Dissembling the President’s Pique

On the heels of the Newtown-Sandy Hook killing of 20 innocents by Adam Lanza, a predictable outcry for curtailing gun violence erupted. The same “let’s do something” demand by the grieving and the angry followed the Aurora theater shootings, the Tucson shootings, the Virginia Tech shootings, and the Columbine shootings. Of course if one wishes to follow the maniacal shooting trail back in time it would lead to John Allen Muhammad, the 2002 beltway sniper who, accompanied by his teenage partner, terrorized northern Virginia with ten random killings. Mark Barton, an Atlanta day trader, killed nine in a shooting rampage following the loss of a lot of money in 1999. Even farther back in time, Charles Whitman, the sniper who seized the University of Texas clock tower, used it as his perch from which to randomly kill 17 in 1966. We can even go back beyond the memories of most reading this blog and recall Howard Unruh, a paranoid veteran of the Battle of the Bulge, who killed 13 on the streets of Camden NJ in 1949.

While mass shootings in public places are thankfully not commonplace, they aren’t rare.

Looking at historic mass murders dispassionately – easy for me to do – two out of three guns used by the killers were easy-to-conceal pistols and 80% of the weapons used were legally obtained. The majority of the killers were mentally ill loners with a known history of acute paranoia, delusions, and depression. It’s not a stretch to call their crimes murder-suicides since the majority killed themselves and most of the ones who didn’t waited for the police to arrive so a shootout would become “suicide by cop.”

It’s understandable that the “let’s do something” reaction is not particularly thoughtful – at least at the moment – so most “let’s do something” ideas would have no impact in preventing future shootings. Mass shooting victims are essentially props in a grand exit in which the shooter has no plan to survive. The grieving and the angry can be forgiven for not being thoughtful in realizing their proposals will not solve the tragedy they’ve endured. But how about the rest of us? We can feel compassion without taking leave of our senses. Yet, mix in a large helping of politics and common sense goes out the window.

That’s what happened following the Sandy Hook Elementary School shootings. Politics linked arms with passion. Obama got out in front of the parade that followed and shamelessly leveraged it as a means to restrict gun ownership rights for everyone – the law-abiding and the law-breakers. He used Executive Orders to get around Congress and enact regulations. His party launched the Safe Communities, Safe Schools Act of 2013 to amend the National Instant Criminal Background Check System (NICS) with typical meat-axe congressional solutions. As with ObamaCare, the legislation was rushed to a vote without a lot of scrutiny or buy-in.

One reason for the rush was the public’s waning interest in gun control in the five months following Sandy Hook. Moreover, two days before the vote, the Boston bombing and the heightened awareness of the importance of personal safety was fresh in the public’s memory. A Fox poll showed that, during the search for the suspects, 70% of Bostonians wanted to have a weapon available for self-defense.

All of the several amendments to NICS needed 60 votes to pass and advance rather than a simple majority. This had been agreed to by each party’s leaders to avoid time-consuming filibusters.

It’s well known that Obama is no fan of the Second Amendment right to bear arms. He’s never said why. My guess: it’s his wariness of any potential challenge to the power of the federal government to regulate citizens’ lives. While Obama acknowledges the constitutional right in principle, he doesn’t believe it is an absolute right. Thus, in his mind the Second Amendment is subject to legislated limitations. The centerpiece of the Democrat gun control legislation is one such limitation – expanded background checks to prevent guns from being sold to the wrong people. It attempted this by an NICS amendment expanding background check for guns sold at gun shows and sold over the Internet, but it excluded family members or friends who give or sell guns to each other.

On the surface this expansion seems to be common sense. But the devil is in the details, and as Bill Clinton famously said, “it all comes down to what the meaning of ‘is’ is.” All law requires interpretation and all law is subject to abuse – if not immediately, then ultimately.

The National Rifle Association put out a policy statement that concluded the pending NICS background check amendment would solve no problem. But it would criminalize the sale of a gun, even among exempt parties, if a gun has ever been advertised, or if a gun had been transferred, even among exempt parties. What is the definition of “transfer”? We again revisit “it depends on what the meaning of ‘is’ is.” An article in the National Review Online may have prompted this hair-splitting definition of “transfer.” Ironically, however, the Newtown and Columbine shooters got their guns through others, so unless the Senate bill required background checks of all family members and friends – an impossible if not illegal task – it wouldn’t have prevented those shootings.

There can be little doubt that distrust of the federal government is at the root of resistance to federal gun control. The federal camel gets its nose in the tent with a benign beginning and often expands it well beyond its original purpose. No recent law is more exemplary of that than the 1970 Racketeer Influenced and Corrupt Organizations (RICO) Act whose original purpose was to combat the Mafia. Predictably prosecutors began straining at every gnat to define more federal crimes as “racketeering,” far afield from the law’s initial intent. Most recently it was used to charge the teachers in the Atlanta school cheating scandal for changing student test scores. RICO convictions can mean big-boy prison time.

The so-called Manchin-Toomey NICS amendment expanded background checks beyond transactions by federally-licensed gun dealers to include sales at gun shows and on the Internet. On its surface, it makes sense. Except when you look at history. Criminals don’t buy guns. They steal them, borrow them, or use a legit straw man to buy them in their stead.

Then you have the government’s batting record in enforcing the existing NICS background check requirements. NICS 2010 data showed 77,000 identifiable people tried to illegally buy a gun and were snared in the background check. That’s a crime. How many of them have been prosecuted? Seventy. The Department of Justice has no interest in prosecuting these violators. Attorney General Holder said he didn’t have the time or people to be going after them.  Manchin-Toomey would add to the backlog of cases that Holder’s department has no time, interest, or staff to prosecute.

In the end, the commonsense purpose of Manchin-Toomey fails the reality test. Manchin-Toomey would not have prevented Sandy Hook, Aurora, Tucson, or other mass killings. It would not deprive criminals, the mentally ill, and other dangerous individuals from gun purchases. Those people don’t abide by the law. Law abiders do. Manchin-Toomey would add to the bureaucratic overhead of every citizen’s life in a time when compliance with a briar patch of federal laws and regulations already consumes billions of man-hours annually. The Manchin-Toomey expansion of background checks was conceived in the spirit of Peter the Great, “It is better to let the innocent suffer than the guilty escape.” Except in this case, the guilty would escape.

The Manchin-Toomey amendment thankfully failed to get the required 60 votes despite crossovers by Republicans Pat Toomey, John McCain, Susan Collins, and Mark Kirk. Their loss was made up by Democrat crossovers Mark Begich (D-AK), Mark Pryor (D-AR), Max Baucus (D-MT), and freshman Heidi Heitkamp (D-ND). All but Heitkamp are up for election in red-leaning states. They were joined by 41 Republicans and Democrat Harry Reid whose nay vote was procedural so he could reintroduce the bill. Thus Manchin-Toomey failed by 54-46.

Shortly afterward, the Senate voted down Senator Feinstein’s (D-CA) amendment to ban so-called assault rifles (which are little more than tricked-up hunting rifles unsuited for either combat or assault – except a hunter’s assault on an aggressive animal) and high capacity ammunition clips (apparently Feinstein thinks mass killers don’t reload.) It failed 40-60 provoking an un-senatorial scolding of her colleagues by the lady: “Show some guts!”

Senator Chuck Grassley (R-IA) rose in high dungeon to defend Second Amendment rights in a heated response to her “guts” slur, condemning the Feinstein amendment as the “largest ban of guns in the history of our republic.” Grassley continued to spew logic: “It did not stop Columbine; it would not stop Newtown. Criminals who steal such guns would not care if they were banned.” No fair using facts, Senator.

Senator Mark Udall (D-CO) chimed in: “In carefully studying the language of this specific assault weapons ban, it became clear that it went too far because it also would have banned certain hunting rifles and even some shotguns,” he said. “And there was no opportunity to amend this legislation to make it work for Colorado sportsmen.” Udall was among the no votes against the Feinstein amendment.

An amendment by Senator Richard Blumenthal (D-CT) to limit ammunition magazines to ten rounds also failed by a margin of 46-54.

When the smoke cleared, Obama’s gun agenda lay in tatters on the Senate floor. Four of his party had crossed over to vote against Manchin-Toomey, possibly for reelection concerns, but 15 Democrats broke ranks against Feinstein and ten voted against Blumenthal. Reelection concerns couldn’t be blamed for all of those defections. Hopefully the nays saw that the legislation wouldn’t solve the gun problem which is how to keep guns from the hands of mentally ill people.

The defeat Obama suffered in the Senate was made worse by his own puerile reaction to it. A tight-lipped, angry president stepped to the Rose Garden microphone, flanked by Vice President Biden, who looked like he was on the verge of tears, and, Gabby Gifford, one of the Tucson shooting victims, and other guests. Or were they props?

Here’s an excerpt from Obama’s outburst, blowing up another section of the bridge to his political opposition.

By now, it’s well known that 90% of the American people support universal background checks that make it harder for a dangerous person to buy a gun.  We’re talking about convicted felons, people convicted of domestic violence, people with a severe mental illness.  Ninety percent of Americans support that idea.  Most Americans think that’s already the law.

And a few minutes ago, 90% of Democrats in the Senate just voted for that idea.  But it’s not going to happen because 90% of Republicans in the Senate just voted against that idea.

A majority of senators voted “yes” to protecting more of our citizens with smarter background checks.  But by this continuing distortion of Senate rules, a minority was able to block it from moving forward.

… Instead of supporting this compromise, the gun lobby and its allies willfully lied about the bill.  They claimed that it would create some sort of “big brother” gun registry, even though the bill did the opposite.  This legislation, in fact, outlawed any registry.  Plain and simple, right there in the text.  But that didn’t matter.

So all in all, this was a pretty shameful day for Washington.

Okay. Let’s talk about lying. Just 48 hours before the Senate vote, Gallup conducted a survey which revealed that only 4% considered guns to be the “most important” issue facing the country. A Rasmussen survey conducted one month after the Newtown shooting revealed that 57% thought the government should enforce the gun laws we have rather than pass more laws. A recent Wall Street Journal/NBC News poll showed that interest in stricter gun control reached a peak in February, two months after the Newtown shootings, and the support for stricter gun laws in April had decreased to 55% while 43% said laws should be less strict or remain unchanged. In another recent survey, about half (52%) disapproved of Obama’s handling of gun laws.

"The politics of gun policy are unclear," Peter A. Brown, assistant director of the Quinnipiac University Polling Institute, said in a statement. "Despite the huge news media coverage of the issue since the Newtown shooting, only 37% of voters are more likely to vote for a congressman who votes to ban sales of assault rifles, while 31% are less likely, and 30% say it would not affect their vote."

Obama’s contention that 90% of Americans stand with him on universal background checks flies in the face of all of these respected polling agencies. Has there ever been any issue that united 90% of the American public especially on something as controversial as gun politics? High favorability rating among a public that is about equally divided on every issue from war to abortion has to be greeted with considerable skepticism. So who’s lying?

The poll that really mattered was held on April 17 in the Senate. Expanded background checks, weapons bans, and magazine capacity were all voted down in a Democrat-majority Senate.

Next point: Obama campaigned in 2008 and 2012 about being able to reach across the aisle and work with the loyal opposition – loyal not to the President but to the United States and their party’s principles.  Dale Carnegie, if he were alive today, would tell Obama he’s not going to influence many across the aisle by calling them liars, calling their political positions out of touch with the public, and inferring that standing on their principles is “shameful.”

Truth be known, Obama is incapable of bringing himself to accept that people disagree with him and have good reasons for blocking his programs. In our political system, Congress isn’t compelled to obey him, which he apparently expects. Americans have a president not a king. Obama grants himself the right to hold a position he believes is correct for the country but he denies others that same right. The fact is, since he was elected, he has worked hard at creating divisiveness and the opposition doesn’t trust him.

Finally, Obama speaks derisively about the minority blocking the will of the Senate majority, a right he rose to defend, incidentally, when he was a Senator in a Republican-controlled Senate. He laments that a simple majority should have sufficed in the vote. But the Senate, not the President, makes its rules and Reid could have brought the Manchin-Toomey amendment to the floor for a simple majority vote. That would have opened it to 30 hours of debate under Senate rules. The debate would have opened the unscrubbed Manchin-Toomey to scrutiny – something ObamaCare legislative avoided in its hurry-up passage. Simple majority Senate rules allow amendments to be tacked on. Any amendments tacked on by Republicans might have forced Reid to pull the bill if Obama wouldn’t accept them – an embarrassment, wouldn’t you think ... the President forcing his bill to be withdrawn?

So Reid and Obama outwitted themselves and went with nine “unanimous consent” amendments that required 60% approval. It was well-known before the Senate vote that the votes weren’t there for any amendment. The Reid Senate proceeded anyway

So that brings us full circle. The mentally ill commit a small minority of the homicides in the country, but they commit a majority of the mass killings. That’s the stark fact. Any gun control measure that doesn’t address that problem is solving the wrong problem.

As I said in a previous blog, the way we handle mental illness in this country has taken a turn for the worse in the last several decades. The mentally ill have been released from custodial care and can’t be admitted against their will. Against the will of a mentally ill person? Interesting.

With fewer inpatients, the number of psychiatric beds has decreased. In true Kafkaesque fashion, the government healthcare bureaucracy has made it almost impossible to share medical information and forcefully treat an individual’s mental illness without a court order. Adam Lanza’s mother was trying to get such a court order when her 20-year old son learned of it and went on his murderous rampage, killing her and 20 innocent students. As for other mass killings, no court documents revealed that the shooters were insane or mentally ill. The mental health record for the Virginia Tech shooter, for example, could not have been used as a public safety warning because federal privacy laws prevented it.

So while Obama is talking about the “shameful day in Washington,” he might just take a look in the mirror at the image looking back at him. That’s the guy who has failed to understand the real problem in gun violence.

Shameful!

The Grocer’s Daughter

Last year my wife and I watched The Iron Lady, the 2011 film starring Meryl Streep as Margret Thatcher in her declining years. Her husband, Denis, had died and she periodically converses with his ghost as she suffers the effects of several strokes and dementia. Flashbacks tell the story of her life with Denis and her political career, especially her challenges in overcoming the “boys club” which was also known as the British Parliament.

She won the leadership of her party and, consequently, became Prime Minister when the Conservatives won the majority over Labor in 1979, being the first and only woman to hold that office. Her tenure ran 11 ½ years, paralleling but extending beyond the Reagan years. While she adored the American president she lacked his charm. When it came to pushing her political party, however, her elbows were sharper. Her lack of charm and sharp elbows gave her a popularity rating throughout her Ministerial tenure in the 40s, lower than that of her party.

Thatcher thus came rightly to the name Iron Lady – an appellation accorded her by the Russians but also embraced by her. She made a rare public appearance in 2007 to unveil a bronze statue of herself in the House of Commons. "I might have preferred iron," she said, "but bronze will do."

She was born Margret Roberts to working class parents in Lincolnshire, about 2 ½ hours north of London near the east coast. Her family operated two grocery stores and she and her older sister Muriel lived in a flat over the largest of the stores. Initially rejected by Oxford College, she was later accepted when a student dropped out. She studied chemistry and worked at it a bit after graduation. But politics, not chemistry, was her passion. She ran for local office, suffered some early defeats, and honed her political skills. She also met Denis Thatcher at a conservative political function. They married and had fraternal twins, Mark and Carol.

While in college, Margret had fallen under the sway of Friedrich von Hayek whose most famous tome, The Road to Serfdom, was becoming the conservatives’ bible. It was published as World War II was entering its final chapter and on the eve of the British government’s decision to fast track the country into a postwar socialist welfare state. To say that Hayek condemned government intervention in the economy would be putting it mildly. He warned that government expansion into traditional private enterprise was the precursor to an authoritarian state. Thatcher got it. She stepped into the breach in 1959 when she was elected to Parliament.

Great Britain in the 1970s was busy proving that government management could create traffic gridlock with one car. Everything in GB that could be nationalized had been, and under public ownership and government management, British Airways, British Railways, British Steel, and British Coal were poster children proving that, no matter how incompetently managed any private company or industry is, government management can make it worse. Getting a new heating system required a trip to the Gas Board “showroom” and its laughably limited selection of products. A new telephone could take weeks to install. The country that had produced the Rolls Royce, Jaguar, and the hot cars that personified James Bond was an automotive embarrassment. Few products worked well and repairs didn’t work for long. The Bulgarians produced better products.

The paralytic effect of British labor unions contributed their share to the economic pathology. Productivity was not a word in the vocabulary of a union leader and the country was often idled by national strikes. Any threat to the sanctity of a British work week or working conditions – which rivaled the work ethic of an Ottoman Pasha – provoked a strike.

British-born journalist John Derbyshire recalled an assignment which took him from London to Hong Kong one January. Boarding his plane in freezing cold rain, airport employees were engaged in a strike that prevented runways from being de-iced so planes could take off. The passengers sat in the plane grumbling for an hour or two while officials tried to negotiate a resolution with the union. Finally the plane took off and all the passengers applauded and cheered – not so much because they were on their way – but because they had escaped from a dysfunctional nation that was declining into a dystopic abyss.

In the 1970s income tax on the wealthiest was 83% and the tax on investment income was 98%. Understandably, the British were disinclined to work hard because they were able to keep so little if they became successful. Those who were able escaped and became ex-pats. Society became hollowed out leaving much of it to live their lives in government housing, travel on government transportation or drive government-made cars. Hardly any aspect of life was not touched by the British nanny-state government. The working age population essentially said, “What the heck” and kicked back to be cared for. This is what Obama wants America to be.

When George Bush the elder was ambassador to China, his tennis partner, a British reporter recalled …

… two years running, we lost the Peking Diplomatic tennis championship to a very wily couple of Italians. And George Bush is a very generous man, and he took it in good faith. He was a very good tennis player, very good tennis player. And he turned to me after our second defeat, and he said you know what it is about you Brits? He said you don’t care to win.

He was right. The British had given up in the 1970s trying to win. Harold Wilson’s blundering Labor government took the country to the edge of bankruptcy in 1976 when the pound collapsed in foreign exchange trading, forcing GB to request a humiliating credit line from the International Monetary Fund. The IMF imposed such tight controls on government spending that the currency began to recover. Then once again the unions made impossible wage demands and set off a series of strikes. It became apparent that the government held little influence with the unions, and public opinion turned against the Labor party. Strikes continued through the winter of 1978-1979 – the so-called “Winter of Discontent” – and when the 1979 election was held, the Conservatives won a 43 seat majority. As the leader of her party, Margret Thatcher became Prime Minister.

Over across the big pond, Ronald Wilson Reagan became President the next year in 1980, inheriting a dysfunctional government from an incompetent predecessor, Jimmy Carter, as Thatcher had. Thatcher and Reagan were instinctive conservatives. Each had read about the other’s values so it was inevitable that they would become soul mates in reestablishing free market capitalism in their countries and freedom in the Cold War world. But first each had to tame their respective country’s inflation dragons, which required a bitter rain to fall on the just and unjust – for which both leaders were hated to the end of their days by those who suffered through the economic correction.

The strikes which greeted Thatcher upon her move into 10 Downing Street had brought the country and economy to a standstill. Striking garbage workers had caused weeks of putrid garbage to pile up on the streets of the cities. Striking gravediggers had left weeks of unburied dead in cold lockers. Financial markets tittered on the brink, taxes stifled incentive, regulations strangled the economy, and government deficits had no end in sight.

The grocer’s daughter went to work to stop spending other people’s money and to unshackle the bonds by which government prevented people from making more money. She privatized government-owned enterprises, which represented 10% of GDP in 1979. They fell to 2% for a long time after she had left office. Those companies for which there was no private buyer and which were unproductive – in fact were little more than government dole – were shut down to stop the bleeding. Her policies put many out of work. She was hated for it. “I’m not here to be liked,” she often said to her critics, but addiction to government welfare prevented many unemployed from bootstrapping themselves through relocation and retraining. The ones who hated her most chose to remain unemployed for the rest of their lives.

Nonsensical regulation of the financial sector was eliminated, ultimately making London a rival to Wall Street. Capital controls were lifted. She fought price, dividend, currency, and wage controls – regulations of every type – often in defiance of the received economic wisdom of her own party. She took on the stranglehold the unions had around the economy’s neck and won. Union membership fell from 13 million members to 8 million while she was in office despite population growth. Government employment was drastically cut. Public expenditures accounted for 44% of GDP when Thatcher took office. It was 36% when she left. The top tax rate was 98% when she took office and 40% when she left. Inflation was 9% when Thatcher took office. Her policies, like Reagan’s, caused inflation to spike to 22% until the country was detoxified from socialism and it was 2% when she left office.

Thatcher’s reforms were considered radical even within her own party. But her ideas were shaped by the principles of running a grocery business and the concepts of Milton Friedman and Friedrich Hayek. Her north star was minimal government and letting the economy be shaped by private enterprise. "Without economic liberty, there could be no true political liberty," she told European leaders the year she launched her reforms.

Thatcher recognized the error of socialism. The trouble with it, she famously said, is that you eventually run out of other people’s money. She defeated the error of socialism three times at the polls – four if you count her replacement, John Major. But even when the Labor party regained power, putting Tony Blair in as Prime Minister, Thatcher was vindicated because Blair’s government was disinclined to return to nationalization, recognizing that people do best and live best under capitalism.

As I’ve said, Reagan and Thatcher held each other in great esteem and affection. Their partnership was unparalleled among world leaders, she the daughter of a grocer and he the son of an alcoholic shoe salesman. Both grew up in flats – his across from a bakery, hers above a store with no hot running water and with an outside toilet. Together they worked for freedom and free markets. They were partners in bringing down the Soviet communist system and ending the Cold War without a shot fired.

How they did it is a tale in itself, but Thatcher saw something in Mikhail Gorbachev that compelled her to tell Reagan, “We can do business with him.” Reagan followed her instincts but refused to abandon his Strategic Defense Initiative and the American defense buildup. As Reagan’s policies took hold and the American economy roared back, Gorbachev threw it his chips. He had been outspent and couldn’t stay in the arms race. The Soviet economy began to unravel when it became obvious to its satellites that they could secede without consequence.

In the end, Thatcher, Reagan, and Gorbachev had a close relationship. It was based on a candid understanding of each person’s principles. But Thatcher’s support of Reagan’s unyielding position toward the Soviet Union was an important contribution in ending the Cold War. In her first meeting with Gorbachev, she leaned over the table at lunch to say to the Soviet leader, "Welcome to the United Kingdom. I want our relationship to get off to a good start, and to make sure there is no misunderstanding between us – I hate Communism."

"Thatcher was a politician whose words carried big weight," Gorbachev recently observed. "In the end we managed to achieve mutual understanding and this was a contribution to the changing atmosphere between our country and the West, and to the end of the Cold War."

As a practical matter, the Soviet Union was doomed before the Reagan-Thatcher tag team accelerated its collapse. But they helped Gorbachev turn out the lights without provoking violence at home or suffering aggression from a neighboring state. That was a stunning accomplishment by the three of them. Look, for example, at the aftermath of Saddam’s collapse.

Thatcher’s misfortune was to follow a line of weak-kneed British Prime Ministers who held the office after Churchill was sent packing by the British people. Previous PMs caved, wobbled, and compromised so much that it was inevitable that Thatcher would be tested. That testing came from the unions just after she took office. Britain had lost 29 million working days the year she assumed office. But she was skillful in managing her response. She appeared to back down from her initial confrontation with the unions when in fact she was building a stockpile in preparation for the later confrontation in which she broke the back of union power. Two million working days were lost to strikes when she left office in 1990 and only 300,000 were lost last year.

In other tests, a faction of the Irish Republican Army murdered her campaign manager in 1979 and 11 years later it murdered her former private secretary. In 1984 the IRA tried and failed to assassinate her. She remained resolute.

When Argentina seized the Falkland Islands and its 1,800 residents, who were loyal subjects of the Crown, she played both hands at the same time – diplomacy with one and dispatched a naval battle group with the other to regain a pile of rocks 8,000 miles away. Her predecessors would have dawdled the incident away with an “Aw shucks, let them have it,” but Thatcher had the Falklands back under British control in a month and cowed the Argentinian thugs who had underestimated her resolve. She lost six ships and suffered hundreds of casualties, but she declared "We have ceased to be a nation in retreat." British pride soared.

Thatcher was unbending toward international bullies and favored head-on confrontation rather than endless rounds of diplomacy and negotiation. On the eve of the Gulf War, her tough and uncompromising advice to President George H.W. Bush in 1990 was – “This is no time to go wobbly, George."

Her career-long support for Israel was steadfast and she never understood anti-Semitism. Told that members of her party excluded Jews from their golf clubs, she said, “I simply do not understand it.” Her greatest achievement in life, she once said, was raising money in the 1930s to help save a 17-year old Austrian Jewish girl from the Nazis by bringing her to England. Thatcher was 12 at the time.

An important thing to remember about Margret Thatcher is that throughout her 11 years as Prime Minister, if not all of her years in political life, she was as much at war with most of her Conservative party as she was with the Labor party. The Conservative party aspired to little more than claim it could manage the big government socialist state a tad more efficiently than the Labor party. Change the names to Republicans and Democrats and you’ll see what is wrong with the political choices in America.

The Conservative party referred to her as “that woman” and she reserved her pithiest comments for them, calling them the “wets” – a British school slang term for weakness. She did not shrink from taking on her party’s Old Guard, saying many of them lived such privileged lives they didn’t know what life was like as a grocer’s daughter knew life. Perhaps, she opined, it took “that woman” to get things done because most of her party couldn’t. To break the back of inflation, a sinking economy, and the power of the unions would require strong medicine, and when unemployment passed two million before peaking at three million in 1983 – the highest since the great depression – her party was calling for her to back off. “U-turn if you want to,” she told her party. “The lady’s not for turning.”

Thatcher was reelected for a third term in 1987. Deeply suspicious of the European Union as a viable political union, she resisted those in her party who in 1990 began pushing for UK economic integration with Europe, including replacing the pound with the euro. In October she delivered her famous “No, no, no” speech to Parliament:

Yes, the commission does want to increase its powers. Yes, it is a non-elected body, and I do not want the commission to increase its powers against this House. So of course, we are differing. Of course, the chairman, or the president of the commission, Mr. Delors, said at a press conference the other day, that he wanted a European parliament to be the democratic body of the community. He wanted the commission to be the executive, and he wanted the council of ministers to be the senate. No, no, no.

In her last years as Prime Minister, the woman who famously said "the lady's not for turning" was criticized for her inflexibility on many issues, most particularly engagement with the developing European Union. In November 1990, her longest-serving cabinet member, Geoffrey Howe, resigned over her EU position. This triggered a challenge to her leadership, which Thatcher won in the first round balloting but not by enough of a margin to avoid a second ballot. She was determined to see the election through until close associates persuaded her to resign, which she did.

Thatcher continued to sit in Parliament until 2002 when she resigned from that body so that she could give speeches, write her memoirs, and voice her opinion unfettered by party politics.

Margret Thatcher pulled her country back from the brink. Today’s headlines concerning Cyprus, Greece, Spain, Portugal and Italy today should cause the British  to applaud her prescience, yet that was the cause for her defenestration by a cabal within her party.

Her husband, Denis, died in 2003.

Margret Thatcher died on April 8 at the age of 87.

Marriage on the Ropes: The Windsor Case

I'm wondering if we're living in this new world where the Attorney General can simply decide: yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it. If we're in this new world, I don't want these cases like this to come before this court all the time. And I think they will come all the time if that's the new regime in the Justice Department that we're dealing with.

As the federal Defense of Marriage Act (DOMA) was being argued before the court on March 27, Justice Scalia interrupted to make the statement above, protesting that the Supreme Court wasn’t chopped liver when it comes to deciding which laws are constitutional and which aren’t. But when the executive branch effectively imposes a post facto veto on laws passed by prior legislatures by deciding which to enforce and which not to defend in court challenges, the President, not the court, is deciding constitutionality. Obama and Attorney General Eric Holder did this in 2011 by announcing that they would no longer defend the 1996 DOMA because they believed it was invalid under the US Constitution.

California Attorney General Jerry Brown and Governor Arnold Schwarzenegger also unilaterally vetoed both the law and their state’s Supreme Court by refusing to defend Prop 8 in federal court. Therefore, ProtectMarriage.com led by Dennis Hollingsworth, a former state senator had to take up the defense when the AG and Governor repudiated their oaths to uphold the state’s constitution. When Obama and his Attorney General refused to defend DOMA, the House of Representatives likewise took on the task, hiring Paul Clement to represent them in the case.

Last week my blog was devoted to the Hollingsworth case and California’s Proposition 8 constitutional amendment defining marriage as a union of one man and one woman. Upheld by the California Supreme Court, Hollingsworth entered the federal court system and ended up in a March argument before the US Supreme Court (SCOTUS.) This week’s blog is devoted to another same sex marriage case, US v. Windsor, also known as the DOMA case. The two cases are quite different and only casually related to same sex marriage.

The case against DOMA was brought by Edith Windsor who lived with her lesbian partner, Thea Spyer for 40 years in New York. Spyer developed multiple sclerosis which gradually paralyzed her. When told she had a year to live, the pair traveled to Canada in 2007 to marry. Spyer lived two more years before dying in 2009 and leaving her estate to Windsor. Because DOMA defined marriage as a union between one man and one woman for the purposes of federal law, Windsor was not eligible for the spousal inheritance tax deduction and was required to pay $363,000 to the IRS. New York did not recognize same sex marriage until 2011. Therefore, since Spyer died in 2009, Windsor would have been liable for the taxes she paid even if DOMA had not existed because the IRS would likely have relied on New York’s definition of marriage.

Nevertheless, Windsor filed suit in federal court asking recognition of her Canadian marriage. The federal district court in New York agreed with Windsor and held that DOMA was unconstitutional. The US 2nd Circuit Court of Appeals affirmed the lower court in a 2-1 decision and struck down DOMA. Although a number of same sex marriage DOMA cases have been appealed to SCOTUS, this one may have been accepted because it involves a foreign marriage.

As I wrote in last week’s blog, marriage is a state issue. Nowhere in the US Constitution is the word “marriage” found.  Reading the Constitution’s enumerated powers and prohibitions gives a modern reader insight into the abuses of government that the Framers had witnessed and intended to limit. Because the institution of marriage and society’s understanding of its form was so ingrained at the time the Constitution was written, the Framers saw no need to include language limiting or defining it. Was there a right to marry in 18th century America? Absolutely. In what form? One man and one woman. Nothing else needed to be said.

The concept of federalism is that states cannot make laws that affect other states. So when a Hawaiian same sex marriage case worked its way to the state Supreme Court in 1996, that court said that the right of same sex marriage was not granted under the privacy provisions of the Hawaii state constitution but the equal protection provision of the constitution was violated by denying marriage based on sex. In other words, it was appealed on the wrong basis. The case was remanded to the lower court to tidy it up.

Congress reacted to the potential redefinition of marriage in Hawaii by proposing the misleadingly-named Defense of Marriage Act (DOMA), preempting the nationalization of same sex marriage. Same sex couples, therefore, could not travel to Hawaii to marry and have their marriage recognized by their home state in reliance on the Full Faith and Credit Clause of Article IV, Section 1 of the US Constitution which says:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

The badly-named DOMA doesn’t prevent states from defining marriage. It prevents them from appropriating the US Constitution to force other states to recognize their definition, which would disenfranchise the citizens of other states.

Federalism is about dual sovereignty. States are sovereign in their domain, which includes laws governing marriage. In addition to defining what marriage is, states define who can participate in marriage – how old you must be to get married if you are not yet an adult, whose permission you must get to marry if below a prescribed age, and how close relatives (e.g., brothers and sisters, first cousins, second cousins) can marry without committing incest. These are issues of community interest, not national interest.

The federal government is sovereign in its domain. This means the states can’t tell the federal government to extend federal marital benefits based on the state’s definition of marriage. For example, regardless of what the state calls legal separation, people who are married but separated cannot file a joint federal tax return. A state may recognize its citizen’s marriage to a foreigner, but if that person is not resident in this country, the citizen must file a federal tax return as a single person. In order to claim federal Social Security survivor benefits, the survivor must be one sex and the deceased the opposite sex. Edith Windsor was denied the spousal deduction because theirs was a same sex marriage which DOMA disqualified for federal tax benefits. However, New York did not recognize their marriage either at the time of Spyer’s death.
 

In his argument before SCOTUS, the lawyer for the House of Representatives correctly explained that DOMA didn’t define marriage for the states or the nation. It defined marriage for the application of federal law, such as in determining Social Security benefits. Why was this an issue? Because there are about 1,100 provisions of federal laws that affect married people. Most of those laws don’t define marriage and therefore rely on the DOMA definition. Those that do define marriage ignore the definition of it by states.

Under the symmetry of federalism, a DOMA definition makes sense because state and federal governments are separate domains. Forty-one states have a traditional definition of marriage; nine have non-traditional definitions. Even if all 50 states allowed same sex marriage to be legal, the purpose of DOMA wouldn’t compel the federal definition to change because traditional marriages would continue to be practiced alongside same sex marriages. But even if DOMA recognized same sex marriage for the purpose of applying federal benefits, it wouldn’t matter if all 50 states recognized only the traditional definition of marriage. DOMA could be modified to recognize both same sex unions and opposite sex marriages in determining access to federal benefits. Neither the state nor federal government restricts the other’s right to define marriage for their own purposes. US v. Windsor is not about same sex marriage. It’s about access to federal benefits.

DOMA is statutory law that has two major sections. Section 2 says that if any state defines marriage expansively beyond one man and one woman, other states individually have the right to decide if they will recognize non-traditional marriages. Since the Constitution is silent on marriage, DOMA Section 2 prevents the Full Faith and Credit Clause of the Constitution from being hijacked to nationalize same sex marriage.

DOMA Section 3 says that for purposes of federal law and federal programs, marriage is defined as “a legal union between one man and one woman as husband and wife.” This definition could change or be expanded in the future if the federal government wishes to modify eligibility for federal benefits.

DOMA passed in the Senate by a margin of 85 to 14, getting the votes of many gay rights Senators, including Senator Joe Biden. It passed in the House by a margin of 342 to 67. The DOMA legislation was, therefore, strongly bipartisan. President Bill Clinton signed it into law in the fall of 1996.

The question before the Court in US v. Windsor is whether DOMA violates the Constitution. More particularly, is it a violation of the Due Process Clause of the 5th Amendment?

Most people think of “taking the 5th” when they contemplate the 5th Amendment. The right to “take the 5th” is only part of it. Its entire text says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

There are five cardinal parts: (i) the right to indictment by Grand Jury in certain cases, (ii) the prevention of double jeopardy, (iii) prevention of self-incriminating testimony, (iv) the right to due process in certain disputes, and (v) rights in eminent domain seizures to just compensation.

Due process is a constitutional concept that prohibits government at all levels from depriving citizens of their right to “life, liberty, or property” without “due process” – i.e. notice and the fair adjudication of disputes. Due process rights are afforded in both the 5th and 14th Amendments. In the 5th it restricts the powers of the federal government and in the 14th it restricts the powers of state government.

The argument of Windsor in US v. Windsor is that the 1996 DOMA definition of marriage denies the equal protection (treatment) of federal law by defining marriage only as an opposite sex union when since 2011 her state of residence (New York) recognizes same sex marriage.

What is at stake? SCOTUS could disagree with Windsor and say, absent DOMA, the IRS would have looked to her state’s definition of marriage at the death of her partner in 2009 to determine her estate tax treatment. New York didn’t recognize same sex marriage until two years later so the tax is owed. Or it could take a more expansive view and rule that federal government is invariably discriminating in applying rules, regulations, and laws. Some people are taxed, for example, while others aren’t. Some people are taxed at higher rates than others. Singles are treated differently than married couples. The US Constitution, as I said last week, is not about fairness. It’s about justice – which is often unfair.

Of course, SCOTUS could agree with Windsor’s equal protection argument and strike down DOMA. The immediate effect would be that same sex couples in the nine states that recognize their unions as marriages would begin to have access to the same federal benefits that traditionally married couple have – joint tax filings, spousal survivor benefits, etc. If only it would stop there.

But it wouldn’t. Judges, politicians, and a lot of ordinary folk rarely think of the second-order and third-order effects of their decisions – the seen and unseen repercussions so cogently argued by Frederick Bastiat’s 1850 treatise. Once SCOTUS establishes a precedent that Congress and the federal government can’t regulate access to the federal treasury because that denies equal protection and discriminates, the court system will be deluged with second-order and third-order cases. And since the treasury has nothing in it that isn’t taken from citizens of this country, that deluge would be open season on every person’s purse. Well, maybe just the “rich” purses.

Anything is possible when it comes to the caprices of SCOTUS, but it’s inconceivable that the Windsor/DOMA case could be adjudged in a way that legalizes same sex marriage, especially when the Court has a case before it – Hollingsworth Prop 8 – that serves up the single sex issue on a silver platter. The Court has been loath, however, to wade into marriage cases unless they are compelling violations of other rights under the Constitution. It ruled that freedom of religion did not extend to religious tolerance of polygamous marriage in the 1878 Reynolds v. United States case. It ruled in 1967 that state laws preventing interracial marriage were unconstitutional under the 14th Amendment’s prohibition of racial discrimination. The case, Loving v. Virginia, argued that it didn’t discriminate since a black man couldn’t marry a white woman and a black woman couldn’t marry a white man.  Both Reynolds and Loving were cases between men and women.

Hollingsworth Prop 8 is another second-order and third-order conundrum. On the surface it seems to be about states’ rights to define marriage. Prop 8 was an approved constitutional amendment by a majority of the citizens in California and it was later ratified on appeal to the state’s Supreme Court. If SCOTUS overturns California’s voters and court, agreeing with the same sex plaintiffs that their 14th Amendment due process rights are infringed by Prop 8, not only will SCOTUS negate a state’s sole right to define marriage, it will forever change the meaning of family as it has existed in western civilization for thousands of years. Sowing the wind, SCOTUS will reap a whirlwind of second-order and third-order lawsuits and society will reap their consequences.

How then would a state, prevented from defining marriage as between one man and one woman, argue that marriage shouldn’t include one man and multiple women, or one woman and multiple men, or group marriage? Polygamy, after all, is legally practiced in over 50 nations, often adherents of Islam. They are denied immigration into this country because their marriages wouldn’t be legal.

What’s to prevent a man from marrying his son or daughter or any child? There have been a number of highly publicized cases of school teachers having sex with their students. Why not allow them to marry?  How about marriage for ten years instead of “’til death do us part?” People have left their estates to a pet. Why couldn’t they also marry the pet … or their house … or car?

These ridiculous examples are Bastiat’s unseen … the second- and third-order effects that are set in motion when all of the attention is on fairness and justice in the first-order issue.

If the term “marriage” can be defined to mean anything, it means nothing.

Marriage on the Ropes: The Hollingsworth Case

For most Americans, the Supreme Court cases that were heard on March 26 and 27 were legal arguments about same sex marriage. They weren’t.

The two cases – Hollingsworth v. Perry (aka the California Proposition 8 case appealed up from the 9^th Circuit) and US v. Windsor (aka the constitutionality of the Defense of Marriage Act appealed up from New York’s 2^nd Circuit) – are manifestations of a larger issue: namely, does federalism work?

The Founders of the Republic were passionate in their protection of liberty at the state level, believing that if people were free to live their lives as they wanted as states they would be free to do so as a nation. The reverse was not necessarily true. As colonies, they had felt the heavy hand of central government and had fought a war to throw it off. Predictably, then, the 55 men who met in Philadelphia in the summer of 1787 were suspicious about the aims of their project. Therefore, the document they produced to create a federal government was, to the chagrin of the current President, a document of “negatives.” The US Constitution they created says what the federal government – Congress and the Executive – cannot do or is limited in doing.

Both the virtue and the shortcoming of federalism is that it allows states to do what they want to do as long as a state’s laws and liberties don’t trump the rights of other states. In Federalist 45 Madison set forth the concept of federalism:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.

“…all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” Marriage would certainly fall in that category. It concerns the lives and liberties, and the properties of the people, and the internal order, improvement, and prosperity of the State.

But nowhere in the US Constitution is marriage mentioned or its regulation allowed. Unless Madison’s attempts in 1788 to sell the US Constitution and its new form of federal government to the various state ratification committees were lies, the federal government has no say in marriage.

Marriage predates government. Its legacy spans millennia. Christians and Jews believe that legacy is traceable back to a covenant relationship created by God in Eden between one man and one woman – initially Adam and Eve. Mark Twain wrote a number of short stories around the theme of Adam and Eve, among them, Eve’s Diary, in which Eve catalogs her life from her creation until her death. It wasn’t an easy life. Having been expelled from their idyllic life in Eden, Eve gave birth to two sons, one of whom killed the other. Adam toiled to produce food from an earth whose abundance was now cursed. But through all of their hardships they had each other, the most valuable thing salvaged in their expulsion. The story ends with Adam standing beside Eve's grave saying, "Wherever she was, there was Eden."

There is good reason why the laws of 41 states affirm marriage is between one man and one woman. Marriage, not government, is the most crucial institution for building civil society. Research has repeatedly shown that children benefit when they are raised by both parents and they suffer when one parent is missing. Often the state has to intervene either to help provide for single parent children or to take over the parenting role. Children raised by a man and woman who are married to each other do better in school and are less likely to get in trouble with the law, less likely to get pregnant out of wedlock, to commit suicide, or to live in poverty. Not so when their parents aren’t married.

I was a single parent from the time my son was less than five years of age until he was past eleven when I remarried. I know firsthand the challenges of child-raising alone. Those challenges weren’t about needing someone to assume a share of the work. They are about needing someone to share in the emotional demands of the child. Some of those demands are gender-specific. Even if I were inclined to have another guy around to help, perhaps a brother, he couldn’t help in those instances in which I came up short – for the same reason that I came up short. What my son needed in those instances was a woman – a woman’s touch, a woman’s personality, a woman’s understanding – none of which I could provide as much as I wanted. It’s been said that a child learns justice from his father and mercy and understanding from his mother. Parent roles are different. And they are irreplaceable by two people of the same sex.

I remarried, had three more kids, and will soon celebrate 39 years of happy, successful marriage. Raising children with a mother, a woman, and a wife made all the difference. I benefited and was a better father – not because I wanted to be, but because I was able to be. My children benefited because both poles of their needs were available in a father and mother, which wouldn’t have been possible if one of us was missing or if both of us were men or women, no matter how well intentioned or caring they might be.

The purpose of marriage is procreation. After their creation, God told Adam and Eve to “be fruitful and multiply and fill the earth.” While some couples can’t or choose not to have children, it’s a proven fact that human generations that don’t produce an average of 2.3 children per male-female couple don’t replace themselves (given normal mortality). Thus, for a society to grow it must produce more than 2.3 children per couple. Otherwise a society shrinks to the point that it can’t produce enough children to reverse its decline. Its social institutions become threatened. Just look at the American Social Security System which is birth rate-driven. Due to abortion and low birth rates, native populations around the world are being overtaken by immigrant populations whose birth rates are higher. Most notably this is occurring in Russia and Western Europe. It is beginning to happen in this country. Same sex marriages can’t procreate.

While same sex unions have been in existence for decades. Same sex marriages are a relatively recent innovation due to the legal definitions of marriage by states. Same sex parenting is even more recent. Therefore, it’s impossible to apply rigorous methodology in long-term longitudinal studies of large scale populations to demonstrate whether the outcomes of same sex parenting are comparable to opposite sex parenting. In fact in the arguments before the Supreme Court Justice Alito observed that the Internet and cell phones have been around longer than same sex marriage anywhere on the planet, causing Justice Kennedy to observe that “we have five years of information to weigh against 2,000 years of history or more.”

One of the cases in dispute before the Court is Hollingsworth v. Perry (initially Perry v. Schwarzenegger, then Perry v. Brown)

In 1977 California passed a law explicitly stating that marriage is “a personal relation arising out of a civil contract between a man and a woman.” In 2000 61% of Californians voted in favor of a ballot initiative, called Proposition 22, that would define marriage in their state as between a man and a woman, changing the California Family Code. By ballot initiative, this was a statutory change, not a constitutional change.

In 2004, San Francisco Mayor Gavin Newsom performed same sex marriages that were later annulled. This led to a lawsuit which ended with the California Supreme Court striking down Proposition 22 in a narrow 4-3 decision that claimed it violated the state constitution. Opponents of their ruling, therefore, qualified Proposition 8 to be on the 2008 ballot as the “California Marriage Protection Act” to amend the state constitution with explicit language defining marriage as between one man and one woman. It passed by a margin of almost 5%. Proposition 8 opponents filed suits, challenging its constitutionality, which was ultimately upheld by the California Supreme Court. Prior same sex marriages were “grandfathered” in as legal, however.

Two same sex couples sued in federal court, claiming that the Prop 8 state constitution amendment violated their rights under the US Constitution. Oddly the plaintiffs were represented by Ted Olsen, who had represented George Bush in the 2000 election fiasco and whose wife was killed aboard the Pentagon 9/11 crash, and David Boies, who had represented Al Gore in the disputed 2000 election. They are at opposite ends of the ideological spectrum – Olsen a conservative Libertarian and Boies a left of liberal Democrat. But both are passionately sympathetic to gay rights, albeit for vastly different ideological reasons.

Attorney General Jerry Brown and Governor Arnold Schwarzenegger refused to defend Prop 8 in federal court – despite having sworn to uphold the California constitution upon assuming their offices. Therefore ProtectMarriage.com led by Dennis Hollingsworth, a former state senator, became the defendants. They were represented by Charles Cooper, considered among the top ten civil litigators in the country.

Despite the fact that marriage is a state issue, Federal District Judge Vaughn Walker accepted the case. In a mind-boggling ruling, Walker decided that Prop 8 violated the equal protection and due process clauses of the 14^th Amendment. Even more astonishing, after presiding over the case Walker retired and confirmed that he had been in a 10-year same sex partnership – meaning that he had ruled to overturn a statute that prevented his own right to marry. He saw no conflict of interest in failing to recuse himself from the case nor did the notoriously overturned 9^th Circuit Court of Appeals, which affirmed his decision while staying it for appeal to the US Supreme Court.

Cooper teamed up with the legal arm of the Alliance Defending Freedom to become co-counsels in representing Hollingsworth before the Supreme Court. It was argued on March 26.

Why do we have a written Constitution? To limit the power of the federal government by specifying which powers belonged in Washington. All other power belongs to the people and states to decide for themselves. The ratification process was halted in 1788 by Massachusetts until this was made explicitly clear by the first ten amendments of the Constitution called the Bill of Rights.  As other fundamental rights became evident, they were explicated in subsequent amendments preventing government from interfering with their free exercise. It should be clear to even the most casual observer that a written Constitution was a response by free citizens to express their aversion of government.

The right of same sex couples to marry is really a sideshow in the Hollingsworth case. The real issue is whether the US Supreme Court itself will obey the Constitution it has sworn to uphold. Since the US Constitution is silent on marriage, it can only be a federal issue if it is an implied right not explicitly specified by the Framers. This takes the Court off into the Never Never Land of divining what was in the mind of the Framers in 1787. When the Constitution is explicitly silent, judicial restraint should compel the Court to interpret that silence very narrowly, which it often hasn’t – as in Roe v. Wade and its discovery of the “right to privacy” that had been hiding in the 14^th Amendment for 185 years. The nation and the Court have been paying for that terrible decision for almost 40 years. Abortion was and still should be a state issue.

This country is a democracy at its roots. While we govern in a republican form, we elect in a democratic form except in presidential elections. Voters at the state level should determine how they want to be governed provided their decision doesn’t violate the US Constitution interpreted in the narrowest manner by the federal court system. When the federal court system “constitutionalizes” an issue – as it did in Roe v. Wade – it takes it out of the voter’s hands forever by virtue of precedent, and thereby, shifts power from the state to the federal government.

As to the issue of marriage and the Constitutional silence regarding it, it seems logical to me to ask how marriage was practiced when the Constitution was written. In what form has marriage had widespread social and legal acceptance in the intervening years until now? There can only be one answer to both questions: between one man and one woman. Men have been “married” to multiple women at the same time and possibly women have been “married” to multiple men at the same time. I suppose a person could “marry” his dog or her house. But none of those forms is widespread or socially and legally accepted as marriages. The same is true of same sex marriages.

The claim made in Hollingsworth v. Perry is that the US Constitution makes California’s constitutional definition of marriage unconstitutional. Okay. Was there ever a time in the history of the Republic that same sex marriage was constitutional? When did the restricted definition of marriage – i.e. between one man and one woman – become unconstitutional? What caused that definition to become unconstitutional? Logic compels those questions to be asked. Logic, not feelings, ought to able to answer them.

For example, was racial discrimination constitutional at any time in the history of the Republic? Yes. It was widespread and it was socially and legally accepted although many people felt it was wrong. Is it constitutional today? No. When did it become unconstitutional? In 1868. What caused it to become unconstitutional? The passage of the 14^th Amendment which forbids states from engaging in racial discrimination either by law or practice. Thus, Brown v. Board of Education ended segregated schools when the practice was declared unconstitutional in 1954 although the practice of segregated schools became unconstitutional in 1868.

Are the state laws allowing same sex marriage unconstitutional? No. Nine states legally recognize same sex marriages. As long as married same sex couples have legal residence in one of those nine states, their marriage is legally recognized in the same way that opposite sex marriages are recognized. But if a same sex couple moves into one of the 41 states that do not legally recognize same sex marriages, their marriage loses its legal standing. That fact is the subtext of the Hollingsworth case – to nationalize same sex marriage by judicial fiat.

Isn’t the refusal of 41 states to legally recognize same sex marriage a form of discrimination – which is prohibited under the 14^th Amendment? No, for two reasons. First, the US Constitution is silent on marriage but explicitly says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” in the 10^th Amendment. Marriage is thereby a state issue. Second, the background of the 14^th Amendment is about racial discrimination and about participation of the former Confederacy in the postwar political process of the US. The Amendment enshrined the Civil Rights Act of 1866 in constitutional trappings so it couldn’t be undone by the Supreme Court or a future Congress, and it negated the Black Codes that were passed in the South on the heels of the passage of the 13^th Amendment, which outlawed slavery.

Could the 14^th Amendment be interpreted more broadly to cover other forms of discrimination – like the prohibition by states of same sex marriage? Yes. The intent of the framers of the 14^th Amendment could be ignored as it was in Roe v. Wade. But the Court has been previously asked to recognize Mormon polygamy as a right under the 1^st Amendment – freedom of religion – in the 1878 Reynolds v. United States case. The Court ruled no “right” to polygamous marriage existed. Thus, the Court has a precedent for saying marriage outside of its traditional form is not a constitutional right.

Not only is polygamy in all of its forms – multiple wives, multiple husbands, group marriage – not recognized in any state, but its practice is also criminalized. In contrast, same sex marriage is not recognized in 41 states but is not criminalized. Any case alleging discrimination because a same sex marriage isn’t legally recognized in 41 states would have to get around that fact.

Moreover, couples who want their same sex union to be recognized as marriage have the right to move into one of the nine states that will accommodate them just as people who disapprove of their state’s policies are free to move to another state. That’s the way federalism works.

To the supporters of same sex marriage none of this seems fair. But the US Constitution is not about being fair. It’s about being just. There's a big difference.

In next week’s blog I’ll discuss the US v. Windsor case and the Defense of Marriage Act.