COURT OF APPEALS UPHOLDS STATUTE LIMITING MARRIAGE TO OPPOSITE-SEX COUPLES

On September 18, 2007, the Maryland Court of Appeals issued the long-awaited ruling in the case of Conaway v. Deane (September Term, 2006, Case No. 44), upholding the constitutionality of the Maryland law that “[o]nly a marriage between a man and a woman is valid in this State” (Family Law Article, Section 2-201). The Court of Appeals by a 4-3 vote, rejected the plaintiffs’ arguments that the Maryland law violated both the State Equal Rights Amendment (Article 46) and the Equal Protection Clause of the Fourteenth Amendment. The Court also rejected the argument that there is a “fundamental right” to same-sex marriage.[1]

Background.
Around the country, those who follow the development of gay rights and the effort of gays to secure the right to same-sex marriage had been waiting anxiously for almost a year for the Court of Appeals to rule. Several other states have weighed in on this issue, and except for Massachusetts,[2] all have upheld state marriage laws that restrict marriage to opposite- sex couples. In late 2006, New York’s high court ruled on this issue;[3] and the Maryland Court followed that court’s holding on the main points. Also in 2006, the Supreme Court of New Jersey came down with a ruling that upheld traditional marriage, but ordered its state legislature to create within 180 days a new law providing civil unions for gay partners.[4] But the vast majority of states that have addressed the issue, have resolved it much like the Maryland Court of Appeals. Judge Glen Harrell’s majority opinion gives a thorough treatment of all the key issues.[5]

Even though Circuit Court Judge Brooke Murdock had ruled in favor of plaintiffs (Deane et al, appellees), it was still the plaintiffs who had the greater burden on appeal because the appeal was primarily based upon questions of law rather than questions of fact; and the established law was not on plaintiffs’ side. If Deane et al were to prevail, the Court of Appeals would have to depart from traditional interpretations of the applicable law. Those around the country who have followed this issue saw the possibility that Maryland might depart from traditional interpretations because of its long history of recognizing and legislating rights and benefits for gays. But while Maryland was certainly at the forefront of such national trends, this history had a flip side that argued against the plaintiffs because for the last 30+ years, almost every time the Maryland Legislature would pass a law extending special rights to gays, the Legislature would also pass a disclaimer that specifically qualified the application of such rights—that the bestowal of new rights was not to be construed in any way to affect the Maryland law that limits marriage to only a man and a woman. Thus, while Maryland was at the forefront in recognizing rights for gays, the State also made it specifically clear from the outset that both the State ERA and the bestowal of state rights for gays did not extend to a right to same-sex marriage.

Maryland’s ERA.
With that background, when the case came before the Court of Appeals, the State’s history of recognizing gay rights was of only limited value—it was a double-edged sword, so to speak. The Court first addressed whether the marriage statute’s prohibition of same-sex marriages violated the State ERA. The Court had never before construed the ERA to invalidate the statute restricting marriage to opposite-sex couples. And the majority opinion again declined to do so.

Standard of Review.
The next major issue addressed in Judge Harrell’s opinion was which of the three levels of scrutiny to apply to the Maryland law—strict scrutiny, intermediate scrutiny, or rational basis review.[6] The Court made a lengthy analysis of and rejected plaintiffs’ (appellees’) arguments that gays were a protected class, that heightened or strict scrutiny was warranted, and that there existed a fundamental right to marry someone of the same sex. By a 4-3 vote, the Court found no “protected class,” no “suspect criteria” and no “fundamental right”; and the Court therefore ruled that strict scrutiny was not proper. The Court also failed to find a basis to apply the intermediate (or heightened) scrutiny.[7] The Court held that the rational basis standard was the proper one (Conaway, p. 96).

To satisfy the minimal, “rational basis” test, “a statute reviewed under the rational basis test enjoys a strong presumption of constitutionality, [and] can be invalidated only if the classification is without any reasonable basis and is purely arbitrary” Conaway, at 97, citing Whiting-Turner Contract Co. v. Coupard, 304 Md. 340, 352 (1985). As long as the court can find any conceivable reasonable basis for the statute, it will pass muster. Thereafter, predictably, the Court found that there existed a rational basis for the disparate treatment.[8] The Court held that “the State’s legitimate interest in fostering procreation and encouraging the traditional family structure in which children are born” is an adequate and proper basis to supports limiting marriage to opposite-sex couples.[9] Judge Battaglia, in her dissent, argued that the statute should be subject to strict scrutiny (not rational basis scrutiny), and she further stated that she would have remanded the case for a thorough hearing on the issue of whether or not the State could meet the burden to show that it had a compelling interest to justify the discriminatory treatment.[10]

The Equal Protection Clause.
In determining whether the Equal Protection Clause has been violated, if a challenged law affects a “protected class,” then the Maryland statute could be upheld only if the state had a “compelling interest” to justify the disparate treatment, and only if the court would “strictly scrutinize” the statute and the state interests to make sure that the stringent test had been satisfied. But, if no protected class and no suspect criteria is involved, then the Maryland statute need only satisfy the rational basis test (as explained above). Appellees’ argument that strict scrutiny must be applied was based primarily upon the argument that the marriage law discriminated against a class of people; and they argued that Loving v. Virginia, 388 U.S. 1 (1967) supported this view.[11] But the majority disagreed and held that the Virginia law in Loving was blatant “anti-black legislation” and that the rule articulated in Loving was a prohibition from subordinate treatment of either women to men or men to women, as a class.[12] The majority applied the traditional, most widely accepted interpretation of Loving—that it prohibits classifying males or females as a class in the absence of a compelling state interest. Accordingly, because the Maryland marriage restriction applies to males the same way it applies to females, therefore the statute does not impinge upon the rights of any protected class.[13]

The Fundamental Right Argument.
The remaining major issue in the case was whether or not there existed a “fundamental right” of one person to marry another person of the same sex. To start with, it was acknowledged by all that there is a fundamental right to marry. But the definition of that right was subject to dispute. Deane et al argued that the fundamental right to marry included the right to marry someone of the same sex. But the State countered that the fundamental right to marry has always been limited by the traditional meaning of marriage—that it is between a man and a woman, and that therefore the right to marry has always been limited to the right to marry someone of the opposite sex. The latter interpretation was adopted by the majority.

The Future.
The majority opinion in Conaway v. Deane is 110 pages in length, and the three dissenting opinions added another 130 pages. (Judge Bell concurred with both Judge Battaglia and with part of Judge Raker’s opinion; then Judge Bell added a brief dissent of his own for good measure.) With that many pages of reasoning and rhetoric, one could certainly identify other important parts of the opinions that I have failed to address. And it is not expected that this ruling will end all debate of this important social issue. I don’t think anyone is predicting that the issue is now settled. In Maryland, I would predict that the next forum for this debate will be in the Legislature, where in 2008 I expect to see both a bill to amend the Constitution to restrict marriage to a man and a woman, and opposing bills to both legitimize same-sex marriage and to authorize civil unions for same-sex couples. On that point it is of interest to note that there is now pending before the Supreme Court of California, several “Marriage cases,” which have been combined together, and in which that Court is being asked to rule on the constitutionality of California Referendum No. 22, where the voters rejected civil unions and voted to restrict marriage to only opposite-sex couples.[14]


[1] It is not known at this time whether Deane and the other plaintiffs will petition the Supreme Court for a writ of certiorari, or whether such a petition would be granted.
[2] Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003).
[3] Hernandez v. Robles 855 N.E.2d 1 (N.Y. 2006).
[4] Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006). The Vermont Supreme Court had ruled similarly in 1999. Baker v. State, 744 A.2d 864 (1999).
[5] At the circuit court level, Judge Murdock had based her ruling on Article 46 (the state ERA) and on the Equal Protection Clause, but not on the basis of a “fundamental right.” The Court could have declined to deal with any issues other than those that were addressed by Judge Murdock. But at the outset of the majority opinion, Judge Harrell explained that the Court would be addressing other issues that are relevant, including the fundamental rights issue.

[6] Conaway, pp. 43-47. At these pages Judge Harrell identified the three types of scrutiny, and then proceeded to discuss which level of scrutiny was warranted to address the Maryland statute.
[7] With regard to the intermediate level of review, the Court addressed the issue of whether or not homosexuality was innate, and implied that if it were that the Court might apply either strict scrutiny or heightened scrutiny. But the Court, after examining various scientific studies on the issue, specifically declined to find homosexuality to be an immutable characteristic. Conaway, pp. 66-70.
[8] Of the dissenting Judges, Chief Judge Bell and Judge Battaglia argued that strict scrutiny was warranted. Judge Raker agreed with the majority, that the rational basis test should be applied (Conaway, Raker, J., dissenting, at p. 5). However, Judge Raker went on to argue that the Maryland statute could not withstand rational basis scrutiny. While Chief Judge Bell argued that “strict scrutiny” applied, he nevertheless concurred with Judge Raker’s analysis that the statute failed to meet the rational basis test. I would submit that Judge Raker’s application of the rational basis analysis is a major departure from the traditional interpretation and application of that test.
[9] Conaway, pp. 98 and 109.
[10] Conaway, Battaglia, J., dissenting, at p. 80. Judge Battaglia correctly pointed out that the case had not yet fully developed and explored: “Neither party has explored this issue in the depth appropriate to an issue of such permanent, transcendent magnitude.” Id. Of course, the case was decided on the basis of summary judgment motions, and the court had only been presented sparse evidence on sociological and societal impact of various child-rearing possibilities, and therefore the court was not in a position where it could properly rule on the compelling interest issue.
[11] Conaway, pp. 37-41. In Loving the Supreme Court held unconstitutional a Virginia Miscegenation statute that prohibited marriages between blacks and whites.
[12] Id., 41.
[13] Appellees argued that the Court of Appeals had previously ruled in Giffin v. Crane, 351 Md. 133, 716 A.2d 1029 (1998), that if a law makes sex a factor in a legal distinction, then the state ERA is violated. However, Judge Harrell pointed out that a review of the reasoning of Giffin in its context made it clear that the Court was speaking of distinctions between men and women as classes. Conaway, at 27. Judge Harrell pointed out that his conclusion is supported by the majority of the federal and state courts that have addressed this issue, including the Court of Appeal of Washington, that stated in Singer v. Hara,522 P.2d1186 (Wash. App. 1974) that to interpret an ERA in a way that requires states to permit same-sex marriages “would be to subvert the purpose for which the ERA was enacted.” Id., at 1194. The three dissenting Judges (Chief Judge Bell, Judge Raker and Judge Battaglia) all agreed with Judge Murdock that this interpretation is erroneous; they argued that since the law prohibits someone from marrying another based upon the sex of the partner, that this is sexual discrimination that violates both the State ERA and the Equal Protection Clause of the Fourteenth Amendment.

[14] That case if both interesting and important. The State’s Attorney General argued successfully against Referendum 22 at the first appellate level, where that court ruled that the Referendum was unconstitutional. The issue in California involves some of the same issues covered by the 2006 New Jersey case (Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006) ) and the 1999 Vermont case (Baker v. State, 744 A.2d 864 (1999)).

TRADITIONAL MARRIAGE IS BEST FOR REARING CHILDREN

On September 18, 2007, the Maryland Court of Appeals issued the long-awaited ruling in the case of Conaway v. Deane, upholding the constitutionality of the Maryland law that “[o]nly a marriage between a man and a woman is valid in this State” (Family Law Article, Section 2-201). The Court of Appeals by a 4-3 vote, rejected the plaintiffs’ arguments that the Maryland law violated both the State Equal Rights Amendment (Article 46) and the Equal Protection Clause of the Fourteenth Amendment. The Court also rejected the argument that there is a “fundamental right” to same-sex marriage.¹ It is anticipated that any future efforts to establish a right to same-sex marriage in Maryland will take place in the State Legislature.² When that debate takes place it will certainly include a debate of whether gay couples can raise children as well as heterosexual, married couples. Current studies demonstrate that married, heterosexual couples are better for raising children than other combinations, including both single-parents and same-sex partnerships.

The superiority of the traditional marriage relationship for the rearing of children is supported by both the advantages of marriage to the couple and to the children.

To begin with, the benefits to married partners are better than the benefits to single parents or co-parenting adults. Married men and women are more likely to be financially stable.³ Married adults have greater longevity, less illness and disease, better health and health care, increased happiness, lower levels of mental illness (including depression), and less substance abuse than both single and co-habiting adults.⁴ Homosexual people are at a substantially higher risk for some forms of emotional problems, including suicidality, major depression, and anxiety disorder.⁵ Homosexual women have a higher prevalence of substance use disorders than heterosexual women.⁶ Gay, lesbian and bisexual high school students have higher incidences of alcohol use, cocaine use and illegal inhalant use than others.⁷ The benefits from traditional marriage help parents to be better at rearing children than single parents and co-habiting adults.

Studies also provide direct evidence that traditional marriage relationships are better for the rearing of children than either single-parents or cohabiting adults, including same-sex couples.⁸ Dr. A. Dean Byrd states that “Mothers and fathers contribute in gender-specific and in gender-complementary ways to the healthy development of children.⁹ In support of this, Dr. Byrd referred to the following summary of Child Trends research:
Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage…. There is thus value for children in promoting strong, stable marriages between biological parents.¹⁰

Dr. Byrd states that “extensive research spanning decades yields an overwhelming abundance of data supporting the importance of both mothers and fathers to the healthy development of children.”¹¹ In 1982 Baumrind concluded that children of dual-gender parents are more competent, function better, and have fewer problems than other children.¹² In 1991 Baumrind found that the combined parenting from a mother and a father in the home provided complementary benefits to the children.¹³ In 1984 Greenberger confirmed and bolstered Baumrind’s 1982 study; Greenberger’s study found that the optimal development of children requires gender-specific and gender-complementary contributions that a mother or a father cannot do alone.¹⁴ The difference between mothers’ and fathers’ parenting styles have been confirmed by studies, including studies by Rossi (1987)¹⁵ and Shapiro (1994)¹⁶. A study by Clarke-Stewart (1980) concluded that fathers’ play and mothers’ play with their children are different, and that each offers distinct benefits to the children.¹⁷ Studies by Rohner and Veneziano (2001)¹⁸ and by Diener (2002)¹⁹ documented the unique contribution that fathers make in the development of a child. The absence of a father in the home has been linked to teenage pregnancy, child abuse, domestic violence and the need for psychiatric care. ²⁰ The discipline styles of fathers and mothers also tend to be different, and it is beneficial to children to be exposed to both styles.²¹ A study by Golombok, Tasker & Murray (1997) found that the deficits experienced by children in “father absent families” is no different than the deficits experienced by children raised in lesbian families.²² The adverse affects of the absence of a mother in raising children has also been documented. The 1998 study by Eisold confirmed this.²³ Research confirms that mothers and fathers are not interchangeable; each provides separate and distinct advantages for the raising of children.²⁴

Advocacy groups insist that same-sex parents can raise children as well as opposite-sex parents. But Dr. Byrd says that “studies on same-sex parenting are quite limited and quite limiting,”²⁵ and that most studies that have been cited in support of this proposition have either serious research flaws or other limitations that affect their conclusions.²⁶ In 2000, Lerner and Nagai made a detailed analysis of 49 studies that purported to show that homosexual parents raise children as well as married biological parents. Lerner and Nagai concluded that all 49 studies suffered from “severe methodological flaws, plus other problems.²⁷ These conclusions were confirmed by Williams (2000),²⁸ Nock, a sociologist at the University of Virginia,²⁹ and Stacey and Biblarz (2001).³⁰ Wright and Cummings also noted these serious flaws in their book, Destructive Trends in Mental Health (2005).³¹ More recently, a study by Wainwright and Patterson refuted the claim of some gay activists that incidents of delinquency and substance abuse in adolescents raised by lesbian couples does not differ from those raised by heterosexual couples.³²

Based upon this and other research, George A. Rekers concluded that children are better off raised by heterosexual parents than by gay couples.³³ A 2005 study by Dean Byrd also confirms this conclusion.³⁴

Finally, I would make the obvious argument that a gay couple cannot model a healthy male-female relation between the parents. This statement is beyond the need for proof by scientific study, but its importance should not be overlooked. Over 99 percent of society’s children have and will continue to marry in traditional opposite-sex marriages, where children will be conceived, born and raised.³⁵ There is nothing more geared to the happiness and success of individuals than a happy, traditional family, where parents are able to meet the many and varied needs of male and female children. It is advantageous to the children to have both a male parent and a female parent, each of whom can supply different but important counsel and leadership. When a child is reared in a home with a mother and father who love each other, this is the supreme situation that society can elect to establish. Restricting marriage to opposite-sex couples establishes this preference.

Scientific studies support the conclusion that biological parents are more likely to be better than single parents and same-sex partners in raising children.

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[1] It is not known at this time whether Deane and the other plaintiffs will petition the Supreme Court for a writ of certiorari, or whether such a petition would be granted.

[2] During the last two sessions there were bills offered to amend the State Constitution to limit marriage only between a man and a woman. In light of the recent ruling, it is not certain whether such a bill would be forthcoming in 2008. But on the other side of this issue, it is anticipated that gay rights activists may introduce a bill to do legislatively what they were not able to accomplish judicially.

[3] Wilcox, W.B. et al. (2005). Why marriage matters: Twenty-six conclusions from the social sciences. 2d ed. New York: Institute for American Values. Cited in the testimony presented by A. Dean Byrd (February 1, 2007) “Dr. Byrd Provides Testimony in English Court Case Regarding Same-Sex Adoption” [hereafter referred to as “Byrd”], p. 1. A 13-page summary of Dr. Byrd’s testimony is found at the website of the National Association for Research and Therapy of Homosexuality (NARTH) at www.narth.com. Most of the studies cited in this article come from Dr. Byrd’s testimony summary.

[4] Waite, L. & Gallagher, M. (2000). The Case for Marriage. New York: Doubleday., cited in Byrd, p. 2.

[5] Bailey (1999).

[6] Sandfort, de Graaf, Bijl and Schnabel (2001).

[7] Timothy J. Dailey, “The Negative Health Effects of Homosexuality.” Insight, No. 232, Family Research Council (March 2001).

[8] Popenoe, D. 1996. Life without father. New York: Mark Kessler Books, The Free Press. Pg. 176, cited in Byrd, p. 2.

[9] Byrd, p. 3.

[10] Moore, K. A. et al. (2002). Marriage from a child’s perspective: How does family structure affect children and what can we do about it? Child Trends Research Brief (Washington D.C.: Child Trends) (June), cited in Byrd, p. 3.

[11] Byrd, p. 8.

[12] Baumrind, D. (1982). Are androgynous individuals more effective persons and parents? Child Development, 53, 44-75, cited in Byrd, p. 3.

[13] Baumrind, D. (1991). The influence of parenting style on adolescent competence and substance use. Journal of Adolescence, 11(11), 59-95, cited in Byrd, p. 3.

[14] Greenberger, E. (1984). Defining psychosocial maturity in adolescence. In P. Karoly & J.J. Steffans, (Eds.) Adolescent behavior disorders: foundations and temporary concerns. Lexington, MA: Lexington Books., cited in Byrd, p. 3.

[15] Rossi, A..S. (1987) Parenthood in transition: From lineage to child to self-orientation. In J.B. Lancaster, J. Altman, A.S. Rossi, and L.R. Sherrod, eds., Parenting across the life span: Biosocial dimensions. New York: Aldene De Gruyter, 31-81.

[16] Shapiro, J. L. (1994). Letting dads be dads. Parents, June, 165, 168.

[17] Clarke-Stewart, K.A. (1980). The father’s contribution to children’s cognitive and social development in early childhood. In F.A. Pedersen, ed., The father-infant relationship: observational studies in the family setting. New York: Praeger, cited in Byrd, p. 4

[18] Rohner, R. P. & Veneziano, R.A. (2001). “The importance of father love: history and contemporary evidence,” Review of General Psychology 5.4, 382-405, cited in Byrd, p.4.

[19] Diener, M.L., Mangelsdorf, S.C., McHale, J.L. & Frosch, C.A. (2002). Infancy, 3(2), 153-174; and Masser, A. (1989). Boys’ father hunger: The missing father syndrome. Medical Aspects of Human Sexuality, 23(1), 44-50. Both of these are cited in Byrd, p. 5.

[20] Blankenhorn, D. (1995). Fatherless America: Confronting our most urgent social problem. New York: Basic, cited in Byrd, p. 5.

[21] Gilligan, C. (1994). In a different voice. Cambridge, MA. Harvard University Press, cited in Byrd, p. 5.

[22] Golombok, S., Tasker, F., & Murray, C. (1997). Children raised in fatherless families from infancy: Family relationships and the socioeconomic development of children of lesbian and single heterosexual mothers. Journal of Child Psychology and Psychiatry 38:783791, 788, cited in Byrd, p. 6.

[23] Eisold, B., (1998) Recreating mother: The consolidation of ‘heterosexual’ gender identification in the young son of homosexual men. American J. of Orthopsychiatry 8:3:433-442,cited in Byrd, p. 7.

[24] Biller, H. (1993). Fathers and families: paternal factors in child development. Westport, CT: Auburn House, cited in Byrd, p. 7.

[25] Byrd, p. 9.

[26] Byrd, pp. 9-12.

[27] Lerner, R. & Nagai, A.K. (2000). “Out of nothing comes nothing: Homosexual and heterosexual marriage not shown to be equivalent for raising children,” paper presented at the Revitalizing the Institution of marriage for the 21st Century conference, Brigham Young University, March, Provo, UT, p. 1, cited in Byrd, p. 9.

[28] Williams, R. N. (2000). A critique of the research on same-sex parenting. In D. C. Dollahite, ed. Strengthening Our Families, Salt Lake City, Utah: Bookcraft, 325-355, cited in Byrd, p. 10.

[29] Nock Affidavit, Paragraph 3. Halpern v. Attorney General of Canada, No. 684/00 (Ont. Sup. Ct. of Justice), cited in Byrd, p. 11.

[30] Stacy, J. & Biblarz, T.J. (2001). (How) does the sexual orientation of parents matter? American Sociological Review, 66(2), 172, cited in Byrd, p. 11.

[31] The esteemed psychologists, Drs. Rogers H. Wright and Nicholas A. Cummings describe this blatant and embarrassing situation as a trend to sacrifice science for a popular social agenda. Destructive Trends in Mental Health, New York: Routledge (2005). Dr. Cummings is a former APA President and a recipient of five honorary doctorates. Dr. Wright served on the APA Board of Directors. One of the important erroneous beliefs that Wright and Cummings bring to light is the unfounded assertion that homosexuality is innate and immutable. In 2003 Dr. Robert L. Spitzer published his research and findings that many people have successfully changed and repressed same-sex attractions that had plagued them for many years. (See Archives of Sexual Behavior, Vol. 32, No. 5, Oct. 2003, 403-417.) The Spitzer study is especially significant because he is the very man who years ago took the lead in advocating to remove homosexuality from the list of psychiatric disorders.

[32] Wainwright, J. & Patterson, C. (2006). Journal of Family Psychology, 20,3,526-530, cited in Byrd, p. 11.

[33] George A. Rekers, Ph.D., “Review of Research on Homosexual Parenting, Adoption and Foster Parenting.” University of South Carolina School of Medicine (2004).

[34] A. Dean Byrd, “Gender Complementarity and Childrearing: Where Tradition and Science Agree.” Journal of Law and Family Studies, University of Utah (2005).
[35] Study of marriages in Sweden and Norway, where same-sex marriages are allowed, reveals that less than one percent of marriages taking place there (between 1993 and 2001, after same-sex marriage was legalized) are same-sex marriages. Gunnar Andersson, et al., “The Demographics of Same-Sex Marriage in Norway and Sweden,” Demography 43 [2006]: 79-98, cited in World Congress of Families, “Homosexual Unions: Rare and Fragile,” http://www.worldcongress.org/WCFUpdate/Archive08/wcf_update_816.htm

Supreme Court Delivers Five, Important 5-4 Rulings—The Roles Played by Justices Roberts and Alito Are Key

On Thursday, June 28^th, the Supreme Court ended its term, by issuing several important rulings, five of which were extremely important, 5-4 rulings, in which Chief Justice Roberts and Justice Alito combined with Justices Scalia, Kennedy and Thomas to bring narrow victories over the four more liberal Justices, Stevens, Souter, Ginsberg and Breyer. A review of these five cases will manifest their importance. Conservatives will applaud President George Bush for two excellent appointees; liberals will be unhappy. But whatever one’s political persuasion may be, an understanding of these five rulings is important.

The summaries that follow are admittedly laced with this writer’s opinions. But there is nothing wrong with that. This is a private picnic event, and these statements do not necessarily represent the opinions of either my church or my city or of Jim & Sarah Olson. They are the considered thoughts of one who has followed the Supreme Court with great interest for many years. I hope my comments can help all of us to better understand the state of our Constitution.

Below are the five cases.

Parents Involved in Community Schools v. Seattle School District No. 1

On June 28, 2007, the Supreme Court announced it ruling on an affirmative action issue that arose in Seattle, Washington and Jefferson County, Kentucky. By a 5-4 vote the Court struck down desegregation plans in both of these school districts because the plans were based purely on racial percentages and were not related to either of the two acceptable justifications for affirmative action, i.e., to remedy past racial injustices or to provide the benefits of a racially diverse student body. The Supreme Court has legitimized these two justifications for affirmative action, and the Court has stated that if a desegregation plan is narrowly tailored to accomplish one of these objectives, then the demands of the Fourteenth Amendment’s Due Process Clause are satisfied. But neither the Washington nor the Kentucky plans even attempted to articulate such a connection with its racial percentage plans. Accordingly, the plans failed to survive the strict scrutiny that the Equal Protection Clause demands of any racially-driven, governmental plan.

This decision once again pitted the five more conservative Justices with the four more liberal Justices. But this ruling is likely to evoke more criticism and commentary than the other rulings announced this week for several reasons. This is primarily so because it pertains to race, and there are a number of outspoken leaders in the nation who do not hesitate to speak out against racism whenever they can, whether or not the particular facts justify such an allegation. The dissenting Justices implicitly called for such criticism in their long and emotional argument against the majority’s opinions. But for all the protestations of the dissenters, Chief Justice Roberts and the majority correctly applied the law, and properly rejected the desegregation plans. If the dissenters’ opinion had been in the majority, this case would have stood for a significant extension and expansion of the types of racially-motivated, affirmative action plans that the Court has chosen to permit under the Equal Protection Clause. The Roberts Court wisely drew a line in the sand and took a stand against further expansion.

It should be pointed out that the Parents Involved opinions are 185 pages in length. Few people will take the time to read them, let alone to understand them. I expect that the discussion of this case will be limited primarily to name-calling and superficial treatment. The Majority will be labeled as “racists” and the dissenters will be hailed as the heroes of the down-trodden. Neither is true. The plain language of the Equal Protection Clause and the clear language of the earlier cases on affirmative action all support the ruling of the Court on this important issue.

The pages of opinions generated by the Justices in addressing this case was multiplied because of the acerbic dissent of Justice Breyer, who spent numerous pages giving his account of historical events and stating his sociological arguments for upholding the Seattle and Jefferson County plans. Justice Thomas’ concurring opinion devoted 36 pages to respond to Justice Breyer’s argument. The Chief Justice’s (the Majority) opinion, devoted thirteen pages to respond. But the Majority was not side-tracked; they got it right.

National Association of Home Builders v. Defenders of Wildlife

On June 25, 2007, the Supreme Court, in another 5-4 decision, resolved a procedural conflict between to federal agencies pertaining to the protection of endangered species, the result of which is to lessen the protection given to endangered species.

The legal question around which this case centered is whether the Environmental Protection Agency (EPA)is required to consider whether a construction project would jeopardize an endangered species before transferring permitting authority to a state (Arizona). The Supreme Court answered this in the negative; they said that the Clean Water Act of 1972 requires that the EPA transfer permitting responsibility for a project to the applicable state once nine criteria are satisfied. And that is what the EPA did. Thereupon, Defenders of Wildlife filed suit directly in U. S. Court of Appeals for the Ninth Circuit, requesting the court to order the EPA to first insure that a water project would not endanger the cactus ferruginous pygmy-owl and the Pima pineapple cactus. The Ninth Circuit ruled in favor of the petitioners (Defenders of Wildlife). However, the Supreme Court reversed, ruling that the EPA had correctly transferred permitting authority.

Having given this brief description of the case, you might ask, “So what?” What makes this case important? The answer is that this ruling is a setback to those who have sought to place protection of endangered species as a higher priority than the primary purposes of other federal agencies and programs. The four dissenting Justices (Stevens, Souter, Ginsberg and Breyer) argued that the majority's interpretation of the Clean Water Act reverses a long-standing mandate that Congress must make protection of endangered species a priority over the “primary missions” of other federal agencies.

(J. Stevens, dissent, p. 2). But the opinion of Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy and Thomas) disagrees.

This case was necessary because of a difference in the Circuit Courts in addressing this procedural issue. It is not clear to me that the decision will necessarily be more or less protective of endangered species. I believe it will relegate to states more of the enforcement of endangered species protection; perhaps this will yield some inconsistent interpretations of law. But I favor this deference to the States; it should mean that decisions regarding the protection of endangered species will be made by the people closest to the situation, and therefore perhaps more sensitive the the affects and influences of such issues. It certainly divests the federal government of some control over protection of endangered species.

Morse v. Frederick

On June 25, 2007, the Supreme Court ruled in Morse v. Frederick, 551 U.S. ____ (2007) that Deborah Morse, a high school principal in Alaska, did not violate the free speech rights of one of her students, Joseph Frederick, when she confiscated a 14-foot banner that Frederick displayed at a school event, which banner bore the phrase, “BONG HiTS 4 JESUS,” and when she suspended Frederick for not complying with her directive to take the banner down.

This case was another 5-4 ruling, with newly appointed Justices Roberts and Alito on the side of the majority.

The key fact in this case is WHERE the speech event occurred. In most places and circumstances, such speech is fully protected by the First Amendment. But certain limitations kick-in when it occurs as a part of a school event.

The dissenting Justices (Stevens, Souter, Ginsberg and Breyer) complain that the suspension of Frederick was unfair; that the displaying of the banner was not disruptive; that the phrase did not encourage the use of drugs; and that Frederick had no intent to promote the use of drugs—that he was just trying to get attention. But the unique situation of the public school setting justifies the actions taken by Principal Morse in this case. The majority got it right.

The situation would be different if the student were disciplined for something he had said in an in-class discussion about drugs or politics or some other relevant issue. But when a student seeks to use a school forum to make his own speech, for his own purposes, his speech rights are limited because he has no right disrupt the school program or to use the other students to advance his agenda. And “disruption” should be broadly defined, and the school authorities should be given discretion to make the spur-of-the-moment judgments that they feel are best for the school. And their discretion should not be subject to review unless it is clearly erroneous.

While I, for one, disapprove of some of the public school curriculum that my children are and have been subjected to, nevertheless, the greatest problem facing our public schools today is the lack of discipline of the students and the lack of control that teachers have over their students. The increased freedom of students has led to significant increases in disrespect in classrooms; and this has in turn had a serious, deleterious effect on our public education system. If the school system must subject itself to recognize and showcase every student who decides to exercise his freedom of speech rights, this would lead to chaos. The Supreme Court’s ruling in Morse v. Frederick is a step in the right direction, to help the schools regain control so that the education environment can be better for all students.

Now, having shared my social commentary on Morse v. Frederick, let me say a little bit about the legal issues involved. The guiding case with respect to this school speech issue is Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). In that case the Supreme Court allowed students to wear black arm bands in protest of the Vietnam War. The Court ruled that unless the speech [the wearing of the armbands] would “materially and substantially disrupt the work and discipline of the school,” then the conduct was protected under the First Amendment. In that case the students’ conduct prevailed over the school administrators. But in the case of the “BONG HiTS 4 JESUS” banner, the principal said that the banner was taken down because she thought that it promoted illegal drug use. The student denied that this was his intent, and a close analysis of the wording yields uncertainty about what the phrase means. But the majority of the Supreme Court held (and correctly, in my opinion) that the principal’s “on the spot” action to confiscate the banner was a “reasonable” action for her to take in controlling student expressions that could contribute to dangerous conduct (Roberts, C.J., slip opinion, at p. 15).

It was important that this case be decided in favor of the school administrator for one, big reason: The school should not be made a stage for national debate on current social/political issues. A student should not be empowered to take over the education system at will by asserting a constitutional right at any time he chooses. To allow a student to assert a constitutional right at any time he/she chooses would be to sew the seeds of disruption in the school. In fact, this disruptive effect has already been in operation for over 30 years. It has contributed to a decline I the discipline and respect of students and to an increase in the widespread disrespect that now plagues public schools.

Hein v. Freedom From Religion Foundation, Inc.

On June 25, 2007, the Supreme Court ruled 5-4 in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. ____ (2007) that being a taxpayer is not enough to give an individual standing to bring a suit to challenge the Executive Branch's using faith-based programs for delivering social services as a violation of the First Amendment's Establishment Clause.

This ruling is important because it blocks law suits that challenges the government's accommodation of religion, including acknowledging religion and on occasion even working with religion in addressing social needs. The Hein ruling means that anti-religion zealots have no right to bring a law suit to challenge the work of the Executive Branch for involvement with religious organizations merely because this may hurt their feelings. The Hein ruling dictates that in order to have standing to challenge such Executive Branch action, the complaining party must show that it has suffered “injury in fact,” not just “psychic injury.”

The name of the complaining party indicates exactly what this law suit was all about. The complainant wants to eradicate all vestiges of religion from government. They are upset with the nation's long, constitutional tradition of accommodation of religion; they are madder still at the national motto, “In God We Trust” and at the statement in the pledge of allegiance that we are a nation “under God.” They cringe every time a President says, “God bless America.” Their stated goal is to change all of this. They wish to convert the meaning of the Establishment Clause of the First Amendment from a shield to a sword; they wish to change freedom of religion to freedom from religion.

The Hein ruling is an important defeat for the anti-religionists.

However, a review of the Hein ruling is interesting and important for some other reasons, too. Like the Court's ruling on the same day in FEC v. Wisconsin Right to Life, a majority of five conservative justices came to the same conclusion, but based upon different rationales. In fact, in both of these cases, the rationales of Justices Scalia and Thomas were in some respects closer to that of the dissenting Justices (Stevens, Souter, Ginsberg and Breyer), in that these six felt that the distinctions made by Chief Justice Roberts and Justice Alito were not logically sustainable—that there was no basis for limiting the application of Flast to Congressional acts but not to Executive acts. But in both cases, Justices Scalia and Thomas voted with the Chief Justice and Justice Alito because the former felt that the Court should overturn an erroneously decided case rather than to try to carve out an exception to the cases. I find this to be intellectually intriguing.

In Hein, discussion centers on the case of Flast v. Cohen, 392 U.S. 83 (1968), in which the Supreme Court ruled that a mere taxpayer had standing to challenge in court the government's using funds allocated by Congress under the Elementary and Secondary Education Act of 1965 to support parochial schools. (J. Scalia's concurring opinion, p. 5.) But the Court in Hein distinguished Flast by pointing out that Flast dealt with a Congressional act whereas the expenditure in Hein was a discretionary expenditure of the Executive Branch. Justices Scalia and Thomas agreed with the Chief Justice and Justices Kennedy and Alito as to the result—they just felt that Flast was wrong in the first place, and that it should be overturned.

I am with Justices Scalia and Thomas on this case. The “psychic injury” test for standing is bad policy. The Flast case continues to recognize and endorse this ephemeral standard. To illustrate the application of the “psychic injury” look at some litigation that took place in my town, Frederick, Maryland just a few years ago. An eighteen-year-old student filed suit to remove a Ten Commandments monument from the City's war veterans' memorial park. In order for this young man to state a valid cause of action he first had to declare that be seeing the Ten Commandments monument in the park that this caused him emotional pain and grief. For if the young man would not say that the monument bothered him, then he would not be able to challenge the constitutionality of the City's harboring of the Ten Commandments monument. The young plaintiff contacted the ACLU to get the legal direction he needed, then he claimed that the monument disturbed him, and then—because of the Flast case—he got standing to suit the City in court.

The Flast case has served to open the flood gates to a host of litigation aimed at making people feel good, rather than addressing claims for actual injuries in fact. The nation has become obsessed with addressing touchy, feely mental and emotional matters. The penchant for hate crime laws is another manifestation of this same trend. It is not enough to punish a criminal for his wrongful acts of violence, but we have enacted laws to give increased punishment if we can prove that the criminal harbored certain, specified bad intents at the time. This exercise is unnecessary; it is the product of legislators have too much spare time on their hands; it costs more tax monies to administer; and it causes all parties more money to implement.

Justices Scalia and Thomas were right to call for Flast to be overturned. They were unsuccessful in this, but at least the conservative block was successful in limiting the bad effects of Flast.

FEC vs. Wisconsin Right to Life

On June 25, 2007, the Supreme Court ruled 5-4 that the Federal Election Commission (FEC) erred in baring the Wisconsin Right To Life (WRTL) organization from broadcasting three issue ads during the 2004 election campaign. The three ads had addressed the concern of the WRTL to stop the Senate filibustering of the appointment of federal judges. The FEC had ruled that these ads were the functional equivalent of express advocacy because they implicated Senator Feingold, who was supportive of the filibusters and who was running for re-election. The U. S. District Court for the District of Columbia found in favor of WRTL, and overturned the ruling of the FEC; the court ruled that the three ads were not “express advocacy” ads and were not the “functional equivalent” of express advocacy. The Supreme Court affirmed the ruling of the District Court.

This is an important ruling because it effectively overturns part of the McCain-Feingold, Bipartisan Campaign Reform Act of 2002 (BCRA). Just three years ago, the Supreme Court ruled (5-4) in McConnell v. Federal Election Commission, 540 U.S. 93 that the BCRA was constitutional. For those who have followed this issue for some time, you may recall that after its passage in Congress, there was considerable disappointment among conservatives that President Bush did not veto the bill. Some thought that the President may have been counting on the Supreme Court to invalidate the law. This writer, for one, had predicted that the Court would find the BCRA to be an unconstitutional limitation on speech that is protected under the First Amendment. But, by the narrowest of margins (5-4) the Supreme Court upheld the BCRA.

The issue that was before the Court in FEC v. WRTL addressed one aspect of BCRA—issue ads that are aired by corporations during the blackout period, 30 days before a primary and 60 days before a general election. The WRTL wanted to run their three issue ads during the regulated period even though they acknowledged that the BCRA prohibited their broadcast. The WRTL argued that the issue ads were protected speech that must be permitted regardless of the prohibiting language of the BCRA. The Supreme Court agreed.

This case is so significant because it is very difficult to distinguish between issue ads (which are not barred by the BCRA) and express advocacy ads for or against specific candidates for election (which are barred by the BCRA). The difficulty to distinguish the two is demonstrated in the WRTL case. While the wording of the ad addressed an issue and did not directly encourage voters to vote for or against any candidate, the effect of the ad was to criticize Senator Feingold for supporting a filibuster of a Senate vote on the President's judicial nominees. Thus, the effect of the WRTL ads was to indirectly criticize a candidate. But five of the Justices upheld the right of WRTL to broadcast its issue ads regardless of whether the effect might be to help or hurt a particular candidate.

But the Court was not unified in the reasoning for this ruling, and that makes the case even more intriguing. Chief Justice Roberts and Justice Alito reasoned that the McConnell ruling of three years ago had preserved for corporate speakers a right to broadcast issue ads during the blackout period so long as they were not “express advocacy” or the “functional equivalent” of express advocacy. Then, Justice Roberts reasoned that an issue ad should not be deemed the functional equivalent of express advocacy unless the ad “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” This, of course, is an extremely broad test that would protect almost all issue ads from being found to “express advocacy.” This, broad standard, that would immunize most issue ads from the reach of the BCRA is so protective of issue ads that all seven of the other Justices argued that it would effectively overturn the McConnell case. That's where Justices Scalia, Kennedy and Thomas come in; they wanted to specifically overturn that portion of the McConnell case; and for that reason they joined in a concurring opinion (authored by Justice Scalia) that ruled in favor of WRTL, but they would invalidate part of the McConnell ruling. This left the remaining four Justices complaining in their dissent (by Justice Souter) that the Court had erred by effectively overturning a major part of the McConnell case by invalidating Section 203 of the BCRA.

Where does that leave us as the 2008 Presidential Campaign is fast upon us? The BCRA remains good law, but the ruling in FEC v. WRTL effectively guts it with respect to corporate issue ads. Personally, I prefer Justice Scalia's reasoning, but the reasoning of Chief Justice Roberts is not bad either. And that's what you get with a plurality decision—more than one rationale in support of a specific ruling. In any event, this ruling is an important victory for fundamental freedom of speech rights.

FY 2008 Budget – Police

Tonight, the Mayor and Board of Aldermen will discuss/debate whether to pass a budget for FY08 which includes funding for six more police officers than were included in the Mayor’s budget. I received a compromise proposal from Alderman Imhoff yesterday which I expect to be the basis of further debate on this issue. What the ultimate outcome will be after our discussions tonight, I do not know. However, whatever the final vote is, it is important in the future that the Mayor and Board present demonstrable evidence of specific needs that justify increases in the size of its work force. This is especially true with respect to substantial increases in the number of police officers because of the high, long-term cost of each new officer that we add to our force. It has been estimated that the cost to the City of each new officer over a 22-year period is approximately $2 million. This cost to the City can be more than doubled thereafter during an officer’s retirement. The point is that we should be sure to properly justify a specific need for new officers before adding them to our budget. This preparatory process—which has not been complied with today by those requesting the six new officers—should be honored and complied with in the future. It is a matter of responsible fiscal management.

With an absence of evidence supporting a need for six new officers, I have supported the Mayor’s budget, and I have supported his veto of the two budgets passed by the Board. Nevertheless, I would point out that when the Mayor and Board met on May 30^th to discuss the budget, I supported the Mayor’s proposal that two additional officers be added to the force in the FY08 budget, and that another two be added in the FY09 budget. In light of the absence of any empirical data to justify increasing the size of our police force, this was a substantial compromise made by the Mayor. Despite my concerns that such increases may not be warranted, I supported the Mayor in this proposal. However, a majority of the Board flatly rejected the proposal as a totally inadequate and unacceptable compromise, and refused to accept anything less than six additional officers.

Though the Mayor’s compromise proposal would have provided four of the six requested new officers, he was accused of not being willing to compromise. Thereafter, some citizens have sought to drive a wedge between the Mayor and his two supporters and the police. But this is not an issue of who is pro-police and who is not. The Mayor and the entire Board are complimentary of our police and of Kim Dine, our Chief of Police. We’re proud of them and of him. We all recognize the great job that they have done and that they are doing. The issue is whether and when and by how many officers we should increase the size of our police force.

The accusations and name-calling and threats that have been communicated to me since May 30^th is appalling and disgraceful. If I do not vote to override the Mayor’s veto, the typical message goes, then I will be responsible for a drastic increase in crime that is about to be poured out upon the City. In the couple of dozen emails I have received in the past three weeks on this issue, I have been accused of being stupid, of gutting the Police Chief’s budget, and of ignoring the crime statistics. As I will explain below, none of these criticisms is valid. And despite the angry and emotional appeals that have been leveled at me, I intend to do the right thing and to make decisions that are best for the City based upon facts and good reasoning.

I. Before adding six new police officers, a need for them should be demonstrated.

It has now been over a month since the Mayor and Board of Aldermen first began debating whether or not the City needs to authorize an increase in the City police force from 141 to 147. And for at least that long, those who are asserting that we need more officers have been challenged to show what is the particular problem and need that requires an increase in the force, and to give factual arguments about how many additional officers are needed and why. Despite the fact that this debate has continued for over a month, there has still been no evidence offered to respond to this challenge. If in fact the need were so clear, I would have expected the proponents to present some rational, factual argument that backs such a request. But none has been offered.

Many have asserted that new officers are needed because the city is growing and because crime is rising. If these factors do indicate a need for more officers, then it should be no problem stating what this data is that supports the request. But no such data has yet to be presented to support the request. Multiple assertions that we need more officers is not a substitute for a demonstrable showing that a need exists for which a specific number of new officers may be required.

It is important that the City make appropriate plans to handle its needs (including its projected needs) so that we can maintain and preserve the excellent quality of life we have in Frederick and so that we make economically sound decisions as to the size of our city government, including the size of our police force. Before we increase the size of our city government we should articulate specific problems or needs for such an increase, and we should fashion the specific remedy for the problems/needs that is appropriately tailored to meet such problems/needs.

The issue of whether or not the City should authorize 6 more police officers has never been based upon a study of data, nor on an analysis of how our department is doing. This fact has been amply demonstrated by the 12-20 emails I have received, none of which has cited any factual support for the City’s needing six more officers. The proponents of six more officers have decided that six officers are needed before they have analyzed data that could perhaps support such a need, and before knowing whether or not such data would support the request they have made. I have said from the beginning, I believe such a study and such analysis should precede the City’s increasing the authorized size of our force above the 2.3 officers per thousand level. I am not in favor of increasing the size if we cannot articulate the specific problem for which more officers are needed. And I am not in favor of adding a particular number of officers unless we can articulate why that particular number is required to meet our needs. The City has not gone through this process. Neither have any of the proponents for additional officers gone through this process.

Every month various proposals and requests are brought to the Board of Aldermen, and such requests are routinely supported by thorough studies and analysis, drawing upon available facts, figures and reasoning in support of proposals. In an era where we routinely insist upon studies, statistics and other data to substantiate precise needs and well-planned solutions, the City should insist upon requiring the same basis before expanding the size of its employee force—especially where the targeted expansion includes multiple employees with a multi-year price tag of $12 - $24 million. That is exactly what should be done here to support any request for additional police. I would suggest that the pertinent information would include data on crimes and arrests—including locations and dates—comparing it with other years and including the number of officers on the force.

II. Email messages advocating for six more police officers.

One email said that we need more officers because the studies show that such a need exists. At least this individual, and I agree that the need for more officers should be premised on some study of how our department is doing in addressing crime. But, I differ with this individual as to whether any study exists that supports increasing the size of our force. I have never seen such a study, and I’m not aware of statistics that are supportive.

One email criticized the Mayor for “gutting the budget of the FPD.” This accusation is totally erroneous. The Mayor’s budget, which includes the police department’s budget, gives $2 million dollars more to the police than what they had last year. One thing is certain, the police budget is not going to be gutted. The police get at least $2 million more in this budget; the question is whether there will be yet another $300,000 added to the FY08 budget.

One email chastised me for not giving Chief Dine the extra police officers that he requested. But Chief Dine has not asked for six more officers—not at the public meetings I’ve attended. Chief Dine submitted a budget that was $2 million more than last year’s budget. I remember two parts of his proposed budget that indicated he could have trouble staying within his budgeted amounts. But he thought it was possible to achieve, and we were all aware that he had available to him inter-departmental transfers if a particular sub-department should be unable to stay within its budgeted limits. We also know that the Police had an excess of funds during the last budget cycle. To the Chief’s credit the department turned back to the City’s General Fund $845,570 in unused funds at the end of the FY06 budget. This year it is projected that the Police will turn back $230,000 of unused funds to the City’s General Fund. Historically, we have every reason to believe that the budget proposed by Chief Dine is a good and appropriate budget. At $22 million, it is ten percent more than last year. With the new computers that have been purchased and will be purchased for 61 squad cars, our officers will be better equipped and more efficient than ever before. With the 12 new officers that will graduate from the police academy next week, our force will receive a substantial boost in personnel to help meet the City’s needs. Perhaps it was because of these things that the Chief did not request more officers. But whatever the reasons may be, he did not ask for more officers. I happen to believe that Chief Dine is a good administrator and a very good police chief. If and when he projects that we will need more officers, I expect he will say so. At this point he has not.

On Tuesday (2 days ago) I did receive one email that argued that statistics showed that Frederick needs a larger force. I will discuss this argument in more detail later. But with the exception of that one email, I have not seen even an attempt to make a good statistical argument of why we need more officers. I am aware that the word has gone out for citizens to write me and urge me to vote to fund 6 more officers. This explains why I have received more such mail in the last week than is customary for an issue that is before the Board. But none of the emails have provided the type of support I am looking for, although some of them were quite forceful in their language. Several of them made it clear that if I did not vote to fund 6 more police officers now then they would not vote for me in the next election. Some of the emails sought to influence my vote by threats, name-calling and disparaging comments. I always marvel at that type of persuasiveness. I have always tried to base my opinions and my votes on sound principles and facts; I continue to try not to be influenced be threats and emotional pitches that are not backed by facts and sound reasons.

III. Frederick City Crime Statistics

I mentioned that one email directed me to some statistics that the writer said warranted the addition of six more police officers. I looked at the web sites to which I was directed, but I did not find the information supportive. But I will share some of the information that I found on those sites.

One site[1] reported that violent crimes in Frederick has steadily decreased beginning in 2001 as follows:

Year Rate per 100,000 people

2001 1,326

2002 1,206

2003 1,004

2004 1,060

2005 853

This same site also showed a similar, decreasing trend in property crime during the same period:

Year Rate per 100,000 people

2001 4,170

2002 3,777

2003 3,155

2004 3,067

2005 2,742

These figures speak very highly of Chief Dine and the entire force, but they do not make the case that we need six more officers. It is worthy noting that during the same time period, in Hagerstown, a smaller city, that incidences of crime are less, but that the opposite trend has taken place:

Year Rate per 100,000 people

2001 583

2002 635

2003 643

2004 679

2005 738

Figures for Baltimore showed the same decreasing trend in violent crime that we have experienced in Frederick, although the incidences are approximately twice as many per person there as they are in Frederick. Here’s what the figures show for Baltimore:

Year Rate per 100,000 people

2001 2,239

2002 2,055

2003 1,735

2004 1,839

2005 1,754

Information was not available on Gaithersburg and Rockville—two cities of similar size to Frederick.

This site and another site[2] compared the City of Frederick to a national crime average (using 2004 figures). This information showed violent crime to be slightly higher here than the national average, but it showed Frederick to have less property crime than the national average. And in terms of total incidences of crime, Frederick’s crime rates are better than the state average and comparable to the national average. But regardless of how Frederick stacks up in these ratio comparisons, this exercise is not helpful in determining whether or not the size of our current force is adequate and proper. More helpful would be a comparison with other cities of similar size and conditions. And most helpful would be figures that would show crime rates within Frederick City itself during the past few years, showing the corresponding population and size of force figures. It would also be helpful to look at trends for when and where crimes occur in the city. But none of this critical information has been presented to support a need for additional officers.

IV. Issues of Fiscal Responsibility

1. First determine if there is a specific need. While there are some outspoken proponents for increasing the size of our force, there have also been many responsible citizens who have supported the approach that the number of officers should not be increased unless a showing can be made that there is a need to do so.

All of the City’s elected officials receive information about crimes and arrests in the City. We receive information that allows us to see when and if criminal activity is increasing in certain areas. The Police Department also has this information, and it is their charge to regularly assess how to meet such needs—whether their existing assignments and approaches are adequate; whether they should change assignments to meet emerging needs; and whether they believe additional officers are required to meet needs. I have seen no such statement or request from the Police Department. If the Police Department feels there is a need for additional officers to meet needs, then the request and the supporting basis should be presented before we add officers.

One of the primary concerns of many Frederick residents has been to hold the line on City taxes and to limit the growth of government as a principal way to accomplish this. Because of this, it is the responsibility of elected officials to be constantly vigilant to seek to trim excesses and improve efficiency in government. And where a need is demonstrated, legislators have the responsibility to identify specific problems and needs and to fashion solutions that meet those needs in the most efficient and cost-effective manner. In order to fashion such solutions we must understand the nature and extent and description of the specific problems to be solved so that the solutions we fashion are narrowly tailored to meet the identified needs without incurring excessive taxpayer expenses.

Three of my colleagues propose that the City add 6 additional policemen to its force beginning in budget year 2008. Our current force size is 141 officers; the proposed addition would bring the authorized force to 147. Over a 22-year period, the cost to the City of each additional officer would be approximately $2 million (or $90,000/year [for salary and benefits]). Thereafter, during retirement, this could cost the City an additional $2 million. Thus, by increasing the size of our police force by six officers, the City is undertaking a cost of $24 million over the next 50 years (or $545,000/year).

This high cost does not mean that we should not add police positions. It just means that we should identify the need, consider the options, count the cost, and weigh the alternatives BEFORE we decide how many new officers the City should have. Before we grow the size of the City government by creating new, permanent employment positions, we should make sure that the new positions are warranted. This applies to all permanent positions, including the police force. It is easier to increase the number of employees than it is to decrease the number.

Using this approach to the question of whether we need additional police officers, and if so, how many, the first step is to identify the specific needs that warrant additional officers. If a specific need for more officers cannot be articulated, then the analysis should stop. “If it ain’t broke, don’t fix it.” Similarly, if all someone can do is assert that he or she “feels” we need more police officers, then the analysis also stops there. Only if there is a demonstrable need, should we consider adding new employees.

Demonstrable need can include future projections and trends. But there should be some specific analysis of how many officers are needed to solve what problem.

In the current budget debate, it has been asserted that the City needs 6 new police officers. But no adequate justification has been presented for this assertion. Comparing the ratio of police offers to population of our City with that of Hagerstown, Westminster, Gaithersburg or Rockville cannot prove a need for more officers. Neither does a comparison of Frederick City Police Department with the Frederick County Sheriff’s Office prove such a need. Such comparisons avoid the ultimate question of what is the specific need for which the additional officers are sought.

2. If there is a need, first determine if the need can be met without adding new employees. After a specific need or problem is identified, the City should first consider if that need can be met without adding more police officers. For example, can the attention of the officers be redirected from one time/place to another in order to meet an identified need? If so, then that is the preferred solution. Only if such redirection is not sufficient, should we look to add officers.

Sometimes a need can be met by adding additional equipment or changing policing tactics. For example, in the 2008 budget we will be adding 11 new advanced computers for cruisers at the cost of $74,435. This will bring to 61 the number of computers that we will have in our police cruisers. The purpose of these computers is to increase the speed and efficiency of police work. If the computers were not expected to increase the efficiency of our officers, then it would have been a waste of money to purchase them. Will the addition of these new computers meet the need for which new officers are sought?

Another potential solution would be to redirect police officers away from some tasks they have customarily done, but which could be done by non-police officers at a reduced cost. For example, could we reduce the number of police officers committed to control traffic during the Frederick Marathon? (The fact that the Frederick Marathon pays for such police service does not eliminate the fact that the police are nevertheless paid from the Police budget, including overtime, and that such services makes them unavailable for other, traditional police services.)

At the end of June, the City’s police academy will graduate 12 new officers, who will then begin to add their services to the force. This is a significant influx of new officers? Will this be sufficient to meet our needs? For those who may contend that this increase is not sufficient, they should state in what specific respects this is insufficient.

3. If new officers are needed, there should be a connection between the need and the number of new officers requested. What is the basis for asserting that the City needs 6 new officers? Why not 12 or 20 or 30? The absence of there being any justification for the suggested number “6” is an indication that the requisite analysis has not taken place. There is no specified need, and there is no specific solution identified to fit any specified need. This absence demonstrates that the increase is being sought based only upon feelings or desires, and not upon any thorough analysis.

Some use the argument that the number of authorized police officers for the City should be 2.3 officers for every thousand people. The City has sought to maintain such a ratio, but adherence to this ration does not directly address the question of whether we have the right number of officers because it does not take into account specific needs and problems. Measuring how well the City stacks up against this ratio has limited value. But, for whatever it’s worth, the City does stack up well against this test. And if that is the extent of one’s argument for new officers, then no new officers should be added. In his May 16^th email, Chief Dine stated that it is his recommendation that the City maintain a police force whose ratio of police per thousand is 2.3. The current authorized force size of 141 officers fully accomplishes this without adding any additional officers.

V. Conclusion

The City’s current police force of 141 officers meets the 2.3 ratio goal. It fully complies with Chief Dine’s request for officers. This size force provides for the safety needs of the City. It does not compromise citizen safety nor does it jeopardize the quality of life in the City. There is no cut in force numbers nor in financial backing for the Police Department. In fact the FY08 budget equips the police force better than they have ever been equipped before. There is no doubt that other police officers will be added to our force in the future. But these additions should be the result of sound business practices and demonstrated needs, not just unsupported assertions.

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[1] http://www.idcide.com/citydata/md/frederick.htm

[2] http://fredrick.areaconnect.com/crime1.htm