Paul Smith's Blog

Bailout Law Embraces Socialism

2008-11-02T18:46:00.000-08:00

Our economic crisis is the result of excessive credit and a collapse of inflated property values. Difficult economic times like this provide the temptation for America to reject its capitalism/free-enterprise system and embrace socialism. The bailout law recently passed by Congress and quickly signed by President Bush is geared to turn our economy into socialism.

When the government bails out those who suffer economic losses—it socializes the economy’s losses. And when the government taxes the successful businesses at extra high tax rates—it socializes the profits. Put the two of these together, and you’ve got socialism.

The stimulus package passed by Congress and the President a year ago—where the government paid over a thousand dollars to thousands of taxpayers—this is also a brand of socialism. And now there’s talk of another stimulus package. The problem with all these programs is that we don’t have the money to pay for them. The bail-out and the stimulus package are funded by DEBT. This means they provide a short-term fix, and that our children and grandchildren will be paying back this debt for the next 30+ years.

Of course, debt applies to both capitalism and socialism. But socialism solutions will make the situation worse. Rather than allow the market to correct itself, the government has rushed in and secured a .7 trillion dollar loan to attempt to fix the problem quick. The Bailout law will spread the loss around so that all tax payers will pay for it, and non tax payers will reap the benefits. Then, if Mr. Obama gets elected, he proposes to tax the dickens out of the rich, so that he can spread their wealth around. That’s what socialism is—spreading the losses and the profits around so that we can become one, big middle class. But it is NOT the role of the federal government (under the Constitution) to provide for the people and to use the force of law to equalize incomes and assets. And just as importantly, it is economic suicide for a government to attempt this. Socialism has failed every where it has been attempted. That is because rather than rewarding creativity and productivity, socialism punishes them!

Mr. Obama’s campaign has been founded on SOCIALISM. His speeches appeal to the poor and the suffering; Mr. Obama promises to provide for every need and to solve every problem through government programs. To do this, he promises to tax the rich and to spread their wealth around to all the suffering masses. This pathetic appeal will undermine our economy. It may attract voters—to promise to provide for them—but it takes from the producers and gives to the unproductive. THIS IS NOT THE ROLE OF THE FEDERAL GOVERNMENT. Mr. Obama wants to change America from being a land of opportunity to being a land of entitlements. That is socialism!

We cannot continue to pretend that it is the role of government to be the provider for the people. That is socialism. That is Mr. Obama’s campaign message. It is wrong. It may win him an election by appealing to the weaknesses of the electorate. But it will eventually prove the downfall of our economy if it is not stopped and corrected.

A bi-partisan majority of Senators and Congressmen approved this bail-out package, and both Senators Obama and McCain supported it. So if this bail-out makes things worse, both parties will share the blame. When we make our government become the provider for its people, and when we eliminate the risks of capitalism, we abandon the limited government set up by our founding fathers. When a majority of voters transform the federal government into a provider of entitlements, we will have discarded the free enterprise system and embraced socialism. Only if we cut back on the role of government can we rescue our free enterprise system.

Look friends (as Senator McCain would say), the long-term solution to fixing this crisis is to wean our nation from too much reliance on credit; individuals, businesses AND governments need to do this. The stock market crash of 2008 was caused by excessive credit and overly inflated property values. The greed that fed this disaster is not limited to the fat cat executives, but includes all the people who over-extended themselves and bought houses that they could not afford. When the majority of a nation lives beyond its means, financial disaster is bound to strike hard and extensively.

With the establishment of responsible fiscal policies in homes, businesses and governments, we will survive the crash of 2008 and the Bailout law. We must re-establish our economy on principles of fiscal responsibility and hard work. But in our haste to solve the problem, let us not embrace socialism, for this will kill the incentive to be innovative and productive. Remember socialism tends to provide the same benefits for all people, regardless of who works and who produces goods and services. This, in turn, discourages initiative and investment, and tends to drive them overseas—to other economies that do reward them. That is why socialism has consistently failed, wherever it has been practiced. The law of the harvest is the foundation of a strong economy. Socialism is not the law of the harvest. In socialism, the goal is to level the playing field so that everyone reaps what other workers have sewn. Socialism is class warfare that operates through the force of law. Socialism doesn’t trust the people to care for one another. Not only does socialism use force to accomplish its purposes, but it is both inefficient and subject to abuse, as it is administered. That is precisely what happened with the financial failures that hit Fannie Mae and Freddie Mack. When the government went overboard in its goal to provide affordable housing to the poor, it abandoned principles of fiscal soundness and promoted irresponsible programs that (1) extended credit to those who should not have qualified and (2) secured these bad loans with property having grossly inflated values. Again, this is the recipe for financial disaster.

The socialism bailout package that Congress just passed is a mistake; it will only exacerbate our financial problems. We must reverse this socialistic trend by reducing government spending and debt. We cannot continue to increase government spending every time we try to solve economic problems. We must repeal and/or revise laws that are killing our free enterprise system. If we abandon our capitalism/free enterprise system, we will kill capital investment, stifle productivity, and ruin our economy.

Despite the need to curtail government spending, Senator Obama is calling for multiple new entitlement programs to spread the wealth around. Senator McCain, on the other hand, opposes creating new entitlement programs, and he is calling for a freeze on ever-escalating government spending. Senator McCain’s approach would be best for the nation.

The Roe v. Wade Scare Ad Tactic

2008-10-11T13:25:00.000-07:00

CLU 09/08
by C. Paul Smith

The selection of Sarah Palin as the Republican Vice Presidential nominee has been a home run for Senator McCain and the Republicans. She is a true conservative. She wants to drill for oil in Alaska, where she is governor. Not only does she say she is pro-family, but she has a large family to prove it. Not only does she say she is pro-life, but she loves the Down syndrome baby that she bore at age 44, five months ago. She is attractive and articulate. She is proud of her small-town roots. She challenges the man-made global warming alarmists. She despises the politically correct, left wing mantras. She is one of us! She has done for the Republican Party what John McCain could not do—energized the conservative base. Both Senator McCain and Governor Sarah Palin are solidly for the Right to Life—and starkly opposed to the Democratic ticket’s pro-abortion stance. Sarah Palin’s nomination has catapulted the McCain/ Palin ticket ahead of Obama/Biden in the polls.

This is not good for Senators Obama and Biden. In fact it is bad for them. In fact they are desperate to stop the McCain/Palin Express before they get run over. This calls for an early deployment of the Democrats’ Ace Card—the Roe v. Wade Scare Ad Tactic! The Democrats had hoped to wait until later in the campaign to play this card, but the explosive success of Sarah Palin has precipitated the Democrats’ plunge in the polls, and has put them in panic mode. Tonight (September 5, 2008) on the way home from work, I heard on the radio three times a new ad from Senator Obama—an ad that attempts to counteract the Palin bounce; the ad warns the women of America that McCain will overturn Roe v. Wade, and that this will endanger the health of American women and deprive them of their cherished right to an abortion.

During the last 35 years no Supreme Court case has been more of a lightning rod for polarizing political debate than the Roe v. Wade decision of 1973. That case was controversial from the moment it was announced, and it has remained controversial ever since. Every time a president nominates a new Justice for the Supreme Court, the most important question for interrogation is whether or not that nominee would overturn Roe v. Wade. But, other than addressing the Roe v. Wade issue superficially, with 3-second, sound-bite answers, there has been very little in-depth discussion of this issue. Perhaps in this year’s campaign there will be an opportunity for a more meaningful discussion of Roe v. Wade than normally occurs. This discussion would be very good.

As one who has been a student of the Roe v. Wade ruling for over 30 years (including having written a book on the issue in 1977 [The Fetal Right to Life Argument]), let me share some important insights on this important issue.

1. Overturning Roe would not have to eliminate a woman’s right to privacy. If Roe v. Wade ever were overturned, there are several ways in which it could happen—none of which would require eliminating a woman’s right to privacy and of control over her own body. These alternatives would limit a woman’s right, but not extinguish it. To understand the ways Roe v. Wade could be overturned, you must first understand the three legal problems that were part of this ruling. Correcting any one of these problem areas could be overturning a part of Roe v. Wade.
2. There are three major flaws in the Roe v. Wade ruling. The Roe v. Wade opinion is rather complex. That ruling was one of the worst decisions of all time. It ranks right up there with Dred Scott v. Sandford. There are at least three distinct, serious flaws in Roe v. Wade.

First, the Supreme Court should have exercised judicial restraint and left the Texas legal matter in the hands of the Texas Supreme Court. The U. S. Supreme Court should not have taken the case; the regulation of abortion had been and should have continued to be a matter of state regulation and concern. But even after taking the case, the Court could have recognized a woman’s right to privacy without extinguishing the fetal right to life. But the Court’s over-reaching was uncalled for and grossly excessive.

Second, the Supreme Court went out of its way to state that a fetus is NOT a “person” within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. This gratuitous swipe at unborn children was totally uncalled for, unprovoked, illogical, barbaric and a repudiation of two hundred years of legal precedent in America. The eliminating of a fetal right to life was an act of outrageous over-reaching by the Judicial Branch of the government that encroached upon the Legislative Branch of the federal government (by usurping a power that should be only legislative and not judicial.) By what authority did the Supreme Court eliminate the fetal right to life in order to bestow on women a right to kill their unborn children without any consideration of the life of the unborn? The Court had no right. The Court usurped the authority of the states, the legislature and the people when it did this.

Third, the Supreme Court should not have legislated a resolution to the abortion debate. But they did. They constructed a complicated and contradictory legislative scheme to regulate abortions throughout the states: They came up with the trimester scheme where in the first trimester states could not prohibit abortions; in the second trimester states could regulate abortions, taking into consideration the health of the pregnant women; and in the last trimester states could protect potential human life. But the Court also stated that states could protect potential human life when the fetus becomes “viable.” As science and technology have advanced, this standard conflicts with the trimester scheme.

3. Roe v. Wade allowed States to prohibit partial-birth abortion. As terrible as was Roe v. Wade in 1973, today many interpret Roe to extend a woman’s right to an abortion to encompass the right to partial birth abortions. Partial birth abortion literally kills a viable fetus by crushing its skull and sucking its brains out. In 1973, Roe v. Wade specifically provided that states could outlaw this barbaric procedure. But since then, many have interpreted the right to an abortion to supersede the right of a state to prohibit abortions in the last trimester. This broadened interpretation of Roe is reprehensible and should be challenged.

4. A President can neither overturn a case nor amend the Constitution. Contrary to the assertion in the Obama ad, the President of the United States cannot overturn Roe v. Wade. That can happen only by the Supreme Court reversing itself or by passage of a constitutional amendment, the latter of which can only be done by the consensus of a supermajority, i.e., the approval of three-quarters of the states.

5. Part of Roe v. Wade is good—recognizing a woman’s right to privacy. The idea that every part of Roe v. Wade could be or would be overturned is ridiculous. Remember, Roe v. Wade is a very complex case. Up to this point, I don’t ever recall a serious political discussion about what part of Roe v. Wade one would or would not want to overturn. The woman’s right to privacy—the right to control her own body—that will never be over-turned. That part of Roe v. Wade is laudable. But it would be good for the law to acknowledge the existence of a fetal right to continue living that would have to be weighed against a woman’s right to control her body. Extinguishing the fetal right to life was the most opprobrious part of Roe v. Wade. It should be restored, and such a restoration would mean that the right to an abortion would not be an absolute—it would have to be weighed against the fetal right to life. In summary, if Roe v. Wade ever were to be “over-turned,” it would only be one or two aspects of that ruling that would be changed. Possible changes could include: (a) returning the abortion issue to the states; (b) restoring the fetal right to life; and (c) correcting the ruling that a fetus is not a “person.”

The discussion about what parts of Roe v. Wade should be overturned and which should remain would be an important discussion. I welcome it. Parts of Roe v. Wade should be overturned. But those who cling to abortion as the sacrament of their political religion—they don’t want the discussion. They do want to turn the debate into a health issue—but it is not.

There are multiple types of support for the “right to life.” But not all “right to lifers” have the same beliefs and principles about whether abortions are ever justified, and about what conditions might justify an abortion. In the rare instances where abortion would preserve a mother’s life, it would be acceptable. It may be proper in the case of certain severely deformed babies. And it may be allowable in cases of rape or incest—because in those cases a pregnancy was forced upon a woman against her will. Recognizing and addressing these various competing rights would not be easy or convenient. Extinguishing a fetal right to life does simplify the administration of the law—but that law is cruel, oppressive and barbaric. Correcting this serious flaw would require overturning part of Roe v. Wade. But that’s okay—it would be an improvement.

It appears that the McCain/Palin ticket supports changing our law to give the unborn greater protection than is currently afforded under Roe v. Wade. This would be good. But it need not prohibit ALL abortions. I heard that McCain was once quoted as having stated such a position, but I do not support that absolutist position, and I do not believe it would ever become law.

The taking of human life is a serious matter. Protecting those who are most helpless and vulnerable is critically important. If the Democrats want to debate whether or not Roe v. Wade should be overturned—I welcome the debate.

Supreme Court Holds the Right to Bear Arms Is an Individual Right

2008-10-11T13:20:00.001-07:00

District of Columbia v. Heller, 554 U.S. _____ (2008)
by C. Paul Smith

On June 26, 2008, the Supreme Court issued its ruling in the case of District of Columbia v. Heller, 554 U. S. ______ (2008), holding unconstitutional the District of Columbia law which prohibited the possession of usable handguns in the home. In this 5-4 ruling, the Court held that the right to bear arms in the Second Amendment was an individual right, and not merely the right of a governmental militia.

The question of whether the right to bear arms belonged to the individual or to the militia has been a subject of debate for decades. The only question was which side the Supreme Court would take on the issue. In my opinion, the Supreme Court got it right. But I am concerned and disturbed that vote was so close (5-4). With the Supreme Court’s recent penchant to ignore the principles of stare decisis. I personally have concerns about the permanency of this ruling. Nevertheless, as it now stands, this is a good and important ruling.

D.C. law made it a crime to carry an unregistered firearm, and the registration of handguns was prohibited. Dick Heller sued to enjoin the District of Columbia from enforcing this law, contending that the law violated the Second Amendment of the Constitution. That amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

If the Amendment means what it says, then there should be no question that the right spoken of, the right to bear arms, belongs to the “people,” and not to the “militia.” However, this plain reading of the Amendment was challenged by the District of Columbia and by four of the Justices (Stevens, Souter, Ginsberg and Breyer). They argued (1) that the prefatory clause changed the meaning of the operative clause in the Amendment, and (2) that the handgun ban was a reasonable limitation on the right to bear arms that did not violate the general spirit of the Amendment. But the majority rejected both of these assertions.

I. The Majority Opinion

Justice Scalia, who wrote for the majority, pointed out that a prefatory clause (such as “A well regulated Militia, being necessary to the security of a free State”) does not normally modify the operative clause that follows (“the right of the people to keep and bear Arms, shall not be infringed”)—but rather gives one reason as to why the operative clause may be necessary. Justice Scalia said that the normal reading of the two clauses was appropriate here. In fact, he pointed out, the operative clause specifically states that the right belongs to the “people.” The right, therefore, is an individual right of the people.

Justice Scalia further pointed out that the very nature of the militia in the early days of our nation, was that it was comprised of individuals in the community who bore arms. It would have been illogical and contradictory for the Amend-ment to state that the people did not individually possess the right to bear arms. Additionally, he pointed out that if the intent of the amendment was to limit its meaning to only be a right if the militia should need a person’s participation, then there would have been no purpose for the operative clause. Justice Scalia points out that historically the amendment was widely under-stood to recognize an “individual” right, and he found no evidence to the contrary. Finally, Justice Scalia pointed out that the Second Amendment did not create a right, but rather only recognized a right that already existed, and prohibited the government from infringing upon it.2

In concluding his opinion, Justice Scalia wrote these words: “[W]e hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense” (p. 64).

Reading Justice Scalia’s majority opinion was somewhat fascinating, because he painstakingly dissected every word and phrase in the short, Second Amendment to show that his interpretation was correct. It is interesting to see how the Court’s three opinions took 154 pages to dissect and analyze the 27-word, one-sentence amendment. And it is disconcerting to see how so many points in Justice Scalia’s opinion were disputed and contested by the two dissenting opinions. The dissenters impressed me as being strained and illogical and as denying important historical facts pertaining to the original purpose and meaning of the right to bear arms, as memorialized in the Second Amendment.

It is my judgment that the Heller case will be one of the most important cases in this nation for the next twenty years. I think it will be important to have some in-depth understanding of the case. I will now provide some analysis of and commentary on the dissenting opinions.

II. The Dissenting Opinions

A. Justice Stevens’ Dissent. To start with, consider what the four Liberal Justices stated as their fundamental opinion. They said this: “Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution” (p. 2). It is chilling to me to think that four of the current Justices of the Supreme Court hold this opinion.

The heart of Heller is whether the right to bear arms is an individual right OR whether it is merely a privilege to participate in a militia at the pleasure of the state. The Court (the majority) held it to be an individual right. After all, the Second Amendment says it is a “right.” But the dissenters said that the Amendment does not mean that. The two dissents (by Justices Stevens and Breyer) go on to employ their considerable intellectual and legal skills to argue that the Second Amendment does not mean what it says. They say that because the “right to bear arms” is connected to the need for a militia, that therefore this cannot be an individual right. (Justice Stevens says it is a “right” and a “duty” [p. 16].) But the end result of Justice Stevens’ opinion is that absent a militia there really is no “right.” This leaves nothing but an obsolete “duty” in the Second Amendment. The dissenting Justices never do answer the question of why our Founders called it a “right” if it really isn’t a “right.” Somehow they confuse “duty” with “right”—that is they say that the Second Amendment says that because militias are so important, therefore citizens can have certain arms, but only for use in the militia. This is a ridiculous interpretation. That’s not what the Founders meant, and that is not what the Founders wrote. Even if militias are obsolete, the Amendment continues to have a meaning in that if individuals should not have operable arms for their self defense, then it would be impossible to have militias.

Justice Stevens at one point did acknowl-edge the point that the Second Amendment did not create the right to bear arms (Stevens, J., Dissent, pp. 17 & 38), but he did not seem to appreciate what he acknowledged. Let me briefly explain what Justice Stevens seemed to miss: The technical wording of the Second Amendment does not create any right, but rather it states that the government shall not “infringe” on “the right of the people to keep and bear arms.”

If you know much about James Madison (who drafted the Second Amendment), you know that he felt there was no need for a bill of rights because these rights already existed, and that there was no need to make a partial list of existing rights. In fact, he felt this could have undesirable consequences, if the partial listing of rights were used to later deny that some rights did not exist because they were not enumerated. (The Ninth Amendment was included to avoid this problem.) But, returning to the Second Amendment, Madison’s language again does not create any new right, but rather only restricts the government from infringing upon an existing right.

Well, having said this, what if the minority was right, and the Second Amendment only pertains to bearing arms as may be needed in the militia. If so, then, there is yet an individual right to bear arms that is not referenced in the Second Amendment. The Court never really discusses this issue because (a) the Liberal Justices don’t want to consider those implications; and (b) the majority interpret the Second Amendment to cover the right of individuals to defend themselves with guns, and therefore there was no need to go there.

1. “A Well Regulated Militia . . . .” Justice Stevens spends virtually all of his dissenting opinion to attempt to prove that whatever “right” is mentioned in the Second Amendment is entirely contingent upon and subject to the government’s use of militias. Justice Stevens made numerous strained arguments in his effort. Here are a few of them.

a. He argues that “bear arms” has reference only to using arms in the military (pp. 11 & 14). However, even some of the citations he includes in his opinion refute this unreasonable interpretation.

b. He says that because the Amendment did not include the words “a personal right to use arms in self defense” that therefore the Amendment could not have included such a meaning. This is a ridiculous argument. This is precisely the type of reasoning that James Madison was concerned about—that some would deny the existence of rights because a right may not have been specifically articulated. And while we’re on the issue—the failure to mention something does not mean that that thing does not exist. Yet that is the very argument that Justice Stevens makes. To have added the words “for self defense” would have been superfluous. The wording that was used plainly implies the use of arms for self-defense—otherwise the references to participation in militia actions would have made no sense.

c. Justice Stevens argues that the words “the people” could not possibly mean in the Second Amendment what it means in First and Fourth Amendments. He asserts that in the First and Fourth Amendments the people means all people, but that “the people” referenced in the Second Amendment is subject to considerable limitation. (For example felons and insane people can be barred from possessing arms.) Therefore, Justice Stevens makes the argument that the Second Amendment could not possibly confer a right on all “the people.” Frankly, this is pathetic reasoning.

2. Does the prefatory clause restrict the meaning of the operative clause? We now get to the main argument—does the prefatory clause (or preamble) restrict the meaning of the operative clause that follows? The obvious answer is “not necessarily.” Yet the four Liberal Justices insisted that the prefatory clause limits the operative clause (p. 8). This is blatantly false. Yet, not only do they refuse to acknowledge the error of their thinking, but they accuse the majority of being illogical.

3. The Miller case. Finally, let’s look at the case of United States v. Miller, 307 U.S. 174 (1939), where the Supreme Court addressed the issue of whether a person had a Second Amendment right to possess a sawed-off shotgun. In this cased the Supreme Court upheld a statute that outlawed the possession of a sawed-off shotgun (less than 18” in length). This case established that the right to bear arms is not absolute, and that some weapons can be prohibited. The Supreme Court in Miller stated that there was no evidence that a sawed-off shotgun would have any use in a militia, and therefore the law banning them was upheld.

The dissenting Justices in Heller argue that the Miller case establishes that the prefatory clause does indeed control all the rest of the Amendment, and that whatever “right” does exist is subject to the government’s power to regulate a militia. The majority, however, did not read Miller that way; they acknowledge that not all “arms” are covered by the amendment (machine guns, bazookas and hand grenades could also be prohibited), but the majority did not find anything in Miller that infringed upon the fundamental meaning of the Second Amendment to include an individual’s right to bear arms to protect one’s hearth and home.

B. Justice Breyer’s Dissent. Justice Breyer also wrote a dissent, but his dissent is of lesser importance in my view. He argues that even if the Second Amendment included a personal right to use arms in self-defense, that the government could still impose reasonable limitations and regulations for the safety of society. He then concluded, that the District of Columbia did in fact have a reasonable basis to prohibit the use of handguns. (All four Liberal Justices joined in Justice Breyer’s dissent as well as in that of Justice Stevens.)

C. Stare Decisis. Although the liberal Justices all but abandoned stare decisis in reaching their opinion in 2003 in Lawrence v. Texas,3 they nevertheless accuse the majority in Heller of doing just what they have been doing—lightly throwing aside Court precedents without adequate justification. This accusation by senior Liberal Justice Stevens (p. 4 of his Dissent), would be valid only if the majority interpreted the Second Amendment as he does. But they do not, and his criticism that the majority has not been faithful to stare decisis is without merit. But what makes this accusation by Stevens infuriating is that fact that Stevens and the other three liberals are the ones who have blatantly discarded stare decisis in Lawrence v. Texas and in McConnell v. FEC (campaign finance reform case).4

D. Judicial Activism. The same can be said for judicial activism. Justice Stevens concludes his 46-page dissent by accusing the majority of failing to exercise “judicial restraint.” This criticism is baseless—it is the liberal four who are attempting to legislate from the bench in Heller, just as they did in Boumediene, Lawrence and McConnell. And it is irritating to see them give lip service to the principal of judicial restraint all the while they themselves routinely ignore the principle because it regularly gets in the way of their philosophical agendas.

III. Summary

The Heller case is a critical case for Americans to understand because it high-lights the internal philosophical battle that is going on both in the Supreme Court and throughout the nation. On the most obvious level, this case is about whether individual Americans have the right to possess arms to defend themselves in their homes. But on a deeper level, it is also about whether individual rights are to be superseded by governmental control. And on this deeper level, the issue is whether we the people will turn our individual rights over to the government, and whether it is us or the government who know and decide what is best for us. As for me, I neither want nor need the government to take over my life.

This is part of the battle between socialism and free enterprise. Free enterprise entails risks and it rewards hard work and initiative, while it leaves unrewarded the passive, the indolent and the slothful. Socialism fails because its fail-safe approach guarantees everybody a certain quality of life without exacting a corresponding requirement to work—which system effectively stifles initiative and hard work. The free enterprise system (including capitalism) succeeds because it rewards initiative and hard work—which in turn promotes these same qualities in others.

The Heller decision is a part of this important societal debate—Who is to be empowered, the individual or the government? The answer is, in the words of Laura Ingram—Power to the People! And this means that it is best for the people to continue to have the right to bear arms. The Supreme Court got it right in Heller, despite the strong protestation from the liberals on the Court.

The Court’s ruling in D. C. v. Heller should have been a no-brainer for all nine Justices. It is disconcerting and worrisome that four of the Justices could dispense with logic and history in order to promote a reading of the Constitution that comports only with their political agenda. With regard to this, Justice Scalia concludes his opinion by stating: “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct” (p. 64).

In this era, where militias are obsolete, does that mean that the Second Amendment is also obsolete. According to the liberal Justices—Yes. But they will not overtly state this; rather they attempt to void the Amendment of any meaning and leave it a meaningless collection of words.

See D. C. Code Sec. 7-2501.01(12), 7-2502.01(a), and 7-2502.02(a)(4) (2001). Another section of the D.C. Code provides that no person may carry a handgun without a license, and that the chief of police may issue licenses for one-year periods. D. C. Code Sec. 22-4504(a) and 22-4506. Finally, the D. C. Code requires that any firearms located in a home be “unloaded and disassembled or bound by a trigger lock or similar device. D. C. Code Sec. 7-2507.02. (These references are taken from page 1 of the Court’s majority opinion.)

2 It should be noted that in 1791 handguns were rare, and that the guns that were prevalent required a timely insertion of gun powder before they could be fired. Today’s handgun was not common place in that era.

3 539 U.S. 558 (2003). In this case the Supreme Court overturned the case of Bowers v. Hardwick, 478 U.S. 186 (1986) (which it had only decided 17 years earlier), and for the first time recognized a Fifth Amendment “liberty” to engage in private, consensual homosexual conduct.

4 540 U.S. 93 (2003).

Supreme Court Confers Habeas Corpus Rights on Alien Enemy Combatants

2008-10-11T13:03:00.001-07:00

Boumediene v. Bush, 553 U.S. (2008)
by C. Paul Smith

On June l2, 2008, the Supreme Court ruled that alien enemy combatants1 detained abroad by our military forces in the course of an on-going war have a constitutional right to habeas corpus relief. Never before has the Constitution given this right to aliens abroad.

This (5-4) ruling is very important and will have far-reaching impact for years to come. Democrat Presidential candidate Barack Obama praised the ruling, while Republican Presidential candidate John McCain sharply criticized it.

On some levels, the ruling was relatively simple—the Court wanted to extend additional rights to foreign enemy combatant detainees. But on close examination, there were several complex issues involved. While few people will read the decision, this will not deter them from offering their opinions on the merits or flaws of the ruling. I encourage all citizens to read it and to get a thorough understanding of what the Court did in this case. This case is one of the most egregious examples you will find of judicial activism, lack of judicial restraint, and judicial pre-emption of foreign policy power and national defense power from the Executive and Legislative branches of the government. The implications of this decision are extensive and profound.

It is difficult to distill in a few words a concise summary of what happened in this case. The Majority opinion (authored by Justice Anthony Kennedy) took 70 pages. The dissent of Chief Justice John Roberts took 28 pages, and the dissent of Justice
Antonin Scalia took 25. When you add in Justice Souter’s 3-page concurring opinion—the total pages reach 126. But the reading of this opinion is a must for all patriots.

By the time you get to page 70 in Justice Kennedy’s majority opinion, you may be mesmerized or persuaded by his reasoning. The majority feels the pain of the enemy combatants at Guantanamo Bay, who for six years (some of them) have remained detained after they were captured in foreign lands fighting against our troops. To some, the length of this detention is intolerable. To some, the criticism that some international peoples level at the U.S. for maintaining the Guantanamo detention facility is more than they can stand. Five of the Supreme Court Justices appear to be in this group. Their impatience and disapproval of the nation’s operations in Guantanamo Bay has led them to hastily and abruptly take actions that have undermined over 200 years of constitutional precedence to attempt to appease enemies of America who will never be appeased because their hatred for America is unreasonable and intractable.

I. Background

Previous to the Boumediene ruling, alien enemy combatants had no rights to habeas corpus protection in U.S. courts if they were confined abroad in places where the U. S. was not sovereign. The case of Johnson v. Eisentrager, 339 U.S. 763, (1950) specifically held this. (See, e.g., Scalia, J., dissenting, p. 10.) The Bush administration properly relied on this precedent, as it detained captive, alien enemy combatants at Guantanamo Bay. But this year’s ruling in Boumediene abandoned stare decisis and overturned Eisentrager (1950) and effectively overturned Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for no compelling reasons. A close examination of the Boumediene ruling will show that it will not give these enemy combatants any significant additional rights, and that the Boumediene holding will serve only as a rebuke of the Bush administration by the Court, when the Bush administration had in good faith relied on Supreme Court precedents. Consequently, all that this case accomplished is to diminish the power of the Executive Branch and to enlarge the power of the Judicial Branch.

II. Problems with Boumediene

Here is a list of some of the major problems in Boumediene v. Bush:

l. The Supreme Court, for the first time, confers on non-citizen, alien enemy combatants the right to seek and obtain the protections of a writ of habeas corpus in U. S. Courts.

2. This ruling by the Supreme Court effectively overturns the 1950 case of Johnson v. Eisentrager, 339 U.S. 763. Until now, there was no question but that alien enemy combatants at the Guantanamo Bay facility would not have the right to access to

U. S. courts through the filing of writs of habeas corpus. But the majority decided to interpret Eisentrager differently—they said that since the U.S. has effective control over Guantanamo Bay, that therefore the habeas writ should be made available. The Majority denies that they overturned Eisentrager, but they offered only obfuscation and linguistic contortions rather than sound reasoning in support of their conclusion. The majority’s effort to reconcile its ruling in Boumediene with its ruling in Eisentrager is a total failure—and will convince only those whose analysis processes do not insist upon facts and sound reasoning.

3. This ruling by the Supreme Court also effectively overturns major parts of the recent, 2004, case of Hamdi v. Rumsfeld, in which case the Supreme Court recommended the precise procedures and practices that Congress and the President then enacted to ensure that the detention of alien enemy combatants satisfies all constitutional requirements. In that regard, Chief Justice Roberts wrote this:

The plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.

The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon potential to burden the Executive at a time of ongoing military conflict.” Id., at 533, 538. This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.

If the CSRT 2 procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, . . . there is no need to reach the Suspension Clause question. Detainees will have received all the process the constitution could possibly require, whether that process is called “habeas” or something else. The question of the writ’s reach need not be addressed. (Roberts, C. J., dissenting, pp. 4-5.)

4. In this case the Supreme Court specifically holds unconstitutional portions of the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), which acts were specifically passed by Congress and signed by the President to comply with the requirements that the Supreme Court articulated in Hamdi.

5. The Majority in Boumediene erroneously concluded that Combatant Status Review Tribunals (CSRTs) do not have the authority to release detainees if their deten-tion is not warranted. The majority’s view on this issue is patently absurd. The authority to release one who is not properly detained is clearly implicit in the law’s language, and some detainees had been released. The majority’s reasoning here is pathetic. 3

6. The action by the majority in Boumediene is wholly inconsistent with the Court’s precedents, and amounts to a repudiation of the Court’s doctrine of stare decisis, which the Court used to honor in attempting to be consistent with its prior rulings.

7. The Court in Boumediene ruled that because the CSRT procedures provide that "newly discovered evidence" may be presented only by a new proceeding, and not during an appeal, that therefore such CSRT procedures violate the constitutional rights of the alien enemy combatants. This is a distinction without a difference—it is an inconsequential matter that does not affect any substantive right. The majority was straining to find fault with this technicality.

III. Justice Scalia’s Comment

Here is what Justice Scalia said about the Boumediene ruling:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus .... It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. [Scalia, J., at 25.]

IV. Chief Justice Roberts’ Conclusion

Chief Justice Roberts concluded this about Boumediene:

For all its eloquence about the detainees’ right to the writ, the Court makes no effort to elaborate how exactly the remedy it prescribes will differ from the procedural protections detainees enjoy under the DTA. [Roberts, CJ, at 25.]

The majority instead compares the undefined DTA process to an equally undefined habeas right—one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided .... All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary. [Roberts, CJ , at 2-3.]

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of` federal policy regarding enemy combatants?
--Roberts, C.J., at 1-2

American Citizens Have Right to Habeas Corpus Relief When Detained Abroad

On June 12, 2008, a unanimous Supreme Court ruled in Munaf v. Geren, 554 U.S. ___ (2008) that American citizens detained outside the United States and charged with war offenses against the U.S. have the right to seek and obtain habeas corpus review of their detention.

Although the Court was sharply divided (5-4) in its ruling in Boudiemene that alien enemy combatants had a right to habeas corpus review of their detention, in Munaf the Court was unanimous in holding that American citizens have the right to habeas corpus review no matter where they may be detained.

1 It is important to understand the definition of an “enemy combatant.” This is to be distinguished from a prisoner of war, in the uniform of its country. An enemy combatant is one who is not dressed in the military uniform of its country, but who for all appearances is a civilian, and who nevertheless fights against our troops. In other words, an enemy combatant is like a spy or a terrorist who may by subterfuge and stealth infiltrate our ranks to wreck havoc through covert means.

2 Combatant Status Review Tribunals

3 It should be pointed out that some of the detainees that were released later returned to the battle field to kill American troops.

2008 Presidential Campaign Heats Up

2008-10-11T12:33:00.000-07:00

Constitutional Law Updates
September 2008
No. 14
2008 Presidential Campaign Heats Up
John McCain (R) vs. Barack Obama (D)
by C. Paul Smith

The 2008 presidential campaign is already a year old, and we are less than 90 days from Election Day (November 4, 2008). Regardless of the outcome, this election has already proved itself to be one of the most interesting and intense of any in recent history. A year ago, we were already anticipating the election of the first woman president; the big issues seemed to be who would Hillary select as her VP, and what would Bill be doing in the White House. But, a year later, the Democrat Party has rejected Hillary and embraced Barack Obama, who may become the first black president. And things were just as tumultuous on the Republican side, where a year ago former New York Mayor Rudy Giuliani was the front runner to obtain the nomination. John McCain had dropped out of sight in the polls, and former Massachusetts Governor Mitt Romney (who hoped to become the first Mormon president) was emerging from the crowd of candidates, making a concerted effort to apply his business skills to win the nomination. But in a matter of months, Giuliani faded into oblivion; Romney quickly took a lead in the early primaries; former Arkansas Governor Huckabee came from nowhere to play a prominent role in the primaries; but John McCain raised himself from the dead, won a couple of primaries, and then in February, he staged impressive wins in several states that catapulted him to a lead that he never relinquished.

The one “first” that is still up for grabs is whether Obama will be the first black president. This certainly looks possible. However, for my part, electing Obama would be a mistake. Race and color and religion have nothing to do with my views—my positions are issue-oriented, and here they are:

FOREIGN AFFAIRS

McCain, who proudly proclaims himself to be a foot soldier under President Reagan, will employ an approach to foreign relations that will mirror that of President Reagan—Peace through Strength. McCain’s personal courage and bravery is legendary. The Democrat Party’s nominee doesn’t bring either the personal resume nor the principled philosophy to qualify him to lead the nation in international dealings. Merely proclaiming peace and decrying war is not an adequate foreign policy, and it does not appear that Senator Obama has learned the lessons from world history, that evil will not just magically disappear through the appeasement approach. Those who understand world history recognize that during World War II millions of people were innocently killed by the Nazis and the Communists, and that America played a key role in liberating the world from those evil powers. Over 400,000 Americans gave their lives in World War II to suppress the evil powers and to liberate millions of people. Failing to appreciate this, the Democrat candidate echoes the naïve pacifist approach of Neville Chamberlain in the late 1930’s, who sought to avoid confrontation in the guise of championing peace. That flawed approach was a failure then, just as it would be today in dealing with terrorists and insurgents. He will return the nation to the touchy-feely international relations policies of Clinton, thinking that talks and negotiations can solve any and every international crisis, all the while alerting terrorists that open season is here again.

The WAR in Iraq and Afghanistan—McCain insists that we must not leave Iraq
prematurely, for this would invite a blood-bath of thousands of innocent people who had been friendly to us, but who would be left to suffer abuse, torture and death at the hands of evil terrorists. The “surge” has worked, and is enabling us to withdraw from Iraq successfully, leaving a new government that appears capable of maintaining an acceptable level of peace and stability in Iraq. This is a tremendous accomplishment! It could be a tremendous benefit to that region and to the entire world. Now that the surge has proved successful, most Democrats (including Senator Obama) have become resigned to victory in Iraq. But “during the times that tr[ied] men’s souls,” Obama showed himself to be a “sunshine soldier” whose resolve wilted under pressure.1 Obama’s position on the War has mirrored the changing popularity of the conflict. When the war was unpopular, Obama insisted that we set immediate time-tables and get out immediately. When the going got tough in Iraq, Obama led the call for retreat.

The contrast between McCain and Obama could not be more stark. McCain refused to give in to the demands of Obama and his followers, who urged precipitous retreat when we were on the verge of securing victory. McCain called for the surge, because he saw that it could obtain victory for us and stability and peace for the Iraqis. The U.S. did not go to Iraq for oil or to nation-build; we went there with 70 % national approval to eradicate an evil dictator who fomented and sponsored terrorism in Iraq and abroad; Hussein offered monetary awards to families who would sponsor suicide bombers to kill Israelis. He harbored those who sought to destroy America. And once Sadaam Hussein was taken out, we owed a moral duty to help the Iraqis form an operable government that could protect its people. In retrospect, it appears that many Americans now regret our intervention in Iraq, but a majority continue to recognize our moral responsibility to leave Iraq better than we found it. That is why the premature withdrawal option would have been a mistake.

Senator Obama has begun to flip-flop on multiple issues recently, now that he sees the need to move from the left to the center. Now he’s trying to distance himself from himself when he was the spokesman for withdrawal and defeat in Iraq. Obama does not possess the courage and resolve of McCain, who has and will steadfastly stand up against the evil terrorists, regardless of the fickle and politically correct cat calls of those who can’t stomach the cost of liberty and who lack the backbone to take a brave stand for the defense of our own nation and for the liberty and freedom of our brothers and sisters around the world. McCain has the backbone to do this, whereas Obama repeatedly shows that he does not.

The ECONOMY

McCain seeks to cut taxes and to cut government spending. Obama promises to raise taxes and to add multiple new government programs at a cost of billions. Apparently there is no limit to the size of government that Obama seeks to build. Obama has the most liberal voting record of any U. S. Senator.

It’s not that Senator Obama opposes having a strong economy—it’s just that his commitment to left-wing special interests put him on a course that would severely damage the economy. Specifically, he wants universal health care, he wants to stop global warming, and he wants to stop drilling for new oil in America. His radical loyalty to the left-wing fanatics on these issues would lead the nation into full blown socialism and would hamper and destroy the businesses that have been the foundation of our economy—the strongest economy in the world. Senator Obama does not recognize how the environmental special interest groups have already weakened our economy based upon biased science and hysterical threats that the sky is falling. For example, the cost to build roads has skyrocketed because of the environmental impact studies and ever-expanding procedures that have multiplied since the Interstate Highway System was initiated in the 1950’s. This lunacy has got to stop, and adjustments must be made in our laws—some must be repealed. But Barack Obama will not be the one to do this—he supports increased environmental laws, increased bureaucracy, increased red-tape, and of course, increased taxes to pay for the bigger bureaucracy.

The increased governmental programs Obama is calling for amount to socialism. Obama feels everyone’s pains, and he intends to expand government to solve all problems. But this undisciplined approach to government leads to excessive government, which can survive only by increasing taxes. This approach must stop! We cannot continue to act like government has to solve all our problems. Obama does not recognize this, whereas McCain does. McCain is clearly the better choice on economic issues.

SOCIAL ISSUES

Senator McCain supports traditional marriage as the preferred unit in society for the rearing of children, and he is pro life. But Senator Obama does not stand up for traditional marriage, and he champions a woman’s right to choose death for her unborn child. It is critical that the presidential candidates take a stand on these most important social issue—Will you support the continuation of the traditional family as the bedrock of our society, OR will you support the causes of those who will destroy marriage by redefining it to be available to any and every adult relationship that one can conceive (pardon the double entendre). And as for abortion—anyone who supports partial birth abortion is either ignorant of what it is or else his judgment is so fundamentally impaired that he must not be elected to lead a civilized nation. Partial-birth abortion kills the unborn baby in a painful, gruesome manner for no valid purpose. The theory that such a procedure is justified to preserve the life and health of the woman is a fiction. And it was Barack Obama who, in the Illinois State Senate, blocked legislation that would require the participating parties to attempt to save the lives of children who were born alive after abortions. This was a barbaric and disgraceful position—and demonstrates a total disregard for those humans who are least capable of defending themselves.

PERSONAL LIBERTIES

John McCain fights to preserve the right to bear arms. Obama sided with the minority in D. C. v. Heller. Obama does not believe that the right to bear arms is an individual right. McCain believes it is.

McCain fights to preserve the nation’s heritage of being a God-fearing nation.
And while the Democrat Party gives lip service to love of God, they are the party that interprets the First Amendment to require “freedom from religion,” as they regularly champion the causes of those groups whose stated goal is to eliminate God from government. Conversely, the Republican Party recognizes that government can and should accommodate God and religion because they are vital components of a good society. The First Amendment’s prohibition from the establishment of any one religion does not mean that all references to God must be excised from government.

Except for his lapse in judgment in sponsoring the Bipartisan Campaign Finance Reform Act, McCain is an advocate for freedom of speech.2 But while McCain has been shaky on this issue, Obama’s position is no better.

THE SUPREME COURT
Finally, one of the most important issues in this presidential campaign is what direction each candidate would take the Supreme Court. We must expect there to be 1 – 3 vacancies in the Supreme Court in the next four years. Right now the Court is pretty much evenly divided between four strong conservatives Justices (Scalia, Thomas, Roberts (Chief Justice) and Alito), and four strong liberal Justices (Stevens, Souter, Ginsburg and Breyer). The ninth Justice, Kennedy, is mostly conservative, but he is clearly the swing vote in many close cases. As this issue of Constitutional Law Updates will demonstrate, the next appointments will indicate whether the Court turns either to the left or to the right. John McCain and Barack Obama are clearly on opposite sides of this issue. Obama will take us to the left—towards bigger government and more socialism and fewer individual rights; and McCain will take us more to the right—limiting the size of government, cutting government expenses, and standing up against those who seek to expand the right to abort the unborn. I have hope that McCain will stand firm for traditional family values, that he will recognize the need to protect our borders, and that he will back off from his mistake in championing campaign finance reform (at the expense of jeopardizing free speech rights). But I have no hope with Obama on these issues; so once again, McCain is clearly the better choice.

CAN OBAMA PULL IT OFF?
Up to this point, Obama has been the Houdini of politics. He has magically, masterfully proclaimed that we need to change Washington, and that he’s the man to do it. His followers have hypnotically nodded and given their support—although he has escaped being pinned down to state exactly what it is that he intends to change. Now that he has won the Democrat nomination, he has had some time to figure out some specific changes that will go into his platform. Until now, most of his supporters have not really cared much about most of his positions—he won the nomination based upon his charisma and his style, not based upon the substance of his positions. Whether Obama can continue to pull-off this political magic show through November 4th, remains to be seen. As for me, I see his recent move toward the center to be merely a political expediency, which I suspect he will abandon upon election. In predicting what Obama really stands for, one must go on his previous voting record (albeit a short record). Obama will increase the size of government, raise taxes, encourage abortion and same-sex marriage. He will heap increased burdens on our economy in a mindless fanaticism to stop global warming.

I do not know whether this nation will awaken from the hypnotic sleep that has hoisted Obama to front-runner status in the presidential race. And while I differ deeply with John McCain on several issues, there are more than enough issues on which McCain is in the right, and on which Obama is wrong. Therefore my support is unequivocally for McCain.

1 These phrases are taken from Thomas Paine’s pamphlet Common Sense, that encouraged the patriots during the Revolutionary War.

2 Perhaps Senator McCain sees the light now, since The New York Times refused a few weeks ago to print his response to an editorial by Senator Obama. McCain must recognize that the mainstream news media, especially The New York Times, has a blatant liberal bias. And as liberal as he may be at times, Senator McCain is far right of where Senator Obama is. This is why the Campaign Finance Reform law was so bad—it empowered the liberal media to have increased power and influence in the days just prior to elections, at the same time it blocked others from speaking up on current issues.

Re-defining “Family”—a way to destroy it

2008-03-21T22:03:00.000-07:00

Those who seek to broaden the definition of “marriage” and “family” in order to secure for same-sex couples all the benefits that states confer on couples in a traditional marriages (between a man and a woman) are pursuing a course which will undermine marriage and which is geared to bring increased hardships and difficulties to children. Therefore, these efforts to redefine marriage should be defeated.

In October 2007, Maryland’s highest court (the Court of Appeals) upheld a state law stating that marriage in Maryland can only be between a man and a woman. Conaway v. Deane (2007). (See the November 2007 issue of CLU.) This ruling is in line with that of virtually every other state in the nation, except Massachusetts, in holding (1) that limiting marriage to heterosexual couples DOES NOT violate the Equal Protection Clause of the Fourteenth Amendment of the Constitution; (2) that a rational basis exists for excluding same-sex couples from marriage; and (3) that there is no “fundamental right” under the Constitution to same-sex marriage. However, while this battle is now over, the war continues. The next battle front issue in the gays’ war to obtain special rights has moved to the Maryland State Legislature, where a handful of bills have been introduced that seek to have benefits conferred on gay couples through either establishing “civil unions” or “domestic partnerships,” or through broadening the definition of marriage to include same-sex marriages. For states to pass such laws is certainly permissible, unless the Constitution should be amend-ed to provide otherwise. The key issue in this debate appears to be summed up by this line of thinking: If we can pass a law extending to gay couples some of the benefits of “marriage” without hurting the institution of marriage, then I will do it. I believe that the “If” clause in this statement is an impossibility, and that therefore the State should not broaden its definition of marriage to include same-sex unions.

There appear to be some undecided delegates on the Maryland House Judiciary Committee who are prepared to vote to preserve marriage, such that they would vote not to create “civil unions” nor “domestic partnerships” nor to broaden marriage to include same-sex couples IF they find evidence that extending marriage-like benefits to same-sex couples would have an adverse effect on families and children. But if they cannot find such a negative correlation, then they may vote to extend these additional rights to gay couples.

It is the purpose of this issue of CLU to articulate such an argument that can help this handful of legislators to see what the negative effects would be from extending these special rights to gay couples. There follows copies of two letters I submitted to the Judiciary Committee on February and March, which attempt to answer this important cause-effect inquiry. I offer them here because I believe they are helpful.

1. This issue is now before the California Supreme Court, which challenges Proposition 22 (passed by the people of California in 2000, making marriage only between a man and a woman. The case arose from the actions by the City of San Francisco, that licensed approximately 4,000 gay marriages in 2004.
2. A federal marriage amendment has been proposed that would establish a national standard. See CLU, May 2004.

C. PAUL SMITH
Attorney at Law
One Church Street, Suite 910
Rockville, Maryland 20850
(301) 762-0033
Fax No.: (301) 762-0285
March 4, 2008

Chairman Joseph Vallario and
House Judiciary Committee, Room 101
Lowe House Office Building
Annapolis, MD 21401

Re: House Bill 1345 and related “marriage” bills

Dear Chairman Vallario and Members:

I am submitting this to supplement the letter (with summary) and the oral comments I made to your committee on February 28th. These comments are to address this issue:

If the Legislature passes measures to recognize gay partnerships as “civil unions,”
“domestic partnerships” or “marriages” will this adversely impact traditional
marriage?

For the reasons given below, the answer to this question is YES!

If the State were to recognize gay partnerships as either “civil unions,” “domestic partnerships,” or “marriages,” this would significantly undermine the State policy to promote traditional marriage as the preferred relationship for the bearing and rearing of children. The traditional policy would be undermined because the State would effectively be saying that there is no preferred relationship for the bearing and rearing of children.

The purpose of having a state policy to promote traditional marriage is to set up a legal system and laws to encourage child-bearing to occur within the bonds of marriage between a man and a woman. The purpose of such a state policy is also to discourage the birth of children outside the bonds of marriage. If the State were to bestow the same benefits of marriage on any and all couples who have guardianship of a child, this will effectively repeal the state policy to promote marriage. There is no way around this. (See attached, one-page of excerpts from the Brief of James Q. Wilson, et al.)

It may be tempting to approach this from the point of view of a particular child or children. Under this approach, if the Legislature were to say: We will bestow on whatever partners who have children the same benefits of a married couple, this would eliminate any incentive to be married before having children. At first glance, this approach would appear to give the same legal benefits to every child. But that is not what will happen. This approach would discourage marriage and would discourage advance planning for children; it would promote after-the-fact, after-birth planning for children, and would not encourage any type of parental relationship as the more desirable one for children. The predictable effect would be that there would be more and more children that would be raised in relationships that are shown to be less advantageous for children than that of a married husband and wife.
Thus, if the Legislature, out of a desire to help the few children being raised by gay parents, passes a law that recognizes gay marriages, then the Legislature will put in motion the measures that will cause many times more children to be adversely affected because they are denied the opportunity to be raised by their own mothers and fathers.

Even if the State were to somehow confer on gay partnerships all the legal benefits of a marriage, this will not guarantee that it would eliminate the ostracism of children. Even if a gay partnership were given the title “marriage,” it would still, obviously be a “gay marriage.” There will be no hiding of the fact that John has two “moms” or two “dads.” Much of society still regard gay relationships as morally wrong. This societal attitude will not be changed by legislative fiat. The Legislature cannot pass a law that will make people think that gay relationships are either right or wrong. Thus, if the Legislature were to confer the benefits of “marriage” on gay partnerships, then these results would follow: (1) the partners would get additional rights and benefits; but (2) the children of such partnerships would continue to get the adverse fallout from the partners’ relationship.

Studies show that children raised by gay partners have significantly higher risks of problems—including physical health, emotional and mental problems, and substance abuse. (The summary I previously submitted gives the reference to such studies.) Conversely, children raised by a father and a mother tend to be healthier, wealthier and happier. It’s not enough to raise a child to read well, to do mathematics well, and to perform well academically. Children also need to learn how to live as heterosexuals; they need to learn how to relate to men and to women; they need to learn how to be a good father or a good mother; they need to learn the differences and complementary qualities of the two sexes.

One of the arguments made for the recognition of gay marriage is the request of the gay couples to obtain for themselves the same rights as married couples. This argument is typically couched in terms of correcting their denial of Equal Rights. This argument was one of the principal arguments addressed by the Court of Appeals recently in Conaway v. Deane. The Court dismissed this argument as a misinterpretation of the application and meaning of Equal Rights under the Constitution. Nevertheless, the State can bestow such rights if it so chooses. But for those who urge the passage of laws to recognize gay marriage in order to secure for themselves legal benefits for their intimate relationships—I suggest that this should not be the focal point of concern. The most important issue is “What is best for the children?” That is the issue that should be controlling, not the question of what special rights to bestow on partners. The best interests of children and society were the bases for establishing state control of marriage in the first place. And that should continue to be the point of focus.

The increases in divorces, out-of-wedlock births, and single-parent households during the last 40 years certainly indicate that marriage and the family are being marginalized in our society. But it does not follow that the State should therefore abandon and scrap marriage. On the contrary, these increased problems have been caused by a departure from mother and father parenting; and the negative trend could be reversed by a return to traditional mother and father parenting. It would not be best for children to abandon the state policy to encourage traditional marriage; it would be better for the state to reaffirm its commitment to traditional marriage as best for the children and for the State.

Sweden, Norway and Denmark have had something close to same-sex marriage for over ten years, and according to one analyst, this has undermined the institution of marriage. (See, Stanley Kurtz, “The End of Marriage in Scandinavia; the conservative case for same-sex marriage collapses.” The Weekly Standard, Feb. 2, 2004, Vol. 9, Issue 20.) Kurtz reported that the out-of-wedlock birth rates have jumped from 39% to 50% in Norway and from 47% to55% in Sweden. In Denmark the rate dropped slightly, from 46% to 45%, but “about 60% of first born children in Denmark now have unmarried parents (Kurtz, p. 2). (I am sending a copy of this article to Chairman Vallario.)

Those gay couples who seek to legalize same-sex marriage have often sought to use the children to make the case that the State should recognize same-sex marriage. The sympathetic appeal of this argument cannot be denied. Especially, when the gay couples send the children over whom they have guardianship before this Committee to tell of the ostracism they feel because their “parents” aren’t married. The plight of these children is indeed heart-wrenching. But their “parents” knowingly and with planning and calculation brought the children into their gay relationships. I have great concerns for these children. But to pass laws that will encourage more children to be raised by gay parents will not help the situation; rather it will most likely cause more children to have problems.

Without fail, the gay couples take the implicit (and sometimes explicit) position that they were born that way or that they cannot change. It seems to be politically correct to embrace this point of view, but the science does not support this position. There is no scientific evidence that homosexuality is innate; there is abundant evidence that homosexuality is affected by environment, conduct and choices; and there is undeniable evidence that some homosexuals have changed. I recognize that what I said irritates and angers many gays. But I would suggest that it would be best for the Legislature to pay closer attention to the legitimate scientific studies on the issue, rather than to be manipulated by the anecdotal testimony that is given and repeated almost every time these issues come before the Legislature.

If the Legislature heeds the siren cries of those who approach this marriage debate as an Equal Rights issue, then the Legislature is likely to make the serious mistake of undermining and destroying marriage. Maryland public policy has promoted and preferred marriage for over two hundred years.

In conclusion, if the State were to recognize gay partnerships as either “civil unions,” “domestic partnerships,” or “marriages,” then the State would be repudiating the policy and preference it has embraced for over two hundred years that it is best for children to be raised by their two parents—the mother and the father. The State cannot both give gay partnerships the benefits of marriage and at the same time continue to promote traditional marriage as the best social unit for the rearing of children. For the reasons stated above, it would be best for the State to strengthen its endorsement of traditional marriage by amending the State Constitution to provide that marriage in this state is only between a man and a woman.

Respectfully submitted,

C. Paul Smith

Encl.

Excerpts from Brief of James Q. Wilson, et al., on the value of traditional marriage for society—

The philosophical and legal bases for a state to pass laws to promote traditional marriage (between a man and a woman) as the preferred social unit for the bearing and rearing of children are stated succinctly in one of the Amici Curiae briefs that was filed in the case of Conaway v. Deane:

Marriage has a unique and indispensable social purpose: creating families in which children will be known and loved by their own mother and father. . . .

Virtually every know human society has recognized the need for a public institution to regulate the procreative consequences of sexual attraction between men and women, both because reproduction is a necessary task, and because the alternative to some form of successful social regulation is fatherless children who suffer serious harms themselves and pose substantial burdens and dangers to society.

The scientific evidence strongly suggests the prime way marriage benefits children is not by bestowing a set of legal benefits (transferable to other family forms) but by increasing the likelihood that children will be born to and raised by their own mother and father. The vast majority of children born to a married couple begin life with their own mother and father committed to jointly caring for them. Only a minority of children in other kinds of sexual unions do so. Marriage serves many individual needs, but this is its most unique and irreplaceable social function: encouraging men and women to procreate responsibly. As a matter of historical record, marriage is not rooted in animus towards gay[s] and lesbians, but is a classification that responds to real and enduring human realities: only opposite-sex unions can both create the next generation and connect those children to the mother and father who made them.

[W]hen the connection between marriage and procreation weakens, many children suffer, and so do the communities faced with higher rates of poverty, crime, juvenile delinquency, welfare dependency, child abuse, unwed teen motherhood, infant
mortality, mental illness, high school dropouts and other education failures.
[Emphasis added.]

Same-sex marriage would strip from the law of Maryland the one feature of marriage that has been virtually universal throughout human history. It [would] put[] law and government in the position of educating the next generation that: (1) Any two committed adults are just as good as a mother and father, when it comes to raising kids; and/or (2) Marriage has little or nothing to do with children; it is primarily about adult needs for intimacy. Such a dramatic shift in the legal meaning of marriage is likely to have real social consequences.

(Brief Amici Curiae of James Q. Wilson, et al., Legal and Family Scholars, in Support of Defendants-Appellants, pp. 2-3. Frank Conaway, et al., v. Gitanjali Deane, et al, in the Court of Appeals of Maryland, September Term, 2006, Case No. 44.) The studies that provide the support for these conclusions in contained in the 50-page brief, a copy of which is being furnished to Chairman Vallario.

C. PAUL SMITH
Attorney at Law
One Church Street, Suite 910
Rockville, Maryland 20850
(301) 762-0033
FAX NO.: (301) 762-0285

February 28, 2008

House Judiciary Committee
Maryland House of Delegates
Lowe Office Building
Annapolis, MD 21401

Re: House Bill 1345
Maryland’s Marriage Protection Act

Dear Committee Members:

I am a husband, a father and a grandfather. I reside in Frederick, Maryland, where I am currently one of the city’s Aldermen. For over 35 years I have worked with youth as a parent, a baseball and basketball coach, a scoutmaster, the bishop of a church congregation, and in other capacities as well.

I am writing in support of House Bill 1345, which would establish a state referendum in November for the voters to determine whether to amend the State Constitution to provide that in Maryland marriage is only between a man and a woman. This is not an anti-gay bill. It is a pro-child and pro-marriage bill. The bestowal of benefits on husbands and wives through Maryland marriage laws does not punish those who are not married. This bill is part of an important state policy to promote the traditional family as the preferred one for the bearing and rearing of children. I urge the passage of House Bill 1345.

1. Resolving the issue by referendum. The provision in the bill to resolve this sensitive social issue by a state referendum is an excellent idea. The referendum approach to the issue is appropriate for an amendment to our Constitution on a matter of such great importance.

2. Defining marriage as only between a man and a woman will strengthen families. Although the bill only calls for a referendum on the issue, its purpose is to achieve an amendment to our Constitution that does limit marriage to a relationship only between a man and a woman. For the reasons stated below, I believe that this would be a desirable improvement in our Constitution.

First, although our state law (Section 2-201 of the Family Law Article of the Code of Maryland) currently provides that marriage is only between a man and a woman, by making this same provision a part of the Constitution would make the restriction stronger, and would be a protection to and promotion of marriage and of strong families.

Second, the amendment would be a strong public policy statement that Maryland promotes and encourages traditional marriage as the best relationship for the bearing and rearing of children in the state. This is a policy that affects the vast majority of the people in the state. It
is a policy that has been a part of Maryland law for over 200 years—a policy that discourages people from having sexual relations outside of marriage, and encourages couples to commit to love and care for one another in a legal (and often at the same time a religious) ceremony before beginning sexual relations with a partner. This is a good and wise standard. It is a policy that bestows certain legal benefits upon the married partners. All of this promotes marriage as the fundamental unit of society for the rearing of children, and to provide for the health, support, safety and well-being of people in the state. During the last 50 years, the increased incidences of drug use, alcoholism, crime, welfare needs, and various health problems can all be tied to the weakening of the family and a decrease in the number of families having both a father and a mother in the home. The proposed bill is a simple step that reinforces the important policy that our forefathers recognized when they first enacted marriage laws.

Third, scientific studies show that the traditional marriage relationship is best for the rearing of children. Most people believe that this is true, but many are not aware of the scientific studies that support this cause-effect relationship. Attached is a four-page article that I recently prepared and published in Constitutional Law Updates, October, 2007, which gives some of the primary studies that support this conclusion. I am aware that you will be (or may already have been) provided with materials that seem to contradict this. But if you wish to become fully informed about the scientific studies on this issue, then you should consider the books and studies referenced in the attachment. An honest scientific review of this issue will demonstrate that the superiority of traditional marriage for rearing children is borne out conclusively by the studies.

Fourth, a state has the right to prefer and promote one type of relationship for the bearing and raising of children in the state. As the Court of Appeals recently held in Conaway v. Deane (2007), as long as there is a rational basis for the state to promote traditional marriage, it may properly do so. The Court went on to find that such a basis does exist. There will always be some families without both a father and a mother. But the existence of such situations does not diminish the need and the importance of establishing a state policy that promotes traditional marriage as the best and preferred relationship for the rearing of children. State laws set state policies. And House Bill 1345 would help set the policy that this state wishes to encourage traditional families, with both a mother and a father, for the rearing of children.

Fifth, that part of the bill that would not recognize civil unions and domestic partnerships is an important and desirable part of this bill because the giving of these relationships the same
legal benefits as marriage would ultimately undermine the state policy to promote and prefer traditional marriage. This part of the bill does discriminate between the preferred, traditional marriage relationship and other relationships. But this differentiation is necessary in order for the state to have a policy that promotes the best interests of the children as a whole. Not only is there a rational basis for this disparate treatment, but the overwhelming evidence from scientific studies supports the state’s having a policy that encourages traditional marriage as the best relationship for raising children in the state. This preference is not a punitive act against other relationships, rather it is an essential part of having a policy that prefers one relationship over others. The proposals before the Legislature to recognize civil unions and domestic partnerships are merely back-door attempts to eliminate the preference that Maryland law has long given to traditional marriage. The proposals to recognize civil unions and domestic partnerships are back-door attempts to redefine marriage. The effect of recognizing civil unions and/or domestic partnerships would be to repudiate traditional marriage as the best and preferred relationship. State law cannot be all things to all people; either it must make traditional marriage the preferred family relationship or not. If the State were to establish a preference for traditional marriage and to recognize civil unions and domestic partnership, then the State would be taking inconsistent positions. If the State chooses to continue to prefer and promote traditional marriage over other relationships, then it may do so, and it should do so. But the State cannot do both, for the bestowal of special legal rights on other relationships undermines the state effort to establish a policy and preference for traditional marriage as the best relationship for the bearing and rearing of children.

Thank you for your consideration of my comments.

Very truly yours,

C. Paul Smith

Encl

Mitt Romney for President

2008-01-25T15:32:00.000-08:00

Mitt Romney is the best candidate for President of the United States.

As I write this¹, Mitt Romney just won the Nevada caucuses in a landslide, taking 51% of the Republican votes. Ron Paul was a distant second with 14%. All the other Republican candidates were in the single digits. Also, today, McCain won the South Carolina Republican primary with 33% of the votes (again including independents). Huckabee placed a close second with 30%, followed by Thompson with 16% and Romney with 15%. The liberal media is crowning McCain with the front-runner jacket, and are pronouncing that he has taken the lead because the Republicans believe he is the candidate most likely to beat either Hillary Clinton or Barack Obama. I don’t buy it. I don’t think McCain is going to get the Republican nomination, and I don’t think he is the Republican Party’s best hope to beat the Democrats. And I am not ready to repudiate my principles to win the election, even if what the liberal pundits say is true. Furthermore, current polls in Florida have McCain, Romney and Giuliani running neck and neck (although the Rasmussen poll has Romney ahead 25% - 20%), and in California one poll has Romney in the lead.

I. WHERE WE STAND AFTER THE SOUTH CAROLINA PRIMARY—THE END IS
NEAR FOR HUCKABEE, THOMPSON AND GIULIANI

Now that the South Carolina Primary is over—it appears that the race for the Republican nomination will be between Romney and McCain. The reason is clear: First, Romney currently has more delegates than any other candidate, including McCain. Second, because no Republican contender has more than 25-30% support at this time, it impossible to pick a winner at this point. Third, Romney is already in Florida, where he will campaign vigorously for the next 10 days—and he is expected to stress his economic message, which proved to be a winner in Michigan and elsewhere. The fact that the nation is currently facing the threat of a recession makes the economy the biggest issue for the nation. And Romney’s experience and understanding of economic issues is superior to that of any other candidate. President Bush and Congress are at this very moment discussing a temporary stimulus package to revitalize the sagging economy². All of this should play into Romney’s hands and help him in Florida. And fourth, the other three main contenders are basically eliminated by the South Carolina results. [A Rasmussen poll on Tuesday had Romney with 25% support, trailed by McCain and Giuliani with 20%. Huckabee was a distant fourth.]

(a) Huckabee needed to win in South Carolina, but he failed to do so. Although he only lost to McCain by a slim margin (33%- 30%), still Huckabee did not win. A candidate has to win some primaries. Except for Arkansas (where he was governor), there is no other state where he can expect to find the evangelical support that he will need to win. Huckabee is a great communicator, and he talks a good talk, but his governing record—especially on taxes and immigration—belie his words. Huckabee still has a mathematical chance to win the nomination, but the probabilities are poor. While Romney and McCain both have excellent chances to win numerous additional primaries—that is not so for Huckabee. Huckabee has said so many things that will come back to haunt him, and he has flip-flopped on major positions during the campaign. This will cause Huckabee to slowly fade in the remaining primaries. Although there will certainly be some evangelicals who will not back a Mormon, I predict that most of them will because the evangelicals are mostly people of principle, who support the same principles that Romney advocates. For all the reasons I stated above, true conservatives will have a hard time supporting McCain. I predict that Romney will pick up most of the Huckabee supporters.

(b) Thompson was desperate to win in South Carolina, and he didn’t. By finishing a distant third in a state that he believed to be the home of some of his most ardent supporters—this brought an end to the Thompson campaign³. He will continue to be respected for his loyal support of conservative principles, but he is not what the party is looking for in a candidate. His support will go elsewhere. I predict that most of his support will go to Romney, for the same reason that most of the Huckabee supporters will eventually back Romney—because he stands for the same principles that Thompson stands for.

(c) Giuliani has not had a good showing anywhere yet. He is counting heavily
on doing well in Florida, where he, Romney and McCain are all polling at about 20-25%. Giuliani is literally desperate to win in Florida. If he does not win there, I believe he’ll be out of the running. Whereas Giuliani at one time had a lead in the national polls, McCain has now overtaken him. Both Giuliani and McCain draw support from the more moderate (liberal, if you will) parts of the Republican party. Both McCain and Giuliani are regarded as men with the leadership skills that would serve our nation well. But neither McCain nor Giuliani are regarded as strict conservatives. Giuliani is pro choice and supports gay marriage. Put all of this together, and what you get is: McCain is currently taking the support from those in the party that might otherwise support Giuliani. Thus, Giuliani is suffering most from McCain’s resurgence, and it will lead to Giuliani’s bowing out of the race after Super Tuesday.

The combination of all of this will be that Romney and McCain will be the only two Republican candidates left standing after Super Tuesday. The biggest question then becomes: Where will the Giuliani, Huckabee and Thompson supporters go? For the reasons stated below, I believe that most of this support will go to Romney.

II. THE PROBLEMS WITH McCAIN

The problem with McCain is very simple: He’s not a conservative⁴. He is liberal on too many important issues. True, McCain has been strong on the war on terror, and this is important. But if he should win the Republican nomination, I, like his 95-year-old mother, would have to hold my nose in voting for him over the Democratic nominee. But at this point, I’m not ready to capitulate and support a Republican candidate whose political philosophy is too much like that of the liberals. McCain’s political philosophy is more like that of Bill Clinton than that of a conservative; he listens to what the voters want, then he decides what position he will take. Either for this reason, or because he really does embrace liberal causes, too often on important issues McCain has sided with liberals, against conservatives. Here is a quick list of John McCain’s serious political errors/flaws that make him unacceptable to me:

1. Campaign Finance Reform. McCain is one of the main proponents of this flawed law—the McCain-Feingold Campaign Finance Reform Bill⁵. This law imposed serious limitations on political speech in the name of seeking to keep “special interests” from having too much influence on national, political debate. The restrictions it imposes on precious political speech is significant; and the law gives increased influence and power to the media, which continues to be heavily slanted in favor of the liberal point of view. This is an assault on free speech. McCain’s excessive zeal to curtail the speech of people who pay for advertising to advocate a political position is a serious error. His goal to keep money out of politics is naïve and unsound. McCain is the darling of the media, but his actions betray conservatism.

McCain’s excessive zeal for his ill-conceived campaign finance reform law led him to file a brief against the Wisconsin Right to Life group when that group challenged the constitutionality of the McCain-Feingold Campaign Finance Reform law. McCain didn’t like the Right to Life group’s issue ad that ran within 30 days of a general election in Wisconsin. Fortunately, the Supreme Court ruled in favor of the Right to Life in June of 2007 and struck down that part of the campaign reform law that prohibited issue ads just prior to a general election. This case is extremely important for two reasons. First it demonstrates that McCain’s priorities are wrong; he sided with his campaign reform law over the fetal right to life. I disagree with his priorities. Second, his thinking is infected with the ill-founded and erroneous notion that you can take money out of political speech, and that doing so is a virtue. This thinking is naïve, and is a rejection of the most fundamental principles of freedom of political speech, which is the bedrock of all our freedoms in America. McCain’s loses twice in this matter, and it demonstrates that he lacks the judgment to be our leader.

2. Gang of 14. McCain is one of those seven Republican Senators who undermined the effort of Republican Senate Leader Bill Frist, who was prepared to repeal that part of Senate Rule XXII (the filibuster rule) which empowered the minority in the Senate to block judicial nominations unless there existed a super majority (60%) in favor of a nominee. This Senate rule had come to be abused by the Democrats during administration of Bush (43); in essence, as practiced by the Democrats, they used this rule to control the approval of judicial nominees. This part of the rule—that is the use of filibustering to block nominees—should be eliminated. The filibuster can remain for legislation, as far as I’m concerned, but not for nominees. John McCain played a key role in preserving this abusive practice. He abandoned the Republican, conservative party when he exercised this power. This act of betrayal by McCain endeared him even more to the liberals. But it infuriates me. What kind of a leader is this? He’s not my leader. He seems more concerned about appealing to the liberals than to fighting for the principles of conservative government.

3. Immigration Reform. McCain was one of the authors—along with Ted Kennedy—of the immigration bill that they and President Bush proposed in 2007—a bill that would have in essence granted amnesty to the 12 million illegal immigrants in America. This proposal was soundly rejected by the American people. This proposal was a repudiation of the rule of law in America, and it would have rewarded those who violated our laws; it would have been an insult to those people who have faithfully followed and complied with our immigration laws. While McCain demonstrated his flawed judgment in proposing this bill, he nevertheless did show that he is a disciple of the Bill Clinton school of leadership, for when he realized that the majority of Americans opposed the McCain-Kennedy Immigration Reform Bill, he eventually got in step with the majority. Well, that’s partly good, because at least he has changed for the better. But, McCain demonstrated flawed judgment; he demonstrated the type of leadership we can expect from Democrats, but not the type of judgment and leadership that this nations needs. We can do better than settle for this in a candidate.

4. He voted against the Bush Tax Cuts. When McCain twice voted against Bush tax cuts he demonstrated that he does not subscribe to the economic theory that appropriate tax cuts stimulate the economy and actually lead to increased governmental revenues. McCain voted with a minority of Congress—he sided with the most liberal of the Democrats in opposing the tax cuts⁶. Fortunately for the nation, McCain’s viewpoint was not successful. Those tax cuts
helped the national economy to recover from the brief recession that President Bush inherited from the Clinton administration, and those tax cuts helped keep the national economy strong despite the significant strains and demands of the war against terrorism. McCain’s position on this is another reason why the nation does not need and should not want him at the helm. Once again, McCain fought against the principles of conservatism and sided with his liberal friends on the other side of the aisle.

5. The Truth about McCain’s “Truth” Campaign. One of John McCain’s chief political strategies is to promote himself as the “straight talk candidate,” the candidate of truth, and at the same time to attack Mitt Romney as a liar and as a flip-flopper. In the first New Hampshire Debate, McCain attacked Romney for falsely labeling the McCain-Kennedy Immigration Reform Bill as an “amnesty” measure. He criticized Romney for running false attack ads to attempt to smear him. Well, so much for the truth; McCain himself had called the McCain-Kennedy bill a form of amnesty. Romney had correctly characterized McCain’s position. McCain demonstrated that he is a great political counter-puncher, but to those who demand the truth—they will find McCain wanting in this quality. McCain’s attacking Romney in New Hampshire does demonstrate McCain’s intuitive ability to recognize the one candidate who will be his toughest competitor—Mitt Romney. But McCain’s attempt to paint himself as the candidate of “truth” is actually an untruth. In Florida, McCain continues to accuse Romney of changing his positions with every new, changing wind. But McCain is himself the master flip-flopper. Most notably, he flipped on tax cuts, and he flopped on immigration. While he can aspire to be the candidate of truth, he has not earned the right to wear that title.

6. Federal Marriage Amendment. This amendment would mandate that marriage in the United States can only exist between a man and a woman. Senator McCain has opposed this amendment on the grounds that it violates the constitutional limits of federalism. This is usually an acceptable conservative response to legislation that tends to infringe on the rights of the states. However, because the federal government—through the courts—has already pre-empted the states in the regulation of all major aspects of marriage, the only way to recoup what has been lost by the states is to enact a constitutional amendment. This is perfectly in harmony with the Constitution; an amendment is needed to address this matter; and addressing the attack on the family by passage of a constitutional amendment is good, proper and necessary⁷. And to those who nevertheless cling to their conservative rationale and who refuse to acknowledge the critical nature of the threat to the family, I would point out that conservatism is not the only important principle of government. And in this particular case, the normal conservative approach that is sufficient to resolve most governmental questions must yield to the over-riding critical family value that is under assault in our society. Furthermore, the Courts have already pre-empted the regulation of marriage by its long string of cases that have usurped state regulation of marriage. By this I am referring to the following cases: Griswold v. Connecticut (1965), Skinner v. Oklahoma (1942), Eisenstadt v. Baird (1968), Roe v. Wade (1973), and Lawrence v. Texas (2003). Finally, I would note that Senator McCain does indeed find some protection in his citing “federalism” as a basis for not supporting the Federal Marriage Amendment. But what I see is that he is afraid to speak out on one of the most important issues of our day—he chooses to
wait to see if a super majority of the nation ever becomes supportive of this amendment. When and if that happens, I have no doubt that he would fall in line, and then run to the front of the line. But that is not the leader I am looking for. Conversely, Governor Romney has spoken out strongly in support of this amendment and in support of other issues to protect and strengthen the traditional family as the foundation of peace, prosperity and liberty in America.

III. A DISCUSSION OF ROMNEY AND McCAIN ON OTHER ISSUES

The War on Terrorism, including Iraq and Afghanistan. All three Democratic candidates condemn every aspect of the war in Iraq; the three of them argue over who would lead the nation to retreat and withdraw the fastest. Except for Ron Paul, all the Republican contenders condemn the Democratic plan for announcing a retreat date, and for premature withdrawal without first securing victory. In January of 2007, Mitt Romney was beginning his campaign for the Republican presidential nomination. At that time, our military was suffering excessive deaths in Iraq, and President Bush was just announcing the beginning of the “surge.” At that critical moment for the nation, I listened carefully to what Romney would say about what I regard as the most important issue of our day. Romney supported the surge 100%. He recognized that a premature withdrawal from Iraq would endanger the lives of millions of Iraqis who had relied on America to help them begin their new government. He recognized that a premature withdrawal from Iraq would be an invitation for the terrorists to take over that torn nation. He recognized that America could defeat the insurgents. He recognized that success in Iraq could bring a lasting stabilizing influence to that important region of the world. Six months later, when the evidence proved the “surge” to be successful, it was easy to support the continuing war effort in Iraq. But Romney stood up for the tough, but right approach when it was not popular to do so. This speaks very favorably for Mitt Romney.

McCain, of course, is also supportive of success in Iraq. He insists that America secure victory before leaving. He proudly reports that he was a vocal critic of the Bush administration’s military strategy until it was changed (and the “surge” was announced) a little over a year ago.
It seems that the economy has now replaced Iraq as the issue about which most people are concerned, but in my mind, the war on terror and the Iraq and Afghanistan military operations continue to be the most important issues for the nation. The billions of dollars that America has poured into this effort CAN bring the world important and lasting benefits. We cannot ignore the radical terrorism that brings death, destruction and fear to peaceful people around the world. The only issue of significance between Romney and McCain in this area is whether or not waterboarding is torture. There is no consensus among military experts that this is torture. McCain says it is and he denounces it, whereas Romney would not conclude that it was torture. Romney insisted that it was best for America not to spell out all of the details of what kinds of interrogation techniques the nation will and will not use. Despite McCain’s vehement denunciation of waterboarding, Romney’s position is better for the nation, and he did not back down in the face of McCain’s condescending lecturing.

One final comment is in order following the Republican Presidential debate on MSNBC last night (January 24, 2008). In watching the debate, with many questions coming from Tim Russert, and in listening to Russert’s comments after the debate—it is clear that Russert and the liberal media is attempting to resurrect the Iraq war as an issue to take down the Republican nominee when they get to the national election. Up until last night, the economy had become the most important campaign issue. But the problem for Democrats is that the Republicans, and especially Romney, prevail on the debate of this issue. The Democrats are desperate to conjure a way to knock out the Republican nominee, whoever he might be. Thus, after the debate last night, Russert gleefully explained how he had painted all of the top Republican contenders in a corner, because they all supported going into Iraq, and they all supported leaving Iraq victorious. Russert could hardly contain himself as he chuckled that current polls show that six out of ten people today were opposed to initially going into Iraq and want to get out of Iraq immediately. What this means is that Iraq and the war on terror issues will continue to be important issues until the November election. Romney and McCain are on the same page on this issue.

Health Care. Health care is an important issue for most of the nation. Romney’s approach makes sense and avoids drawing the federal government into the arena. Romney’s plan keeps health care in the hands of private industry. Romney’s plan is the perfect answer to the Democratic threat to put universal health care under the control of the government, where there is destined to be inefficiency, waste, increased health care costs, and increased taxes to cover all the newly created waste. Senator McCain has not made health care an important issue in his campaign.

No Child Left Behind. This is the one area where I believe Romney is mistaken in his support because I believe it best to leave education entirely in the hands of the states. I believe this to be the best approach, and it is certainly mandated by the Constitution. At least Romney is seeking to obtain more state control in the implementation of this program. McCain has not made education a key issue is his campaign.

Abortion—Pro Choice vs. Pro Life. Regardless of which nominees emerge from the two parties, this issue will be a clear point of difference between the two parties in November. But for now, on the Republican side, between Romney and McCain, both candidates are pro-life.
Except for McCain’s lapse in judgment in siding with campaign finance reform over life in the Wisconsin Right to Life case, McCain has been a long and consistent supporter of the right to life. Romney is a relatively recent convert to being a political supporter of the right to life. By that I mean that while he personally has been opposed to abortion, he nevertheless supported the right of the woman to choose. Romney admits he erred in this; he points out that he changed his position on this once he was elected Governor of Massachusetts, and that as governor he sided with the right to life in the official acts he took. Romney’s recent conversion makes some conservatives suspect of how genuine his position now is. Romney points out that President Reagan had a similar conversion, and that he became a powerful advocate for protecting the unborn. I am satisfied that Romney’s conversion is real.

The Economy. Mitt Romney has made economic growth a key part of his campaign, and he speaks on economic issues very effectively. Romney’s experience in business for 25 years enables him to effectively present the conservative message on taxes, jobs, foreign trade and the myriad of other economic issues. No other candidate comes close to Romney in this important area, and Senator McCain is no exception. Huckabee tried to use Romney’s experience in economic matters to disparage him, by asking, ”Who would you rather have for President, the guy who works beside you, or the guy who laid you off?” But the truth is that America would rather have as president “the guy who can create jobs and who can make the economy stronger.” That would be Mitt Romney.

If McCain were to win the Republican nomination, this would devastate the Republican Party because many of McCain’s core principles are a repudiation of basic conservative values. While I might vote for him over the Democratic nominee, I would work with fellow conservatives to block him from undermining and changing the core principles of the party. McCain will never convince the conservative base to change their minds. The question is whether he can gain enough support of the more moderate Republicans. I believe that the majority of Republicans are of the same mindset as me in this regard. As a Republican, I have core principled beliefs that I embrace, and which guide me in my political actions and decisions. I will not repudiate my principles. I will exert all the influence I can to help the Party remain true to these principles. I believe that many, if not most Republicans are similarly committed to principles. This does not mean that the Party must be on the right side of every issue—for it is not. But McCain’s position on multiple important issues is such a major departure from these principles that I cannot support him as a leader of conservativism. Thus, if he were to become President, I predict that it would cause great disruption and change in the Republican Party.

But this possible disruption need not occur. Mitt Romney’s political philosophy is much more closely aligned with the party’s conservative base, and would actually be an improvement from the philosophy of President George Bush. Republicans ask “What would Reagan do?” McCain comes up wanting when the question is put to him. Romney does much better.

IV. ROMNEY WILL WIN THE REPUBLICAN NOMINATION

Republicans tend to be people of principal—this is an advantage for Romney. Both men communicate well and have demonstrated good leadership abilities. Each man has personality qualities and deficits, but nothing of great significance, in my opinion. I think the Mormon factor will turn out to be a non-issue. I expect it will be virtually eliminated when some of the evangelical leaders speak up in support of Mitt. Finally, Mitt is younger, more energetic, better looking, and has an attractive family, and brings a noticeable record of business success—all of which will serve him well.

A final note should be made regarding the Republican debate last night on MSMBC. Romney was the clear winner last night. He was given more questions than any other candidate, and his responses were lucid, forceful and persuasive. He was very impressive. McCain did well, too, but Romney looked better. No one is better than Romney in quickly stating his position and then backing that position with facts and reasons. Romney is looking more and more polished. He presents himself as a practical man who understands and can fix the both “Washington” and the national economy. He looks very presidential.

I predict that the majority of Republicans will not be fooled by McCain’s phony “Truth” campaign. I predict that the majority of Republicans will vote for their principles, and that they will reject the notion that they need to abandon their principles (and vote for McCain) in order to defeat the Democratic nominee. Thus, I predict that Romney will win the Republican nomination. And as long as we’re making predictions, I predict that Romney will defeat the Democratic nominee (whether it’s Clinton or Obama) in the November election. More about that later.

1. The first major draft of this article was written on January 19th and 20th, 2008, right after the South Carolina Republican Primary results were announced. Thereafter, it was revised several times, until it was completed on January 25, 2008.
2. On January 24th, the House passed the stimulus package on which it and President Bush had agreed. That measure now heads to the Senate, where quick approval is also expected.
3. On January 22, 2008, Thompson announced that he was getting out of the race. He did not endorse any other candidate.
4. McCain knows this is his weakness. So he has begun to run television ads in Florida with testimonials from some of his supporters that state that McCain is a conservative. While McCain will insist he is a “conservative,” the problem is his well-known record, where he has consistently separated himself from the conservatives and sided with liberals.
5. Because of the serious limitations that this has on free speech, I have previously addressed this issue in CLU three times: “Campaign Finance Reform Act—A Monument to the Ignorance of the American people and to the Phoniness of Congress,” July, 2002; “The Campaign Finance Reform Case—An Ephemeral and Costly Decision” (McConnell v. FEC), May, 2004; and “FEC v. Wisconsin Right to Life,” October, 2007.
6. McCain was one of only two to Republicans to vote against the tax cuts.
7. I previously addressed this issue in CLU, and explained the need for an amendment to correct the serious harm that court decisions have inflicted on the family. See “A Federal Marriage Amendment—Let the Debate Begin.” May, 2004.

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

2007-10-08T20:29:00.000-07:00

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

2007-09-26T10:54:00.000-07:00

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.

[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

2007-07-17T19:56:00.000-07:00

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

2007-07-17T19:55:00.000-07:00

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

2007-07-17T19:54:00.000-07:00

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

2007-07-17T19:53:00.000-07:00

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.

2007-07-17T19:52:00.000-07:00

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

2007-07-17T19:50:00.000-07:00

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

2007-06-21T23:02:00.000-07:00

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.

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

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