freedom of conscience

The Beginning of the End of Liberty in America

SEVERAL ITEMS HAVE BEEN ADDED TO THE LIST OF RELATED READINGS SINCE THE INITIAL PUBLICATION OF THIS POST ON 06/26/15

Winston Churchill, speaking in November 1942 about the victory of the Allies in the Second Battle of El Alamein, said this:

This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.

We may have reached the end of the legal battle over same-sex “marriage” with today’s decision by five justices of the Supreme Court in the case of Obergefell v. Hodges. But that decision probably also marks the beginning of the end of liberty in America.

Consider these passages from Chief Justice Roberts’s dissent (citations omitted):

…Today’s decision … creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage…. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage…. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage…. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples…. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors…. These apparent assaults on the character of fair minded people will have an effect, in society and in court…. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted….

Justice Alito puts it more plainly:

[Today’s decision] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion,the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women…. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected…. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools….

…By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Erick Erickson drives it home:

Make no mistake — this is not the end of a march, but the beginning of a new march. You will be made to care. You will be forced to pick a side. Should you pick the side of traditional marriage, you can expect left to be ruthless. After all, the Supreme Court has said gay marriage is a not just a right, but a fundamental right. [“The Supremes Decide,” RedState, June 26, 2015]

Erickson counsels civil disobedience:

It’s time to defy the court on this. It’s time to fight back. Nonviolent civil disobedience is the only option we have been left under this terrible ruling. We will be heard. [“It’s Time for Civil Disobedience,” RedState, June 26, 2015]

Most citizens will, of course, attempt to exercise their freedom of speech, and many business owners will, of course, attempt to exercise their freedom of association. But for every person who insists on exercising his rights, there will be at least as many (and probably more) who will be cowed, shamed, and forced by the state into silence and compliance with the new dispensation. And the more who are cowed, shamed, and forced into silence and compliance, the fewer who will assert their rights. Thus will the vestiges of liberty vanish.

That’s how it looks from here on this new day of infamy.

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Related reading:

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Related posts:

The Marriage Contract
Libertarianism, Marriage, and the True Meaning of Family Values
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Marriage and Children
Civil Society and Homosexual “Marriage”
The Constitution: Original Meaning, Corruption, and Restoration
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Asymmetrical (Ideological) Warfare
In Defense of Marriage
A Declaration of Civil Disobedience
The Myth That Same-Sex “Marriage” Causes No Harm
Liberty and Society
The View from Here
The Culture War
Surrender? Hell No!
Posner the Fatuous
Getting “Equal Protection” Right
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Gaystapo at Work
The Gaystapo and Islam

Signature

Not-So-Random Thoughts (I)

Links to the other posts in this occasional series may be found at “Favorite Posts,” just below the list of topics.

Secession

Ilya Somin, writing at The Volokh Conspiracy, on secession:

The US Constitution, of course, is one of many where secession is neither explicitly banned or explicitly permitted. As a result, both critics and defenders of a constitutional right of secession have good arguments for their respective positions. Unlike the preceding Articles of Confederation, the Constitution does not include a Clause stating that the federal union is “perpetual.” While the Articles clearly banned secession, the Constitution is ambiguous on the subject.

Even if state secession is constitutionally permissible, the Confederate secession of 1861 was deeply reprehensible because it was undertaken for the profoundly evil purpose of perpetuating and extending slavery. But not all secession movements have such motives. Some are undertaken for good or at least defensible reasons. In any event, there is nothing inherently contradictory about the idea of a legal secession.

Of course, whether or not a secession is legal, it may be morally justified. Conversely, a legal secession may be morally unjustified, as was the case with the Southern secession. But the history of the Southern secession does not taint the legal and moral grounds for secession. As I say here,

The constitutional contract is a limited grant of power to the central government, for the following main purposes: keeping peace among the States, ensuring uniformity in the rules of inter-State and international commerce, facing the world with a single foreign policy and a national armed force, and assuring the even-handed application of the Constitution and of constitutional laws. That is all.

It is clear that the constitutional contract has been breached. It is clear that the Constitution’s promise to “secure the Blessings of Liberty to ourselves and our Posterity”  has been blighted.

Desperate times require desperate measures. I suggest that we begin at the beginning, with a new Declaration of Independence, and proceed from there to a new Constitution.

Obamacare

In a post at The American, John F. Gaski writes:

On the central issue of ObamaCare’s notorious mandate—i.e., whether it is constitutional for the federal government to compel a consumer purchase—everything hinges on the U.S. Constitution’s Commerce Clause. That element of the Constitution gives the federal government authority to regulate interstate commerce or activities affecting it. So far, so reasonable.

But the crux of the issue is whether forcing Americans to buy healthcare is regulation of commerce in the first place. Opponents note that non-purchase of healthcare should not be considered commerce or commerce-related activity. ObamaCare apologists, including some federal judges, make the remarkable claim that a decision not to purchase qualifies as interstate commerce or activity affecting interstate commerce, the same as a decision to purchase or a purchase itself. But even the non-partisan Congressional Research Service, in its 2009 assessment of likely PPACA constitutionality, acknowledged that Commerce Clause-based federal regulatory authority targets genuine activities that affect interstate commerce, not inactivity.

How to resolve this disagreement? The answer is staring us in the face, but has remained obscure to some lawyers and jurists who cannot quite see the forest for the trees. All you really need to know is what the word “commerce” means. To wit, commerce is “exchange of goods, products, or property . . . ; extended trade” (Britannica World Language Dictionary, 1959); “the buying and selling of goods . . .; trade” (Webster’s New World Dictionary, 1964); “the buying and selling of commodities; trade” (The Merriam-Webster Dictionary, 1974); “interchange of goods or commodities, especially on a large scale . . . ; trade; business” (Dictionary.com, 2012). Uniformly, we see, the definition of commerce involves activity, not just a decision to act, and certainly not a decision to not act. The meaning of the concept of commerce presumes action, and always has. Moreover, even casual philology will confirm that the accepted meaning of “commerce” at the time of the Constitution’s drafting referenced activity, not inactivity, at least as much then as it does now (see C. H. Johnson, William & Mary Bill of Rights Journal, October 2004). In the same way, the Commerce Clause has long been construed to apply to action in or affecting commerce, from the 1824 Gibbons v. Ogden Supreme Court case onward.

I am in complete agreement:

[T]he real issue … comes down to this: Does Congress’s power to regulate interstate commerce extend to “health care” generally, just because some aspects of it involve interstate commerce? In particular, can Congress constitutionally impose the individual mandate under the rubric of the Commerce Clause or the Necessary and Proper Clause?…

It is safe to say that a proper reading of the Constitution, as exemplified in the authoritative opinions excerpted above, yields no authority for Obamacare. That monstrosity — the official, Orwellian title of which is the Patient Protection and Affordable Care Act (PPACA) — attempts to reach an aggregation known as “health care,” without any differentiation between interstate commerce, intrastate commerce, and activities that are part of neither, namely, the choices of individuals with respect to health insurance.

It may be a valid exercise of Congress’s power to regulate actual interstate commerce that touches on the provision of health care. It is not a valid exercise to aggregate everything called “health care” and to regulate it as if it were all within the reach of Congress. When that happens, there is no room left — in “health care” nor, by extension, any other loose aggregation of activities — for State action or individual choice.

In sum, Obamacare is neither a valid regulation of interstate commerce nor necessary and proper to a valid regulation of interstate commerce. It is a governmental seizure of 1/9th of the economy. The individual mandate — which is a central feature of that seizure — is nothing more than coercion. It is no less peremptory than the military draft.

Freedom of Conscience

Yes, Virginia, there is freedom of conscience in Virginia:

A bill that ensures that faith-based adoption agencies in the state of Virginia won’t be forced to place children in households led by same-sex couples has passed both houses of the General Assembly and is heading to the desk of Gov. Robert McDonnell, a supporter of the legislation, who is expected to sign it soon.

Gov. McDonnell and the majorities in the Virginia legislature are standing up for freedom of conscience, which is among the negative rights that is trampled by grants of  “positive rights” (i.e., privileges). These

are the products of presumption — judgments about who is “needy” and “deserving” — and they are bestowed on some by coercing others. These coercions extend not only to the seizure of income and wealth but also to denials of employment (e.g., affirmative action), free speech (e.g., campaign-finance “reform”), freedom of contract (e.g., mandatory recognition of unions), freedom of association (e.g., forced admission of certain groups to private organizations), freedom of conscience (e.g., forced participation in abortions), and on and on.

Income Inequality

Thomas A. Garrett, a sensible economist, says good things about income inequality:

The apparent increase in U.S. income inequality has not escaped the attention of policymakers and social activists who support public policies aimed at reducing income inequality. However, the common measures of income inequality that are derived from the census statistics exaggerate the degree of income inequality in the United States for several reasons. Furthermore, although income inequality is seen as a social ill by many people, it is important to understand that income inequality has many economic benefits and is the result of, and not a detriment to, a well-functioning economy….

…[O]ver time, a significant number of households move to higher positions along the income distribution and a significant number move to lower positions along the income distribution. Common reference to “classes” of people (e.g., the lowest 20 percent, the richest 10 percent) is very misleading because income classes do not contain the same households and people over time….

The unconstrained opportunity for individuals to create value for society, which is reflected by their income, encourages innovation and entrepreneurship. Economic research has documented a positive correlation between entrepreneurship/innovation and overall economic growth.9 A wary eye should be cast on policies that aim to shrink the income distribution by redistributing income from the more productive to the less productive simply for the sake of “fairness.” 10 Redistribution of wealth would increase the costs of entrepreneurship and innovation, with the result being lower overall economic growth for everyone.

I am losing track of the posts in which I have made the same points. See this one and this one, and the posts linked in each of them.

The Left-Libertarian (“Liberal”) Personality vs. Morality

Will Wilkinson, a left-libertarian (i.e., modern “liberal”) if ever there was one, writes about his score on the Big-Five Personality Test:

I score very high in “openness to experience” and worryingly low in “conscientiousness”.

A true libertarian (i.e., a Burkean) would score high on “openness to experience” and high on “conscientiousness” — as I do.

As I have said, differences

between various libertarian camps and between libertarians, Burkean conservatives, yahoo conservatives, “liberals,” and so on — are due as much to differences of temperament as they are to differences in knowledge and intelligence.

But temperament is a reason for political error, not an excuse for it:

[T]he desirability or undesirability of state action has nothing to do with the views of “liberals,” “libertarians,” or any set of pundits, “intellectuals,” “activists,” and seekers of “social justice.” As such, they have no moral standing, which one acquires only by being — and acting as — a member of a cohesive social group with a socially evolved moral code that reflects the lessons of long coexistence. The influence of “intellectuals,” etc., derives not from the quality of their thought or their moral standing but from the influence of their ideas on powerful operatives of the state.

See also:
Libertarianism and Morality
Libertarianism and Morality: A Footnote