Tag: First Amendment

Pro-Marriage-Equality, Pro-Religious Liberty

Ryan T. Anderson, one of the most articulate advocates for the “traditional” view of marriage, points out at NRO that extending marriage to same-sex couples potentially endangers the religious liberty of those who disagree with such a policy. Particularly given a Supreme Court ruling stating that the only purpose and effect of differing treatment of same-sex relationships is to “degrade,” “demean,” “disparage,” and “injure” them, those who believe in “traditional” marriage–let alone those who think homosexuality is morally wrong–may rightly fear legal marginalization.

While I obviously disagree with Anderson’s views on gay marriage, his concerns about a slippery slope from equal protection to an enforced political correctness are not unfounded. It wouldn’t be the first time that overzealous “equality” advocates invaded individual liberty.  Senator Ted Cruz recently alluded to severe consequences from other countries’ thought police.  “Christian pastors who decline to perform gay marriages,” he warned, “who speak out and preach Biblical truths on marriage” may be prosecuted for hate speech. We don’t have to look far to see such trends; take Canada’s human rights commissions (please!).

And even in these United States, Anderson notes:

The New Mexico Human Rights Commission prosecuted a photographer for declining to photograph a same-sex “commitment ceremony.” Doctors in California were successfully sued for declining to perform an artificial insemination on a woman in a same-sex relationship. Owners of a bed-and-breakfast in Illinois who declined to rent their facility for a same-sex civil-union ceremony and reception were sued for violating the state nondiscrimination law.

This is absurd. Neither the federal nor state governments have any business punishing or rewarding Americans based on their beliefs, and private individuals should not be forced to behave in a way that violates their constitutional rights – or to have to choose between, say, their medical license and their conscience. Even if you hold, as I do, that states, if they’re involved in the marriage business, should be required to grant marriage licenses to same-sex couples, not only should clergymen not be required to perform same-sex marriages but private businesses shouldn’t be forced to be involved in them either.

Federal Contractors Shouldn’t Lose First Amendment Rights

From the Boston Tea Party of 1773 to today’s Tea Party movement, from suffragettes to Occupiers, freedom of political association has always been this country’s hallmark. Importantly, this First Amendment freedom extends to campaign contributions. As the Supreme Court affirmed in the 1976 case Buckley v. Valeo,“the right of association is a basic constitutional freedom that is closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.”

The Buckley ruling has since survived many assaults—including, most notably, Citizens United v. FEC—though Citizens United exposed certain instabilities in Buckley’s frameworkIn any event, challenges continue to arise at the intersection of campaign finance law, political association rights, and the freedom of speech.

An important one comes from three individuals who have business contracts with the federal government. Under the Federal Election Campaign Act’s section 441c(a), “any person who is negotiating for, or performing under, a contract with the federal government is banned from making a contribution to a political party, committee, or candidate for federal officer.” Accordingly, the three plaintiffs are prohibited from making their intended campaign contributions and thus from an important form of political participation. This rule applies even to someone like name plaintiff Professor Wendy E. Wagner, who derives only a fraction of her income from the federal contract.

Together with the Center for Competitive Politics, Cato last week filed an amicus brief with the U.S. Court of Appeals for the D.C. Circuit, arguing that the plaintiffs should be able to exercise their right to political association and speech by contributing to political campaigns. Specifically, we argue that section 441(c) is unique in that it entirely bans contributions by a class of individual citizens. 

In McConnell v. FEC,the only case where the Supreme Court addressed an outright ban on contributions by a class of individuals—the ban on campaign contributions by minors originally in the McCain-Feingold campaign finance “reform,” which McConnell otherwise substantially upheld—the Court struck it down as overly broad and because the government didn’t give sufficient justification. What’s clear from that ruling is that for a ban on political speech and association to be constitutional, the government must show that its targeted class of people is somehow too dangerous to be allowed to participate in the political process, and also that the ban applies only to that set of uniquely dangerous people. Section 441(c) doesn’t meet this test.

If the government wants to ban her from this important form of political participation, then it must give more than bare assertions of the specter of potential corruption.

The D.C. Circuit will hear argument in Wagner v. FEC on September 30.

How Would I Amend the Constitution? End All Extra-Legal Amendments Thereto

The Fiscal Times recently asked me and a number of others, “How would you amend the Constitution?“ Here’s how the Times categorized my response:


Several major conservative thinkers suggested that the Constitution does not need to be changed, but rather to have its principle of limited government guide both Congress and the president.

Michael Cannon at the Cato Institute noted that the Fourth Amendment protects against warrantless searches, “yet the National Security Agency tracks everybody with Congress’ tacit if not explicit consent.”

First of all, and I fear I will be explaining this to reporters for the rest of my life, I am not a conservative. I support gay marriage, cutting military spending, closing all U.S. bases in foreign nations, and ending the prohibitions on drugs, gambling, and prostitution. Of such stuff conservatives are not made.

Second, the above excerpt scarcely captures my response to the Times’ inquiry. Don’t change a thing?? Here is my response in full:

There are constitutional amendments I want to see. And yet.

Americans don’t need to amend the Constitution so much as they need politicians to honor what the Constitution already says. The Constitution creates a government of enumerated and therefore limited powers; Congress and the president routinely exceed those powers. The First Amendment protects freedom of speech, particularly political speech; Congress heavily regulates and rations political speech. The Fourth Amendment protects “persons, houses, papers, and effects” from “unreasonable searches” and requires “no warrants shall issue, but upon probable cause”; yet the NSA tracks everybody with Congress’ tacit if not explicit consent. The states could ratify an amendment that says, “Hey, we mean it!”; but the Constitution already contains two amendments saying that (the Ninth and Tenth). What is the point of amending the Constitution if Congress will just ignore that amendment too?

This could soon become a Very Big Problem. If Congress keeps acting like it is not bound by the Constitution, then eventually the people will conclude that they aren’t either.

That is, I don’t want to amend the Constitution so much as I want to stop politicians and bureaucrats from amending it unlawfully – i.e., without going through the Article V amendment process  – and stop the courts from rubber-stamping those extra-legal amendments. 

It would be great if, as the Times writes, the Constitution’s principle of limited government were to guide both Congress and the president. I would settle for having the plain words of the Constitution constrain Congress and the president. That constraint will have to come from the people, and federal judges.

Supreme Court: Government Can’t Force Federal Contractors to Waive Their Rights

Despite its awkward name and somewhat technical details, AID v. AOSI provided the Supreme Court with an opportunity to make a very simple point: The federal government can’t force its contractors – whether they’re corporations (as in this case) or individuals – to promote policies that are unrelated to the program for which they receive federal funds. The Court correctly ruled that executing a program to combat HIV/AIDS is unrelated to advocating for or against the legalization of prostitution. One can imagine other instances: Treating drug abuse has little to do with one’s views on drug legalization. Running an adoption agency can be done whether one is pro-choice or pro-life. Missiles can be built regardless of whether the contractor favors a particular foreign policy stance.

As Cato argued in its amicus brief, such “policy requirements” significantly burden political speech, the constitutional protection of which lies at the very heart of the First Amendment. Had the government’s position been accepted, it would eviscerate the “unconstitutional conditions” doctrine, which the Supreme Court has long recognized to prevent the conditioning of generally available federal benefits on the waiver of fundamental rights. The Court has never given Congress carte blanche to give contractors Hobson’s Choices, whether relating to the freedom of speech or other constitutional rights. Today it thus strengthened the principle that Congress’s power to condition funding is limited to ensuring that its funds are used to properly implement the program that Congress wishes to fund, not to compel private organizations to adopt express “policies” that don’t relate to the use of those federal funds.

For more on AID v. AOSI, see my recent op-ed.

There’s No Such Thing as ‘Good Government’

National Journal’s Ron Fournier:

I like government. I don’t like what the fallout from these past few weeks might do to the public’s faith in it…

The core argument of President Obama’s rise to power, and a uniting belief of his coalition of young, minority and well-educated voters, is that government can do good things–and do them well.

Damn. Look at what cliches the past few weeks wrought.

Fournier then runs through how the various Obama scandals show:

Government is intrusive … Orwellian … incompetent … corrupt … complicated … heartless … secretive … [and] can’t be trusted.

And that’s when the good guys are running the show!

Maybe Fournier needs to brush up on his Common Sense:

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil… Government, like dress, is the badge of lost innocence… For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least.

Translation: there’s no such thing as “good government.”

A Brief Civil Liberties Quiz

See if you can spot the civil-liberties victory:

  1. The Supreme Court says the government can put your DNA in a national database, even if you were wrongly arrested.
  2. The State of Mississippi imposes mandatory collection of the DNA of babies born to teenage moms, neither of which is suspected of a crime.
  3. The Department of Justice is tracking and threatening to prosecute reporters, for the crime of reporting.
  4. The National Security Agency is collecting everyone’s phone records, even if they suspect you of nothing.
  5. The U.S. Senate kills a bill that could lead to a registry of law-abiding gun owners.

Answer: #5. 

Those crazy senators are looking less crazy all the time. 

First They Came for My Coke, Then They Came for My Jack

Not satisfied with hounding smokers and purveyors of Big Gulp sodas – or even gun manufacturers – nanny-staters have reached way back into their historical toolkits to go after alcohol. That’s right, in this the 80th year since the repeal of Prohibition, a new coalition has arisen to take on the scourge of demon rum.

But these aren’t your great-granddaddy’s Baptists and bootleggers; instead we have a transnational alliance of “public health professionals” out to make the world a more sober place.  Not satisfied with the persuasiveness of their entreaties, however, they further want to muzzle alcohol producers and anyone else with a “stake” in the debate.  (Apparently limiting the freedom to drink isn’t enough for these people; the freedom of speech and to petition the government for redress of grievances are also suspect.)

Here’s Exhibit A, a “statement of concern” put out in February by a group of public health advocates calling themselves the Global Alcohol Policy Alliance.  In a nutshell, GAPA doesn’t like the fact that the beverage alcohol industry is involved in the debate on how to reduce alcohol abuse, not even the commitments that 13 of the largest alcohol producers made in support of the World Health Organization’s “Global Strategy to Reduce the Harmful Use of Alcohol.  The most revealing “reservation” the GAPA-niks have is item 3 on page 3:

Prior initiatives advanced by the alcohol industry as contributions to the WHO Global Strategy have major limitations from a public health perspective …

That sounds rather innocuous – an academic disagreement about alcohol policy – but let me put this in context.  The public health community consistently advocates “population-based” controls that simply seek to reduce total alcohol consumption, regardless of whether alcohol abuse declines.  There could be cirrhotic ne’er-do-wells dying in the streets, but as long as yuppies buy less Jack Daniel’s, all is fine.  The alcohol industry, or anyone that cares about actually fixing social problems rather than taking steps that at best just make politicians feel good – call it the inverse Baptists/bootleggers – prefers a targeted approach: keep booze away from kids, get alcoholics treatment, don’t drink bad moonshine that’ll make you go blind, etc.