 am - Mon, Mar 24, 2014
9 notes


5:32 pm - Sun, Mar 16, 2014
6 notes

Weaponizing the IRS

Just shy of a decade ago, a retired rector named George Regas stepped into the pulpit at All Saints Episcopal Church in Pasadena, Calif., a few days before the November election and let fly with some good, old-fashioned fire and brimstone. The targets of his passion: President George W. Bush and the war in Iraq. Also, “conservative politicians.” Not to mention “the religious right.” Regas described war as “the most extreme form of terrorism.” Speaking in the voice of Jesus Christ, he said, “The killing of innocent people to achieve some desired goal is morally repudiated by anyone claiming to follow Me as their savior and guide.” He went on to condemn poverty, defend abortion rights, and so on.
What happened next will surprise you only if you just fell off a turnip truck: The IRS came knocking. It threatened the church’s tax-exempt status, demanded all kinds of paperwork, and carried on an investigation that lasted more than two years — and cost the church $200,000.
The saga of All Saints could soon be coming to a community near you. Thanks partly to the scandal surrounding the IRS’ targeting of conservative groups, the agency has proposed a new set of rules for a huge number of social-welfare groups that claim tax exemption under Section 501(c)4 of the tax code. That includes groups such as the Sierra Club, the Brady Campaign to Prevent Gun Violence, the League of Conservation Voters and the Alliance for Justice (a coalition of more than 100 liberal organizations). It also includes many conservative groups, from Karl Rove’s Crossroads GPS to grass-roots tea party groups — the ones the IRS scrutinized by demanding, e.g., old fundraising letters and all Facebook posts.
Under a finding that dates back to 1959, those social-welfare groups can remain tax-exempt so long as they are “primarily engaged in promoting in some way the common good and general welfare of the people of the community.” Politicking cannot be their primary focus, and “primary” in this case means “51 percent or more.”
The new rules would vastly expand what constitutes “candidate-related political activity” by including such practices as handing out voter guides, holding candidate forums, printing or airing advertisements, and even criticizing a politician on a website posting in the two months before a general election.
If, say, a blog post by Friends of the Earth blasts a Republican for voting against new air-quality rules in 2015, and the Republican runs for re-election the next year, Friends of the Earth would have to go back and scrub the post from its site — or risk the IRS’ wrath. Many groups would probably decide to post nothing in the first place.
A blog post about a politician is, of course, quintessentially political speech of the sort the First Amendment expressly protects — or is supposed to protect. Under the new IRS rules, the government effectively would be rationing how many such items a group can post. The ACLU says the new restrictions would “pose a significant chilling effect” on the advocacy of countless nonprofits. First Amendment scholars warn they would “impose serious burdens on free speech.”
To watch these rules emanate from a liberal Democratic administration is doubly ironic. Liberals howled in outrage when the Supreme Court’s Citizens United decision overturned decades of campaign-finance law. Now the IRS proposes to do the same thing. What’s more, the idea that you can separate social welfare from government activity does not usually win much applause on the left. To the contrary, conventional liberal wisdom holds that government often is the only means by which any meaningful advance in social welfare can be made. Private charities, churches, volunteer organizations — those are nice, but they can’t do the heavy lifting of social reform, in the liberal view. But in that case, political activity by social-welfare groups should be encouraged, not penalized.
Granted, some liberal social-welfare groups have objected to the IRS proposal, for many of the same reasons conservative groups cite. Nobody should have to worry that spending a little too much time registering people to vote will lead to a ruinously expensive legal fight.
Unfortunately, many other liberals are sitting on the sidelines — or, worse, defending the IRS — because of the blatantly partisan nature of its abuse. That abuse began when President Barack Obama criticized conservative groups for “posing” as nonprofit social-welfare organizations and several Democratic senators demanded an IRS investigation of such groups.
The IRS crackdown on tea party organizations did catch some liberal outfits, the way tuna nets catch an occasional dolphin. But two other data points render the partisan nature of the scandal indisputable.
First, Barbara Bosserman, the person the Obama administration named to investigate the IRS targeting, is not only a member of the administration, she also gave more than $6,000 to Obama’s election campaign and the Democratic National Committee. Welcome to the henhouse, Ms. Fox.
Second, the new IRS rules do not lay a finger on the biggest donors by far to political campaigns: unions, which are organized as 501(c)5 entities. How much do unions give? The Wall Street Journal’s Kimberley Strassel notes that “the Center for Responsive Politics’ list of top all-time donors from 1989 to 2014 ranks Koch Industries” — the infamous Koch brothers — “No. 59. Above Koch were 18 unions, which collectively spent $620,873,623 more than Koch Industries ($18 million).” Unions, of course, almost uniformly support Democrats.
Liberals on the sidelines need to join their more long-sighted brethren and make common cause with conservatives in this debate. The IRS’ new rules might give Democrats an advantage for the next election cycle or two. But eventually a Republican administration will take over. Do liberals really want it to take control of an IRS that has been so dangerously weaponized?


10:37 am - Thu, Mar 13, 2014
3 notes


4:31 pm - Mon, Mar 3, 2014


11:22 am - Fri, Feb 28, 2014


1:05 pm - Fri, Feb 21, 2014
5 notes


3:23 pm - Tue, Feb 18, 2014
29 notes
Game, set, and match to you, sir.

Game, set, and match to you, sir.


10:42 am - Mon, Feb 17, 2014
9 notes


10:21 am - Mon, Feb 3, 2014
2 notes

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.




9:33 am - Wed, Jan 29, 2014
4 notes

On Campus, Education Often Isn’t Liberal

In Virginia, education isnt always 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

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.


9:53 am - Mon, Oct 7, 2013
8 notes

A Conservative Case for Gay Marriage


Theodore Olson has entered the fray over Virginia’s ban on gay marriage. Olson, a powerhouse Republican lawyer who helped keep Al Gore out of the White House, is joining forces with the ACLU (which is challenging the ban in a separate suit) and what those on the right like to call the “homosexual lobby.” This adds a big wrinkle to the standard left/right narrative, and raises a question: Is there a conservative case for gay marriage?

There certainly is a liberal one: Diversity is great, which means gay people are great – so if they want to marry, that’s great too! Besides, you’re not supposed to discriminate against anybody. (Except conservative Christians, because they’re so judgmental and icky.)

There is also a libertarian argument for gay marriage, which is equally straightforward: Short of actually shooting somebody in the face, individuals should be able to do pretty much whatever they want (except criticize the novels of Ayn Rand, no matter how hilariously bad her prose). If that means two burly lumberjacks get to pick out china patterns together – hey, go for it.

Most everyone also knows the conservative argument against gay marriage: God made Adam and Eve, not Adam and Steve. Plus, look at these pictures from the San Francisco gay-pride parade we found on the Internet. Dude, are you seriously gonna stand up for those freaks?

Olson has. With Democratic lawyer David Boies, he successfully challenged California’s ban on gay marriage. In 2010, Olson penned a piece for Newsweek explaining his version of “The Conservative Case for Gay Marriage.” He pointed out that “same-sex unions promote the values conservatives prize” – such as commitment, stable families, and “thinking beyond one’s own needs.” Moreover, gay marriage follows from the “bedrock American principle of equality.” If you believe in the values of the Declaration and the Constitution, then you believe in equal rights, and “marriage is one of the most fundamental rights that we have as Americans.”

Those are good reasons. But they are not the only reasons conservatives might accept gay marriage. Here are five more.

(1) Gay marriage is good for “the institution of marriage.” 

If you think marriage is a valuable cultural institution, and you worry about its decline in contemporary America, then you should welcome a reform that would shore up that institution against erosion. Just as the institution of banking is stronger with many participants rather than few, having more marriages rather than fewer is better for the institution of marriage.

Granted, you can push this argument too far. The institution of marriage would not be strengthened by “marriages” joining, say, cats and mice in holy matrimony. But those unions do not entail any intent to participate in the institution; cats and mice are not buying in to any set of values when people pretend to marry them off. When gay people seek to marry, however, they do intend to participate in marriage, and they do buy in to a (conservative) value set.

(2) Gay marriage fosters virtue.

Social conservatives believe sexual promiscuity is bad for the body and corrosive to the soul – that the sexual revolution’s encouragement of licentiousness has degraded social norms and debased our common virtue. If they are right about that, then allowing  homosexuals to enter lifetime monogamy ought to be altogether desirable – just as it is desirable for heterosexuals, and for the same reasons.

(3) Gay marriage benefits children.

In his 2012 book A Fundamental Freedom: Why Republicans, Conservatives, and Libertarians Should Support Gay Rights, David Lampo notes that “over a quarter of a million children are living with same-sex couples.” Forbidding those couples to marry does not spirit their children away from them into the arms of straight couples (which likely would be awful for those children anyway). All it does, as the ACLU points out, is deny those children “the protection and stability of having parents who are married.”

But how do those children fare compared with children raised by straight couples? “There is no evidence that gay parents are any less effective or loving than heterosexual ones,” Lampo writes. In fact, some studies (such as one conducted by the University of Melbourne) show children raised by gay couples are better off by some measures (e.g., family cohesion) and no worse off in others (e.g., self-esteem). According to the Supreme Court, voluminous research indicates that children raised by gay or lesbian couples “are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.”

(4) Banning gay marriage injects government where it doesn’t belong.

Conservatives probably will respond to the previous point by contending that while letting single-gender couples raise children might not be profoundly harmful, it certainly is not optimal. The optimal family, they will say, consists of children raised by two parents of the opposite sex.

Let’s accept this as true for argument’s sake. But while it is one thing to stipulate what might be optimal, it is something else – something far more dangerous – to suggest the state should impose its view of what is optimal on the nation’s families.

After all, the optimal conditions for child-rearing extend far beyond parental gender. We can easily imagine what a government in the hands of left-wing activists might consider optimal: No guns in the home. No smoking, either. Certainly no spanking. And absolutely, positively no trying to cure a sick child with prayer.

In fact, a government that was to impose its view of optimal child-rearing conditions would not start by forbidding gay couples to marry, since their marital status has nothing to do with their child-rearing skills. Rather, a government bent on optimal parenting, as conservatives define it, would start by banning divorce. (And to be fair, some conservatives – such as Virginia gubernatorial candidate Ken Cuccinelli – do want to make divorcing more difficult.) Having banned divorce, social conservatives trying to optimize parenting would then take children from single-parent homes, where they face much longer odds of life success, and require two-parent families to adopt them.

(5) Banning gay marriage encourages big-government thinking.

Conservatives content they want to protect the institution of marriage and foster procreation by straight couples. First question: Show me where the Constitution says that is any part of government’s job. Go ahead, I’ll wait.

Can’t find it, can you? Even if someone could, the means chosen – banning gay marriage – is connected to those goals only by logic so thin and weak it cannot stand up. Letting gay people marry does not discourage straight people from getting married, and it certainly does not discourage them from procreating. (What spouse has ever said, “Gee, honey, I’d love too, but not tonight – seeing Kevin and Don’s engagement announcement kind of spoiled the mood”?) Gay marriage simply has nothing to do with either of those issues.

By pretending it does, conservatives adopt precisely the sort of big-government thinking they otherwise abhor. If government is supposed to encourage procreation, then the law should be narrowly tailored to achieve that goal. (For instance, straight couples seeking to marry should have to take fertility tests.) By suggesting government can exclude gays from marriage in order to encourage procreation, even though the two issues have no relation to each other, conservatives encourage government to claim it can do anything at all so long as it has what James Madison called a “colorable pretext” for its actions. That’s exactly the kind of thinking that led to Kelo, the Supreme Court decision allowing local governments to confiscate private property if they think they might one day find a better use for it.

Finally, conservative say the traditional straight family is – well, traditional. But as another court has noted, this does not explain the reason for discriminating against gays, it merely repeats it.

Repeating a conclusion doesn’t prove it. And besides: “Upholding tradition” doesn’t appear anywhere in the Constitution, either.



Install Headline


Media General - Coupons and Deals Promo Codes
KewlBoxBoxerJam: Games & Puzzles
Games, Puzzles & Trivia
Blockdot: Advergaming and Branded Media
Advergaming and Branded Media