Marion County, IN: Just One More Homeless Iraqi War Veteran

As if our fighting troops did not have enough troubles on the battlefields of the world, they also face domestic battles to even buy a home. Case in point, Matt E., an Iraqi War veteran and still an active duty military man, signed a purchase agreement for the Indianapolis home of deceased Holocaust Survivor Al Katz on July 19, 2012. Matt had his cash on the barrel on hand, but, as of July 20, 2015, nearly three years later, Matt owns no home.

What has Matt done wrong in his fervent attempt at achieving the American Dream of home ownership? It is simply that Matt wants to buy a home, which he loves, from an estate in which administrative reimbursement claims have been languishing for years that the Marion County Circuit Court has never heard, preventing the house closing until the estate claims are settled beforehand.

Matt has spent years of his young and precious life protecting the people of the United States and years of his young and precious life waiting for an Indianapolis court to hear multiple estate administrative reimbursement claims filed by Lawrence Newman, Al Katz’s son-in-law, with the court since 2013. Although under Indiana law a court is deemed a “lazy judge” if the court does not hear a motion or schedule it for hearing within 30 days after it is filed, the Marion County Court Administrator has twice ruled that Judge Louis Rosenberg is not in violation of the “lazy judge” rule.

All the forces are against Matt in his lonely battle to buy a home, except for the force of justice. May Matt win this battle for justice just as he has courageously fought for the American people.

The Spy in Your Pocket by Joseph S. Diedrich and Nicole Kardell

Does the government need a search warrant to know where you’ve been? Not if your cell phone provider knows. If you don’t like how that sounds, there may be ways to change it.

Take the case of Quartavious Davis, a Florida man convicted of robbing at gunpoint a pizzeria, a gas station, a drugstore, an auto parts store, a beauty salon, a fast food restaurant, and a jewelry store. The prosecution offered multiple lines of evidence, but there was one in particular that Davis’s lawyers objected to: records the government obtained from Davis’s cell phone provider, MetroPCS.

The records, which MetroPCS kept in its normal course of business, showed “the telephone numbers for each of Davis’s calls and the number of the cell tower that connected each call.” From this information, police concluded that “calls to and from Davis’s cell phone were connected through cell tower locations that were near the robbery locations, and thus Davis necessarily was near the robberies too.”

Prosecutors got their hands on the MetroPCS cell tower records using a court-ordered subpoena. In criminal cases like Davis’s, courts may grant subpoenas on “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” Although this standard is higher than that for typical subpoenas, it’s lower than the Fourth Amendment’s probable cause standard.

Not Even a Search

On appeal, Davis argued that the cell tower records were obtained in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. But the 11th Circuit — the federal appeals court encompassing Alabama, Georgia, and Florida — disagreed (United States v. Davis).

In fact, the government’s actions weren’t even a “search,” according to the court. In legal terms, a search occurs only when police invade a person’s reasonable expectation of privacy. For example, you have a reasonable expectation of privacy in the content of your phone conversations — what is actually said during your call — so eavesdropping on the conversation would constitute a search.

In Davis’s case, though, the police didn’t eavesdrop on his conversations. Nor did they use GPS to track his precise movements while he was making them. Because they merely obtained business records from a third party, the court says that the police didn’t invade Davis’s privacy:

Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.… Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes does not belong to Davis, even if it concerns him.

Because there wasn’t a “search,” the Fourth Amendment didn’t even apply.

Outdated Doctrine Meets Modern Society

Despite the court’s logic, something about this case still makes many observers feel uneasy. Even AT&T filed a brief in the case, arguing that the government’s actions were illegal. We all turn over huge amounts of information to third parties every day, and almost all of our activities can be tracked through our “smart” devices. And as the amount of data that businesses collect on us grows, so do concerns over the government’s ability to access that data.

So when the 11th Circuit focused its decision in Davis on something called the third-party doctrine, there was reason for a little gasp. The third-party doctrine was developed by the Supreme Court in the 1970s to draw a line between a person’s “reasonable” expectation of privacy and the information that person voluntarily shares with third parties. Back then, the Supreme Court held that a person has no reasonable expectation of privacy over his or her bank records, because that information was voluntarily provided to the bank. Nor can you have a reasonable expectation of privacy over the phone numbers you dial, because you furnish those numbers to the phone company in order to place calls. And so the government may subpoena these records from the business collecting them without meeting heightened standards under the Fourth Amendment.

The Davis court discussed these cases to support the premise that when people turn over their data to third parties by virtue of using those parties’ services, that information falls outside Fourth Amendment protection. A breathtakingly low point can be found in one of the judges’ concurring opinions:

If a telephone caller does not want to reveal dialed numbers to the telephone company, he has another option: don’t place a call. If a cell phone user does not want to reveal his location to a cellular carrier, he also has another option: turn off the cell phone.

In other words, if you want your information protected by heightened privacy standards, go off the grid.

Today, that position is practically untenable. And this is what makes the 11th Circuit’s opinion troubling: it allows the government easy access to your data by virtue of your participation in modern society. The court’s holding helps grease the slippery slope that takes us away from historically reasonable expectations of privacy.

The court attempted to soften the blow by categorizing the subject information as noncontent data. In other words, the data in the Davis case was less private because it was not the actual substance of phone calls, texts, or other communications. Instead, it was the nonsubstantive cell-tower data that allowed the government to track where Davis was when he made or received calls. But we all know that a precise record of our movements reveals a lot about us, as the dissenting judge in the Davis case pointed out:

A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

Toward Privacy

There is still a chance that the Supreme Court will reverse the 11th Circuit’s holding. Even if it doesn’t, other options exist. As mentioned in the Davisdecision, Congress can still legislate greater privacy protections.

The market provides another option. Although a court order forced MetroPCS to provide its records, “federal law did not require that MetroPCS either create or retain these business records.” As technology changes, and as we all become more attuned to privacy issues, we will look to the market for options. When this happens, cell phone providers will benefit from offering an “enhanced privacy” version of their services. Some customers will prefer that their data not be collected at all — or that it be anonymized. Providers could charge a higher price for anonymous services, or customers could forego certain personalized services.

By providing customized levels of privacy, the market can create de facto immunity from third-party “searches.”

Nicole Kardell

Nicole Kardell is an attorney with Ifrah Law, a Washington, DC-based law firm. She represents clients in government enforcement actions and other regulatory compliance matters before federal and state agencies.

Joseph S. Diedrich

Joseph S. Diedrich is a Young Voices Advocate and a law student at the University of Wisconsin.

What is the Legal Case Against EPA’s Water Rule?

Now more than ever, every time it rains, one Indiana farmer fears his land will be declared a federally-regulated body of water:

After a recent rainfall, Charlie Houin looked out over one of his cornfields in Marshall County as a clear stream of water flowed beneath him. With the summer’s high rain levels flooding fields, drainage systems and the streams that carry excess water away are crucial for farmers to maintain healthy crops.

But Houin, and farmers across the country, are now in a fight for control over these small waterways — battling a new rule in the Clean Water Act opponents say will be overly burdensome and costly to the agriculture industry.

[ … ]

Houin said he not only sees this as one of the EPA’s biggest land grabs in history, but he’s worried the permit process is going to be crippling when he needs to repair ditches, waterways and drainage systems for his farm. When you have only one chance a year at the planting season, he said, having farmland and waterways tied up in an approval process will be costly.

Worry about federal overreach isn’t limited to farmers and ranchers. Many other businesses also oppose the agencies’ regulatory overreach.

This has driven business groups to take EPA and the Army Corps of Engineers to federal court.

The U.S. Chamber, the National Federation of Independent Business, the Portland Cement Association, the Tulsa Regional Chamber, and the State Chamber of Oklahoma filed suit to stop the new Waters of the U.S. (WOTUS) which dramatically expands the definition of federally-regulated “navigable waters” covered by the Clean Water Act.

They make the case that the water rule gives the federal government unprecedented and unconstitutional regulatory authority over nearly every body of water in the United States and undercuts state and local government sovereignty.

Here’s a breakdown of their argument.

Violates the Clean Water Act

The plaintiff’s argue that the new waters definition goes beyond its authority under the Constitution and the Clean Water Act, because it “confers jurisdiction to the Agencies over waters that are not ‘navigable waters.'”

Under the Clean Water Act the federal government has jurisdiction over only “navigable waters.”

Initially that was defined as bodies of water where interstate transportation or commerce could take place. However, over the decades, the regulatory creep set in and that definition broadened from lakes and rivers bordering states (literally interstate waters) to include tributaries and wetlands that abut regulated water bodies. WOTUS is the latest expansion.

Through the water rule, “thousands of miles of intrastate waters that have no substantial effect on interstate commerce” are now under federal regulation, the plaintiffs note. This includes wetlands, streams, ditches, ponds, and bodies that only occasionally hold water.

This broad federal jurisdiction is what has farmers, ranchers, home developers, other businesses upset.

To understand the plaintiffs’ legal argument, you need to know about a 2006 Supreme Court case, Rapanos vs. United States. In it, the court established two tests for determining if a body of water falls under federal jurisdiction.

The first is “continuous surface connection.” In his plurality decision, Justice Antonin Scalia wrote that the Clean Water Act requires that a body of water have a “continuous surface connection” to another federally-regulated body for federal regulators to have jurisdiction.

The second is “significant nexus,” found in Justice Anthony Kennedy’s concurring opinion. In order to be considered a navigable water, a body of water must “significantly affect the chemical, physical, and biological integrity” of “waters that are or were navigable in fact or that could reasonably be so made.”

The water rule fails both tests, the plaintiffs explain:

[C]ountless waters, wetlands, and normally dry lands will be classified as ‘waters of the United States’ despite their complete detachment–both on a surface level and on a chemical, physical, and biological level–to any navigable water.

The Matrix Defense

One example of how EPA fails to meet these tests is by employing something I call the “Matrix Defense.” EPA claims it can determine a federally-regulated tributary to a body of water simply with the use of computer “desktop tools that provide for the hydrologic estimation of a discharge sufficient to create an ordinary high water mark.” Virtual reality trumps physical reality, as the filing explains:

“In other words, if a computer model suggests that a feature has enough flow to create a bed and bank and ordinary high water mark, the Agencies can determine that that feature is a ‘tributary,’ even if the physical indicators have not been observed in the field.”

Neo could stop bullets, but he didn’t have that this kind of power.

Unfortunately for EPA, this tactic doesn’t satisfy either Justice Scalia’s continuous surface test or Justice Kennedy’s significant nexus test.

WOTUS is Unconstitutional

The water rule doesn’t just violate the Clean Water Act. The plaintiffs argue it also violates the 10th Amendment, which states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

State governments have the authority to regulate land and water in their states. The Clean Water Act affirms that states have “the primary responsibilities and rights … to plan the development and use … of land and water resources.”

However, with the water rule, the federal government claims regulatory authority over nearly every body of water in America. Waters, including ditches, canals, ponds, and wetlands, as far as 4,000 feet from a navigable water can be regulated by the federal government.

This violates the 10th Amendment. As the plaintiffs state:

The Supreme Court requires a ‘clear and manifest’ statement from Congress to authorize [such] an unprecedented intrusion into traditional state authority.

State and local government sovereignty gets squeezed as the federal government expands its reach.

EPA Avoided Looking at the Economic Effects on Small Businesses

Not only does the water rule conflict with the Constitution and the Clean Water Act, regulators didn’t follow the proper rulemaking process.

The plaintiffs point out that EPA ignored the Regulatory Flexibility Act (RFA) which requires federal agencies to analyze the effects of proposed regulations on small businesses, organizations, and governments.

EPA claims it didn’t have to do this because the water rule “will not have a significant economic impact on a substantial number of small entities,” and it “will not affect small entities to a greater extent than the existing regulations.”

The Small Business Administration’s Office of Advocacy disagreed:

[T]he Clean Water Act and the revised definition proposed in this rule directly determine permitting requirements and other obligations. It is unquestionable that small businesses will continue to seek permits under the Clean Water Act. Therefore they will be subject to the application of the proposed definition and the impacts arising from its application.

The “fundamentally flawed” rulemaking process drove SBA to ask EPA to “withdraw the rule and that the EPA conduct a Small Business Advocacy Review panel before proceeding any further with this rulemaking.”

EPA ignored the SBA along with similar comments from the U.S. Chamber and other business groups and went ahead with finalizing the new definition.

It’s Hard to Know How to Obey the Law

Finally, the water rule is too vague. If people can’t understand the regulation, how are they supposed to behave lawfully? The water rule “fails to provide fair notice of what conduct is prohibited by the civil and criminal provision of the Clean Water Act and grants overly broad enforcement discretion to” federal regulators, writes the plaintiffs.

To see how this applies in the real world, let’s go back to Charlie Houin’s story:

The water rule states that a “tributary must show physical features of flowing water — a bed, bank and ordinary high water mark — to warrant protection,” as well as connecting to a larger body of water.

Discussing the rules with The Tribune, Houin stood near one of his small waterways that, he said, he has always thought of as a ditch and has never had regulatory issues with. But based on the EPA’s definition, Houin’s small “ditch” could be considered as a tributary because it has continually flowing water that empties into the nearby Yellow River.

This is a major problem, [Justin Schneider, senior policy adviser for the Indiana Farm Bureau] said, because no matter what a farmer may think a waterway is, it comes down to the EPA’s interpretation. A farmer could be in violation and not realize it, he said, calling it “an issue with potential for big repercussions.” Beyond having to obtain expensive federal permits, the Indiana Attorney General’s Office said farmers could face civil penalties up to $37,500 a day for violating the new rule.

Citizens “cannot reasonably determine based on the face of the relevant statutes and regulations what is required of them,” plaintiffs state.

Let’s step beyond how the water rule violates the Constitution and ignores federal law. It also will shower uncertainty over every property owner.

An economy can’t function effectively if people fear that taking some ordinary action like filling in a ditch will require costly permits or unleash the fury of federal regulators.

The easier path to take is to not invest in and improve one’s business. Don’t build an addition to a factory that could employ more people. Don’t build a housing development and increase the housing supply for families. Don’t touch that gully the rain cut in the corn field. Instead, let it go fallow.

That may satisfy a bureaucrat in Washington, D.C., but it means frustration for Americans having to live under those rules.

Meet Sean Hackbarth @seanhackbarth Follow @uschamber

EDITORS NOTE: The featured image is of a Holstein cow grazing by a pond in Lancaster, NH. Photo credit: Bloomberg.

COUNTDOWN: Four Days Left to File for SCOTUS Marriage Re-hearing

We have rarely seen anything as disgraceful as this.

There are just five days to go before the July 21 deadline to file for a re-hearing before the US Supreme Court on its recent 5-4 “same-sex marriage” ruling. But chances are bleak that this crucial filing will be done. The cave-in by the GOP has spread to major pro-family organizations.

July 10 meeting in DeWine’s office. Ohio Attorney General Mike DeWine (in red tie) watches Constitutional Law Professor David Forte (far left) discuss the Motion for Recusal filed in April and a Motion for a Re-hearing to be filed immediately. Seated to DeWine’s left is Solicitor General Eric Murphy. Nearly 50 Ohio pro-family activists, citizens, and pastors were also in the room.

As we described in our report last week, the US Supreme Court “same-sex marriage” fight is not completely over. According to the Court’s published rules, within 25 days of a ruling, a party can ask the Court for a “rehearing” if there are pertinent issues meriting an appeal. The issue of “merit” here is that Justices Kagan and Ginsburg – both of whom ruled for “same-sex marriage” — were clearly required by federal law to recuse themselves from this case. The 25-day period to file for a re-hearing expires on Tuesday, July 21.

It seemed like a simple and obvious step for our side to take, especially given the outrageous nature of the ruling. So a few days after the June 26 ruling, national pro-family activist Janet Porter called together a few dozen of the top pro-family groups (including MassResistance), activists, and some legal scholars to help get it moving. But we certainly didn’t anticipate this much opposition to this from our “friends”.

Of the four state AGs who are eligible to file the motion (from Ohio, Michigan, Kentucky, and Tennessee) it was decided for various reasons focus on Mike DeWine of Ohio. Several in the group have connections to him.

Pro-family citizens meet with Ohio AG Mike DeWine

DeWine is a Republican with long connections to pro-family people in Ohio. Janet Porter and several in the group are Ohio residents – some of them know DeWine personally. They were able to arrange a meeting last Friday, July 10, in DeWine’s office, to ask him to file for a re-hearing.

Even with short notice, nearly 50 people showed up for the meeting in DeWine’s Columbus office. They included Janet Porter, Constitutional Law Professor David Forte of Cleveland State University, several Ohio activists, and a large group of pastors. Alongside DeWine was the Ohio Solicitor General, Eric Murphy.

Prof. Forte started the meeting by going over the Motion for Recusal filed on April 27 (the day before the Court hearing) and outlining the legal issues for re-hearing the case. DeWine responded by saying he would not be filing for a re-hearing, then opened up the floor for questions and statements from others.

Pro-family activist and Ohio resident Coach Dave Daubenmire attended the meeting. Here’s his account of what happened.

As soon as Prof. Forte was done presenting, Michael DeWine said he had no intentions of re-filing. He said that there’s no chance of winning; it takes 5 justices to agree to do it. He doesn’t want to give false hope to people that this might be reversed. And it’s now time to direct our focus to protecting religious liberty, he said.

The meeting lasted about an hour and 45 minutes. We had thought we were going to just get 15 minutes. He took every question. Some great points were made. One gentleman asked him, “What about his duty to protect children? Because of this ruling, it’s now going to be taught to our children in schools. It’s going to be mandated. And you have an obligation to protect the children.” Another pastor stood up and said, “This is your Moses moment. The Lord has been preparing you. And you’re an elected official. You represent the will of the people who voted on this issue. And the Supreme Court is totally out of bounds and we want you to appeal it on our behalf. ” Then DeWine went through that whole thing again about why he wasn’t going to file it.

And I told him, “Listen, Attorney General DeWine, I was a football coach for 30 years. I didn’t just play the games I thought we would win. We had to play every game on our schedule. And this game’s not over. We have our legal right to an appeal. And on behalf of the concerned Christians and citizens of Ohio we want you to appeal.” This went on for about an hour and 30 minutes. Everybody who had a question and raised their hand, he listened to the question. He didn’t always answer or respond, but he listened.

And then the meeting was done. At the end of the meeting he didn’t say that he wouldn’t do it, but he didn’t say that he would, either. He promised us that he’d read David Forte’s brief and that he would take it under consideration.

How does DeWine know that somebody’s heart [on the Supreme Court] won’t be changed? We need to at least get them on record about this lack of recusal. The people feel robbed.

One attendee told us this:

I believe that DeWine wants to be Governor. And I believe the Republican Party wants the issue to go away, and that he doesn’t want to cross the party bosses. That’s what I think really happened. But who do you serve? I think he serves the [establishment] Republicans and not the citizens of Ohio.

DeWine reacts to flood of emails & calls (from everywhere)

Over the last week, since MassResistance and others have publicized this, DeWine’s office has his office has received a flood of calls and emails from Ohio, across the country, and even foreign countries. (We know that from people who’ve also contacted us.)

It doesn’t appear that the July 10 meeting moved DeWine much. And his “reasons” for not filing are even weaker than before. Here’s a response DeWine’s office emailed to an activist in Maryland on Tuesday, July 14.

Dear Mr. xxxx:

Thank you for contacting my office regarding the United States Supreme Court’s decision on same-sex marriage.

I defended Ohio’s Constitution and statutes in this area at the District Court, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court.

As you know, the 5-4 majority of the Supreme Court rejected our argument that the definition of marriage should be left to the States and the people.  Before the Court issued its decision, a suggestion for recusal was filed by amicus parties and the individual Justices had the duty to consider their impartiality.  The Justices did not recuse themselves.  Under Supreme Court rules (and specifically Supreme Court Rule 44.1), motions for reconsideration are to be denied unless they have the vote of at least five Justices.

Again, thank you for contacting my office.  If we can ever be of assistance to you in the future, please feel free to contact us.

Very respectfully yours,

Ohio Attorney General

Absurd reasoning by DeWine

DeWine’s reasoning in the above email is very disturbing.  (1) He refers to a “suggestion for recusal,” i.e., the Motion for Recusal. But that was not a formal part of the process because it was filed by an outside party – and was most likely ignored by the Justices. And it was submitted the day before the Aril 28 Supreme Court hearing. (2) The fact that a vote to accept a hearing requires five justices not a legitimate reason not to file for a re-hearing. Upon seeing the new evidence, one or more of the majority could change.

Moreover, DeWine’s refusal to file for an appeal arguably constitutes malpractice. There is a universally accepted requirement that a lawyer must zealously fight for his client’s interests, not fold up his tent when it’s inconvenient or unpleasant. The American Bar Association’s Rules of Professional Conduct state, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” This is replicated in just about every other Bar Association code of ethics – even using the word “zealously”. The fact that in 2004 62% of the voters in Ohio passed the state’s Marriage Amendment makes DeWine’s inaction even more outrageous.

What about the other three states eligible to file for a re-hearing?

The Supreme Court case, Obergefell v Hodges, originated in Ohio, but was also a consolidation of cases in Tennessee, Michigan, and Kentucky – the other states in the Sixth Circuit. Thus, the Attorneys General of all four states have standing to act.

Janet Porter’s ad-hoc pro-family activist committee had connections to DeWine, but unfortunately none of them had effective  political connections to any of the other AGs.

We had assumed that that the larger national pro-family groups would also use their considerable influence to push this. We certainly made this known to them. But they all pretty much backed away. One national leader told Janet that this was a “waste of time.” What about the National Organization for Marriage? Not a word. We could name so many others. (There’s certainly a lot of fundraising going on over this ruling.) Or even the Federalist Society, which had the inside track to the legal process in this case?

Here’s what everyone can do now

CALL, EMAIL, TWITTER, or even FAX these AGs.  They need to hear from more people than they’ve ever heard from before:

Demand that they file a “Motion for Rehearing” in the Supreme Court marriage case by next Tuesday, July 21st. The Court must consider the information about how Justices Kagan Ginsburg violated federal law by officiating homosexual “weddings” before the ruling, and not recusing themselves from this case.

OHIO Attorney General Mike DeWine (Republican)
Phone: 800-282-0515
Email:  (his assistant)
Twitter: @OhioAG

TENNESSEE Attorney General Herbert Slatery  (Repubican)
Phone 615-741-3491
Fax 615-741-2009
Twitter: @TNattygen  []
Chief of Staff: Leigh Ann Apple Jones

MICHIGAN Attorney General Bill Schuette (Republican)
Phone 517-373-1110
Fax 517-373-3042

KENTUCKY Attorney General Jack Conway (Democrat)
Phone 502-696-5300
Fax  502-564-2894
Email: web site contact page

Why filing this motion for a re-hearing is very important

We’ll repeat what we said earlier. Even if it’s not ultimately 100% successful this is extremely important:

First, it will “officially” bring the issue of Kagan’s and Ginsburg’s failure to recuse themselves (in violation of federal law) into the public spotlight. Right now, it’s relatively buried in ignored motions and various news articles in some conservative media.  And it will reinforce understanding of the overall illegal nature of this ruling.

Second, it spotlights the overall illegitimacy of today’s Supreme Court, its overtly un-Constitutional approach to shaping our laws, and its illegal power grabs far and beyond what was intended by the Founders.

If this opportunity is lost, it will be a terrible indictment to this movement. If only the homosexual movement would give up this easily.

Florida Supreme Court Opinion is Anti-Self-Defense

Judicial activism is alive and flourishing on the Florida Supreme Court.  The victims of this activism is the Second Amendment and citizens of the Sunshine State’s fundamental right of self-defense.

On Thursday, July 9, 2015, liberals on the Florida Supreme Court issued an opinion in a self-defense case that clearly has a chilling effect on the constitutional right of self-defense and the immunity from prosecution for exercising self-defense provided by the Legislature in the “Castle Doctrine/Stand Your Ground” law.  The presumption of innocence until proven guilty has been turned on its head.

Rather than follow the intent of the Legislature, the Court chose to rewrite the law to achieve its own policy goals.

In the Opinion Justice Pariente, who was joined by Justices Labarga, Quince, Perry and Lewis, defiantly said:

“We conclude that placing the burden of proof on the defendant to establish entitlement to Stand Your Ground immunity by a preponderance of the evidence at the pretrial evidentiary hearing, rather than on the State to prove beyond a reasonable doubt that the defendant’s use of force was not justified, is consistent with this Court’s precedent and gives effect to the legislative intent.”

In a dissenting opinion in which Justice Ricky Poltson concurred, Justice Charles Canady correctly wrote:

“By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law.”

The entire majority opinion and the dissenting opinion is here:

“By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law.”

The entire majority opinion and the dissenting opinion is here:

Below is a link to an example of how others see this opinion:

Here’s What the Legislature Should Do After Bretherick by Greg Newburn, FAMM State Policy Director posted to on July 10, 2015

Girl Sues Draft for Only Registering Males by Ilya Somin

A recent lawsuit filed by a teenage girl in New Jersey (in conjunction with her mother) challenges the constitutionality of male-only draft registration, arguing that it violates the Constitution because it discriminates on the basis of sex [h/t: Elie Mystal of Above the Law]:

A New Jersey teenage girl has brought a federal class action against the Selective Service System, claiming its refusal to consider women for the draft is discriminatory.

“With both males and females available for such roles today, the two sexes are now similarly situated for draft registration purposes and there is no legitimate reason for the government to discriminate against the female class, so equal protection applies,” the complaint states. “Further, with both males and females available for such combat roles, there is no reasonable basis for infringing the associational interests of the female class by preventing them from registering.”

Noting that she will turn 18 this year, E.K.L., as she is named in the complaint, says she attempted to register for the draft on the website of the Selective Service by filling out the online form.

Once she clicked “female” during the online registration process, however, the website prevented her from registering….

E.K.L. and her mother call it undisputed that the Military Selective Service Act creates a sex-based difference.

Banning women from the pool of potential recruits is not rational given the role females currently play within the military, according to the complaint.

“If the two sexes can fight and die together, they can register together; if not, then no one should have to register,” the complaint states.

More information about the lawsuit is available in this article.

predicted that such a case would arise back in early 2013, when the Pentagon made women eligible to serve in nearly all combat roles (though I expected it to be brought by men forced to register for select service, rather than by women excluded from doing so).

The Supreme Court previously upheld the constitutionality of male-only draft registration in the 1981 case of Rostker v. Goldberg. However, as I also pointed out in that post, that ruling was partly based on the theory that women would not be as valuable draftees as men in an era when the armed forces excluded women from most combat positions.

Obviously, that logic is no longer valid. I also noted other reasons why the Court might overrule or at least severely limit Rostker if the issue came before it today:

Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due [to federal government] that the issue is not a slam dunk.

If the issue gets to the Supreme Court however, I’m far from certain that Rostker wouldn’t be overruled or severely limited. As compared with 1981, the idea of women serving in combat is far more widely accepted by both elite and public opinion. And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military.

If the Pentagon sticks to its new policy on women in combat, I think it’s likely that some male plaintiff will bring a new challenge to the Selective Service registration system, and that plaintiff will have a good chance of succeeding. Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled.

For reasons outlined by Steven Calabresi and Julia Rickert, there is also a good originalist case for courts taking a strong line against sex discriminatory laws.

I would add that, since 1981, the Supreme Court has taken a tougher line against sex-discriminatory laws and policies. Most notably, it invalidated the exclusion of women from the Virginia Military Institute in the 1996 case of United States v. Virginia. The exclusion of women from a military college is not exactly the same as their exclusion from draft registration. But the two situations have obvious similarities.

There is a chance that this case will end up being thrown out on procedural grounds. A court could potentially rule that women exempt from draft registration don’t have standing to sue because they don’t actually suffer any harm as a result (draft registration is usually considered a burden, not a benefit).

This is one of the reasons why I thought a case would be more likely to be brought by men subject to draft registration than by women exempt from it.

Also, a court might deny the plaintiff’s bid to certify the case as a class action on behalf other similarly situated women. But if the case does go forward, there is a real chance it will ultimately result in the invalidation of male-only draft registration.

To avoid misunderstanding, I should emphasize that I do not support either drafting women or forcing them to register for a possible future draft. But I also oppose drafting men. Conscription is both a severe infringement on individual liberty, and tends to reduce the quality of the military relative to an all volunteer armed forces.

Ultimately, the best way to avoid conscripting women is to not have conscription – or draft registration – at all. By taking that step, we could simultaneously reduce the likelihood that the draft will be reimposed in the future and eliminate one of the last bastions of open sex discrimination in government policy.

In my view, a decision striking down male-only draft registration is more likely to lead to the abolition of draft registration altogether than to its extension to women.

This post originally appeared at the Volokh Conspiracy. 

Ilya Somin

Ilya Somin is Professor of Law at George Mason University School of Law. He blogs at the Volokh Conspiracy.

5 Unintended Consequences of Regulation and Government Meddling by Robert P. Murphy

Voters frequently support measures that sound noble and beneficial but end up causing serious mischief — and often hurt the very groups the measures were intended to help.

A well-known example is price controls, which include minimum wage laws and rent control. These can cause unemployment among low-skill workers and apartment shortages for those without connections.

But that’s not all. Not by a long shot.

Here are five more examples of unintended consequences.

1. “Shoot, Shovel, and Shut Up”

The Endangered Species Act and other laws restrict how landowners can use their property if it is discovered that their actions may adversely affect vulnerable wildlife. Besides the injustice of violating property rights, this regulation produces perverse results.

Imagine a landowner in the Midwest who had plans to sell to an outside developer who wanted to build a shopping mall. One morning, a few days before closing the deal, the man is sipping coffee and looking off his back porch into the woods. He suddenly sees a woodpecker that he recognizes as a protected species. What will the man do, if he follows pecuniary incentives? Is he going to call up federal bureaucrats and tell them the good news?

No. The man will probably go get his gun and shovel and never speak of this incident to anyone.

2. Seat Belt Legislation Kills

In the typical debate over seat belt mandates — in which drivers can be heavily fined if caught driving without buckling up — advocates of liberty tend to stress individuals’ “right to be stupid” while others claim that public safety trumps absolute freedom. Ideology aside, do such laws make us safer?

Economist Sam Peltzman looked at the evidence after some states enacted seat belt legislation, while others did not. He found that drivers did buckle up more frequently because of the government penalties but that traffic fatalities were roughly unchanged.

True, the probability of dying in a car crash went down, if you were in a crash, because wearing a seat belt definitely helps you survive a typical accident. However, the states that passed the seat belt legislation saw anincrease in rates of traffic accidents. Because people felt safer, they drove just a little more recklessly. No individual driver wakes up and says, “I’m going to get in a fender bender today,” but with millions of people driving hours per day, 365 days per year, we will definitely see more accidents in the aggregate if people are even slightly more aggressive on the margin.

Peltzman found that total fatalities were about the same. The death rate for motorists crept down, but this was offset by a higher death rate among pedestrians and cyclists hit by cars. Some groups obviously did not benefit from the higher prevalence of seat belt usage.

3. Stricter Vehicle Fuel Economy Mandates Do Little for the Environment

The federal government imposes minimum corporate average fuel economy (CAFE) standards on certain vehicles. Some states wanted to “do more” for the environment, so they passed tighter mandates. In other words, states like California imposed higher mile-per-gallon requirements on cars sold in California than the federal government insisted on.

But the way the states structured their rules led to a significant “leakage.” If a car manufacturer increased the average fuel economy for its vehicles sold in California, for example, then those cars counted as part of its “fleet” in calculating the average fuel economy for its cars sold in the nation as a whole. The manufacturer could then get away with selling cars that had lower fuel economy in the states that did not supplement the federal rule, and they were still satisfying both state and national standards. Thus, the California rule as originally designed led to fewer emissions per vehicle-mile in California — but not nearly as much in the nation as a whole. Some economists estimated this “leakage” to be as high as 74 percent. The hodgepodge of standards simply raised the total costs of vehicles while doing little to reduce total US emissions.

4. Jane Jacobs Combats City Planning

Fans of Austrian economics should not be surprised to learn that Jane Jacobs, the champion of the American city, found several flaws with typical bureaucratic city planners. For example, zoning regulations broke up the spontaneous growth of cities into “residential” and “commercial” sections, spawning crime and other social ills.

Originally, apartments were interspersed with shops, so that the owners could always keep an eye on their businesses and on their children. This “natural surveillance” was destroyed with zoning and other regulations, not to mention the interstate highways that would rip neighborhoods apart and the austere “housing projects” that placed most adults far away from the street and thus unable to monitor and shoo away unsavory characters. Zoned neighborhoods became unsafe neighborhoods.

5. Three Strikes Mean You’re Out

In an understandable reaction to “liberal” judges who would give slaps on the wrist to repeat offenders, the 1990s saw a wave of automatic sentencing legislation to take away judges’ discretion. This included California’s famous 1994 “Three Strikes and You’re Out” rule (Proposition 184), where someone convicted of a third felony would get 25 years to life. Currently, 24 states have some form of “three strikes” legislation.

One problem with these rules is that many acts are felonies that most people would consider petty, such as bringing a smoke bomb to high school. In California, one man with two prior felony convictions was sentenced to 25 years to life for being with a friend who got caught selling $20 of cocaine to an undercover cop.

An unintended consequence of the “three strikes” rules is that someone with two prior felony convictions now has a serious incentive to evade arrest for a third. And in fact, empirical studies of Los Angeles data suggest that more police officers have been killed because of this effect.

The Upshot

Incentives matter. It’s not enough for voters to endorse legislation that has a nice title and promises to do something good. People need to think through the full consequences of a policy, because often it will lead to a cure worse than the disease.

Robert P. Murphy

Robert P. Murphy is senior economist with the Institute for Energy Research. He is author of Choice: Cooperation, Enterprise, and Human Action (Independent Institute, 2015).

The Clintons’ Achilles Heel?

For most of the 20th century, until 1989, the major public accounting firms in the U.S. and the U.K. were known as the Big Eight.  Listed alphabetically, they were Arthur Anderson, Arthur Young & Company, Coopers & Lybrand, Ernst & Whinney, Deloitte Haskins & Sells, Peat Marwick Mitchell, Price Waterhouse, and Touche Ross.

However, in 1987, Peat Marwick Mitchell merged with Klynveld Main Goerdeler, a mid-sized European firm, to become KPMG.  Then, in 1989, Ernst & Whinney merged with Arthur Young to form Ernst & Young, and Deloitte Haskins & Sells merged with Touche Ross to become Deloitte & Touche.  Finally, in 1998, Price Waterhouse merged with Coopers & Lybrand to become Pricewaterhouse Coopers.  Along with Arthur Anderson, they made up the Big Five.

Arthur Anderson was founded in 1913.  Its namesake founder, Arthur Anderson, was a man who held closely to the highest standards of the accounting profession, insisting that the accountant’s first responsibility was to his client’s investors, not to his client’s management.  However, by the 1980s, because of intense competition between the top accounting firms for non-accounting consulting services, that standard was beginning to show signs of erosion.  Within each firm, the commitment to audit independence was slowly eroded as they strove to win more-lucrative non-accounting consultancy contracts with their major clients.

One of Arthur Anderson’s principal clients was the Houston-based energy company, Enron.  And as the firm’s revenues from their non-accounting consultancy at Enron far exceeded their audit and accounting revenues, those involved in the audit and accounting end of their business were increasingly pressured to do what was necessary to keep Enron’s top management happy.  In other words, Arthur Anderson experienced an ongoing internal struggle, attempting to balance the need to maintain the highest of accounting standards, while contributing to the client’s desire to produce the most attractive quarterly and annual earnings reports.

Finally, in 2001, it was learned that Enron had maintained its position as an attractive investment opportunity in large part through systematic accounting fraud… none of which could have been accomplished without the active complicity of their accounting firm, Arthur Anderson.

When accounting irregularities involving some $100 billion were alleged, the members of Enron’s board of directors appointed a committee, the Powers Committee, to look into the matter.  The committee’s final report stated that, “The evidence available to us suggests that Andersen did not fulfill its professional responsibilities in connection with its audits of Enron’s financial statements, or its obligation to bring to the attention of Enron’s Board (or the Audit and Compliance Committee) concerns about Enron’s internal contracts over the related-party transactions.”

On December 2, 2001, Enron filed for Chapter 11 bankruptcy, and six months later, on June 15, 2002, Arthur Andersen was convicted of obstruction of justice, having been found guilty of shredding documents related to its auditing of Enron.  And while the conviction was later overturned by the U.S. Supreme Court, the negative publicity resulting from the high profile scandal, combined with the findings of criminal complicity, ultimately destroyed the firm.  On August 31, 2002, Arthur Anderson agreed to surrender its CPA license and its right to practice before the SEC… and then there were four.

Of the remaining top four accounting firms, Pricewaterhouse Coopers (PwC) has been seen, until now, as the “cream of the crop.”  In fact, among the Big Four, PwC has been ranked by Vault Accounting as the best accounting employer for two consecutive years, 2014 and 2015.  But now, because of their association with the Bill, Hillary, and Chelsea Clinton Foundation, PwC is about to learn, first hand, the meaning of the old adage, “Lie down with dogs; get up with fleas.”

In a June 17, 2015, posting on WorldNetDaily (WND), bestselling author Dr. Jerome Corsi, reports that, according to respected Wall Street analyst Charles Ortel, “The Big Four accounting firm, Pricewaterhouse Coopers, failed to detect and report the Clinton Foundation’s ‘apparent massive diversions of funds’ from a global charity that fights HIV/AIDS.”

Although the methodology is a bit difficult for non-accountants to grasp, Ortel charges that the Clintons siphoned off tens of millions of dollars annually from pass-through funds received by the Clinton Health Access Initiative (CHAI) from UNITAID, a Geneva-based global health organization which negotiates low prices for drugs and diagnostic equipment and supplies, working through groups such as CHAI to deliver drugs and health services where needed.

The pool of funds used to finance UNITAID’s activities is derived from a US$1 surcharge on coach-class airline tickets (up to US$40 on business and first class tickets) in nine countries: Cameroon, Chile, Congo, France, Madagascar, Mali, Mauritius, Niger and the Republic of Korea.  According to records of the French Civil Aviation Authority, the tax imposed on airline tickets by the French government alone has produced more than $1 billion in a six year period.

According to the WND article,

Ortel contends that PwC “allowed the Clintons to continue diverting millions of dollars donated for charitable purposes to the personal enrichment and benefit of themselves and their close associates, perpetrating a crime called inurement.  (The “inurement” prohibition of the Internal Revenue Code prohibits the use of the income or the assets of a tax-exempt organization, such as the Clinton Foundation, to directly or indirectly benefit any person with a close relationship with the organization, or one who is in a position to exercise significant control over the organization.)

In order to reach that conclusion, Ortel used financial information drawn directly from UNITAID sources, comparing it to financial reports of the Clinton Foundation contained in their PwC audit for 2013.  Ortel contends that “PwC failed to conduct the basic due diligence required of auditors, neglecting to discover and report the diversion of funds.”  He found that, as has been reported in recent stories of Hillary Clinton’s tenure as U.S. Secretary of State, the Clintons purportedly used their international prestige and political power to “leverage” international manufacturers of prescription quality drugs and various health care products and sell them to Third-World countries at a discount to combat AIDS/HIV.

WND quotes Ortel as saying that, if any of the 50 state attorneys general should present the available evidence to a federal judge, he believes “an injunction would be ordered, shutting down the Clinton Foundation and placing the organization in receivership.”

He is quoted as saying, “Ironically, the Clinton Family holds itself out for praise when Clinton Foundation financial statements are inaccurate and riddled with material, uncorrected errors.”  He concludes. “Those who take requisite time to study public financial filings should see what I see – that the Clintons are playing ‘Robin Hood,’ but in reverse, now with a major accounting firm of PwC’s magnitude participating in the cover-up.”  In other words, what Ortel suggests is that the Clintons, instead of taking from the rich and giving to the poor, are profiting from the poor to give to the rich… i.e. the Clintons and their toadies.

What is surprising… perhaps not so surprising where the Clintons are concerned… is the fact that neither PwC, nor any other Clinton Foundation auditor since 2006, has bothered to reconcile Clinton Foundation receipts from UNITAID, as reported on their IRS Form 990, with audited annual financial statements published by UNITAID.  In other words, in examining the financial dealings of the most corrupt political family in America, none of the most highly paid accounting professionals in the country thought to look for corruption in any of the most logical places.

So where did the Clintons get off on the wrong track?  Upon leaving the White House in disgrace in January 2001, Bill Clinton, a disbarred lawyer who narrowly avoided criminal prosecution for perjuring himself before a federal judge, was desperate to find some way to salvage a positive legacy for the history books.

Like modern era Republican presidents… Eisenhower, Nixon, Reagan, Bush (41) and Bush (43)… he could have retired gracefully into relative obscurity.  He could have retired to a posh hilltop mansion near Hot Springs where he could spend all of his free time patronizing the spas and nudie bars of that famed Arkansas gambling mecca.  But that’s not what he chose to do.  Like his Democrat predecessor, Jimmy Carter, Clinton could not find happiness and contentment outside the political spotlight.  Instead, he decided to establish a path to respectability by creating a foundation dedicated to helping the poor and downtrodden of the Third World.  That was the genesis of the Clinton Foundation and the Clinton Global Initiative.  And while the Clinton Foundation and the Clinton Global Initiative may have washed a bit of the seediness off the Clinton image, it is the excesses of the Clinton Foundation that may ultimately destroy Hillary Clinton’s dream of ever becoming the first female president of the United States.

But more than that, the Clintons’ unbridled greed and their unquenchable thirst for power could easily reduce the Big Four of the accounting profession to the Big Three… taking thousands of accounting executives and their families down with them.  If Ortel’s findings are ultimately confirmed, the Clinton era of American politics may finally be at an end.  More than Benghazi, the missing emails, the private email server, the outlandish speaking fees, and the suspected  pay-to-play quid pro quo’s of Hillary’s state department tenure, the alleged fraudulent accounting provided by PwC, the country’s top accounting firm, may yet be the Clintons’ Achilles heel.

Now all we have to do is to get one of our fine conservative state attorneys general to get off their backsides and take the available evidence before a federal judge.  Bill and Hillary will soon learn that attempting to hoodwink the IRS and the SEC is almost certain to meet with disaster.

Slate Writer: Freedom to Remove Eyebrow Hair Will Make Texas a “Dangerous” Place by Evan Bernick

Texas Court rules that regulations have to make some kind of sense; chaos is imminent.

It’s a tremendous victory for individual rights and for the politically powerless. And progressives are terrified of it.

Over at Slate, Mark Joseph Stern warns that a Texas Supreme Court decision invalidating a requirement that commercial eyebrow threaders undergo 750 hours of training — 320 of which were admittedly unrelated to threading — will plunge Texas into a Dickensian nightmare, where judges will have free reign to strike down humane and necessary laws designed to protect workers.

Stern’s histrionics should not be taken seriously. The Texas Supreme Court did its job, insisting upon a rational, evidence-based explanation for restrictions on liberty that is protected by the Fourteenth Amendment as well as by the Texas Constitution.

As Justice Don Willett explains in an erudite and inspiring concurrence, “The Court’s view is simple, and simply stated: Laws that impinge your constitutionally protected right to earn an honest living must not be preposterous.”

Such judicial engagement is required to protect what liberal Justice William O. Douglas once referred to “the most precious liberty man possesses.”

Although eyebrow threading, a traditional South Asian practice, consists only in using cotton thread to remove eyebrow hair, Texas roped the threaders under the same licensing requirements that are applied to conventional cosmetologists who perform a wide variety of services such as waxing, makeup, and chemical peels.

The Texas Department of Licensing and Regulation issued $2,000 penalties to threaders across the state and ordered them to quit their jobs until they completed 750 hours of coursework (not a second of which is devoted to eyebrow threading) in private beauty schools, costing between $7,000 and $22,000, and pass two examinations (neither of which tests eyebrow threading).

In 2009, threaders Ashish Patel, Anverali Satani, Nazira Momin, Minaz Chamadia and Vijay Yogi challenged the requirements under the Due Course of Law Clause of the Texas Constitution. Like the Due Process of Law Clauses of the federal Constitution, Texas’ Due Course of Law Clause prohibits deprivations of liberty that do not serve any legitimate, public-spirited end of government.

The recent decision drew from the history of the state’s Due Course of Law Clause provision, which took its current form in 1875 — at a time when the Supreme Court was examining legislation under the Fourteenth Amendment’s Due Process of Law Clause for a “real or substantial” relationship to public health and safety. From this, the Texas Supreme Court determined that reviewing courts must “consider the whole record, including evidence offered by the parties” in evaluating laws, rather than taking the government’s professions of good intentions at face value.

It went on to evaluate the regulation at issue, emphasizing that, by the state’s own concession, “as many as 320 of the curriculum hours are not related to activities threaders actually perform.” Breaking this down, the Court explained that threaders are required to undergo “the equivalent of eight 40-hour weeks of training unrelated to health and safety as applied to threading.”

Combined with the fact that would-be threaders have to pay for the training and at the same time lose the opportunity to make money threading eyebrows, the court concluded that the regulations imposed an unconstitutionally oppressive burden.

As the court recognized, determining whether the government regulations are constitutionally legitimate, based on record evidence and their real-world effect, can never be a mechanical process. But it is essential to limited government.

Otherwise, there is nothing that would prevent the government from forcing threaders to take, say, 1,500, or 2,500 hours of training unrelated to threading, run marathons, or dig ditches before being certified. Judges would have to rubber-stamp such regulations and tell hardworking entrepreneurs to take it up with their local legislators.

Indeed, that is what happens all too often in cases in which the “rational basis test” is applied in federal courts. So deferential is this “test” in practice that, in the case that ended up before the Supreme Court in Obergefell v. Hodges, the same-sex marriage case, the Sixth Circuit Court of Appeals had held that the government may treat people differently for any plausible reason, even pure favoritism.

Remarkably, Stern seems comfortable with that outcome, and laments that the Texas Supreme Court vindicated the threaders’ rights. He advances two arguments against the decision, both of which are unconvincing; indeed, the second is so unconvincing that it is hard to believe that even Stern is convinced by it.

Stern first argues that the “liberty” protected by the Fourteenth Amendment’s Due Process of Law Clause (and Texas’ Due Course of Law Clause) is properly understood to encompass only a small handful of rights “relating to personal dignity and autonomy,” like “marriage and intimacy.”

This interpretation flies in the face of constitutional text, history, and the logic of the Supreme Court’s most recent decision on the subject.

The Due Process of Law Clause refers only to “liberty” — it does not distinguish between “personal” liberty and “economic” liberty, nor do most people neatly divide their lives between activities that are purely “personal” and those that are purely “economic.” (Which category would a dinner date fall under? Does it matter what happens later on?)

After the ratification of the Reconstruction Amendments, state courts and, later, the Supreme Court interpreted the Fourteenth Amendment to encompass a wide variety of actions that individuals can take without violating the rights of others.

Thus, in Meyer v. Nebraska (1923), the Supreme Court explained that liberty “denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience.”

The logic of the Court’s most recent “substantive due process” decision tracks this comprehensive understanding of liberty. In Obergefell v. Hodges, which Stern invokes, Justice Kennedy begins by stating that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Few things are more central to defining and expressing our identity and, indeed, sustaining our very lives, than our work. As Professor Laurence Tribe has put it, “the determination of one’s vocation” is an “essential aspect of personhood.”

Stern next argues that even if Texas’s oppressive regulatory scheme “may be a problem” for eyebrow threaders, it is a purely “legislative problem” — not one with which the courts should be concerned. He submits that the threaders could easily solve this problem through the democratic process, “by petitioning the legislature to reduce their training hours.”

Stern is apparently unaware that most of the threaders involved in this case were non-citizen immigrants. Is Stern also unaware that American history is rife with examples of entrenched interests — that is, white males — using their political muscle to prevent newly freed blacks, women, and immigrant groups from entering into or effectively competing in the labor market?

In several key cases (including Lochner v. New York (1905), which Stern disparages), the Supreme Court struck down laws designed to keep immigrants (like the threaders in Texas) from competing against native-born whites.

Even today, although the Supreme Court has declared it is unconstitutional to require full citizenship and exclude legal permanent residents, some states still have licensing laws that restrict certain nongovernmental professions to citizens only. A growing body of Public Choice research documents the reality of special-interest lawmaking designed to benefit established firms at the expense of their competitors and the general public.

But of course, Stern knows that regulations passed in the name of public health and safety are sometimes pretextual and that those burdened by them are often in no position to persuade those responsible for them to “fix” them — indeed, he recently criticized the Fifth Circuit Court of Appeals for upholding regulations of abortion providers that are purportedly designed to protect public health and safety. So apparently some vocations are more equal than others, in Stern’s view.

Thanks to the Texas Supreme Court’s decision in the threading case, Texans are, as Justice Willett put it, “doubly blessed.” Two years ago, the Fifth Circuit Court of Appeals, which also has jurisdiction over federal courts in Texas, struck down a regulatory scheme targeting casket sales in Louisiana, rejecting the state’s “nonsensical explanations” for the scheme after finding them to be factually baseless.

Recently, a federal district court (in a case that Stern does not mention but presumably disapproves of), following the Fifth Circuit, struck down a law requiring African hairbraiders like Isis Brantley to spend thousands of hours taking useless classes and thousands of dollars on useless equipment before they would be permitted to teach hairbraiding at their own schools.

Thus, federal courts and state courts in Texas are committed to judicial engagement in economic liberty cases. In his concurrence, Justice Willett quotes Frederick Douglass, whose account of earning his first two dollars as a free man puts a human face on the right to earn a living that those who read it are unlikely to forget.

For all those whose emotions swell at Douglass’ recognition that “my hands were my own, and could earn more of the precious coin,” and value the freedom that he held so precious, this decision is nothing to be afraid of — it is a cause for celebration.

Cross-posted from HuffPo.

Evan Bernick

Evan is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm.

Did Oregon Gag the Anti-Gay Marriage Bakers? by Walter Olson

Readers who follow the battles over forfeiture law may recall the recent case in which a North Carolina convenience store owner from whom the government had seized $107,000 without any showing of wrongdoing decided to fight the case in the press as well as in court, backed by the Institute for Justice.

Lyndon McLellan’s decision to go public with the dispute drew a menacing letter from a federal prosecutor about the publicity the case had been getting:

“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.

That case ended happily, but the problem is much broader: many individuals and businesses fear that if they seek out favorable media coverage about their battle with the government, the government will find a way to retaliate, either informally in settlement negotiations or by finding new charges to throw against them.

That such fears might not be without foundation is illustrated by last week’s widely publicized Oregon cake ruling, in which a Gresham, Oregon couple was ordered to pay $135,000 in emotional-distress damages for having refused to bake a cake for a lesbian couple’s commitment ceremony.

Aside from the ruling’s other objectionable elements, the state labor commissioner ruled it “unlawful” for the couple to have given national media interviews in which they expressed sentiments like “we can see this becoming an issue and we have to stand firm.”

Taking advantage of an exception in free speech law in which courts have found that the First Amendment does not protect declarations of future intent to engage in unlawful discrimination, the state argued — and its commissioner agreed — that the “stand firm” remark along with several similarly general comments rallying supporters were together “unlawful.”

That ought to bother anyone who cares about free speech. I’ve got a piece up at, my first there, exploring the question in more detail:

Suppose someone began a sentence with the words “I don’t think I should have to serve [group X] at my shop….”

If they follow with the words “but since it’s the law, I’ll comply,” the sentence as a whole would clearly count as protected speech under current law. If they follow with the words “and I won’t, law or no law,” it loses protection.

But suppose the speaker were to end the sentence at “…my shop.” Up to that point, the speaker has expressed only an essentially political opinion, not a forward-looking intention to defy the law.

Such speech is all the more of core First Amendment interest when it takes place not in a local, commercial context but as part of broader political discussions between citizens as to whether laws are unjust or government too heavy-handed.

Read the rest here.

Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

RELATED ARTICLE: Hypocrisy ALERT: Gay Bakeries Refuse to Make Pro-Christian Cakes [+Videos]

EDITORS NOTE: This piece cross-posted from Cato at Liberty and Overlawyered.

Isa Hodge on Islam!

Get ready folks for an extremely interesting (and entertaining) show where a Christian, me, and a Muslim, Chris “Isa” Hodge, go head-to-head on Isa’s show discussing and debating Islam, Judaism and Christianity.

In spite of some “confrontational” moments, both sides have agreed to continue this intellectual wrestling match.

Don’t miss part 1 and do not miss part 2!

SCOTUS Re-trial on Marriage Issue? It’s Possible if GOP doesn’t Cave In…

It’s not completely over yet. But a group of treacherous and cowardly Republican politicians are standing in the way. A new fight is on, and everyone’s help is needed.

Prominent pro-family figures, some GOP presidential candidates, and hundreds across the country are pressing Ohio Attorney General Mike DeWine to formally file for an appeal hearing on the U.S. Supreme Court’s 5-4 “gay marriage” ruling handed down on June 26.

Supreme Court Justice Ruth Bader Ginsburg performs a same-sex “marriage” on August 31, 2013.

She told the Washington Post, “I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship.” [Fox News photo]

According to the Court’s published rules, within 25 days of a ruling a party can ask the Court for a “rehearing” of a case on pertinent issues that would merit an appeal. The issue of “merit” here is that Justices Kagan and Ginsburg – both of whom ruled “for” same-sex marriage — were clearly required by Federal law to recuse themselves from this case.

Kagan and Ginsburg’s actions and statements mandate recusal

The right of impartial court proceedings is the very basis of the entire American system of justice – from the lowest court to the Supreme Court.  Thus, federal law 28 U.S. Code § 455 states:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

During the year prior to the Supreme Court case, Justices Ruth Bader Ginsburgand Elena Kagan publicly performed same-sex “weddings.” At one such event, Ginsburg told people that the acceptance of same-sex “marriage” reflected “the genius of our Constitution.” Ginsburg also told Bloomberg Business News that she thought that  Americans were ready for gay marriage.

Kagan’s aggressive advocacy for LGBT “rights” goes back to her years as Dean of Harvard Law School (2003-2009), and is thoroughly documented in our MassResistance report.

Supreme Court Justices are usually scrupulous in avoiding the appearance of impropriety. They regularly recuse themselves from cases based on relatively mundane issues, such as comments they’ve previously made, involvement by relatives in peripheral issues, and past employment. Kagan has recused herself from several cases involving the government because she served as Solicitor General. But this case clearly is very emotionally connected to the worldview of Kagan and Ginsburg.

Earlier attempts to bring up recusal – ignored by our side’s legal team

This case, Obergefell v Hodges, originated in Ohio, but is also a consolidation of cases in Tennessee, Michigan, and Kentucky – the other states in the Sixth Circuit. Thus, all four states have standing to act.

The actions of Kagan and Ginsburg immediately raised the ire of the pro-family movement. In the months preceding the April 28 hearing of the case before the Court, numerous groups tried desperately to bring up the obvious need for their recusal.

But the legal team preparing to argue the case and the attorneys general for the four states involved all adamantly refused to take any action on it. On behalf of several groups, constitutional attorney Andy Schlafly even drew up a Motion for Recusal that the legal team or the attorneys general could use. But they all ignored it.

We recall speaking with a well-known legal writer connected to the case about it in March. He made it clear that they were all afraid – afraid of antagonizing the Justices, afraid of looking unprofessional, afraid of the backlash. When pressed, he gave contrived reasons why they shouldn’t even try it, and dropped the subject.

Finally, the day before the April 28 Supreme Court hearing, the Foundation for Moral Law filed its own Motion for Recusal of Ginsburg and Kagan which laid out the issue in detail. It was followed by another Motion for Recusal filed by pro-family activist Dr. Steven Hotze.

Procedurally, it’s practically unheard of for someone not officially connected with the case to file such a motion. And although apparently the documents were eventually processed, it’s not known whether the other Justices are even now fully aware of Kagan and Ginsburg’s actions.

The Court’s rules for filing a motion for a re-hearing

The Court’s “same-sex marriage” ruling was announced on June 26. There is a 25-day window for further action (ending on July 21), if our side choses to file.

In a situation where important facts were not brought up and a re-hearing of a case is merited, the Supreme Court provides a method for it. Rule 44 of the “Rules of the Supreme Court of the United States” reads:

Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time.

… The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is presented in good faith and not for delay.

… A petition for rehear­ing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.

A further discussion of Rule 44 can be found HERE. The main purpose of the rule is to bring up pertinent issues that the Court may not have considered in the case. It is not often utilized, and to our knowledge it has never been used for a recusal issue. But recusal is definitely a preeminent issue of this case.

Focus is on Ohio Attorney General to file for re-hearing

It immediately became clear in the four states involved with this case, though dominated by Republicans, the officials had little interest in pursuing this further, despite the gross injustice of the case and the general outrage among millions over it.

So a few days after the ruling, national pro-family activist Janet Porter called together a few dozen of the top pro-family groups and activists (including MassResistance) to get it started.

Ohio Attorney General Mike DeWine appeared to be the most obvious choice to file it. He can act without permission of the Governor, he has a pro-family background, and several members of Janet’s group know him personally and could likely meet with him. A former US Senator, DeWine lost his seat in 2007 after supporting some oppressive pro-gay legislation, angering his conservative base. He apparently got the message. It’s widely rumored that he’s preparing to run for Governor.

On May 1, Janet’s group contacted DeWine. At least one of them spoke to him by phone. The Foundation for Moral Law emailed him a letter outlining the situation in detail. Governor Mike Huckabee sent him an email urging him to file the appeal as did several others. We were told that Rick Santorum also called him.

Fight back against cowardliness – put on the pressure!

Unfortunately, DeWine has reacted initially with some hostility. Despite the universal outrage among his base about the “same-sex marriage” ruling, he seems most interested in distancing himself from any further confrontation. When asked about a possible re-hearing by the press, his spokesman bluntly told the Columbus Dispatch “We do not plan on filing a motion.” And he may have more personal concerns. We’ve been told that some key players in the GOP are homosexual, and he doesn’t want to ruffle any more feathers on this issue. He clearly needs to be more interested about what’s best for the country.

Everyone needs to get involved. Take five minutes.
PLEASE CONTACT DeWine’s office!
Ohio Attorney General Mike DeWine: 800-282-0515
Email:  (his assistant)

Tell him: “File the motion for a Supreme Court re-hearing!”
Let him know that if he capitulates on “gay marriage” he can expect your opposition in any political race he runs in again.

Please tweet this out on your Twitter account (copy and paste):
@OhioAG please file a Motion for Rehearing Obergefell v. Hodges immediately! #nullifySCOTUS

Personal meeting with DeWine on Friday. On Friday, July 10, a group of Ohio activists is meeting with DeWine personally. We suspect that he will be read the riot act. Perhaps DeWine does not realize how much of an emotional issue this is to his conservative base. Perhaps he does not remember that in 2004 the Ohio Marriage Amendment passed by 62%, despite being vastly outspent by the other side. Does he want to be another Mike Pence (the Republican governor of Indiana who capitulated on the religious freedom bill, and likely will never get elected again)? We’re sure much of that will be brought up.

As bad as DeWine seems, it’s not looking too good in the other states. Republican Gov. Rick Snyder of Michigan has issued an immediate statement of capitulation and full compliance, instructing state officials to amend the marriage license for use by county clerks. He’s also said he’ll veto any “religious freedom” legislation unless it includes adding “sexual orientation” and “gender identity” to the state civil rights law. (And this is from our “friends”!)

We have until Tuesday, July 21. We’re also looking at a second try with officials in Tennessee and Kentucky.

Why is this important?

Given the super-charged political nature of this particular Supreme Court ruling and the general arrogance of the majority of the Court regarding their power to vastly re-define the Constitution, the likelihood of this ruling being reversed in a re-hearing is not great. But filing this motion for a re-hearing is still very important.

First, it will “officially” bring the issue of Kagan’s and Ginsburg’s failure to recuse themselves (in violation of federal law) into the public spotlight. Right now, it’s relatively buried in motions and various news articles.  And it will reinforce understanding of the overall illegal nature of this ruling.

Second, it spotlights the overall illegitimacy of today’s Supreme Court, its overtly un-Constitutional approach to shaping our laws, and its illegal power grabs far and beyond what was intended by the Founders.

Ultimately, this ruling – like the abortion ruling in 1973 and so many others – must be conscientiously ignored, dishonored, and violated by all good Americans. It starts with this.

EDITORS NOTE: The featured image is of John Becker, 30, of Silver Spring, Md., waves a rainbow flag in support of gay marriage outside of the Supreme Court in Washington, D.C. Photo by Jacquelyn Martin/The Associated Press.

An Educational Commentary on Same Sex Marriage – America Needs Fatima

Hope all is well on this “7th Day After the Immoral Gay Decision” as after spending 90 minutes on the phone Wednesday afternoon with Robert Ritchie, Executive Director of “America Needs Fatima” since 1996, I decided I needed to take a half day off at the beach yesterday to retreat, regroup, reflect and re-energize my mind, body and soul for what lies ahead. And, friends, if you are a devout Christian these days – we all better be ready to rise to the occasion and be prepared to lay it all on the line…two lines…in the shape of a cross.

Ninety minutes with Mr. Ritchie is beyond a blessing as he knows more about our Blessed Virgin Mary than most clergy. He is a wealth of information – a walking/talking encyclopedia about the Catholic Faith. He threw things at me that just blew me away and I was sure to take notes as we had some terrific discussions. We covered a tremendous amount of ground – from Pope Francis to “America’s Finest Hour” to our P.B.C. Right to Life League to Abortion to Common Core to Gay Marriage and every intrinsic evil that Obama has put his “left” hand on. Robert knows a ton, he reads a ton…and he actually humbled me when he said that he reads all my articles and e-mails because “they are alive – they say something with passion and you know your stuff”…

Coming From Mr. Ritchie, I was more than moved and grateful – not only because of what he said – but what he said that he really appreciated even more – the miracle story of the pregnant mom from the 45th Street abortion clinic, Melody, who was going to abort her baby back on October 11th, 2014 – during our America Needs Fatima Rosary Rally. That is when a group of us devout prayer warriors were able to save that precious baby. Fast forward 8 months and on May 8th (Mother’s Day Weekend) – Melody gave birth to that 7 pound bundle of joy they named Skylar. Everybody knows that story by now as Robert put it out their nationally on his newsletters as well as the two articles that I wrote for the national publication, Dr. Rich Swier E-Magazine…Skylar is famous…Skylar is alive…

So, taking a bit of advice from Robert Ritchie in taking a step back for a moment to reflect, I did just that and headed to McArthur State Beach Park in N.P. Beach yesterday morning. Got there at 9:20 am. Walked the entire 3/4 mile boardwalk to the beach and it was cloudy and overcast. The waves were crashing and the rumble of thunder behind me (west) was right on the fringes of coming over to the beach. It did not look like your ideal beach day. I was a bit bummed out…

From the boardwalk that overlooks the beach, I looked to my left and saw that green hill that comes up to the ocean as it reminds me of a “last days on this earth” scene from the Planet of the Apes. Almost pre-historic looking. It was now 9:35 am and there was not a single human being on this beautiful beach. Eerie. Gloomy. Scary. Not a single sign of life. Not even a sea gull. I thought to myself: “Is this what our beaches are going to look like 100 years from now?” Is there some type of population control thing going on here? No sign of life. Good-bye to GOD’s creation. Good-bye to Pro-creation. Hello to the “new” way of life – thanks to those 5 liberal Supreme Court Injustices who voted against Pro-creation. After all, two men sleeping together cannot create human life…

Well, I walked down to the beach, set up camp and just looked out at the ocean. It was rough. The clouds were thick, the sun was barely peeking through and the thunder in the background was getting louder. I thought for sure that I would be rained out and would be leaving after 20 minutes at the beach. Wow, my half-day off and I can’t get a break…Bummed out to the max. All I needed just about then was to have one of those advertising cessna planes flying a banner from behind saying: “Gay Bash at Dirty Martinis tonight”…Or maybe a colorful rainbow to appear on the horizon, bringing me back to last Friday when our liberal administration rubbed it into our faces as they defiantly lit up our White House with the rainbow colors…Poor Dorothy…a “todo” mess…I only wish it were a bad dream in Kansas…

OK, now what? Willy, make the best of a bad situation and try to enjoy yourself. Relax. Sit in your chair, take out your binoculars and just look out at the ocean and take it all in…and pray. And, pray I did. For about 30 minutes as the first human being finally showed up at the beach. And, now, the sun actually came out. The clouds began to move northwest in a rapid pace. The thunder stopped completely. A few sea gulls came out an even a beautiful osprey. Signs of life…The entire storm moved northwest towards my log home in Caloosa and I was reminded of the story of Jesus and the Twelve, when they were on the boat and the storms came from everywhere. They were all frightened, except for Jesus as He told them all to stay calm, have faith and that He would take care of the situation. He did. The storms went away and the sea became calm…Faith, prayer, obedience…

By 10:00 a.m., the day began to look like it was going to be a pretty nice one and by 11 am – not a cloud in the sky. Absolutely gorgeous! What an amazing turn-around. In less than an hour, the day went from gloom and doom to sunny and cheery. Like former Beatle, George Harrison once sang “All things must pass”. Well, the ocean water was inviting and refreshing, the breeze was constant and soothing as it turned out to be a picture-perfect day at the beach. I even thought about calling my “other good buddy”, W.P.B. Mayor Jeri Muoio, to tell her that we just experienced a perfect, life-filled, Chamber of Commerce beach day at McArthur State Park, but, I didn’t want to jinx it and have the clouds and thunder come back. (Being Pro-abortion & Pro Gay Marriage, she doesn’t know anything about life). Anyway, I was there until 1:30 pm and it actually turned out to be one of the nicest beach days I have experienced in my 15 years of living in Palm Beach county. Prayer, perseverance, patience…with a strong dose of Faith & Hope…But, it all began with prayer…

And, that is exactly why I tell you this story as last Friday our beloved country experienced one of the most devastating blows in our nation’s history. It almost felt like September 11th, 2001 all over again as the most powerful country in the world allowed 5 liberal attorneys in black robes to re-define the Blessed Sacrament of Holy Matrimony – or, at least – pass a law saying that marriage can now be between two members of the same sex. Appalling. Excruciating. Like a Mike Tyson knock-out punch to the gut…

It was a dark, gloomy day for the majority of us. Dark clouds. Overcast skies. Rough seas. Thunder rumbling in the background. No signs of life. It felt like it was going to storm for 100 years…

But, if we all take the time to do what I did yesterday – step back, take a deep breath and “retreat, regroup and reflect” on what happened on June 26th and take a good, hard look at the Big Picture – it is only then that we are going to truly understand what the Prophets were saying centuries ago. What many of our saints claimed years ago. What the Blessed Virgin Mary has been saying all along. What Our Lady of Fatima told us so plain and clearly on those 3 different apparition days in the Year 1917…

Is Russia ever going to be consecrated to the Sacred Heart of Mary like our Blessed Virgin Mary asked and communicated to Sister Lucia about 98 years ago in Portugal? How much longer are we going to deny this plea from our Blessed Mother? Like I shared with ANF’s Robert Ritchie in our conversation on Wednesday, I told him that around 12 years ago I predicted that something very powerful is going to take place during the “100th Anniversary of the Apparition of Our Lady of Fatima” – if not sooner. And, he agreed with me 100%. He even expanded on it and referred to this event as a “supernatural” one that will take place. Friends: Until we humble ourselves and turn from our wicked ways and listen to our Blessed Mother, our beloved country and the entire world will continue to experience catastrophic events as GOD is simply trying to get our undivided attention.

On June 26th, 2015, I believe He did as I truly believe that He allowed this “catastrophic event” to take place in our nation so that we finally indeed, turn from our wicked ways, humble ourselves and get with the program. His program. And, we better do it sooner than later…

I just pray that in GOD allowing Gay Marriage to be ruled as the new law does not back-fire on us and have our country go backwards and bring even more immorality, evilness and sin to our society with the relentless Gay Mafia going over board. Sodom and Gomorrah all over again. Now is when the Christian and Catholic Faithful in our country need to heed these warnings from these reliable sources like Our Lady of Fatima and take a bold stand for our country, our church, our children and our culture and turn this negative and immoral decision of Gay Marriage into a positive event and allow it to serve as some type of a much-needed “Faith Revival” in the United States…This country is over-due for some type of revival – another Pentecost – which celebrated the Birthday of the Holy Catholic Church over 2,000 years ago. Folks, it is time for a “Re-birth” – a New Pentecost in the Catholic Church. And, us lay people better be ready for this challenge. Come Holy Spirit…

In closing: From what I have seen and heard, an alcoholic has to hit “rock bottom” before he truly believes that he finally needs help – and then, and only then – will he seek help and perhaps go to rehab. Intervention usually has to take place. Some times, Divine Intervention. America is on the verge of a similar course and rapidly heading towards that rock bottom. And, that looks like the only way that we will finally humble ourselves, admit our “sin addiction” and get help from – not a counselor, a social worker or a doctor – but, the Great Physician, Himself. Until we experience this Divine Intervention by going to this Great Physician and His beloved Mother in adoration and prayer – our nation will continue to stay at that rock bottom and never have a chance to look up. And, we must look up to the Heavens – to Jesus and His Blessed Mother, right now in order to pick ourselves up from that dark abyss and rid ourselves from this evilness that is keeping us in bondage and slavery…It’s all in the Holy Bible, friends…Stay tuned for Part II with more on “America Needs Fatima” and Christian on a Mission…



In Legalizing Same-Sex “Marriage” U.S. Supreme Court Rejects Natural Law and Provokes God’s Wrath

The American Society for the Defense of Tradition, Family, and Property—TFP vehemently protests the “profoundly immoral and unjust”[1] majority opinion of the United States Supreme Court in Obergefell v. Hodges which imposed same-sex “marriage” on America by judicial fiat.

The sacred institution of marriage—established by God in Paradise for our first parents, Adam and Eve,[2] and which has been seriously undermined by the moral crisis devastating Western society since the sixties—suffered a tremendous blow on June 26, 2015.

In the most powerful nation on earth today, five liberal judges reinterpreted the Fourteenth Amendment of the U.S. Constitution to discover that it contains a constitutional right to same-sex “marriage.”


UH-OH! Could A States’ Rights Battle Be Emerging?

This is a call for State governments to assert themselves. States Rights was/is a big issue in the South and the Southern Cross battle flag kind of stood for that.

Michael Patrick Leahy for Breitbart Writes:

A new Rasmussen Poll indicates that a growing number of Americans want state governments to tell the Supreme Court to get out of the business of rewriting laws and telling American citizens how to live their lives.

In a new poll, Rasmussen reported the percentage of Americans who want states to tell the Supreme Court it does not have the power to rewrite the Affordable Care Act or force sovereign states to authorize gay marriages has increased from 24 percent to 33 percent after last week’s Constitution-defying decisions by the court.

A closer look at the poll results indicates that popular sentiment for state defiance of the federal government extends beyond just the Supreme Court’s latest decisions.

“Only 20% [of likely voters] now consider the federal government a protector of individual liberty,” the Rasmussen Poll finds. “Sixty percent (60 %) see the government as a threat to individual liberty instead,” it adds.

“Take this regulation and shove it,” and “take this grant and shove it,” are two additional battle cries which appear to resonate with a growing popular sentiment, especially in “flyover country,” those 38 states outside the dozen in which President Obama won more than 56.2 percent of the vote in 2012.

(In descending order of support for Obama, those twelve states are: Hawaii, Vermont, New York, Rhode Island, Maryland, Massachusetts, California, Delaware, New Jersey, Connecticut, Illinois, and Maine. Arguably, three additional states where President Obama won between 54 percent and 56.2 percent of the vote in 2012 could be added to this list: Washington, Oregon, and Michigan.)


Time for the States to Declare Independence From the Federal Government – Breitbart

EDITORS NOTE: This column originally appeared on Allen West Republic.

Gays Need the Freedom to Discriminate by Jeffrey A. Tucker

Gaining the right to be married is a win for liberty because it removes a barrier to free association. But how easily a movement for more freedom turns to the cause of taking away other freedoms!

Following the Supreme Court decision mandating legal same-sex marriage nationwide, the New York Times tells us that, “gay rights leaders have turned their sights to what they see as the next big battle: obtaining federal, state and local legal protections in employment, housing, commerce and other arenas.”

In other words, the state will erect new barriers to freedom of choice in place of the old ones that just came down!

To make the case against such laws, it ought to be enough to refer to the freedom to associate and the freedom to use your property as you see fit. These are fundamental principles of liberalism. A free society permits anything peaceful, and that includes the right to disassociate. Alas, such arguments seem dead on arrival today.

So let us dig a bit deeper to understand why anti-discrimination laws are not in the best interests of gay men and women, or anyone else. Preserving the ability to discriminate permits the market system to provide crucial information feedback to a community seeking to use its buying power to reward its friends and noncoercively, nonviolently punish those who do not share its values.

Ever more, consumers are making choices based on core values. Does this institution protect the environment, treat its workers fairly, support the right political causes? In order to make those choices — which is to say, in order to discriminate — consumers need information.

In the case of gay rights, consumers need to know who supports inclusion and who supports exclusion. Shutting down that information flow through anti-discrimination law robs people of crucial data to make intelligent buying decisions. Moreover, such laws remove the competitive pressure of businesses to prove (and improve) their commitment to community values, because all businesses are ostensibly bound by them.

A market that permits discrimination, even of the invidious sort, allows money and therefore success and profits to be directed toward those who think broadly, while denying money and profitability to those who do not. In this way, a free market nudges society toward ever more tolerant and inclusive attitudes. Money speaks far more persuasively than laws.

Notice that these proposed laws only pertain to the producer and not the consumer. But discrimination is a two-edged sword. The right can be exercised by those who do not like some groups, and it can be exercised by those groups against those who do not like them.

Both are necessary and serve an important social function. They represent peaceful ways of providing social and economic rewards to those who put aside biases in favor of inclusive decision making.

If I’m Catholic and want to support pro-Catholic businesses, I also need to know what businesses don’t like Catholics. If I’m Muslim and only want my dollars supporting my faith, I need to know who won’t serve Muslims (or who will put my dollars to bad use). If a law that prohibits business from refusing to serve or hire people based on religion, how am I supposed to know which businesses deserve my support?

It’s the same with many gay people. They don’t want to trade with companies that discriminate. To act out those values requires some knowledge of business behavior and, in turn, the freedom to discriminate. There is no gain for anyone by passing a universal law mandating only one way of doing business. Mandates drain the virtue out of good behavior and permit bad motivations to hide under the cover of law.

Here is an example from a recent experience. I was using AirBnB to find a place to stay for a friend. He needed a place for a full week, so $1,000 was at stake. The first potential provider I contacted hesitated and began to ask a series of questions that revolved around my friend’s country of origin, ethnicity, and religion. The rental owner was perfectly in his rights to do this. It is his home, and he faces no obligation to open it to all comers.

On the other hand, I found the questions annoying, even offensive. I decided that I didn’t want to do business with this person. I made a few more clicks, cancelled that query, and found another place within a few minutes. The new renter was overjoyed to take in my friend.

I was delighted for two reasons. First, my friend was going to stay at a home that truly wanted him there, and that’s important. Force is never a good basis for commercial relationships. Second, I was able to deny $1K to a man who was, at best, a risk averse and narrow thinker or, at worst, an outright bigot.

Declining to do business with him was my little protest, and it felt good. I wouldn’t want my friend staying with someone who didn’t really want him there, and I was happy not to see resources going toward someone whose values I distrusted.

In this transaction, I was able to provide a reward to the inclusive and broad-minded home owner. It really worked out too: the winning rental property turned out to be perfect for my friend.

This was only possible because the right to discriminate is protected in such transactions (for now). I like to think that the man who asked too many questions felt a bit of remorse after the fact (he lost a lot of money), and even perhaps is right now undergoing a reconsideration of his exclusionary attitudes. Through my own buyer decisions I was actually able to make a contribution toward improving cultural values.

What if anti-discrimination laws had pertained? The man would not have been allowed to ask about national origin, religion, and ethnicity. Presuming he kept his room on the open market, he would have been required under law to accept my bid, regardless of his own values.

As a result, my money would have gone to someone who didn’t have a high regard for my friend, my friend would have been denied crucial information about what he was getting into, and I would not be able to reward people for values I hold dear.

This is precisely why gay rights leaders should be for, not against, the right to discriminate. If you are seeking to create a more tolerant society, you need information that only a free society can provide.

You need to know who is ready to serve and hire gay men and women, so they can be rewarded for their liberality. You also need to know who is unwilling to hire and serve so that the loss part of profit-and-loss can be directed against ill-liberality. Potential employees and customers need to know how they are likely to be treated by a business. Potential new producers need to know about business opportunities in under-served niche markets.

If everyone is forced to serve and hire gays, society is denied important knowledge about who does and does not support enlightened thinking on this topic.

Consider the prototypical case of the baker who doesn’t want to make a wedding cake for a same-sex couple. He is within his rights. His loss of a potential customer base is his own loss. It is also the right of the couple to refuse to give this baker business. The money he would have otherwise made can be redirected towards a baker who is willing to do this. It is equally true that some people would rather trade with a baker who is against gay marriage, and they are within their rights as well.

Every act of discrimination, provided it is open and legal, provides a business opportunity to someone else.

How does all this work itself out in the long run? Commerce tends toward rewarding inclusion, broadness, and liberality. Tribal loyalties, ethnic and religious bigotries, and irrational prejudices are bad for business. The merchant class has been conventionally distrusted by tribalist leaders — from the ancient to the modern world — precisely because merchantcraft tends to break down barriers between groups.

We can see this in American history following the end of slavery. Blacks and whites were ever more integrated through commercial exchange, especially with the advance of transportation technology and rising incomes. This is why the racists turned increasingly toward the state to forbid it. Zoning laws, minimum wage regulation, mandatory segregation, and occupational licensing were all strategies used to keep the races separate even as the market was working toward integration.

The overwhelming tendency of markets is to bring people together, break down prejudices, and persuade people of the benefits of cooperation regardless of class, race, religion, sex/gender, or other arbitrary distinctions. The same is obviously and especially true of sexual orientation. It is the market that rewards people who put aside their biases and seek gains through trade.

This is why states devoted to racialist and hateful policies always resort to violence in control of the marketplace. Ludwig von Mises, himself Jewish and very much the victim of discrimination his entire life, explained that this was the basis for Nazi economic policy. The market was the target of the Nazis because market forces know no race, religion, or nationality.

“Many decades of intensive anti-Semitic propaganda,” Mises  wrote in 1944, “did not succeed in preventing German ‘Aryans’ from buying in shops owned by Jews, from consulting Jewish doctors and lawyers, and from reading books by Jewish authors.” So the racists turned to the totalitarian state — closing and confiscating Jewish business, turning out Jewish academics, and burning Jewish books — in order to severe the social and economic ties between races in Germany.

The biggest enemy of marginal and discriminated-against populations is and has always been the state. The best hope for promoting universal rights and a culture of tolerance is the market economy. The market is the greatest weapon ever devised against bigotry — but, in order to work properly, the market needs to signaling systems rooted in individuals’ freedom of choice to act on their values.

And, to be sure, the market can also provide an outlet for people who desire to push back for a different set of values, perhaps rooted in traditional religious concerns. Hobby Lobby, Chick-Fil-A, In-and-Out Burger, among many others, openly push their religious mission alongside their business, and their customer base is drawn to them for this reason. This is also a good thing. It is far better for these struggles to take place in the market (where choice rules) rather than through politics (where force does).

Trying to game that market by taking away consumer and producer choice harms everyone. Anti-discrimination laws will provide more choices at the expense of more informed choices. Such laws force bigotry underground, shut down opportunities to provide special rewards for tolerance, and disable the social learning process that leads to an ever more inclusive society.

New laws do not fast-track fairness and justice; they take away opportunities to make the world a better place one step at a time.

Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World.