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Common Sense general freedom ideological culture national politics & policies

Lions and Lambs

“March comes in like a lion, goes out like a lamb.”

Tell that to Indiana Governor Mike Pence, whose signing of the Religious Freedom Restoration Act (RFRA) into law at the end of March created a roaring controversy.

Does the law enable discrimination? Or protect religious freedom? Or both? Neither?

An Associated Press report explains: “Religious freedom laws like the one causing an uproar in Indiana have never been successfully used to defend discrimination against gays — and have rarely been used at all, legal experts say.”

Of course, discrimination continues. In 2014, a Texas restaurateur refused service to a gay couple. As a FindLaw​.com article explains, the 1964 Civil rights Act “only prohibits discrimination on the basis of color, race, religion, or national origin, and says nothing about sexual orientation.”

So some states, such as New Mexico and Oregon, added legal protections for sexual orientation. But that’s led to reverse violations of rights — facing a $150,000 fine, a bakery closed its shop after the Oregon Bureau of Labor and Industries ruled it violated a lesbian couple’s civil rights by declining to make a wedding cake; a New Mexico photographer was found guilty of violating the state’s Human Rights law for declining to photograph a gay couple’s commitment ceremony.

In times’ past, both state and private violence enforced invidious racial discrimination. Thankfully, those days are gone — cafes, hotels and stores are open to all.

But the civil rights laws that prohibit discrimination in public accommodations cases are distinct from forcing photographers or florists or flutists to personally participate in a ceremony they choose not to.

This is Common Sense. I’m Paul Jacob.


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LIons and Lambs

 

Categories
judiciary Ninth Amendment rights Tenth Amendment federalism

Too Respectful of Congress?

In disagreements between individuals and the IRS, I tend to side with individuals against the IRS. So Wednesday’s Supreme Court ruling against the Defense of Marriage Act seems about right, on the face of it.

Yes, the judicial review and nixing of DOMA regarded a tax case.

The state of New York recognized the marriage of two women, Edith Windsor and Thea Spyer. Ms. Spyer died in 2009. Ms. Windsor inherited, paying $363, 053 in estate taxes. She sued against DOMA because she wanted to claim the federal estate tax exemption for surviving spouses.

The Supreme Court majority sided with Windsor. Chief Justice Roberts dissented, arguing that the court lacked the authority in this case to overturn this law; and Justice Scalia dissented separately, joined by Justice Thomas; Alito wrote another separate dissent.

Fascinating reading, all of it, but I was disappointed that Justices Scalia and Thomas are so deferential to Congress regarding DOMA, without any consideration of the Tenth Amendment, which recognizes that states have powers not delegated to the federal government — and surely regulating marriage was not one of the enumerated powers delegated to Congress — or the Ninth Amendment, which recognizes “rights retained by the people,” and that has a lot of bearing on the practice of marriage.

It seems to me that in matters of marriage, at the very least, the federal government should be following the people and the states, not the other way around.

This is Common Sense. I’m Paul Jacob.