April 25, 2015

The Supreme Court Effectively Legalizes Same-Sex Marriage at the Federal Level, Strikes Down California’s Marriage Ban, and Let’s Stand a Lower Court Ruling That States Can’t Strip Away Benefits Such as Health Care from Gay Couples

As you are no doubt aware – every major newspaper in the country has it splashed across the front page and it’s been all over television and the Internet for the past twenty four hours – the Supreme Court, yesterday and today, handed down a set of complicated rulings that get into issues such as standing, equal protection, and state sovereignty, but that have the net effect of a near across-the-board win for equality groups.

  • United States v. Windsor: The Supreme Court struck down the Federal ban on marriage equality stating that the government cannot discriminate against lawfully married gay people, that any discrimination is a violation of the equal protection guarantee of the U.S. Constitution, and that there is absolutely no rational reason to oppose offering the nearly 1,100 benefits of marriage except as a form of bigotry designed to stigmatize a minority.  The ruling is so strong and unequivocal in its insistence that discrimination or opposition to gay married couples is wrong, it caused Scalia, in his minority dissent, to decry that the Court has now declared anyone who opposes marriage equality as “enemies of the human race”.  What is amazing about the Windsor case is that it is a dispute over taxes!  Never underestimate how far an American citizen will go to avoid sending more cash to the government (in this case, the government was wrong; I’m very happy Windsor, who is now widowed, will be getting a $363,053 refund as she never should have had to pay the money in the first place, highlighting just how discriminatory the law in question, called The Defense of Marriage Act, was).  You can read the full decision here (PDF)
  • Hollingsworth v. Perry: The Supreme Court faced a tough technical question.  In 2008, voters in California narrowly approved a measure that took away marriage equality from gay couples living in the state, who had already enjoyed it for several months.  The ban was challenged on constitutional grounds by two of America’s most famous lawyers, conservative Ted Olson and liberal David Boies, who teamed up because they thought it was a direct assault on the rights of minorities and gave the government too much power.  Proposition 8 was struck down after an exhaustive trial that resulted in a very strong ruling.  It was then appealed to the 9th Circuit, which also found it unconstitutional.  Then the Supreme Court took up the appeal.  (It is actually a lot more complicated but I’m summarizing here.)  The problem was that the Governor and Attorney General of California agreed with the ruling that struck down Proposition 8 and told the court that they believed the ban was unconstitutional.  As a result, the group that was behind the ballot initiative raised millions of dollars and defended it in court.  The Supreme Court said that this was unacceptable as the ballot proponents had no “standing” because they were not the state itself, and thus would suffer no direct harm.  This vacated the 9th Circuit decision, but left the trial court decision in force, which means Proposition 8 is now dead in California.  The Governor and Attorney General have all but stated marriage licenses will resume within thirty days.  You can read the full decision here (PDF).
  • Diaz v. Brewer: The Supreme Court had to look at a case that was caused when the newly elected Governor of Arizona, Jan Brewer, took office.  She stated at the time that, “God has placed me here” to do His will and run the state.  One of her first actions in the midst of the Great Recession meltdown as the world was falling apart was to stop everything and push for a law that took away benefits, including health care, from gay employees and their children.  (She also took away benefits from full-time college students, disabled adult dependents, and children of non-married parents, just for good measure.)  The District Court found, and the 9th Circuit upheld, that her actions were unconstitutional because you cannot target a specific group of people for harm simply because you don’t like them; practically speaking, you must treat gays and straights the same.  The Supreme Court let the 9th Circuit ruling stand and so now the law is dead.

The results were sweeping, even though they fell short of striking down bans in the Southern and Midwestern states and / or requiring states to acknowledge marriages performed elsewhere.  As Scalia correctly predicts (in his case, bemoans), though, they lay the framework for a Brown v. Board of Education decision, which is coming within a decade.  There is no getting around it now.  Before long, marriage equality will be coming to Georgia, Mississippi, and Louisiana. 

(Side note: Can you imagine how sparkle pony glittery awesome the New Orleans wedding marches are about to become?  I predict something out of a Broadway production, along with skyrocketing profits for wedding planners.  Too bad I divested my wedding supply company a couple of years ago; I would have spent my day thinking about a targeted marketing campaign to dominate the emerging industry.  There is almost no competition right now in gay wedding cards, cake toppers, etc.  You could make some bank if you knew what you were doing – design the prototypes, ship them in from China, mark them up 800%.  But I digress … sorry, can’t help but see the opportunities in this as a businessman.  For an intelligent person who can move quickly and knows supply chain and marketing, there might be a nice pile of cash to be made.)

Here is where we are now.  At the Federal level, gay married couples are now entitled to nearly 1,100 rights that were previously denied (PDF).  There are so many things that even I don’t think of very often as you just take things for granted.  Here is a tiny sampling of them:

  • Sponsor international spouse for a green card or citizenship
  • File joint bankruptcy petitions
  • Visitation rights in hospital or prison
  • Next-of-kin emergency medical proxy
  • Joint adoption and foster care
  • Military base housing allowances, facilities, and family accommodations
  • Legal right to change surname upon marriage
  • Right to determine funeral arrangements for deceased spouse
  • Military spouses to be buried together in Arlington National Cemetery
  • Renewal and termination of copyright protections for a spouse’s intellectual property upon death of the spouse
  • $100,000 benefit to the spouse of a public safety offer who dies in the line of duty
  • Tax-free transfer of assets and property among spouses
  • Right to be informed of probate proceedings
  • Access to “family only” services, including to demand family discount rates in public accommodations such as theme parks, hotels, country clubs, gyms, etc.
  • Enter into a prenuptial agreement
  • Receive employer-sponsored health benefits
  • Receive a veteran’s pension, educational assistance, nursing home care, and health care
  • Joint tax filings
  • Not have your spouse testify against you in criminal proceedings
  • Not be forced to testify against your spouse in criminal proceedings
  • Water rights inheritance for certain real estate transactions

Concurrently, the California decision now adds another 38,040,000 Americans to the list of folks living in states with full marriage equality, bringing the total to 94,958,710 people.  That new tally now represents around 30% of the entire nation and is set to grow in coming months as several more states have a high chance of passing their own marriage laws through the state legislatures.

In any event, if you are married, gay, and live in one of the orange states on this map that has been going around social media today, you are now fully equal under Federal and State law.  If you live in a gray state, your marriage is equal on the Federal level, but the state denies you your basic rights, something that will be corrected within the next few years.  The map is deceptive for the reason we just discussed and the reason you should instead use a cartogram – the states in orange represent 30% of the entire population of the country, whereas a lot of those middle states are relatively empty.  This presentation vastly understates the cultural, legal, and practical ramifications of the decision.

Marriage Equality After Supreme Court

What interests me about the map, and we’ve talked about this on other issues, is how it almost perfectly mirrors the geographic migration of all social change in the United States.  It is practically identical to the Slave States vs. Free States map of the 1800’s.  It is practically identical to the map that allowed women to vote or not vote prior to the ratification of the 19th Amendment.  That phenomenon is fascinating.  Part of it has to do with population concentrations and transportation infrastructure.  It’s like a symphony of mental models that is worth studying if you enjoy solving complex problems.

Some agencies are going to run into paperwork nightmares.  For example,the IRS will have to change its policies to permit married couples to file joint tax returns.  This one will be interesting because the IRS normally goes off the state of residency for tax policy, not state of marriage celebration.  However, given the scope and power of the Windsor ruling, if the IRS attempted to deny a gay couple living in a non-marriage equality state the right to joint tax returns even though they were legally married in another state that did recognize it before moving, there is no way it would stand.  Besides the fact the Federal Government was just told it has no compelling interest in, nor can it continue, to discriminate, it would be a violation of an American citizen’s constitutional “right to travel” or “freedom of movement” among the states, which has been recognized as a fundamental right since 1869 in Paul v. Virginia.  There is some speculation this potential roadblock could be solved by a directive from President Obama, who has already ordered the Attorney General of the United States to move quickly to make sure all executive branches of the government are complying with the decision.  Time will tell how it resolves, but the end is all but guaranteed even if there are fights along the way.

The same goes for the Social Security Administration.  It, like the IRS, is going to have to change its regulations because it now looks at state of residency versus state of marriage, which will not be tolerable under the Windsor ruling.  There is no way the Federal government will be able to justify denying benefits to a lawfully married couple even if they happen to reside in a state that refuses to accept that reality.


  • Anon

    I can’t wait until polygamy is legal and marriage becomes a relic. (Dead serious.)

    • http://www.joshuakennon.com/ Joshua Kennon

      On a macro, society-wide level it will never happen; there are too many biological and psychological factors at play that are self-reinforcing. It might someday become acceptable for people to live that way if they want, but it won’t ever become the dominant behavior. Monogamous marriage, like the ability to digest lactose in dairy, is one of those things that consistently evolves across wide areas, cultures, languages, and races because it has certain adaptive advantages that can’t be matched by other structures.

      Physically, the Oxytocin released from the pituitary gland after intercourse works on a significant portion of the population to induce bonding and strong emotional connections; resource-wise, having someone (rather than a group of someones) with whom you have a sufficient obsession that you are willing to die to protect results in greater access and maintenance of food, shelter, and other resources; polygamy almost always devolves, after several generations, (it probably wouldn’t start out that way in modern society, for example) into a patriarchal system that both subjugates women and ends up giving the “best” men vastly disproportionate access to female partners, sewing its own seeds of destruction as women and beta males, who form a majority, end up rising up and smashing the system in their own self-interest. A large percentage of women are genetically wired to attempt partner isolation as an evolutionary advantage to secure the best offspring for themselves, leading to an inability for a large number of women to share the same man in stable setups over time.

      I cannot see how such a system could ever be maintained indefinitely under present conditions. Cultural factors aside, from a purely scientific basis, there are too many long-term obstacles to it. Wild promiscuity and multiple partners are adaptive behaviors, but so is the other end of the spectrum, focused monogamy, and it seems the latter always tends to evolve out of the former as a society becomes more advanced. It seems as if the former can only be maintained in strong militaristic societies where dominance is determined by either 1.) physical prowess, or 2.) perceived spiritual authority.

      Furthermore, the legal obstacles to polygamy are much larger than they were to marriage equality based on gender parity as it would be far easier to argue a compelling state interest in two-person marriage under the existing inheritance, divorce, legal protection, adoption, taxation, et cetera laws.

      TL;DR: People don’t just want marriage because they are culturally indoctrinated to want it. Drop a bunch of kids off on an island and within a couple hundred years, it would have evolved on its own because it is a physical manifestation of a sub-set of biologically adaptive traits that lead to better outcomes on everything from life expectancy to standards of living.

      • Jack

        Homosexual marriages will never become the dominant behavior, either.

        But at least polygamy is not immoral.

        • http://www.joshuakennon.com/ Joshua Kennon

          Neither is homosexuality because it doesn’t violate the harm principle. It was one of the concepts that finally underscored for me that a revealed knowledge definition of morality cannot be legitimate and that really pushed me toward understanding that tenacity and tradition are never sufficient justification for the righteousness of a belief or behavior.

        • Jack

          Yes, it does violate the harm principle, though you cannot see it.

          With the “harm principle” you espouse, is it OK to murder one person to save another, or several others?

          With your “harm principle,” is it “moral” to steal from a rich man to feed the poor?

        • joe pierson

          Problem with the harm principle is many decisions cause harm to one or both parties, otherwise it wouldn’t be a moral dilemma. The question is of magnitude of harm inflicted. Since there is no “harm meter” like a volt meter that one can buy at Radio Shack, one can’t quantify the harm. And people on both sides disagree. Religious scriptures provide little guidance, for instance, the Ten Commandments aren’t rated in importance, so what do you do when either decision violates one of the commandments? You’re on your own I guess.

        • Jack

          Give us an example, joe.

        • joe pierson

          Many moral dilemmas are subtle versions of the fundamental ethical Trolley Problem.http://en.wikipedia.org/wiki/Trolley_problem
          or stealing to feed a starving child, or do you punish or forgive a criminal (mercy vs justice, eye for an eye or turn the other cheek). Sometimes it is a minor as do I lie and tell my mom that dinner is horrible (dishonor parents) or lie and tell her it was ok, both break a commandment.

        • Jack

          Who tied up the five people? HE is guilty of murder.
          As a fat man, I could throw myself in front of the trolley.
          Put the switch half-way and derail the trolley.

          It is NEVER right to steal — not even to feed a starving child.

          The commandment says not to bear false witness against another. How would telling your mother that you liked a meal that you did not violate that commandment?

        • http://www.joshuakennon.com/ Joshua Kennon

          I have no idea what @joepierson:disqus ‘s response to you will be but I will say this:

          In an unjust society, it is absolutely morally permissible to steal in order to survive. One does not have a moral obligation to die simply to satisfy your oppressors. Certain rights are inherent, including the right to “life, liberty, and the pursuit of happiness”, and come either from God or from virtue of being human, depending upon if you are religious or take a humanist perspective of the world. Those rights are inviolable.

          Even ancient civilizations recognize this. For example, the Bible forbids theft but that is because the same scriptures had made it impossible for a child to starve to death in the first place. All citizens had certain duties that had to be fulfilled. “When you have finished setting aside a tenth of all your produce in the third year, the year of the tithe, you shall give it to the Levite, the foreigner, the fatherless, and the widow, so that they may eat in your towns and be satisfied,” (Deuteronomy 26:12), and “When you reap the harvest of your land, do not reap to the very edges of your field or gather the gleanings of your harvest. Leave them for the poor and for the foreigner residing among you. I am the Lord your God.” (Leviticus 23:22).

          In a society like that, a child could not starve to death – it was not possible – as everyone was required and forced to contribute to a joint welfare program that ensured food was always available to those who could not afford it. Theft was not necessary to live. Therefore, one who stole, was being immoral and had to repay seven times what he took (even though compassion is also required in this situation according to those same rules).

        • Jack

          “as everyone was required and forced”

          I see nothing in the Bible that lays out ANY punishment for not following those rules. They were not FORCED to do anything. God commanded, and they obeyed.

          Is the government God now?

        • http://www.joshuakennon.com/ Joshua Kennon

          You have a funny definition of freedom. “Obey what Moses said God told him or be executed on the spot” doesn’t qualify as being forced into compliance? I suppose if one has a suicide wish, that would be true.

        • Jack

          Not all violations of the Law carried the Death Penalty. No punishment was prescribed for failure to tithe. One violation that did warrant the death penalty, however, was engaging in homosexual acts.

        • http://www.joshuakennon.com/ Joshua Kennon

          Not true. Moses only said God told him that they the gay guys killed. The lesbians were totally fine. The law never prohibited them sexing it up, as long as the hymen remained intact.

          (Paul managed to complain about them more than a thousand years later in a letter to a fellow minister, but he complained about nearly everything except slavery, which he wanted us all to cheerfully embrace. Not really sure bro is the best authority of questions or morality cause he’d put us all in chains and tell us to smile as we served our masters.)

          TL;DR: God loved him some lesbians.

        • Jack

          The Death Penalty is murder now?

          When did the government make THAT re-definition?

        • http://www.joshuakennon.com/ Joshua Kennon

          Excellent point. They were living in a theocracy so the death was done in accordance with the law even though it was immoral, meaning it cannot, by definition, be murder.

          Therefore, I amend my previous comment to read “animalistic slaughter”. It’s much more appropriate.

          If in doubt, I submit Exhibits A, B, and C: Real world photographs of the prescribed sentence being carried out, as it is still by devout believers today in certain parts of the world. It’s hard to believe given how primitive, demonic, and barbaric it is, but it’s true.

          1. It’s still used to justify stoning young boys in Africa

          2. In the middle east, they bury young men up to their necks as everyone they know crushes their head and neck with boulders, rocks, and stones.

          3. Iran’s method is far less bloody and diverges from the Judeo-Christian tradition. When they found these 15 year old boys who had fallen in love, they drug them to the town square and hung them in front of their friends and family.

          Murder definitely isn’t the right term. The intent is different. To do something like this, you have to be uncivilized, undereducated, and superstitious, and you definitely are doing it with premeditation, animus, and malice, but this is much worse than murder because it has the implicit backing of the state.

          Murder was far too kind a word. This is worse as it is condoned by the backwater societies in which it is done. I stand corrected.

        • Jack

          Yes, it was 5000 years ago. Fortunately, the Death Penalty is no longer required. Well, more correctly, it is no longer required OF US, since that penalty was paid FOR US.

          Nevertheless, what was sin then is still sin now.

        • http://www.joshuakennon.com/ Joshua Kennon

          Fixed the typo; thanks for catching that!

          (Since the definition of sin is a behavior that is believed to violate a divine code of conduct or standard of behavior that an individual thinks was handed down by a divine entity, your last sentence is absolutely true. It is also meaningless. I believe that eating tomatoes violates the law of His Holiness, the Flying Spaghetti Monster (Peace Be Upon Him Who Boiled for Our Sins. Ramen). Therefore, eating tomatoes is a sin. See how that works? It’s a wonderful logical fallacy that can be used by those in power to condemn or condone any behavior that benefits them. It’s funny how it almost always ends in wholesale slavery, multiple spouses for a few powerful men, and redistribution of wealth to the top of the social hierarchy. Such a coincidence.)

        • Jack

          Is killing a human being always evil? Based on what moral code? Does that make capital punishment always evil. Does it make abortion always evil? Or do we simple redefine “human being” to exclude those who we want to kill?

          As your own arguments, without a moral code given to us by a God, murder becomes whatever the government says it is — and the government redefines it away as “women’s health care”. Stealing is whatever the government says it is — any the government redefines it away by calling it “welfare.”

          It seems you have your religion, and it is the government. That is also a logical fallacy that is used by those in power to condemn or condone any behavior that benefits them. In many nations, most notable China and Russia, that has resulted in wholesale slavery. Even here, women with children do not get married because “master” would punish them by taking away their welfare.

          If you are not doing GOD’s work, whose work are you doing?

        • http://www.joshuakennon.com/ Joshua Kennon

          It is clear you haven’t read any of the site, nor bothered to read any of the links in my earlier responses to you because your summation of my beliefs is in direct contradiction with what I’ve repeatedly written about. If you can’t take the time to be serious, I’m not going to bother to respond. I cannot stand laziness. This is the last message you’ll get from me.

        • Jack

          Glad to be of help. Please make mention of the Mental Model that the government gets to define morality — abortion is not murder because the government says it’s not because the government has redefined “human being,” gay marriage is moral because the government has redefined “marriage,” social programs are moral because the government has redefined “stealing,” etc.

          For what it’s worth, I have indeed been reading this site for quite some time, as evidenced by my comments on several of your posts. You posted one link to an earlier article you wrote on the Harm Principle, the implementation of which requires far more knowledge of consequences than one can possible have, unless one is God, and several articles showing non-Christians who do not understand the concept that OUR deaths are no longer required as payment for our sins.

          Allow us to look at your Harm Principle’s results in the real world. Biblically, divorce and remarriage is immoral. Jesus was very clear on that point. But churches and society have abandoned that precept, and divorce and remarriage is now accepted. The harm to children and families is considerable.

          And the so-called “safety net,” which reduces the dependency of women on their children’s fathers, and actually reduces their benefits if they get married. In 1960, about 80% of Black children were born or a mother and father who were married to each other. Now, 80% are born to single mothers, and very often live with siblings of yet another father. But where’s the harm in having the government be their daddy, right?

          Let’s even look at the civil rights legislation that forced businesses to serve Blacks. Sounds like ALLOWING businesses to deny service to Blacks is harming Blacks, and that DISALLOWING such behavior is helping them, right? What could possible go wrong? The result was that all the Blacks started shopping at the White stores, but the Whites still did not go to the Black stores. The Black stores shut down and the Black middle class collapsed.

          Minimum Wage — what could be wrong with helping these poor people earn more money? So in 2007, we jacked up the Minimum Wage. Well, it priced a lot of people out of work, and the economy hasn’t yet recovered.

          Your Harm Principle “morality” has resulted in the one-child policy in China, for the greater good of the whole — with forced abortions, sex-selection abortions, and daughters being left in orphanages or simply left to die.

          Your Harm Principle is the entire rationale for Socialism and Communism, and why they require that religion be crushed. You may disagree with their conclusions and actions, but that is only because you disagree with their predictions of “individual and collective happiness, freedom, and fulfilment,” and of “reasonable” and “justified.”

          Well done.

        • Jack

          (Just as an aside, they were DRAGGED and HANGED, not DRUG and HUNG.)

        • http://www.joshuakennon.com/ Joshua Kennon

          You are absolutely correct. Unfortunately, my Missouri-isms slip out once in awhile. I catch most of them except except for the truly atrocious, which still leaks out despite my attempts to stop it, which is the tendency to combine the past perfect verb tense with incomplete verbs when the simple past tense would be sufficient (e.g., instead of “He was caught by the police”, “He had got caught by the police” … not even gotten, which would sound better). A few years ago, I went through and scrubbed all of my writings of the error and almost have it broken in my speech, though I catch myself saying it if I’m surrounded by natives for a few hours, such as going out to dinner with old high school friends.

          Were I to say “dragged’ and “hanged” around these parts, I’d get an eyebrow raise and a polite correction. It’s a case of the colloquial not matching up with the technically correct. In the eight years since I returned from college, I’m even getting the slight twang back in my voice, though I haven’t, yet, reintegrated enough to pronounce any words that end in the letter “i” with the sound “ah” (e.g., Missourah is how half the state pronounces my present location).

          Thank God I never fell into the trap that the entire Southern part of the state does … replacing all forms of past tense verbs with the perfect past tense (e.g., not “I saw that”, but “I seen that”). It’s ubiquitous. I was actually impressed that shows like “True Blood” get those small details perfect when matching dialects.

          You’re in Virginia, though I’m not sure if anywhere in Fairfax counts as truly Southern given that it is mostly Beltway elites in a self-contained sub-state. Still I’d imagine you hear much worse depending upon how far South you are.

          TL;DR: Absolutely, yes. I am but a flawed man.

        • joe pierson

          Working on the Sabbath warranted the death penalty too.

        • joe pierson

          When you lie about the food, you are stating “ I witnessed that I didn’t like it, but I gave false testimony to my parents that I did like it” therefore, you are guilty of bearing false witness, against yourself. (The “another” can be yourself from a different time and place as is clarified in other parts of the Bible.)

          You don’t have a choice putting the switch half-way, you only have two choices.

          Anyway, your personal opinion about stealing is irrelevant, the point is we all come to different conclusions because you are measuring harm with a different meter then, say, Joshua is. Some would claim you are committing murder letting the child starve as life is more important, some would not.

        • Jack

          Actually, I am measuring harm EXACTLY the same. What one person does not have to pay, the rest have to make up for. The amount of the harm is the same. Much to one person or a little to many.

        • http://www.joshuakennon.com/ Joshua Kennon

          1. Some of those objections are addressed in the linked articles, so why would you ask me about them, again, here? (The short answer: The fact that some situations may be difficult does not mean we should rely on the false emotional comfort of categorical imperatives simply to make ourselves feel better. It’s better to say, “I don’t know”, than to delude yourself by relying on someone else’s moral judgment without any analysis of the specific circumstances before you at the time.)

          2. You still have not indicated any harm, whatsoever, in the issue we are discussing. You say I “cannot see it”, so show me. Point to it. Put a big neon sign above it and say, “Here it is!”

          This was the problem the Proposition 8 supporters ran into in the courtroom. Their star witness, when continually pressed by the court to provide one – even a single – harm that could be caused by allowing two gay people to get married, finally threw up his hands and said, “I don’t know. I don’t know.”

        • Jack

          Simple — they will get benefits paid by State and US taxpayers against the wishes of those taxpayers.

          Actions can harm oneself as well as others. We do have laws in place against that, too.

        • http://www.joshuakennon.com/ Joshua Kennon

          As I just responded in another thread, that money belonged to the gay couples in the first place. If I rob you at gunpoint and steal your money, then a court declares I have to return the money to you, it’s not “harm” to me. I had no moral claim to the funds in the first place. The court is writing a wrong that was committed on an illegitimate basis.

        • Jack

          Taxation is robbery?

        • http://www.joshuakennon.com/ Joshua Kennon

          If it is illegitimate it is. The courts have a long history of striking down such taxes as unconstitutional on various grounds. For example, Congress could tax all citizens earning over $100,000 at 25% but they could not tax only citizens over the age of 65, or black, or Christian Americans at that rate. The rates must apply to all who are similarly situated and not be confiscatory or punitive.

          This isn’t just an American legal precedent; we are actually far more lenient than some other areas of the world on what is reasonable as a question of human judgment. The French Constitutional Council recently struck down the 75% millionaire tax that the socialists put in place as a violation of equality in tax laws since it only applied to those earning €1 million or more per year and was clearly designed to punish the rich as a form of redistribution.

        • Jack

          Furthermore, businesses WILL be forced to provide benefits for these so-called “spouses.” THAT is direct harm also.

        • http://www.joshuakennon.com/ Joshua Kennon

          I can see where you are coming from with this argument, and it is the best one you’ve put forth. The problem I have is the implications of the underlying logic. If society, through its courts, legislatures, and direct ballot measures, does not have the right to tell businesses what they can and cannot do in order to conduct business within a given geographic territory provided the law does not 1.) violate a fundamental right of any party, and 2.) is applied equally to all similarly situated Americans, then all restrictions on businesses are impermissible. Thus, required maternity leave, paid sick days, limits on mandatory work hours, minimum working conditions, age restrictions on employees, guarantees of non-discrimination on race, et cetera, are all illegitimate.

          If you believe that is the constitutional framework under which the United States was intended to be run, then the position is intellectually consistent. I could see someone like Ron Paul arguing for it and it being perfectly within his legal and constitutional framework. Personally, I may not agree with it because I think it is unworkable in a larger framework, but I can certainly respect both it and the consistency with which it is applied.

          If, on the other hand, you believe that a sufficient percentage of a given society has a right to determine the conditions under which it will issue a license to someone who wants to engage in commercial activity within its borders, and the terms under which that license will be granted (something that would be constitutional if a fundamental right weren’t violated and all similarly situated people were treated the same and subject to the same restrictions), then the argument fails immediately.

          I happen to fall into the latter camp because I think there must be some legal framework for forbidding, for example, child labor in coal mines as systematic poverty strips a child and his or her family from true freedom of choice. Using that same authority, I have no problem with the requirement that businesses treat all legally married spouses exactly the same or get shut down, just as I would want a Baptist to be able to sue a Mormon who didn’t want anyone working at a bookshop unless they were part of a Temple marriage. The Mormon doesn’t get to make that determination; the Baptist is legally married and that’s where the discussion ends. The benefits cannot be discriminatory. Likewise, if a racist in the South wanted to not extend benefits to the black spouses of white employees, I think it is a violation of constitutional equal protection. It’s impermissible in our current system.

          P.S. Mental model time! By using the phrase “so-called spouses”, you subconsciously employed a a logical fallacy known as “No True Scotsman”. It is often used in writing and verbal debates by those who do not have a strong basis upon which to stand and, when finding themselves unable to provide sufficient evidence to back their claim, they attempt to demean the party to which they are referring by introducing questions about the status or legitimacy of the party, causing the audience to overlook the errors in logic and react based on gut emotional alone. It weakened your argument, which could have, if presented from the standpoint of a question about the role of the state in private employment contracts and the original intent of the constitution, been quite convincing. There is nothing so-called about these spouses at all. The state defines spouse, just as it has for more than a century, and the state currently recognizes, on a Federal level and in 11 states plus Washington, D.C., that a spouse is any other person to whom a citizen gets married to form a new legal household unit.

          (On a side note, you can, actually, use the phrase “so-called” in a legitimate way to pull in outside cultural references. An excellent example is Supreme Court Justice Antonin Scalia’s use of the phrase in his Lawrence v. Texas dissent talked about the “so-called homosexual agenda”. Here, though the words were the same, he was not actually committing any logical fallacies at all. He was using it as a mechanism for introducing conservative vernacular in what was a legal opinion where the phrase was meaningless.)

        • Jack

          You know very well that such laws are NEVER equally implemented. Almost every such law has different requirements for different sizes of companies.

          Yes, there is a fundamental right involved, too — the freedom to practice one’s religion. Practising one’s religion is not just going to church, but living one’s life by the teachings of one’s religion.

          If one does not like the policies of a business, he can shop at another store, take a job at another employer, or start his own business in competition to that one. Why should a Mormon not be allowed to discriminate against non-Mormons in hiring? The non-Mormons can go set up their own bookstores. That is what the Blacks did when they were kept out of White stores. When the White businesses were forced to allow Black patrons, those Black-owned stores collapsed and took the Black middle class with it.

          You have also fallen into a particular mental model — your definitions are whatever the government tells you. Marriage existed before governments. In the Catholic tradition, a couple is married when they go before a priest and the man says, “This is my wife,” and the woman says, “This is my husband.” The government does not create reality. It can define PI as 3, but that does not make PI equal to three. The government can sanction gay “marriage,” but that does not make it a marriage.

        • http://www.joshuakennon.com/ Joshua Kennon

          I understand the disconnect now. Your entire line of reasoning makes sense to me as to why you believe the things you do.

          Don’t take this as a criticism because it is not meant that way: You have absolutely no idea how the legal structure in the United States works, especially regarding constitutional protections and rights. You’re like one of my retired relatives who actually believes it is a constitutional right in the United States to refuse service to anyone, or that religious freedom means the right to practice in a way that imposes on other people when dealing in the “public square”.

          There are centuries of precedent in case law and culture that dictate how we, as a society, function, and your set of assumptions is in direct contrast with many of them. The things you assume are rights are not now, nor have been for generations, rights in the United States. It’s ignorance.

          In other words, we do not live in the country you think we do, nor have we for 80 to 100 years.

          As for marriage, you are mistaken. Marriage is a civil contract. That is what I have been discussing. You are now talking about Holy Matrimony, a religious rite. Marriage is whatever the state says it is because it is a social construct. Holy Matrimony is whatever a particular religious group believes it is. One is entirely civic, having to do with legal rights and responsibilities in a given civilization; one is spiritual, and has to do with a particular belief set. They are not synonymous.

    • Richard

      Politicians will always oppose polygamy strongly. If it was legalized, they might have to marry their mistresses.

  • John Tate

    Hollingsworth v. Perry actually really concerns me. I feel like the State should have an obligation to defend anything that goes before the Supreme Court (even a measure such as this which I disagree with) or else we could have some disturbing side effects in the future.

    • http://www.joshuakennon.com/ Joshua Kennon

      I tend to agree with you on this one though I am really conflicted.

      On one hand, a Governor’s unwillingness to appeal a law could be used as a sort of de facto veto of legislation or initiatives that he or she didn’t like, diminishing the power of the people. It could be abused and result in a concentration of power in the hands of the executive branch.

      On the other hand, it is a myth in the context of history that the Supreme Court should have a sole monopoly on determining whether a law is constitutional or not or that its opinion is the only one that should matter. Were such a requirement-to-appeal implemented or demanded, it could lead to a situation where elected officials were knowingly enforcing laws they believed to be patently unconstitutional despite taking an oath to uphold and defend the constitution, which would be a much larger problem. It could be abused and result in a concentration of power in the hands of the judicial branch.

      In both cases, the people lose.

      I can’t see any easy solution and I am not happy about it. This is one of those situations that leaves me worried about precedent, regardless of which decision was made.

      Were I sitting on the court, I would have given the Proposition 8 supporters standing because the California Supreme Court itself gave them that authority, so presumably you wouldn’t run into a situation where you had the court system (at least on a Federal level) clogged by people defending the imitative in the absence of elected officials who opted not to do so. I would have sidestepped the question itself by saying this was a unique circumstance and the six-month trip to the California Supremes for clarification put to rest any concern that the Pro-Proposition 8 people had standing.

      If I were required to decide the question on the merits, I would have struck down the bans in every single state under the equal protection clause, as they clearly exist for the sole purpose of denying a specific sub-set of people with an inherent characteristics a series of benefits for no other purpose than the express moral disapprobation and, as we live in a Republic not a Democracy, the rights of those people to enter into a private civil contract should never have been up for a vote in the first place once it had been granted by the state. The proof of the malicious intent is the fact that these same proponents, once Proposition 8 had been put into effect, went before the California Supreme Court and attempted to force a decree that would have legally divorced 18,000 married couples; a vast overreach of power so egregious the sheer arrogance of it infuriates me.

      If I were on the Supreme Court, people wouldn’t be able to classify me as liberal or conservative. I’ve be a wildcard libertarian concerned solely with limiting the power of the government and maximizing individual rights. You want a gun? The second amendment guarantees it. The NSA spying on you? Sorry, that’s illegal search and seizure even if it means we have a few more terrorist attacks. Want to be gay? Good for you. I’d probably have a little American flag sitting in front of me and end up beating people with my cane like Jackson as I randomly screamed, “Freedom!” like that scene in Braveheart. I’d throw it out in the middle of a hearing just to see the look on the attorney’s faces and keep them on their feet.

      • Michael Starke

        I seriously just LOL’d at the image of you beating someone with a cane and/or screaming “Freedom” a la Braveheart…

    • http://www.joshuakennon.com/ Joshua Kennon

      I have a follow-up question for you: What do you think about Roberts thus far?

      There is something in his decisions that worries me. I can’t quite put my finger on it. His view of the role of the government, and his tolerance level for abuses of consolidated power in practice in order to protect a theoretical perfect are making me uneasy.

      I can look at Scalia and say, “I get his vision for America. I understand the intellectual thread the underlies his votes. It is consistent most of the time.”

      I can look at Ginsburg and say, “I get her vision for America. I understand the intellectual thread that underlies her votes. It is consistent most of the time.”

      The reason I say this is because I understand how Roberts thinks on a gut, primal level. It’s often very close to my own internal dialogue when working out a problem; that’s why I knew a year before everyone else that the health care reform law was going to be upheld as a tax when virtually no one agreed or foresaw it. I knew it because that is what I would do if I wanted to sidestep the problem and appear to protect the legitimacy of the court while weakening the Federal government long-term, so I figured that is what Roberts would do. My concern is that I am guided by a very strong moral system based on the harm principal. Roberts seems guided by theoretical abstracts with no concern for how the decisions actually affect the lives of individual people. That makes him dangerous. I know it because I realize how dangerous I would be if I didn’t have the restraining force that keeps me in check.

      In other words, I can almost always predict what he is going to do because it is what I would do if I didn’t have that filter on my behavior or worldview that made me realize the advantages of privilege and power, and the institutional dynamics they create that can lead to certain levels of injustice that are really ramifications of second and third order effects.

      Deep inside, I think Roberts is systematically dismantling a significant portion of the government under the radar without anyone realizing it. I think it is happening in plain site and I think it will be felt for generations but most people have no idea that it is happening nor do they appreciate the sheer extent of his foresight or intellect.

      • Jack

        The 0bamacare ruling was the most bizarre ever — the only time that the Supreme court has overruled a previous ruling IN THE SAME RULING.

        There is simply no expecting rationality from the Supremes after that.

        • http://www.joshuakennon.com/ Joshua Kennon

          I think my big fear, which you touch on here, is that there doesn’t seem to be a consistent intellectual theme running through the court these days. They have developed a pattern of attempting not to upset the apple cart too much and then kicking hard cases down to the lower courts so they don’t have to deal with the fallout, or coming up with these tortured bare-majority rulings that make things more complicated than they otherwise would have been.

          My concern is how they are going to handle the NSA spying cases that are now hitting the system once the information was leaked. The ACLU already has begun launching court cases. If the Supreme Court don’t treat the mass, unwarranted, virtually unrestricted gathering of information on American citizens without probable cause as a violation of the fourth amendment, I have absolutely no idea how we solve it short of a constitutional amendment that is explicit.

        • Jack

          The Second Amendment is explicit, but violated repeatedly.

          The First Amendment is explicit, but violated repeatedly.

          The Ninth and Tenth are essentially dead — beaten to a coma by interpretations of the Commerce Clause and the General Welfare clause that have grown so monstrous they are not recognizable as having any relationship to the words in the Constitution.

          What would that new amendment say, “We really mean it this time”?

        • http://www.joshuakennon.com/ Joshua Kennon

          But that’s simply not true, is it? There are attempts to violate constitutional rights all the time, but they are beat back into place after an outcry from the people. School districts try to limit student speech every day, so the ACLU sues and it is eventually corrected. Gun restrictions are attempted all the time, but they are eventually struck down. Etc., etc.

          The fact that there is a constant attempt at encroachment upon individual, fundamental rights does not negate the need for a constitution. If anything, it strengthens the argument for one.

          In other words, how bad would things be now if there were no second amendment at all? Do you really think guns would still be legal?

          It matters. It matters a great deal. They are not just empty words on a page.

        • Scott McCarthy

          Morse v. Frederick (tl;dr – “Bong Hits 4 Jesus” signs are not protected speech…if you’re at school – and by “school,” I mean off of school property on a day you didn’t go to school at all, and you only wanted to show your sign to the media) did more to limit school speech than any other single case in the history of this Union. The ACLU does not always win.

        • http://www.joshuakennon.com/ Joshua Kennon

          You had me at “Bong Hits 4 Jesus”. I can’t wait to read this; thanks for the tip!

        • Jack

          SOME attempts are beaten back. Others are not.

          1) What Constitutional authority does the central government have to implement Social Security?
          2) The 1939 Miller decision ruled that MILITARY firearms are protected by the Second Amendment, but we had the Clinton “assault” rifle ban.
          3) What Constitutional authority does the central government have to intrude on the States’ education systems?

        • Scott McCarthy

          RE: Miller (as someone who works in the gun industry, and knows a bit about this area) –
          The Clinton AWB isn’t the example you want to use to exploit Miller. The better example is the Hughes Amendment to the Firearm Owners Protection Act of 1986. Unfortunately, this argument won’t gain momentum until the military replaces the AR-15 platform with another (full-auto or select-fire) platform that didn’t exist in 1986.

        • http://www.joshuakennon.com/ Joshua Kennon

          Social security is a tax. Pure and simple. The money isn’t saved anywhere, the government uses it for its general purpose fund, and it is levied on everyone equally based on earned income up to a specific threshold. When the 14th amendment passed, there was nothing that could be done about it. It is entirely constitutional now. If you want to get rid of it, you must repeal the 14th amendment.

          The other two? They are examples of the encroachment we are discussing. The solution is not to throw up one’s hands and say, “Well, they ignore the constitution, so why bother?” How much faster to do you think the fall of individual freedom would be if there were no restraints; no opposition? Even if some battles are doomed to fail, you do not cede the war simply because one particular aspect of it did not go your way. That’s life. You keep fighting because it’s not just for you, it’s for your children and grandchildren. I didn’t do anything to deserve to be born in the United States; it was a gift made the sacrifices of my grandparents, great grandparents, etc., generation who paid the admissions price so I got to be born in a nation that, despite having only 5% of the world’s population, enjoys 50% of its aggregate wealth. We owe future Americans the same.

        • Jack Scheible

          The give-away part of Social Security. What Power does the Constitution give to the feral government that allows it to give someone money for retirentment?

      • John Tate

        Roberts seems like he’s more concerned with the Supreme Courts standing than anything else. He acts like he’s a politician that has been put in place as a judge, if that makes any sense.

  • joe pierson

    Prop 8 was indeed bizarre…. so let’s take a vote to determine if the majority wants to discriminate against a minority. Just read any history book to find out how that is going to turn out.

    • http://www.joshuakennon.com/ Joshua Kennon

      What makes Proposition 8 so interesting is that it was the first time an already established, in-effect legal right to get married was taken away from a group of people. I would be interested to see if that differed in outcome from arguing that someone has a right to get married even that right had never been recognized in a place like, say, Texas.

      My theory is that when cultural historians look back, the passage of Proposition 8 will be most responsible for the marriage movement coming to fruition so quickly. I think it shocked a lot of powerful, isolated, elite who took it for granted that gay people were treated equally, and so following the narrow loss in a place like California, which likes to think of itself as enlightened, you saw massive bankrolls open from universities, politicians, business leaders, and corporations.

      That’s the irony; marriage will probably come faster on a national level because Proposition 8 was passed than if it had never existed at all.

      With the DOMA ruling, Section 2 doesn’t stand a chance. Kennedy denies it, but Scalia is right. The lower courts will now shred it as a violation of the constitutional right to interstate travel, among other problems. It’s over. People still need to stay engaged, but culturally, especially among the 35-and-younger crowd that makes up a bigger percentage of the population each day, the fight is overwhelmingly won.

  • scott

    A government that ignores and tramples on the desires of the majority for your benefit, is also a government that will one day ignore and trample on you.

    • http://www.joshuakennon.com/ Joshua Kennon

      The problem with that line of thinking is it goes against virtually all of the founding father’s own writings and personal beliefs. They grew damn near apoplectic when the topic of democracy came up because these were people borne out of the European enlightenment, who had read Plato and considered his words on how it almost always leads to its own destruction and totalitarianism.

      That’s why they went for a Republic, where the minority is protected and majority rule always has a check or balance against it. That’s why American citizens don’t have the right to elect the President – the state legislatures do, though they now choose to delegate this power to individuals. That’s why American citizens can’t vote on whether or not a prisoner can get married. That’s why American citizens can’t decide they want to refuse service to a black person at their restaurant. Up until about a century ago, we couldn’t even directly elect our own Senators! The founders wanted as many barriers between “the majority” and individual rights as they could erect.

      When Ben Franklin was asked, “What kind of government have you given us, Mr. Franklin?” He responded, “A republic, if you can keep it.”

      The subtext was, “If you can keep it from devolving into a democracy.”

      Our entire nation was setup to avoid the desires of the majority from being beyond question. Those checks and balances are there to make it hard to get anything done. It’s the entire point. Franklin didn’t think it went far enough – he wanted the Presidency to be a committee of three men, all of whom owned property, and who had to exercise veto power or assent to a law by a majority of the group!

      So I just can’t agree with that. It’s not historically accurate

      • Scott McCarthy

        If you don’t think that the majority can do whatever they want in the American system of government, I refer you to Article V and Amendments I-XXVII of the Constitution…
        (EDIT: by the way, I’m not the “scott” from above; just jumping in to correct a point of fact.)

        • http://www.joshuakennon.com/ Joshua Kennon

          When I use the term “majority” I am speaking of a democratic system where the run-of-the-mill law is whatever 50% + 1 says it is, which is not now nor was it ever intended to be how the United States functions. It’s my fault for not being clearer so I apologize for that. I don’t disagree with your point. Our republic is absolutely based upon a democratic model at its very foundations.

          Absolutely, the Federal Constitution can be amended by super majorities of Congress plus 3/4ths of the state. That was actually my point – you can’t just do whatever you want because a majority feels like it, it’s much harder.

        • Scott McCarthy

          You do realize that, theoretically, it would take just 20.25% of the population to pass a new Amendment, right?

          You need 38 states – assume the 38 least populous ones (so #13-50). As you mention in this very article, population is concentrated in a handful of states. The 12 most populous states claim 186.8 million people, out of a total national population of 313.9 million (or 59.5% of the total population). Ignore this group. I am not aware of any states that do not allow for direct voting on ballot initiatives – assume the group of 38 each passed a ballot initiative mandating that state constitutional conventions be decided by public ballot. If this measure, and the ensuing Amendment proposition each passed with 50% + 1 vote, that would be just 20.25% of the (voting-eligible) population of the nation voting in favor.

          Not that it’s terribly likely to happen, I just got sucked into the math and figured I’d share it. lol

        • http://www.joshuakennon.com/ Joshua Kennon

          That. Is. Awesome.

        • Scott McCarthy

          Inverting, it would take a simple majority in the 13 least populous states to veto any proposed Amendment. After the adjustments for voting eligibility and turnout as above, a mere 1.76% of the population can stop any proposed Amendment from being ratified.

          How’s that quote go? “Democracy is two wolves and a sheep deciding what’s for dinner; Liberty is a well-armed sheep contesting the vote.”

        • http://www.joshuakennon.com/ Joshua Kennon

          That last post was the most beautiful example of why we are structured like a Republic I’ve ever seen, anywhere.

          It still amazes me that prohibition was first passed, then later repealed in the face of the odds.

        • Scott McCarthy

          Prohibition is easy to explain: drunk people will agree to anything. When they sober up, they wait till the hangover goes away, and then try to fix their drunken screw-ups.

  • Jen

    ” ship them in from China, mark them up 800%.” Is that fair for your customers? Marking them up 800 percent?

    • http://www.joshuakennon.com/ Joshua Kennon

      In a free market system, fair is whatever they are willing to pay. If I overcharge, I get put out of business; if I undercharge, I get put out of business. If I have a monopoly, the government sues and shuts you down.

  • Scott McCarthy

    Getting away from the democracy/republic conversation that we’ve been having, I have a structural question for you about the Windsor decision.

    The fact that the case was over proper tax status in previous years makes me wonder if the Tax Court (being bound by stare decisis) would accept the argument that any gay couple who had been married lawfully, but who still filed their tax return as “single” rather than the (apparently appropriate) “married filing separately” (the de facto option, given they didn’t file a joint return) could be subject to back taxes, penalties and interest for using the wrong set of tax brackets, should they ever be audited.

    Under Common Law, you cannot claim detrimental reliance against the government, and I doubt that many couples bothered paying the $500 to get a binding written determination from the IRS before filing their return.

    • http://www.joshuakennon.com/ Joshua Kennon

      I asked my attorney about this once and he said the standard practice was to amend a signed, notarized document to the tax return stating that you were following the letter of the law, you were required to lie because of Section 3 of the Defense of Marriage Act, and that you were in no way disavowing your marriage. That way, you could argue you were following the law at the time, make it clear that you were never attempting to hide anything, and pretty much cover yourself from almost any circumstance that would arise.

      I imagine that going forward, there will be 3 year revisions of tax status for those who find it favorable, but the people who don’t won’t be required to do so. I don’t think any court would penalize a couple or following the letter of the law at the time as it would raise constitutional ex post facto problems, but if you were so inclined to demand a favorable outcome, you probably could as your constitutional rights were prohibited.

      I think it’s a rare situation is which you can have your cake and eat it, too, depending upon which circumstance is better for you.

      Besides, if the IRS were suddenly wanting to take on even more bad publicity, there is no way the Obama administration would let it pursue a gray area like this against a group of people for whom he has constantly advocated.

      I’d be shocked if it were any other way. Could happen, I suppose, but I would be floored.

      • Scott McCarthy

        I don’t think the IRS would do it willingly, but who knows what amendment could end up getting tacked onto something like an immigration bill coming out of the House. The GOP has used this strategy extensively during Obama’s time in office (providing for concealed carry in national parks as an amendment to a credit card reform bill, allowing guns on Amtrak as a rider to a housing bill, etc.), and it seems possible that they could do something to prohibit the IRS from waiving the back-taxes owed if this comes up in an audit – it would just have to be included in a bill that Obama could never veto.

  • Jack

    If the People do not have “standing,” how can the person who’s supposed to be the People’s representative? The Prop 8 ruling makes no sense at all.

    Now, California just has to elect a governor who will actually do his job, and he can bring the case back to the Supreme Court.

    • http://www.joshuakennon.com/ Joshua Kennon

      The Supreme Court has to think about broader issues and precedent. I do understand their thinking on the no standing, even though I am worried about the implications.

      Imagine they say that a group can defend a law in court even though they are not the state and will suffer no direct, demonstrated harm other than an abstract theoretical political harm (failing the test that is required for a court case to be heard). What happens when you have 4, 5 or 12 different groups claiming to represent the state’s interest? Permitting standing the Prop 8 case could have solve today’s problem but created a nightmare scenario for the court system down the road.

      In this case, I think they should have granted standing because the 9th district specifically address this question and kicked it to the California Supreme Court, basically asking, “These people say they want to defend and appeal the law in the absence of the state’s action. Do you think this is consistent with California law? Do you believe we should allow them to represent you, the State of California?” The California Supreme Court said yes. I think that should have been enough to give the United States Supreme Court cover and make clear that granting standing was a unique circumstance in this one case given that the state Supreme Court had gone out of its way to confer the authority of the state temporarily, on this matter, to the proponents of the measure.

      • Jack

        It is obvious from the DOMA case that, because taxpayer money is involved, they will indeed be harmed. Furthermore, businesses will be forced to provide benefits, thus increasing costs and prices.

        It is a typical economic fallacy to look at only one side of the equation where government spending is concerned. This is another example of that.

        • Scott McCarthy

          If the group that sponsored the ballot measure is a tax-exempt entity, then it still wouldn’t have standing even under your line of thinking.

        • http://www.joshuakennon.com/ Joshua Kennon

          Speaking of which, do you have any thoughts on the tax-exempt status of religious institutions? Someone asked me about it the other day, and I’m still working my way through the arguments on both sides.

        • Scott McCarthy

          How can we have meaningful separation of church and state if the state controls the pursesstrings of the church?

          Much like we see with corporations, I imagine there would be increased lobbying from religious groups, were they subject to normal taxation. Much like Shell tries to lobby for special treatment that helps them more than it would help their rivals, would certain denominations try to get preferential treatment? Would the fact that there are more Catholics than Sikhs mean that Christians would end up getting treatment that was favorable to that enjoyed by other religious groups? Would local governments be able to offer economic incentives for the construction of mega-churches like they often do for large corporations?

          Besides, if only RELIGIOUS charities are taxed, while secular ones are not, how is that just? How does that not violate equal protection? How does that not effectively give preferential treatment to atheists (government favoring non-religion over religion)?

        • http://www.joshuakennon.com/ Joshua Kennon

          That last point is the one that is getting me; whatever society does, it must be done equally to all non-profits. If the government is going to remove tax deductions for non-profits, it should have to do it across the board. There are some legitimate tax systems that would call for this and be fairer in the end (e.g., no deductions or special interest loopholes of any sort, you send in a flat 20% of some very simplified income calculation, all of which fits on a couple of pages), so I’m not against it in theory if it were part of an across-the-board, comprehensive overhaul of the tax code that simplified, reduced, and made it fairer.

          On the other hand, if we are going to keep tax deductions for non-profits, they should all have to play by the same rules.It makes no sense that churches, mosques, et cetera are exempt from filing the same 990’s that, say, the Salvation Army. There is some really crooked stuff going on, especially in the ministries of a handful of televangelists, that would instantly cause massive uproar if disclosure laws were treated equally, leading to positive change (look at the breast cancer foundation – almost none of the money goes to actually fighting breast cancer; the real winners are the people on payroll, the result being that donors can make an informed decision). In effect, if we as a civilization are going to subsidize those televangelists, which is what the tax code is doing, they should have to follow the sunshine disclosure laws every other charity has to follow.

          (I became a convert to this school of thought when the church I attended during my 4-5 years in New York / New Jersey published fully compliant GAAP annual reports that were available in the lobby so we could examine them and determine if we thought our money was being wisely invested in outreach to the poor, soup kitchens, new church construction, free ministries for drug addiction, etc. The scriptural requirement to “give an account of thy stewardship” was the justification for such crystal clear reporting requirements. It became so common sense that I actually refuse to donate to any organization that doesn’t do it. I feel so strongly about it, I once made a small grant to Joyce Meyer Ministries, even though I strongly disagree with her on several things, following outrage over her finances because she made a point of disclosing the information on her own in the first place. I think honesty and transparency should be rewarded.)

        • http://www.joshuakennon.com/ Joshua Kennon

          If those same taxpayers who are being denied benefits are forced to pay into the system that excludes them solely due to unconstitutional animus, I would consider the “increased” government spending necessary to rectify such an inequality. Otherwise, you are supporting the continuation of a form of redistribution and theft.

          It is not a fallacy, it is a moral judgment.

          If the benefits in question are non-sustainable (e.g., Medicare and Medicaid spending), then they should be modified or reduced; an entirely separate issue.

        • Jack

          They have EXACTLY the same options as everyone else. They just don’t like those options.

        • http://www.joshuakennon.com/ Joshua Kennon

          That’s like arguing that Christians in Saudi Arabia have religious freedom because they have exactly the same options as everyone else; they can attend Mosque. It’s a logical fallacy.

          (I’m still waiting on a single demonstration of harm. If you come up with one, let me know.)

        • Jack

          The harm was shown directly in the DOMA case. That money doesn’t magically come from nowhere.

        • http://www.joshuakennon.com/ Joshua Kennon

          The money belonged to the gay couples in the first place. The state had been illegitimately taking it through theft by assessing taxes but then denying the benefits due to a law designed specifically to target behavior that some didn’t like, which was a violation of the constitution. That’s not harm; that’s justice.

          If I rob you at gun point then the court demands I give you the money back, the return of the money isn’t “harm” to me because my seizure of it had no legitimate foundation.

          If I steal your dog and have to return your dog to you, that isn’t “harm” to me because it was never my dog in the first place.

        • Scott McCarthy


          Disgorgement of profits from armed robbery serves a compelling state interest – namely, reducing the expected value of an armed robbery. If making reparations to compensate for victims for their “harm” were the goal, the government could do that on its’ own even in cases where the perpetrator is not convicted.

          If you never have, I highly suggest you read U.S. v. Carroll Towing from way back in 1947. (tl;dr – Under the “Hand Rule” [named after the Justice who wrote the decision], the economic burden associated with using government powers to require a party to change something must be less than the damage which could reasonably be expected from not making said change; it’s basically the foundation for laws like those requiring fences around swimming pools, and much, much more).

          As to gay marriage, specifically: From a tort law perspective, the government could have argued that the burden on both private enterprise and the government associated with recognizing gay marriage outweighed the harm that was being done to the incredibly small number of gay couples who are married in states that allow it. [The obvious rebuttal is the that costs of making the change are one-off, while the economic damage incurred by affected gay couples would be perpetual. This rebuttal has a rather high hurdle at present due to the prevailing interest rate environment, and the affect that has on discounting for NPV.]

          The obvious challenge under equal protection notwithstanding, the courts have historically allowed certain tax incentives to be contingent on obscure variables – see: Domestic Production Activities Deduction, for instance. Using taxes to manipulate social policy is explicitly legal under the Obamacare ruling. Establishing harm becomes irrelevant. The people, through their elected officials in Congress, and with the support of the Executive branch, decided that they wanted to incentivize heterosexual marriage, but not homosexual marriage. You no longer have to prove that DOMA doesn’t cause disparate harm, merely that there is at least one compelling state interest associated with heterosexual marriage that is not associated with homosexual marriage. The simplest argument here is that heterosexual marriages are, to a statistically significant degree, more likely to increase the population than are homosexual marriages. If you can establish this, AND if you can establish that the creation of a future marginal taxpayer has a positive NPV (either to the government in the form of increased tax revenue, or to the greater society in the form of increased GDP), then the Courts may have upheld DOMA, under the Hand Rule.

        • http://www.joshuakennon.com/ Joshua Kennon

          “If making reparations to compensate for victims for their “harm””

          I know it shouldn’t, but whenever I see that concept, it immediately makes me bristle, probably because my emotional reaction deals with bailouts and reparations in much larger contexts. I think it’s my years studying insurance, when I’d see people refuse to move away from a hurricane zone on the coast, then watch their house get destroyed only to demand that everyone else – the taxpayer in Kansas – subsidize their losses through assistance and emergency aid.

          It’s probably my childhood, growing up hearing stories of the Great Depression from my grandmother, who instilled a “crap happens … you just keep going and don’t blame anyone else; it’s no one else’s job to fix it for you.”

          I’m rambling now … I just hate the entire concept.

        • Scott McCarthy

          Figures you’d quote a sentence with a typo in it… lol. Fix’d the original. Thanks for pointing it out.

  • Leonard M.

    (Out of nowhere comment)
    Wow! You’re case briefs is better than mine… And I’m a law student. LOL

  • http://www.joshuakennon.com/ Joshua Kennon

    The seller in a situation like this is relying solely on the ignorance of the customer and taking advantage of fear and inexperience in the elderly and poor to exploit a price far above intrinsic value for goods that could be bought down the road at a fraction of the cost; a situation often achieved by false promises and deceptive marketing that should be regulated by the government under consumer protection laws.

    It does not follow that a product or service with high profit margins is always immoral.

  • Chloe

    First off, I love your site. Strange about all the comments. I am from Canada and have also lived in the Netherlands. Both places permit same-sex marriage. Both places are not going to implode anytime soon. Though the Netherlands might flood one day due to global warning. How does legalising same-sex marriage have anything to do with polygamy? or the downfall of society? I happen to be gay. And an entrepreneur, which means I provide jobs (guess what i hire all people, including straight people). I also tend to be in monogamous relationships. In fact i was about to marry my partner of three years. Didn’t work out.. but that is life. I think what the USA does not understand is us lesbians/gays for the most part we are no different from the rest. We want happy homes, parents that love us, societies that respect us and a world where we are free to be ourselves. I happen to be a lesbian, but I am also a huge business fanatic and I get just as excited about my partner as I do about my business and investments… I also go to restaurants, gym, go out with friends of all stripes, I donate to many causes and volunteer my time within the community at large. One day i will have kids and teach them all about investing! Not sure why people get so bent out of shape. And to head off the inevitable, I hope my kids turn out straight, just so they don’t have to put up with the hatred of others. Happy Investing!