by Georgia Center for Opportunity | Sep 9, 2015
Perla Macias pulled her son, Albiery, out of their local school in Arizona because he was not getting the attention Perla thought he needed to succeed. “It was sad because he didn’t even want to go to school some days,” Perla says.
Perla is like every mom—she wants the best for her children in and out of school. Fortunately for Perla and Albiery, they live in one of five states where lawmakers have allowed students to use education savings accounts to find unique learning experiences that may include online classes, personal tutors, private schools, public school classes, and college savings plans, among other uses, all with the same account.
With an education savings account, the state deposits public funds in a private account that parents use to purchase educational products and services for their child. In 2015, Georgia lawmakers considered legislation that would have allowed state families to use the accounts, but the legislation stalled.
Albiery’s new school has brought out his interests in new subjects, and Perla is excited to use his account to support him with whatever he needs to succeed. “He wants to be an architect, and I’m so happy for that,” Perla says.
In this three-part series, the Georgia Center for Opportunity will explain why Georgia needs to give parents this flexible educational option, how education savings accounts change the way we think about learning, and how the accounts work in states that have already enacted laws: Arizona, Florida, Mississippi, Tennessee, and Nevada.
Georgia families, like those all over the country, need better learning options. Student achievement scores should trouble Georgia parents. According to researchers, students in 30 developed countries outpace Georgia 15-year-olds in math. Among families where at least one parent finished college, students from 31 nations perform better than Georgia students.
In reading, two-thirds of the state’s fourth graders score below the basic level set by the U.S. Department of Education. By eighth grade, nearly 70 percent read below the basic level.
Yet in a poll conducted by the Atlanta Journal Constitution in January 2015, 30 percent of respondents rated Georgia public schools as “excellent” or “good,” while another 38 percent rated them as “fair.” Sixty-eight percent of Georgia schools cannot be doing a fair job or better if almost three-quarters of their students aren’t.
Every child should have access to a school that will challenge him and prepare him for the future. But the labor market is changing quickly. The skills individuals will need to know in order to have a successful career are impossible to predict over the long term.
A recent study by Young Invincibles, a group that researches trends among Millennials, found that the jobs most likely to set Millennials up for success are physician’s assistants, actuaries, statisticians, and biomedical engineers. These careers will require a solid educational background in K-12 and college and even graduate school.
Families can use education savings accounts to save money from year to year, pay for college classes before and during their student’s postsecondary years, and pay for graduate school. This way, students can learn skills before, during, and after college that will help them in their careers.
This feature of the accounts is why families like Perla and Albiery’s can talk about college. And life after college. “I think it has been very good for our family,” Perla says.
Georgia students deserve the same opportunities to find success in school and in life. Education savings accounts can help give this chance to every Georgia child.
Jonathan Butcher is education director at the Goldwater Institute and senior fellow at the Beacon Center of Tennessee.
by Georgia Center for Opportunity | Aug 20, 2015
By now, almost everyone who isn’t a Democratic United States Senator has seen at least one of the five macabre videotapes released by the Center for Medical Progress, a pro-life investigative group. The videos are ubiquitous in social media, so I won’t provide links to them here.
In a recent post, AJC columnist Jay Bookman has provided a nice example of the arguments offered by those who continue to defend Planned Parenthood in the face of these—to say the least—embarrassing revelations. Here are his five points, together with my responses.
1. Nothing in the tapes provides evidence of illegal, let alone criminal, behavior. Planned Parenthood is allowed by law to recover its costs in collecting, preserving and transporting that tissue, and there is no evidence it violated that law. Tellingly, and despite the melodramatic complaints of conservatives, the videos have so far resulted in no criminal investigation or prosecution by state or federal authorities. Yelling and the beating of chests doesn’t alter that basic fact. Fabricated outrage doesn’t change that. Simply put, in legal terms there is no “there” there.
Not so fast, Mr. Bookman. The Planned Parenthood representatives are indeed cagey and circumspect and there is, to be sure, no straightforward smoking gun, but like all bureaucrats, they seem to know that there are expenses and then there are expenses. It may take a lot of trouble to untangle what’s a genuine “cost” and what amounts to a profit over and above costs. That the Department of Justice or a federal prosecutor hasn’t yet commenced an investigation doesn’t mean that the DOJ or a D.A. won’t, though given the track record of this Administration with respect to abortion, I’m not holding my breath. A real federal investigation may have to await a new Administration, or a Congressional investigation that forces the current Attorney General’s hand. So there is nothing at all “telling” about the lack of federal action so far. And if I’m not mistaken, at least twelve states have commenced investigations.
2. The law making such research legal was passed in 1993, and among those voting in favor of that bill was one Mitch McConnell, the same man who now claims that videos documenting what he voted to make legal “absolutely shock the conscience.” Other current GOP senators who backed that ’93 law were Richard Shelby, John McCain, Dan Coats, Chuck Grassley, Thad Cochran and Orrin Hatch, many of whom are now backing a shutdown.
Even if the research is authorized by law, it’s one thing to consider that research in the abstract, another altogether to confront graphically what it means and requires (the dissection of a recognizably human body). Perhaps the law needs to be changed. And even if we decide not to change the law that permits the research, there’s no reason why we have to fund either it or the organization that provides the human organs on which the researchers work.
3. Those receiving the fetal tissue are not ghouls of some sort, and the tissue is not being put to inappropriate or disrespectful use. To the contrary, the tissue is crucial to research into treatments to extend and improve human life, research that would be impossible to conduct without that material. As the New York Times reports, “the National Institutes of Health spent $76 million on research using fetal tissue in 2014 with grants to more than 50 universities, including Columbia, Harvard, the Massachusetts Institute of Technology, Stanford, Yale and the University of California in Berkeley, Irvine, Los Angeles, San Diego and San Francisco.”
While we aren’t necessarily talking about Dr. Josef Mengele here, why must we assume a congruence between the demands of science and “democratic” morality? A careful reading of Francis Bacon’s New Atlantis—the great work on science and politics written by the greatest and most perspicuous thinker on that subject—makes it clear enough for anyone who has eyes to see that there’s a pretty significant disconnect between science and ordinary morality. Curiosity and the ambition to master nature can take one pretty far from what’s decent and respectful. The more powerful science is, the greater mastery of nature it promises us, the more attention we must pay to it and the less we should avert our eyes from its practices. There may be benefits—which, by the way, are at the moment for the most part simply speculative—that aren’t worth the cost.
4. All tissue used in that research is donated by clinic patients, who receive no compensation for doing so. Their sole motive is to help fellow human beings. If we ban the use of such material in research, we accomplish absolutely nothing except to halt that potentially life-saving research. So which is the true “pro-life” position?
As C.S. Lewis argues in The Abolition of Man, there’s a moral cost in treating human beings as meat, or of denying the humanity of a being that is recognizably human. In so doing, we run the palpable risk of dehumanizing ourselves, of numbing our moral sense. Indeed, Lewis’s work ought to be absolutely required reading for anyone who wishes to comment intelligently on these issues.
5. None of the $500 million in federal funding going to Planned Parenthood is used to finance abortions. It is used instead to give low-income women access to contraceptives, maternity care, breast-cancer and ovarian-cancer screenings, and vaccinations against sexually transmitted diseases. If we strip Planned Parenthood of funding for such programs as punishment for the “crime” of following the law and providing tissue for medical research, no other organization has the infrastructure, personnel and training to provide those health-care services. In effect, those women and their children would be the innocent victims of a successful effort to defund Planned Parenthood.
While there may not be a single national organization capable of picking up the slack of PPFA’s arguably overstated non-abortion business, the federal funding that it receives can be put to precisely the same use by a myriad of community health centers and nonprofits in the health, not the abortion, business all over the country. Indeed, the proposed Senate bill preserves every penny of women’s health funding, mandating simply that it go to health clinics, not abortion clinics.
I’ve mentioned two pieces of what I regard as required background reading. Let me close with a third, Dr. Leon Kass’ classic, “The Wisdom of Repugnance”:
Revulsion is not an argument; and some of yesterday’s repugnances are today calmly accepted-though, one must add, not always for the better. In crucial cases, however, repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it. Can anyone really give an argument fully adequate to the horror which is father-daughter incest (even with consent), or having sex with animals, or mutilating a corpse, or eating human flesh, or even just (just!) raping or murdering another human being? Would anybody’s failure to give full rational justification for his or her revulsion at these practices make that revulsion ethically suspect? Not at all. On the contrary, we are suspicious of those who think that they can rationalize away our horror, say, by trying to explain the enormity of incest with arguments only about the genetic risks of inbreeding.
by Georgia Center for Opportunity | Aug 5, 2015
On July 25th, AJC columnist Jay Bookman dismissed Georgia House Speaker David Ralston’s “Pastor Protection Bill” as an essentially meaningless symbolic gesture. I’m uncharacteristically inclined to agree with him.
In its current form the bill simply states that “[n]o minister of the gospel or cleric or religious practitioner ordained or authorized to solemnize marriages according to the usages of the denomination, when acting in his or her official religious capacity, shall be required to solemnize any marriage in violation of his or her right to free exercise of religion.” This would seem to follow pretty directly from the First Amendment Free Exercise Clause, as University of Maryland law professor Mark Graber has observed.
While I’m not averse to symbolism and, indeed, regard it as an important teaching function of the law, the prospect that pastors will actually be compelled to perform same-sex marriages is a remote one. To be sure, in our current circumstances anything is possible, but that’s not one of the pressing concerns keeping me up at night.
Here are the things that, to my mind, are causes of concern:
- The tax-exempt status of churches and other faith-based institutions that remain faithful to the traditional understanding of marriage
- The eligibility of faith-based institutions (above all, schools, universities, and social service agencies) to compete on a level playing field for government funding if they continue to act in accordance with their long-held belief that marriage is between a man and a woman
- The ability of churches and other faith-based institutions—if they so choose—to demand doctrinal and behavioral conformity, not just of ministers, but of all employees
In a nutshell, I’m concerned that we’re facing a significant challenge to the ability of churches and other faith-based institutions to remain theologically and morally faithful while fully and equally participating in civil society.
And before I discuss these substantive concerns in a bit more detail, let me add a procedural worry. I fear that Speaker Ralston and many other Republicans, having been chastened by the religious freedom contretemps earlier this year in Indiana, Georgia, and elsewhere, will regard this pastor protection legislation as all they need to do. If true friends of religious liberty accept this down payment on a robust commitment to our first freedom as the full price, they will have left our religious institutions vulnerable to all sorts of threats. I recognize that some of my concerns will have to be addressed at the federal level by something like the First Amendment Defense Act, but there is no reason why Georgia could not provide similar protections at the state level. And I also recognize that laws are mere parchment barriers, weaker than constitutional provisions (which may themselves be no more than papier-mâché); neither will protect religious liberty from a public (or an elite) that has grown indifferent or hostile to it.
I turn now to the challenges, beginning with tax-exempt status. During the oral arguments for Obergefell v. Hodges, Solicitor General Donald Verrilli conceded to Justice Samuel Alito that the tax-exempt status of religious institutions that uphold the traditional understanding of marriage is “certainly going to be an issue.” The dissenters took note of this exchange. Chief Justice John Roberts said this:
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.… There is little doubt that these and similar questions will soon be before this Court.
Justice Clarence Thomas seconded this concern:
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” … In our society, marriage is not simply a governmental institution; it is a religious institution as well…. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
Justice Samuel Alito spoke of the larger consequences of the Court’s decision:
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women … The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.… We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
Let me emphasize this last point, for it is a clear allusion to the context of Justice Alito’s exchange with the Solicitor General, which involved the Supreme Court’s affirmation of the IRS’s revocation of the tax-exempt status of Bob Jones University over its policy forbidding interracial dating. If the analogy—insisted upon by the Court’s majority—between opposition to same-sex marriage and opposition to interracial marriage holds, then the former amounts to the same sort of bigotry as the latter and, perhaps, deserves the same legal treatment.
In the Bob Jones case, the Supreme Court held that the First Amendment Free Exercise Clause does not protect the University from the IRS’s revocation of its tax exempt status. The Court’s reasoning was that, in the first place, tax exempt status is granted under the Internal Revenue Code only to institutions and organizations that “serve a public purpose” and are not “contrary to established public policy.” While the University might well serve a public purpose, augmenting or supplanting public efforts at higher education, its practice of racial discrimination was certainly contrary to established public policy. And if free exercise claims, in the best instance, require strict scrutiny, overcoming racial discrimination is surely the kind of compelling state interest that justifies an abridgement of that right.
It doesn’t require much imagination or legal expertise to see how this line of reasoning could be applied to churches and other faith-based institutions that act “contrary to established public policy” in upholding the traditional understanding of marriage.
This doesn’t mean that the IRS must or will revoke their tax exempt status, only that it can, and that the First Amendment provides no sure defense against that action. If countering discrimination based on sexual orientation comes to be regarded as a compelling state interest, then the free exercise rights of religious institutions will likely have to give way if the IRS bows to the pressure that will surely be brought to bear on it to use its powers for that end.
I think that a case can be made on behalf of continuing to extend those exemptions, both in terms of the manifold human needs all churches address and in terms of preserving the pluralism that is the essential ground of free institutions and a free people, but we have to make that case over and over again, in the face of a faction that isn’t particularly interested in listening to it. I take some solace from the fact, that, at the moment, public opinion seems to favor religious freedom, but that delicate flower needs to be carefully cultivated.
Now, if tax exemptions are a problem, then you know eligibility for government grants will be. To be sure, this isn’t an issue for houses of worship as houses of worship (which, generally speaking are not and should not be eligible for government grants), but it is one for schools and colleges, as well as for social service agencies. While the Supreme Court has frequently upheld the channeling of government aid to religious institutions under certain circumstances (see, for example, Mitchell v. Helms, Zelman v. Simmons-Harris, and the Arizona Christian School Tuition Organization case), it has also held that governments are perfectly within their rights to deny otherwise generally available aid and facilities to religious organizations (see, for example, Locke v. Davey and CLS v. Martinez).
Governments can attach any number of conditions to the aid they provide. Adoption agencies may be required to place children with couples without regard to the gender of the partners. Universities may be required to provide housing—if they provide it at all—to couples that are married in the eyes of the state, regardless of whether those marriages have the sanction of the sponsoring religious body. And if you put the recent EEOC ruling on sexual orientation together with the way in which the Department of Education is interpreting Title IX of the Education Amendments of 1972, it’s pretty easy to see how a lot of government money could be riding on conformity with what appears to be the new normal in regard to sexual orientation and marriage.
For higher education institutions, access to government money is a big deal. According to the U.S. Department of the Treasury, 55% of spending on undergraduate education in 2009-10 came from federal aid (which amounted to $124 billion that year). While there are a few colleges (Hillsdale and Grove City, for example) that take pride in not accepting a dime of federal money, most would at the moment not be able to survive without it.
Again, this doesn’t have to happen. Congress could pass legislation that protects religious freedom, or agencies could voluntarily refrain from impinging on it. But pressure will be brought to bear on behalf of those who, as they would put it, don’t want to subsidize discrimination.
This brings me to my next concern, the religious hiring rights of churches and faith-based organizations. Title VII of the 1964 Civil Rights Act permits them to take religion into account when hiring. And the “ministerial exception” based in the First Amendment—recently vindicated in the Hosanna-Tabor case—means that a number of federal laws granting employees enforceable rights cannot be applied to those a church holds out as ministers. But these provisions do not provide comprehensive protection of religious hiring rights. There is certainly a gap between the legislatively-acknowledged right to hire coreligionists and the constitutionally-grounded ministerial exception. What if someone who signs a statement of faith as a condition of employment comes out as gay and/or enters into a same-sex marriage? Unlike the Employment Non-Discrimination Act, the recent EEOC ruling about sexual orientation discrimination does not contain exceptions for religious organizations. It isn’t at all clear that Courts will find that the Free Exercise Clause will protect them from EEOC complaints, in the event that these organizations choose to enforce doctrinal or behavioral requirements on their employees.
Now, this parade of horribles does not have to march into our sanctuaries. The threats that loom on the horizon do not have to materialize. Those who currently hold the upper hand in government may practice forbearance, either out of a genuine commitment to pluralism and religious freedom or out a fear of overplaying their hand and alienating public opinion.
We on our part must be both vigilant and winsome, vigorously defending and advocating for our rights when they are threatened and offering a model of the charity and forbearance that we hope others will also display. Our society is pluralistic, reflecting deep disagreements about how we ought to live. History teaches us that faith doesn’t require hegemony to prosper. But it does require that those who have it live it, loving their neighbors as themselves. There is room both for political and legal action, and for the building and maintenance of personal relationships. If we forgo the former, there may be no room for the latter. If we focus on the former, we run the risk that those parchment barriers will be swept away by the animosity we have done nothing to disarm and dispel.
by Georgia Center for Opportunity | Jul 29, 2015
Watch a recording of the event here.
Georgia Center for Opportunity was privileged to partner with the American Enterprise Institute (AEI) in co-hosting an event on the issue of prisoner reentry at AEI’s headquarters in Washington, D.C. on Tuesday, July 28th.
The event featured two panels: The first consisting of non-profits leaders who have faced challenges and successes in helping former prisoners successfully reintegrate into society, and the second featuring government leaders who have similarly faced challenges and successes in working to reform the criminal justice system itself.
GCO’s Executive Vice President and General Counsel, Eric Cochling, moderated the first panel that featured four non-profit leaders, including Craig DeRoche of Justice Fellowship, Harriet McDonald of The Doe Fund, Bryan Kelley of Prison Entrepreneurship Program, and Harold Dean Trulear of Healing Communities. The panelists discussed such themes as the importance for Americans to view prisoners and people with a criminal record as a valuable asset to society, the importance of work and its role in promoting human dignity and successful reintegration, the necessity for returning citizens to experience a change in attitudes and values to avoid recidivating, and the role of the community in embracing returning citizens and “walking with” them in their journey.
The second panel was moderated by Robert Doar, Morgridge Fellow in Poverty Studies at AEI, and featured three government leaders: Georgia’s own Jay Neal, former state representative and current executive director of the Governor’s Office of Transition, Support and Reentry, Gary Mohr, commissioner of the Ohio Department of Rehabilitation and Correction, and Chauncey Parker, special policy advisor in the Manhattan District Attorney’s Office. This panel highlighted specific approaches that states have taken to improve prisoner reentry as a means of promoting public safety, including instilling the mindset that reentry begins at the point of arrest, basing decisions on data instead of knee-jerk reactions, facilitating better connections between family members and incarcerated loved ones, and instilling the importance of viewing offenders as human beings among the criminal justice workforce.
Watch the event and gain a better understanding of how effective collaboration between families, faith communities, service providers, and the government, as well as a changed perception of the ones they are serving, is essential for promoting successful reintegration among returning citizens.
by Georgia Center for Opportunity | Jul 6, 2015
I have to confess that I wasn’t all that surprised by the Supreme Court’s decision in Obergefell v. Hodges, which held that the 14th Amendment Due Process and Equal Protection clauses imply a right to marry (due process) and require that that right be extended to those who wish to marry same-sex partners (equal protection). Justice Anthony Kennedy, who wrote for the narrow (5-4) majority, had pretty much been telegraphing his intention since Lawrence v. Texas (2003) and Romer v. Evans (1996), and indeed since co-authoring the infamous “mystery passage” in the joint opinion in Planned Parenthood v. Casey (1992). In the former two cases, he described opposition to homosexuality as expressing only an “irrational animus,” thereby placing the letters of the Apostle Paul, not to mention millennia of both secular and religious teaching from a variety of traditions, in the same category as the most hateful inarticulate screed scrawled on a bathroom wall. Indeed, in his Lawrence dissent, Justice Antonin Scalia argued that the clear implication of the majority’s reasoning was that, its protestations to the contrary notwithstanding, there was no constitutional principle that could justify restricting marriage to opposite sex couples.[1] In Planned Parenthood, Kennedy and his co-authors laid the foundation by defining liberty in terms of what has come to be known as expressive individualism: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Now, my undergraduates understand and are even capable of reproducing Justice Kennedy’s reasoning. Of course, they state it much more simply: “I should have the right to marry whomever I please.” This straightforward combination of liberty and equality—our two American watchwords—explains why so many people exuberantly welcomed the Supreme Court’s decision.
But if they had given some thought both to the understanding of marriage and the canons of legal and judicial reasoning—as we should rightly expect of Justice Kennedy and his colleagues—my undergraduates, not to say the American people in general, might have had second thoughts.
Let me begin with the second point. The 14th Amendment Due Process clause has been used to protect our liberties against certain kinds of government encroachment. While the language of the clause is procedural—and thus applies most obviously (as does its 5th Amendment counterpart) to judicial proceedings—it has long been held also to protect substantive rights, hence the almost oxymoronic term “substantive due process.” When deciding which liberties were substantively protected by this clause, the Court, in order to discipline itself so as to leave as little room as possible for free-floating judicial creativity, has held that the 14th Amendment protects only those liberties (as Chief Justice John Roberts says in his dissent, quoting a very strong precedent) that are “’objectively, deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” I repeat: if the liberty protected by the 14th Amendment is not directly tied to history or tradition, if there are not some authoritative standards to guide and control the justices, then we run the risk of liberty being whatever a majority (in this case, a “bare majority,” which is how Justice Kennedy speaks of narrow 5-4 majorities of whose conclusions he does not approve) the Court thinks or feels it is. Absent these standards, we no longer have the rule of law or settled precedent, but rather that rule of judicial majorities, giving and withholding protection as they see fit. Many people might approve of the substantive result this time, but who knows where the next such decision will take us. That Anthony Kennedy thinks he knows what history tells us about the expanding and changing definition of liberty reveals a breathtaking (and, to my mind, entirely unwarranted) confidence in his judgment.
But, you might ask, isn’t the freedom to marry rooted in our traditions? Hasn’t the Supreme Court, in a number of cases cited by Justice Kennedy, upheld that very right? Well, yes, but the right to marry rooted in our traditions is the right to traditional marriage (that is, between a man and a woman). It isn’t the right to redefine marriage so as to encompass same-sex (and perhaps other) relationships. The problem with Justice Kennedy’s opinion is that his insistence that “the nature of marriage” involves two (and only two) people derives what force it has from the traditional understanding that “the nature of marriage” involved a man and a woman. Having jettisoned the tradition on one point in the name of an alleged individual right to marry whomever one pleases, it is hard, if not impossible, consistently to preserve it on another. Indeed, his mysterious understanding of liberty—“defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—would seem to leave more than enough room for each of us to form his or her own understanding of how and under what circumstances we wish to be related to others.
Now, as Justice Thomas points out in his dissent, the traditional understanding of liberty, by giving us a claim—albeit not an absolute claim—against government interference in our lives offers some, perhaps even much, of the freedom Kennedy has in mind. There’s a lot I can do with other consenting adults in the privacy of my own home. But as Kennedy recognizes, marriage isn’t just a freedom in this sense; there are all sorts of benefits, from tax advantages to child custody arrangements that accompany it, as well as an apparently publicly ascribed “dignity” that attends marriage, as opposed to “living in sin,” as we used, quaintly, to put it. So what’s at stake is not so much a liberty protected by the Due Process clause as equal access to benefits—leaving aside the issue of dignity, which makes for problems all its own—guaranteed by the Equal Protection clause.
Unfortunately, Justice Kennedy doesn’t undertake the kind of legal analysis that usually accompanies equal protection claims. There is no talk either of a “rational basis” for a legal distinction applied to an unprotected class of people or of the “strict scrutiny” of a distinction involving a protected class. To be sure, he has denied in past cases that laws that single out gays can have even a rational basis. Perhaps he doesn’t think he has to repeat himself here, as the irrational animus is, in his view, self-evident. But however much refusing to serve a gay in a restaurant or singling out for legal sanction expressions of gay sexuality may reflect such an animus, it is not at all self-evident that adhering to the traditional definition of marriage does so.
To be sure, there are plausible and perhaps even good arguments on both sides of the marriage issue. But those are arguments to be weighed and evaluated by a legislature, not settled conclusively by a court. By short-circuiting the political process, Justice Kennedy and his colleagues in the majority have forestalled a full and fair airing of the issues and have virtually guaranteed that those on the losing judicial side will question the legitimacy of the result so many of their fellows are celebrating. Further, those who approve of the result will be tempted to regard those who disagree with them simply as sore losers who don’t deserve any respect, which will serve only to poison still more of our public square.
There are other benefits as well that we’ve lost by not working this disagreement out legislatively. A legislature with men and women of good will on both sides might have arranged for robust guarantees of religious liberty for those who conscientiously dissented from a pro-same sex marriage outcome. And rather than opening up a Pandora’s box of different marital arrangements as Justice Kennedy’s conception of liberty does, a legislature might have carefully reworked the traditional definition of marriage to accommodate in some way the genuine personal challenges Justice Kennedy so eloquently describes at the beginning of his opinion. But feeling for the aggrieved and finding a way to help them is the work of legislators, responsible to the voters, not judges who serve for life.
That we have operationally and happily ceded so much truly legislative authority to unelected judges is, to my mind, the most troubling result of Obergefell. In my next post, I will discuss some of the religious liberty challenges that we will, in short order, face.
[1] Justice Kennedy was similarly disingenuous in Windsor v. U.S. (2013), which struck down the portion of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman. Marriage, he averred, was traditionally understood to be a state matter, which was convenient at the moment, but swept away with nary a mention in Obergefell.
