Tag: civil rights

Marriage against the State

I’m pleased to announce the publication of my new Cato Policy Analysis, “Marriage against the State: Toward a New View of Civil Marriage.”

As I note in the introduction, it’s quite rare that Congress ever considers marriage as a policy area in its own right. There are comprehensive health care bills, defense spending bills, farm bills, and civil rights bills, but no really comprehensive marriage bills.

Of course, this might be a good thing, but one of the side effects is that marriage policy can be haphazard in the extreme. Inconsistencies and surprises abound. Marriage influences welfare, immigration, tax law, child custody and support, and many others besides.

Are all of these things legitimate? A popular view among libertarians is that the federal government, and possibly the states, should get out of the marriage business altogether. It’s an approach with much to recommend it, but I can’t entirely agree. For at least some areas of public policy, marriage represents a barrier to government meddling in your financial, family, and intimate life. In these areas, it’s an unqualified good. Marriage is often a defense against the state, and as such, it’s something libertarians ought to want.

Consider child custody. All children born to a married couple are presumed to belong to them. You don’t have to do anything special to assert your paternity (or maternity). You are presumed to have it. This is probably for the best. Inviting the government to prospectively examine married couples’ fitness as parents is one of the most corrosive things I could imagine doing to the nuclear family.

Or consider the gift-tax exemption for married couples. Husbands and wives may gift one another money or property without limits, tax-free. It’s an important part of the financial independence that we are accustomed to having in our families, and it allows a family to conduct an interdependent financial life with dignity and autonomy.

Yet this same exemption, oddly enough, can make a legal divorce cheaper than the breakup of a never-married relationship. A married couple can divide their assets, including houses, cars, and other properties, before they split up. A never-married couple will often have to pay taxes on their pre-breakup transfers – making the government in effect a third party to their relationship. No one would want this for all couples, of course, least of all libertarians.

Extricating marriage from other parts of federal law won’t be easy, either. For some fairly complicated reasons that I explain in the paper, the only way to make the income tax fully neutral with respect to marriage – and also neutral across families with unequal income distributions between spouses – is to adopt a flat tax. While I share the view of many of my Cato colleagues that a flat tax is a good idea, the marriage-related consequences of our current tax system aren’t always appreciated as a reason to move in that direction. They should be.

As a third example, consider immigration. Marriage to a citizen considerably hastens the process of immigrating legally. Even if that process were not unconscionably slow (which I think it is), we would probably still want the immigration of marriage partners to be a high priority. Immigrant spouses of citizens are clearly integrated to some extent into American society. The American spouses’ own liberty interests are clearly implicated. And, perhaps best of all for critics of immigration, immigrant spouses’ numbers are relatively small in any case.

Lastly, and because I know a lot of you probably skimmed up to this point, I do discuss same-sex marriage. One of the more common arguments against same-sex marriage is that those who have moral objections shouldn’t be forced to subsidize same-sex unions with their tax money.

Let’s grant the basic justice of the argument (and never mind that Quakers, Buddhists, and others could morally object to our enormous defense spending!). Still, it’s not well known that by the best available estimates, federal same-sex marriage would leave the government in a better fiscal position, not a worse one. A good way to channel less federal money to same-sex couples is actually… to allow them to marry.

Why is this? Well, some married couples still pay a marriage penalty, and gay and lesbian couples obviously would too. More significantly, spouses’ incomes and assets are declared in the means testing for federal welfare programs. Marriage would exclude some gays and lesbians from these programs. They may want marriage anyway, but on balance, it’s clearly not for grabbing federal dollars.

I discuss quite a few other marriage-related issues in this Policy Analysis, and even so, it’s not remotely comprehensive. My goal is to suggest a new way of thinking about marriage, one that evaluates the effects of various marriage-related policies using the individual right to form a family as the standard. Not every aspect of federal marriage policy stands up, but some of them do. Let’s let a new conversation begin.

Supreme Court Should Uphold Incentives to Sue the Government

Private lawsuits challenging government violation of civil rights are notoriously difficult and expensive to bring and win. To address such impediments to the vindication of civil rights, Congress passed a law that, among other things, awards attorneys’ fees to the prevailing parties in certain cases. As noted by the House Judiciary Committee, this was necessary because “a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts …. [the law at issue, 42 U.S.C. § 1988] is designed to give such persons effective access to the judicial process.” Congress thus harnessed market principles, creating an economic incentive for citizens to vindicate their civil rights directly rather than relying exclusively on enforcement actions by the federal government itself.

In the case of Fox v. Vice, however, the Fifth Circuit ruled that an unsuccessful result on a threshold or procedural matter relating to part of a lawsuit could justify a court order requiring the plaintiff to pay all of the defendants’ attorney’s fees — even those expended to address other, meritorious claims. Such a rule departs from the market-oriented legal structure Congress designed and, if allowed to stand, would significantly harm the ability of plaintiffs to bring private civil rights claims.

Cato, joining the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech, filed a brief supporting a request that the Supreme Court reverse the Fifth Circuit and making three points:

First, by awarding the defendant fees for the entire suit based on the dismissal of one claim, the Fifth Circuit’s decision imposes prohibitive costs on the enforcement of civil rights.

Second, the exceptional timing of the fee award in this case — before resolution of the plaintiff’s related state-law claims — creates a dangerous precedent that threatens to derail civil rights actions. By prematurely deeming a plaintiff’s suit frivolous and ordering the plaintiff to pay the defendant’s fees before the conclusion of the litigation, the Fifth Circuit’s rule imposes financial penalties that would shut down legitimate lawsuits midstream.

Third, the Court should not permit fee awards in situations where a plaintiff dismisses a federal claim in order to secure a remand of related state-law claims to state court. Otherwise, the threat of a fee award will improperly burden the plaintiff’s decision to bring a federal claim in state court at all — contrary to the law’s purpose here.

In addition to reversing the judgment below, the Court should reinforce that a mid-litigation fee award is improper when a plaintiff voluntarily drops a federal claim in order to return to state court.  The Court will hear Fox v. Vice on March 22, with a decision expected in June.

Bulldozing Homes, Billing Homeowners

Officials in Montgomery, Alabama, are bulldozing homes in their historic civil rights district – and billing the homeowners for the cost of demolition:

Christina Walsh of the Institute for Justice writes about this injustice at the Daily Caller:

Imagine you come home from work one day to a notice on your front door that you have 45 days to demolish your house, or the city will do it for you.  Oh, and you’re paying for it.

This is happening right now in Montgomery, Ala., and here is how it works: The city decides it doesn’t like your property for one reason or another, so it declares it a “public nuisance.”  It mails you a notice that you have 45 days to demolish your property, at your expense, or the city will do it for you (and, of course, bill you).

Your tab with the city will constitute a lien on your property, and if you don’t pay it within 30 days … the city can sell your now-vacant land to the highest bidder.

The rest of her article is here.  Also, see ABC News, Big Government and Reason magazine.  And you can find Cato’s work on property rights here.

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.

A Bum Rap for Limited Government

Every so often an editorial comes along that is so obtuse that you wonder if it came from human hand. I allude, not surprisingly, to the item in this morning’s New York Times, “Limits of Libertarianism,” which arises from the kerfuffle over Rand Paul’s critique of the 1964 Civil Rights Act for its undermining the private right to freedom of association. 

The editorial’s main target, however, lies beyond the Paul senatorial campaign. It’s the tea party movement and its libertarian, limited government themes. But from the start the Times conflates limited government with anti government. They’re not the same. More broadly, the editorial shows beyond doubt that the Times, ever the friend of “enlightened government,” finds danger lurking mostly in the private sector. (One wonders just how it is that those not-to-be-trusted private actors become so quickly enlightened once they get their hands on monopoly government power.) 

Thus, we’re told that the libertarian theory of private liberty has “roots in America’s creation, but the succeeding centuries have shown how ineffective it was in promoting a civil society.” Really? What history have the scribes at the Times been reading? Their next line, presumably supporting that claim, only compounds the mystery: “The freedom of a few people to discriminate meant generations of less freedom for large groups of others.” Is that what slavery was, private discrimination, to be corrected by government?

Apparently, because following immediately is the editorialists’ main point: “It was only government power that ended slavery and abolished Jim Crow, neither of which would have been eliminated by a purely free market. It was government that rescued the economy from the Depression.”

Where to begin. Skip the Depression point; it’s been so often refuted that one does so again only with embarrassment for its authors. The first claim, however, warrants more than passing attention. Contending that only government power saved us from slavery and Jim Crow, it ignores the role of private power – the abolitionists, and the civil rights movement – that brought about that government power. More important, it invites us to believe that government had little or nothing to do with slavery and Jim Crow in the first place when in truth we would have had neither without government’s creation of those legal institutions, with legal sanctions that kept them in place. Indeed, it is limited government, government limited to securing our rights, that is the surest guarantee against those twin evils.

A Disappointing Start in Piñera’s Chile

The presidential election in Chile that brought Sebastián Piñera to power last month was good news for Chile and the region. It confirmed once again that Chile is Latin America’s most modern country, one in which Chileans chose a center-right candidate to lead the country after 20 years of center-left governments that by and large stuck to the free-market model set in place in the 1970s and 1980s and that has made the country one of the most economically free in the world. In Chile, what’s at stake in presidential contests is not a radical change of the rules of the game, but rather policies that build on or depend on high growth. Chile’s mature democracy and economy serve as a model for Latin America.

But in just over a month of being in office, Piñera has made two decisions that disappointed his supporters both inside and outside of Chile who believed that he would reinvigorate the Chilean economy and stand firmly against the populist-authoritarian model that Hugo Chávez has exported to the region. Piñera backed the re-election of José Miguel Insulza to head the Organization of American States and has proposed a tax increase on large companies. Insulza and the OAS are widely and correctly viewed as having been silent, incompetent or complicit in the face of repeated violations of basic democratic and civil rights by populist governments in the region. Whatever the domestic political reasons for Piñera’s decision, countless Latin Americans who cherish their rights—not the least of whom are Venezuelans, Hondurans, Bolivians and Ecuadoreans—were disillusioned by the endorsement of Insulza.

On Friday, Piñera proposed to “temporarily” raise taxes on large companies from 17% to 20% (and to increase mining royalties and to permanently increase tobacco taxes) to finance Chile’s post-earthquake reconstruction needs. But a number of Chile’s leading economists are criticizing the tax increase and point to other sources of revenue that would be less damaging to growth. Hernán Büchi, a finance minister in the 1980s, and Luis Larraín, head of Chile’s free-market think tank, Libertad y Desarrollo, have both written op-eds in recent weeks pointing out that one of the country’s main problems has been the steady drop in productivity in recent years. Piñera was elected on a platform to increase productivity. A tax increase would aggravate the problem. According to Büchi, 20 years of center-left governments reduced Chile’s ability to eliminate poverty and followed a path that was politically easy and consistent with their ideology: “It would be a bad omen if the first measures of a government that should represent change in this regard, went down the same path.” Larraín adds that the tax decision will reveal Piñera’s governing approach, in which there is a real danger of avoiding necessary reforms and a president content with simply being a better administrator. We shall see.

Department of Bias

The Department of Justice just invalidated a move by the residents of Kinston, North Carolina, to have non-partisan local elections. Rationale?

The Justice Department’s ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their “candidates of choice” - identified by the department as those who are Democrats and almost exclusively black.

The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters’ right to elect the candidates they want.

This, coming from the same Department of Justice officials that wouldn’t know a civil rights violation if it picked up a club and barred them access to a polling place.