Religious Agencies and Adoption: A Case for Pluralism

At Reason, Scott Shackford has a valuable piece on where libertarians’ interests are likely to coincide with those of organized gay rights advocates and where they are likely to diverge, following the Supreme Court’s ruling on marriage. One flashpoint of controversy is likely to be the role of conservative religious agencies in areas of adoption that are commonly assisted with public funds (as with the adoption of older kids from foster care). 

…It is now legal all across America for gay people to adopt children, and now with same-sex marriage, they can adopt their partner’s child as well. This fight is largely over, and was actually pretty much won even before gay marriage recognition.

But there is another side, and it ties back into the treatment of religious people. Some adoption agencies are tied to religious groups who do not want to serve same-sex couples or place children in same-sex homes. They are also typically recipients of state funding for placing children, and are therefore subject to state regulation. Should they be required to serve gay couples?

Some states, such as Illinois, attempted to force them. As a result, Catholic Charities, which helped the state find adoptive and foster home services for four decades, stopped providing their services in 2011. At the time, a gay activist declared this a victory, saying “Finding a loving home for the thousands in the foster/adoption system should be the priority, not trying to exclude people based on religious dogma.”…

Some libertarians I admire have taken the view that where any public dollars are involved, private social service agencies must be held to rigorous anti-discrimination standards. While I respect this view, I don’t share it. Programs that are explicitly voucherized (such as G.I. Bill college tuition benefits, which can be used for seminary study) often go to institutions that I might find discriminatory, and the same logic can apply even with some less explicitly voucherized benefits. If a state depot is dispensing gasoline to rescuers’ boats after Katrina, and Catholic Charities-operated boats spare the need for government boats to reach some rescue targets, the “subsidy” might in fact save the taxpayers money.

Missing the Point on Refugees and Welfare

Daniel Costa of the Economic Policy Institute (EPI) criticized a piece I wrote for The Hill in which I called for the U.S. to accept more refugees.  Costa took issue for my argument to limit their access to welfare once they arrive, which I wrote in the eighteenth paragraph of my piece.  Conservatives criticized me for not mentioning welfare reform sooner in my piece.  I wrote about allowing more refugees in for the first seventeen paragraphs of my piece because that is more important than denying them welfare.

Costa, however, stooped pretty low when he wrote: “[H]opefully refugees in America will never be forced to suffer their libertarian version of humanitarian relief.”  Emphasis added.

The humanitarian relief that refugees need isn’t food stamps once they arrive to the United States – it’s an escape from violence and oppression.  Refugees aren’t fleeing Syria because their Syrian equivalent of TANF benefits expired, they are fleeing because they are being murdered.        

Costa assumes my opposition to welfare means that I oppose all support for refugees.  That is untrue.  As I mention in my original piece, civil society, private charities, churches, previous immigrants, and other groups that do aid refugees are performing a valuable service.  That aid is important in helping some, but not all, people who flee war, oppression, and dictatorship to thrive in their new country.  That voluntary aid and support should continue and the generous people who donate their own money to such causes are to be commended.  But welfare is not charity and it does not alleviate the real scarcity that affects these refugees: a lack of visas for them to come here in the first place. 

End America’s Defense Dole for South Korea

South Korean President Park Geun-hye postponed her trip to the U.S. because of a public health emergency at home. Unfortunately, the delay won’t make a future Park trip any more useful.

There is much on which the two nations should cooperate. But the military alliance is outdated. Despite having surged past the North, enjoying a 40-to-1 economic advantage and 2-to-1 population edge, Seoul continues to play the helpless dependent, unable even to command its own forces in a war.

South Korea eventually took off economically and adopted democracy. Yet through it all South Korea’s defense dependency on America persisted.

The South Korean government isn’t even willing to take over operational control, or OPCON, of its own forces in wartime. It isn’t ready, it insists. Yet North Korea commands its forces.

Of course, some South Koreans admit that they most fear shifting command would encourage Washington to withdraw its troops. Thus, their objective is to appear as helpless as possible as long as possible to retain the U.S. troop tripwire.

The present arrangement obviously is bad for America. Protecting South Korea isn’t cheap.

Government Forces Rock Solid Church Into a Hard Place

The Fifth Amendment prohibits the taking of private property for public use without just compensation. Still, Congress, regulatory agencies, and even the Supreme Court have each played their part in making receipt of just compensation practically impossible in certain scenarios.

Ministerio Roca Solida, a Nevada church, is one victim of this injustice. It owns a 40-acre parcel in Nevada’s Amargosa Valley entirely surrounded by a federally managed wildlife refuge. It uses this parcel for religious purposes; until an illegal intervention by the U.S. Fish and Wildlife Department, it performed baptisms in a spring-fed stream on the land.

In 2010, the government rerouted the stream to a higher elevation entirely outside of Roca Solida’s property; later that year, rainfall caused the stream to overflow its channel, flooding Roca Solida’s property and causing damage to its facilities. After making a statutorily mandated claim with the Department of the Interior and receiving no response, Roca Solida filed a lawsuit, seeking various kinds of relief for constitutional violations, the negligent waterway rerouting/flooding, and the taking of its stream.

Courtesy of Congress, Roca Solida was forced to split its claims between two different courts: district courts have exclusive jurisdiction over tort claims against the government, while the Court of Federal Claims has exclusive jurisdiction over monetary claims in excess of $10,000. The Supreme Court addressed the constitutional implications of this jurisdictional arrangement most recently in United States v. Tohono O’Odham Nation (2011), holding that a Civil War-era statute (28 U.S.C. § 1500) bars plaintiffs from pursuing monetary claims in the CFC while any other claims with “substantial overlap in operative facts” are pending in district court. Relying on Tohono, the CFC dismissed Roca Solida’s takings claim. The U.S. Court of Appeals for the Federal Circuit affirmed—though in concurrence, Judge Taranto noted that Tohono’s “application of § 1500 may soon present a substantial constitutional question about whether federal statutes have deprived Roca Solida of a judicial forum to secure just compensation for a taking.”

Gay Marriage Is Here - Now What?

That’s the title of a symposium that the Federalist published after the Obergefell ruling. It included mini-opeds from a range of people on both sides of the debate, including Newt Gingrich and Mike Lee. Here was my contribution:

Just because today’s opinion was expected by nearly everyone doesn’t make it any less momentous. In sometimes-soaring rhetoric Kennedy explains that the Fourteenth Amendment’s guarantee of both substantive liberty and equality means there is no further valid reason to deny this particular institution, the benefit of these particular laws, to gay and lesbian couples. Okay, fair enough: there’s a constitutional right for gay and lesbian couples to get marriage licenses—at least so long as everyone else gets them. (We’ll set aside the question of why the government is involved in marriage in the first place for a later time.)

But where do we go from here? What about people who disagree, in good faith, with no ill intent towards gay people? Will ministers, to the extent they play a dual role in ratifying marriage licenses, have to officiate big gay weddings? Will bakers and photographers have to work them? What about employment-discrimination protections based on sexual orientation—most states lack them, but are they now required? And what about tax-exempt status for religious schools, the issue that came up during oral argument?

It’s unclear to be honest—much depends on whether Anthony Kennedy remains on the court to answer these thorny questions in his own hand-waving way—but all of these examples, including marriage licensing itself, show the folly inherent in government insinuation into the sea of liberty upon which we’re supposed to sail our ship of life. (Justice Kennedy, you can use that one next time; no need even to cite me.)

If government didn’t get involved in regulating private relationships between consenting adults—whether sexual, economic, political, athletic, educational, or anything else—we wouldn’t be in that second-best world of adjudicating competing rights claims. If we maintained that broad public non-governmental sphere, as distinct from both the private home and state action, then we could let a thousand flowers bloom and each person would be free to choose a little platoon with which to associate.

But the extent to which we live in that world is decreasing at a horrendous pace, and so we’re forced to fight for carve-outs of liberty amidst the sea of mandates, regulations, and other authoritarian “nudges.”

In any event, good for the court today—and I echo Justice Kennedy’s hope that both sides will now respect each other’s liberties and the rule of law. But I stand ready to defend anybody’s right to offend or otherwise live his or her life (or run his or her business) in ways I might not approve.

You can read the other entries here, and also see Jason Kuznicki’s longer post on the future of “marriage policy” and Roger Pilon’s prescient piece from a few months ago.

Overtime Regulation

President Obama plans to raise the salary threshold at which employers must pay time-and-half for overtime hours (normally defined as those above 40 hours per week). Currently these rules apply to workers with annual salaries up to $23,660; the President’s proposal raises this threshold to $50,400.  The new rules will affect about 5 milllion workers according to administration estimates.

What impact will this expanded regulation have on the labor market?

In the very short run, employers affected by this expansion may have little choice but to pay their employees higher total compensation; in the very short run, employers have few ways to avoid this added cost.

But in the medium term, employers will invoke a host of methods to offset these costs: re-arranging employee work schedules so that fewer hit 40 hours; laying off employees who work more than 40 hours; or pushing such employees to work overtime hours off the books.

And in the longer term, employers can simply reduce the base wages they pay so that, even with overtime pay, total compensation for an employee working more than 40 hours is no different than before the overtime expansion.  

So, expanded overtime regulation will benefit some employees in the very short term; cost others their jobs or lower their compensation in the medium term; and have no meaningful impact on anything in the long term.

Is that a victory for middle class economics?

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