Archives: August, 2010

Reagan-Appointed Judge Strikes Down Gay Marriage Ban

Chuck Donovan of the Heritage Foundation denounces Judge Vaughn Walker for “extreme judicial activism” and “judicial tyranny” in striking down California’s Proposition 8, which barred gay people from marrying. And of course he doesn’t fail to note that Judge Walker sits in … San Francisco. Robert Knight of Coral Ridge Ministries ups the ante: Judge Walker has “contempt for the rule of law” and is part of “the criminalization of not only Christianity but of the foundational values of civilization itself.” National Review allows the head of the National Organization for Marriage to mutter about the judge’s “personal bias.” Blog commenters rail against the “left-wing liberal judge.”

In fact, Judge Walker was first appointed to the federal bench by President Ronald Reagan in 1987, at the recommendation of Attorney General Edwin Meese III (now the Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies at the Heritage Foundation). Democratic opposition led by Sen. Alan Cranston (D-CA) prevented the nomination from coming to a vote during Reagan’s term. Walker was renominated by President George H. W. Bush in February 1989. Again the Democratic Senate refused to act on the nomination. Finally Bush renominated Walker in August, and the Senate confirmed him in December.

What was the hold-up? Two issues, basically. Like many accomplished men of the time, he was a member of an all-male club, the Olympic Club. Many so-called liberals said that should disqualify him for the federal bench. People for the American Way, for instance, said in a letter to Judiciary Committee chair Joe Biden, “The time has come to send a clear signal that there is no place on the federal bench for an individual who has, for years maintained membership in a discriminatory club and taken no meaningful steps to change the club’s practices.”

The second issue was that as a lawyer in private practice he had represented the U.S. Olympic Committee in a suit that prevented a Bay Area group from calling its athletic competition the Gay Olympics.

Because of those issues, coalitions including such groups as the NAACP, the National Organization for Women, the Human Rights Campaign, the Lambda Legal Defense Fund, and the National Gay and Lesbian Task Force worked to block the nomination.

In other words, this “liberal San Francisco judge” was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It’s a good thing for advocates of marriage equality that those forces were only able to block Walker twice.

Josh Green of the Atlantic notes a pattern: the federal judge in Boston who struck down a significant portion of the Defense of Marriage Act, ruling that it denied gay and lesbian couples the federal benefits afforded to straight couples, was appointed to the bench by President Richard Nixon. And the chief judge of the Iowa Supreme Court who wrote the unanimous decision striking down that state’s marriage ban was appointed by Republican governor Terry Branstad, who was just renominated for governor by Iowa Republican voters. Of course, Nixon and Branstad don’t have the conservative cred of Reagan and Meese.

California’s Gay Marriage Ban Lacks a Rational Basis

I haven’t even begun to dig into Judge Walker’s 138-page (!) opinion that strikes down Proposition 8 on both due process and equal protection grounds, but here are three key excerpts.  First, the conclusion that government lacks a “rational basis” for preventing same-sex couples from marrying:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.

Then the equal protection conclusion:

Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

And finally the due process conclusion:

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” [citation omitted] Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

In short, the court found none of the government’s asserted interests – including tradition, moving slowly on social change, and promoting different-sex parenting – to be “legitimate.”  This is obviously a big deal and will be appealed – and no gay marriages will be allowed until the appellate process will have run its course (most likely up to the Supreme Court).  Currently, same-sex couples can only legally wed in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C.

Cato’s chairman Bob Levy, also co-chair of the advisory board to the American Foundation for Equal Rights (which sponsored the suit) had this to say:

The principle of equality before the law transcends the left-right divide that so often defines issues in this country.  Today, people from across that divide came together to fight a law that cut to the very core of our nation’s character.  Prop. 8 attempted to deny people an indispensable right vested in all Americans.  This Judge and this Court bravely confronted wrongful discrimination and came down on the right side – defending and enforcing equal protection, as demanded by the Constitution.

I too think this was the correct decision – reserving, of course, the right to criticize parts once I’ve done more than skim it – though I fear it will poison our politics in a way not seen from a legal decision since Roe v. WadeRoe v. Wade is not what today’s ruling should be compared to, however – both because this was only one district judge and because Roe v. Wade was a tortured fabrication of constitutional law that no legitimate constitutional scholar really defends (not even Justice Ruth Bader Ginsburg).  I would liken it more to one more step in the civil rights movement, giving all Americans equality under the law.  If you want a court case to compare it to, try Loving v. Virginia (which struck down bans on interracial marriage).

I should also add that this all could have been averted if government just got out of the marriage business entirely: have civil unions for whoever wants them – which would be a contractual basket of rights not unlike business partnerships – and let religious and other private institutions confer whatever sacraments they want.  If the state provides the institution of marriage, however, it has to provide it to all people.

The Spirit and Influence of Manuel Ayau (1925-2010)

Manuel Ayau, one of the people I most respected and admired, died today. Muso, as his friends called him, was a major figure in the international movement to promote liberty. He was a president of the Mont Pelerin Society and served on the board of directors of Liberty Fund and as a trustee of the Foundation for Economic Education. He will be most remembered, however, as the founder and president emeritus of the influential Francisco Marroquin University in his native Guatemala. He leaves an enormous legacy because he successfully combined clear thinking, entrepreneurship, intellectual curiosity, and a belief in the potential of free individuals to create what has become the center of classical liberal thinking in Latin America.

Well before he founded Francisco Marroquin University in 1971, Muso Ayau started a think tank (Centro de Estudios Economicos-Sociales) with a small group of Guatemalan friends in 1959. Thus began a lifelong project to discover and disseminate those ideas that best explain and provide solutions to underdevelopment. The process led him to the writings of the great market liberals—some of whom he invited to Guatemala for lectures or established friendships with, such as Ludwig von Mises or Milton Friedman—and culminated in the founding of FMU. Muso was not an academic (he had a degree in engineering), but he understood how the power of ideas can influence society, so he set about the long-term task of running an institution that would teach generations of Guatemalans about “the ethical, legal and economic principles of a society of free and responsible persons,” no matter what degree students pursued.

In his inaugural address in 1972, Muso stated:

We firmly believe in the capacity of imperfect human beings to be better able to realize their destiny when free and not when compelled by the collective entity personified by the state.

It took courage to found the University. When it began, the intellectual and political climate was not only hostile to libertarian ideas, it was violently opposed. Guatemala was in the midst of a civil war and neither side—with the military and business establishment on one side and leftist guerrillas on the other—particularly welcomed the message of limited government, free markets, and private property rights. In the early days, Muso gave graduation speeches wearing a bullet proof vest under his toga. In the 1980s, he would sometimes wear disguises when traveling in public and took extra security measures at home.

After the collapse of the Soviet Union and the end of Guatemala’s civil war in the 1990s, public opinion was of course much more open to market liberal ideas, but Guatemala’s mercantilist society still ensured that the battle against entrenched interests—business groups, unions, government bureaucracies—remained tough. By then, though, the prestige of Muso Ayau and of the university faculty and its well-trained graduates had grown as had the presence of their ideas. Anyone who has visited Guatemala during the past 20 years, as I have, can attest to the fact that market liberal ideas can be found every day in the op-ed pages and articles of the country’s leading newspapers and the electronic media as well. In some cases, this has translated into radical policy change—as in the case of Guatemala’s successful telecom reform or its law legalizing competing currencies.

Muso was proud of the progress classical liberal ideas had made despite the fact that statism still prevails in much of Guatemala. He was at once an optimist with an ambitious vision and a realist with a modest view of himself. He was not surprised that much of the left and right resented his call for an end to all government-established privileges. Though Muso could have been fabulously successful going along with the established framework of Guatemalan society, he chose not to. In this, he was a rare Latin American specimen, a champion of truly progressive ideas that peacefully challenged formidable political forces.

Yet not everybody cared to understand this. Lawrence Harrison famously and inexplicably described Muso as “an archtypical, far-right, Latin oligarch” who is also a libertarian. Harrison’s incoherent description came in the summer of 2001 when it was discovered that the U.S. embassy in Guatemala was secretly distributing a document to other embassies describing Muso and the university as enemies of democracy and progress.  The whole sorry episode, described by Mary O’Grady in the Wall Street Journal, hardly shocked Muso and his colleagues, who had long been denouncing Washington’s heavy-handedness in Guatemala and the region. (Muso later drew up business cards with his name, followed by “Archtypical far-right, Latin libertarian oligarch.” Even in the face of ridicule, Muso kept his famous, good sense of humor.)

The ideas that Muso Ayau began promoting in Spanish in Guatemala in the 1950s, soon drew in brilliant thinkers from other parts of Latin America and influenced the classical liberal movement throughout the region. FMU continues to draw the world’s leading thinkers in a range of disciplines including business, philosophy, law, economics, and literature to its state-of-the art campus and it has served as the model for other such universities in countries as diverse as Chile, Montenegro and Georgia. That so many students and professionals in Mexico, Central and South America and beyond understand and support the free society today is in no small part due to his efforts, whether they know it or not.

Muso always admired the Cato Institute and he was delighted, as were we, that Cato and FMU began a yearly, week-long seminar for Latin American students in classical liberal thought in Guatemala. I will never forget how, during the first such event in January 2009, Muso took a quick, round-trip flight from Houston, where he was receiving treatment for the cancer that he ultimately succumbed to, just to give his scheduled lecture to the students. His enthusiasm, wit and warm personality filled the lecture room.

Muso was a living embodiment of the classical liberal spirit. He was also a friend. He will be missed, but his spirit will continue to infuse the work of Francisco Marroquin University and many, many advocates of liberty around the world who knew him or were somehow influenced by him.

Responding to Paul Krugman and Ezra Klein

I seem to have touched a raw nerve with my post earlier today on my International Liberty blog,  comparing Reagan and Obama on how well the economy performed coming out of recession. Both Ezra Klein and Paul Krugman have denounced my analysis (actually, they denounced me approving of Richard Rahn’s analysis, but that’s a trivial detail). Krugman responded by asserting that Reaganomics was irrelevant (I’m not kidding) to what happened in the 1980s. Klein’s response was more substantive, so let’s focus on his argument. He begins by stating that the recent recession and the downturn of the early 1980s were different creatures. My argument was about how strongly the economy rebounded, however, not the length, severity, causes, and characteristics of each recession. But Klein then cites Rogoff and Reinhardt to argue that recoveries from financial crises tend to be less impressive than recoveries from normal recessions.

That’s certainly a fair argument. I haven’t read the Rogoff-Reinhardt book, but their hypothesis seems reasonable, so let’s accept it for purposes of this discussion. Should we therefore grade Obama on a curve? Perhaps, but it’s also true that deep recessions usually are followed by more robust recoveries. And since the recent downturn was more severe than the the one in the early 1980s, shouldn’t we be experiencing some additional growth to offset the tepidness associated with a financial crisis?

I doubt we’ll ever know how to appropriately measure all of these factors, but I don’t think that matters. I suspect Krugman and Klein are not particularly upset about Richard Rahn’s comparisons of recessions and recoveries. The real argument is whether Reagan did the right thing by reducing the burden of government and whether Obama is doing the wrong thing by heading in the opposite direction and making America more like France or Greece. In other words, the fundamental issue is whether we should have big government or small government. I think the Obama Administration, by making government bigger, is repeating many of the mistakes of the Bush Administration. Krugman and Klein almost certainly disagree.

A Rough Week for ObamaCare

Half way through the work week, and the White House has had an unusually difficult week concerning the progress of their signature piece of legislation.  Let’s recap:

On Monday, a federal judge cleared a lawsuit brought forth by Virginia Attorney General Ken Cuccinelli regarding the Constitutionality of the recent health care legislation—specifically the individual mandate.  This case will almost certainly be decided by the Supreme Court, but this was an important first step in that process.

Later that day, reports came out that Secretary of HHS Kathleen Sebelius had caught heat regarding misleading statements that claimed ObamaCare would simultaneously pay for the coverage of an additional 30 million Americans and extend the life of the Medicare Trust Fund.  The $575 billion that CMS claims the Medicare program will save as a result of the legislation can be used for one purpose or the other, but not both.

Yesterday, a Congressional Research Service Study announced that it is impossible to estimate the number of new agencies created as a result of ObamaCare.  Most estimates have the number at around 100, but CRS claims that the final tally is “unknowable” because of the uncertainty surrounding some of the language.

Meanwhile, throughout the course of the day yesterday, voters in Missouri were busy voting in favor of Proposition C, a law that would exempt the citizens of Missouri from the requirement to purchase health insurance, the centerpiece of ObamaCare.  The referendum passed by a 3-to-1 margin, but the breakdown of votes is even more telling.

Nearly 670,000 people voted in favor of the proposition, approximately 85,000 votes more than the number of Republican and third-party primary votes.  Even if the 40,000 or so voters who apparently cast a vote for Proposition C but not for a primary candidate all voted in favor of proposition, as well as every single Republican and third-party voter, that still leaves nearly 45,000 Democrats who must have also voted with their Republican constituents in upholding their right to obtain health insurance on a voluntary basis.

Keep in mind that these are not just ordinary, uninterested voters.  These are the base of the Democratic Party, the most politically active citizens, and yet somewhere between 12-25% of them decided to oppose the individual mandate, notably in a state that is often the bellwether of national election campaigns.

If things continue this way, repeal should be on its way by next week.

Obamacare Lawsuits Gain Steam

David Boaz already noted Missourians’ overwhelming rejection of the individual mandate yesterday.  That, combined with Monday’s decision in Virginia’s lawsuit – where the judge denied the government’s motion to dismiss, ruling that Virginia had standing to make its claims and that those claims had sufficient merit to proceed – should embolden Missouri’s Lieutenant Governor Peter Kinder.  Kinder, in his personal capacity and joined by several other individuals, filed an Obamacare lawsuit last month.

I mention the Kinder suit to remind everyone that there are more challenges out there than just Virginia’s and the Florida-led 20-state suit.  I have personal knowledge of groups and individuals who have sued in Michigan, Ohio, and D.C. – and there are plenty of others, I’m sure (for example, the Goldwater Institute will be filing in Arizona soon).  As Michael Cannon has noted, the D.C. suit, filed by our friends at the Pacific Legal Foundation, has as its plaintiff a 29-year-old artist and former National Guardsman who served two tours in Iraq.  PLF will host a liveblog to discuss their case starting at 3 p.m. today.  You can read the complaint here.

Finally, PLF principal attorney and Cato adjunct scholar Tim Sandefur has a nice refutation of the argument that “well, gee, George Washington required able-bodied men to buy muskets and prepare for militia service under the Militia Act of 1792.”  The upshot: sure, but 1) the Militia Act was passed under the Constitution’s militia clauses (not under the Commerce Clause, taxing power, or anything else being claimed as authority by Obamacare proponents); and 2) to say that the Constitution does not protect “a freedom from government-mandated purchases” is to read the Constitution backwards because the burden is on the government to prove that it has the constitutional authority to force people to do things they don’t want to do.

Repeal now.

Strip-Search Images Stored

The Transportation Security Administration will be sure to point out that it was not them—it was the U.S. Marshals Service—that kept ”tens of thousands of images recorded with a millimeter wave system at the security checkpoint of a single Florida courthouse,” according to Declan McCullagh of C|Net news.

The TSA has taken pains to make sure that their use of strip-search machines does not produce compromising images of the traveling public, but rules are made to be broken. How do you protect privacy in the use of a technology that is fundamentally designed to invade privacy?