Obamacare, Gay Marriage and Disparate Impact - 25 Hours Which Will Live in Infamy

When historians look back on the collapse of the United States and seek to pinpoint the beginning of the end, they will no doubt look to the election of Barack Obama to the presidency. If they want to narrow the focus they will point to the period of his reign between 10:00 AM June 25th and 11:00 AM June 26th. Ted Cruz has charitably labeled this period as “some of the darkest 24 hours in our nation’s history”. It’s slightly more than 24 hours, but he’s spot on. In fact, he’s far too charitable, they are the simply the most destructive 25 hours in American history.

To some that is no doubt hyperbole, after all during Pearl Harbor 2,400 Americans died, on D-Day 2,500 did and on September 11th almost 3,000 Americans died. How is it even remotely possible that Supreme Court decisions giving gays the right to marry, the sick the ability to keep their healthcare subsidies and the government the power to fight discrimination could compare with the deaths of thousands of Americans? Tragically that is the question conservatives are faced with.

The answer, simply put, is that the United States Constitution is the rule of law for 320 million Americans and during one single 25 hour period last week Barack Obama and the Supreme Court cut out its very heart. They essentially eviscerated the document that has helped improve the lives of billions of people around the world over the last century and a half and provided the world with a great deal of stability and relative peace for the last 70 years.  Whether it’s American inventions or American industry or the American military, the United States has been a power for good – albeit an imperfect one – around the world because we had the strongest foundation of representative government yet established. While our Republic has been slow to react on occasion, the basic structure of individual rights protected by the Constitution and the powers ordained, assigned and limited by it have been the rock upon which the greatest nation in human history was built. On Thursday and Friday of last week the Supreme Court endorsed Barack Obama’s shredding of it.

On Thursday in King v. Burwell the Court destroyed the notion that words actually mean what they say. In the legislation that created Obamacare, Congress explicitly stated that subsidies could only go to citizens who purchased insurance on “exchanges established by the States”. When it turned out that many states refused to be coerced into creating such exchanges, Barack Obama simply decided the IRS would issue subsidies to everyone, even those who purchased insurance via exchanges not “established by the States”. Essentially the Supreme Court said “No problem”. As much of a problem as Obamacare is, this decision is far worse. Why? Because while Obamacare can be overturned, the Supreme Court has now set the precedent that the Executive Branch has the power to rewrite laws it doesn’t agree with without looking to Congress to pass constitutionally mandated legislation. That is literally a dagger into the heart of the document’s core separation of powers. Once the executive branch has the power to rewrite laws, what is Congress other than a convenient straw man target whenever a president needs to publicly justify his desire to act?

In a second case on Thursday, the Supreme Court decreed that Barack Obama can now decide where you live. Actually, that is hyperbole, but not by much. In Texas v. The Inclusive Communities Project the court decided that the president can use “disparate impact” to decide whether communities are guilty of discrimination, regardless of whether they have actually discriminated or not. (In this case seeking to protect employees or customers from convicted criminals counts as discrimination!) This literally means that the federal government can look at your community and if it doesn’t like the racial, ethnic or any other makeup, it can coerce the city or the municipality to changing it. I call it the Obamanization of your neighborhood. Let’s say you grew up in Southeast DC, a low income and high crime neighborhood of the nation’s capital. You start a business, find success and move out to McLean, a Virginia suburb of DC and one of the highest income and safest communities in the country. There aren’t many low income families in that community.  Too bad for thinking you could leave your past behind.  Now, thanks to the Supreme Court, even if no one in McLean ever perpetrated one single discriminatory act, if the feds decide the diversity isn’t quite right they can force the a change by coercing the community to build or provide low income housing or otherwise figuring out how to adjust the racial, ethnic or financial population so that it accurately reflects the government’s desires.  The government already had the power to tell employers who they must hire, they already had the power to dictate a schools’ diversity targets and now, thanks to the Supreme Court and Barack Obama they can now tell communities and neighborhoods what they must look like. After work and school, there’s not an enormous amount in life other than faith and families. How much longer before churches risk losing their tax exemptions based on their hue of their congregations and the government decides there are too many monochrome marriages taking place?

Finally there is Friday’s travesty of a decision. In Obergefell v. Hodges the Supreme Court decided there is a right to gay marriage, and in the process likely put a bull’s-eye on the back of the 1st Amendment. Essentially the Court created a fictional right that will trump a right that is explicitly protected in the 1st Amendment, and it did it while the country was in the midst of a vigorous discussion as to how to deal with the issue. Religious freedom is a cornerstone of American liberty; indeed it was the motivating factor for many of the people who founded this nation. Now, thanks to the Supreme Court, that freedom is gone. Across the country we will see churches, bakers, photographers and service providers of all sorts finding themselves in jeopardy of losing their money, their businesses and in some cases their freedom simply because they are exercising their 1st Amendment rights and refusing to violate the tenants of their faiths.

And so it goes… the beginning of the end as the Constitution is shredded. Words no longer mean what they say, the government gets to decide where what our communities look like and courts get to invent new rights while deciding which others we get to exercise, even those constitutionally protected.

If one were drawing up the plans for a dictatorship based on the rule of man rather than a republic based on the rule of law, the 25 hours of Supreme Court folly last week make a pretty good foundation. That’s great when the man making the rules agrees with you… but what happens when the same freedom to act is in the hands of the guy who disagrees with you?

In defense of the slippery slope argument...

Liberals constantly decry conservatives’ slippery slope arguments against their progressive legislation as simply red herrings. Their refrain is usually “Don’t be absurd, no one’s trying to do _____ (insert the relevant slippery slope argument here).” They suggest that such an argument is mere hyperbole and conservatives are introducing ideas no one wants.

As usual, the liberals are wrong on both scores. History provides a rich trove of liberal camel noses leading to a tents full of camels.

The most famous of course is the income tax. In 1913 when the income tax was established, the top rates began at 1% on income over $20,000 ($450,000 in today’s dollars) and topped out at 6% for income over $500,000 ($11,430,000 today). Today, 100 years later, the income tax applies to virtually everyone earning more than $11,000 per year and tops out at 39.6% for incomes above $400,000. Think about that… the highest rate today applies to an income that would not even have qualified for the lowest tax bracket in 1913. And a tax code that started out four pages long is today four times as long as the Bible!

Then there is Roe v. Wade. In the run up to Roe v. Wade, liberals claimed women simply deserved the right to choose for themselves. How different would the arguments have been in the statehouses and courthouses if opponents could see that in 40 years the government would require abortifacients be available to underage girls without their parents’ consent or that government would be funding hundreds of thousands of abortions a year?

How about the Americans with Disabilities Act, which was intended to prohibit discrimination against the handicapped? What started out seeking sidewalk ramps, wider doors and job security for the handicapped has morphed into the government demanding companies allow alcoholics to drive trucks, forcing cities, towns and businesses to spend thousands of dollars or shut down swimming pools, and requiring companies to offer separate bathroom facilities to those too shy to pee in public bathrooms. Today the Americans with Disabilities Act has become a tort tool for lawyers and leaches to extort millions of dollars out of the pockets of small businesses.

Liberals may not like it, but the slippery slope is indeed a reality. What is outlandish hyperbole today is tomorrow’s reality. That is the fundamental nature of government. History clearly demonstrates the avaricious nature of government and its intent to expand its power in myriad ways once it gets a toehold in virtually any arena.

Unfortunately, the slippery slope is not just a parlor game. It has real consequences in the real world. Today there are two issues where the slippery slope argument is particularly relevant: gay marriage and guns.

Gay marriage: Liberals suggest the issue is simply one of equal rights for gays. All they want is for gay people to be able to marry like anyone else. Not surprisingly, conservatives see it as something quite different, and the slippery slope provides a compelling illustration. Conservatives say that if the definition of marriage is changed from one man to one woman, then on what grounds would the momentum for redefinition stop there, and would chaos not ensue? Two men and one woman? Three woman and four men? A village? A man and his son? (Jeremy Irons makes a valid point in asking why that shouldn’t be allowed as there is no chance of procreation.) And once gay marriage is legal, how long until gays demand to be married in the Catholic church or any other Christian church where the teachings are explicitly against homosexual marriage? (Ask the Boy Scouts about that.) Liberals of course say, that’s just and example of hyperbolic scare mongering or homophobia. Luckily we don’t have wait for history to see the chaos that lies around the corner. A Kansas town passed a resolution that would force churches to rent facilities for gay weddings. (This measure later lost at the ballot box.) A Florida judge has already allowed the listing of three people as parents of a child while a Kansas man is being sued for child support for acting as a sperm donor for a lesbian couple. Then of course there is the federal judge in Utah who is considering reversing the ban on polygamy. Liberals can call this slippery slope argument hollow, but the reality is that history is on the side of just such as slope.

Then there is gun regulation. In the wake of events like Sandy Hook, Virginia Tech and Columbine Americans are understandably concerned about gun violence. Unfortunately however the liberal solution is to seek to take the guns away from law abiding citizens, which seems particularly ludicrous as gun violence in the US has been declining dramatically for 20 years. While many Democrats are talking about “enhanced” background checks and bans on “assault style” rifles, make no mistake their goals are far more sinister and go much deeper.

Despite the 2nd Amendment’s explicit protection of the right to bear arms, liberals seek to ignore that right. Not sure? This too we don’t have to wait for history to demonstrate. The proof is already here. A Democratic proposal in Washington State would allow sheriffs the right to enter and inspect the homes of semi-automatic firearms owners annually. A new New York law allows police to track ammunition purchases and the state is already confiscating guns from people who were once on anti-anxiety medicine. Under a new Maryland law, gun buyers will have to be fingerprinted and licensed. The new Connecticut law now bans magazines over 10 rounds and outlaws the ownership of a variety of semi-automatic rifles such as the AR-15. The argument is that government simply wants to keep guns out of the hands of dangerous people. Of course that all hinges on who gets to decide who is “dangerous”… Remember, it wasn’t very long ago when Homeland Security suggested that “disgruntled war veterans” or “those that are mainly antigovernment, rejecting federal authority in favor of state or local authority” might be terrorist threats. No doubt 2nd Amendment advocates and small government Tea Party types are not far behind in being added to that list…

Of course this slippery slope history is exactly why conservatives advocate small, limited government. Government power is rapacious, arbitrary and virtually unstoppable once it gets started. Both conservatives and liberals recognize this. The difference is conservatives fear it while liberals count on it. Think about that the next time a liberal seeks brush aside your concerns by claiming “Your slippery slope argument is fallacious”.

Do we really want to redefine marriage?

States across the country are in the midst of debating the idea of changing the definition of marriage as a union between one man and one woman. Five states have legalized the practice through legislative or judicial action, but despite thirty-one attempts, not a single time has a majority of citizens of a state approved such a change. Not that this is an argument for majority rule. It’s not. Every state has a republican form of government and should be governed by the rule of law rather than man. Nonetheless, at some point government is accountable to the people and constitutional change is often how citizens make their feelings felt. Thirty states, including California, have amended their constitutions to explicitly state that marriage is to be considered between one man and one woman. This week a federal judge in San Francisco threw much of that into the air. Ted Olson argued that the court is merely protecting the right to marriage, a right the court has addressed 14 times since 1888. I have to disagree with Mr. Olson and Judge Walker. This is not just like Loving v. Virginia, which did away with barriers to interracial marriage. Race is not sex. This is not opening up marriage to just another group who had been arbitrarily excluded. Men and woman are fundamentally different and marriage has always been understood to be a union between a man and a woman, not just two people.

If we step away from thousands of years of western tradition, if we take that first step in changing the definition from one man and one woman, where does that road lead? Where do we stop? It’s the slippery slope problem. Sure, today we are arguing about two people of the same sex, but why could we not just as easily argue for one man and two women or three men or three women? Could we not use the same rationale to allow a salesman who lives in Miami but works in Charlotte to have a wife and children in Florida and another family in North Carolina? And what if his Charlotte wife wanted to have a second husband from across town for the weekends when her salesman husband is down in Florida? Who says a person can’t be committed to two different people simultaneously? In 1887 Utah was forced to outlaw polygamy as the price of admission into the United States because it was understood that marriage was between one man and one woman. Will the state now have the opportunity to amend its constitution to bring back the practice? Once we change the definition the permutations could be endless. What about children? It was not so long ago that the marriage of children for political or dowry reasons was not uncommon. Do we want to go back there and allow 12 & 13 year old children to be married and traded for family favors or for “love”? Is not the age of consent arbitrary?

One might argue that much of the history of marriage had to do with the biological necessity of a heterosexual union for procreation purposes. Because science has now made an actual heterosexual union unnecessary for procreation is that sufficient grounds to abandon the principal in the first place? Scientists have been telling us for years that at some point computers will be smarter than humans. Today there is even a report about a robot that expresses and detects emotions. Make that into an anatomically correct robot and we could have relationships without human partners, male or female. Should those unions then be granted marriage status as well?

For 2,500 years western civilization has been anchored around the notion that marriage was understood to be between one man and one woman. While the form of government may have varied from democracy to republic to empire to monarchy to constitutional democracy to our own constitutional republic, marriage between one man and one woman has always been understood to be at the core of that society. The legitimacy of the government itself was sometimes explicitly based upon blood and marriage, and in all cases the institution of marriage and family was understood to be at the foundation of the society. The Catholic church lost England over marriage it was so important. Although mistresses, prostitutes and divorces have often betrayed the failure of the institution on an individual level, marriage nonetheless always remained the cultural norm and ideal.

We’re often told that there was a great homosexual tradition in ancient Rome and Greece. Pederasty may have been common in Greece and homosexuality an open secret in Rome, but in both the traditional understanding of a one man one woman marriage held sway. When Christianity induced Roman Emperors Constantius II and Constans to ban homosexual marriage, they were simply codifying what had largely existed in practice since the beginning of Rome. (Although Nero is said to have married both men and women, for the marriages where Nero played the woman, he was mocked… to the extent one could mock the Emperor in Rome. On the occasion that Nero was the bridegroom he had his slave Sporos castrated so that he could play the role of bride.) In no western country had homosexual marriage ever enjoyed countenance on equal footing with heterosexual marriage until the Netherlands legalized gay marriage in 2000.

Opposition to gay marriage should not be construed to suggest that homosexual couples should be second class citizens. On the contrary. They should have the same freedom to share in the blessings of liberty as any other citizens. Many states have approved civil unions that provide same sex couples with the same benefits and opportunities that married couples enjoy. As for the federal government and the marriage penalty, they should get out of the income tax business and implement the FairTax. For years the notion of same sex partners not being allowed into hospital rooms or not being allowed to be on one another’s insurance policy were the issues at the vanguard of the gay rights movement. Typically civil union legislation has wiped away such concerns and in many cases legislation has turned civil unions into marriage in everything but name only.

Fundamentally once you get past the issue of financial benefits and contracts, you’re left with the sheen of language. The simple question is, does the idea of, the ideal of marriage have any value to the culture as a whole? Does our government have a vested interest in promoting the ideal of the traditional nuclear family? Europe provides a stunning example of what happens when marriage ceases to be a central focus of the society. For forty years, from Italy to the UK to Portugal to Germany the experience has been very much the same. As marriage and family became less important, less of a priority, one by one the countries have become basket cases. Marriage rates are down by half across the continent. (Even amongst that greatly reduced number, a UK study recently found that in places 3 out of 4 marriages were shams for the specific purpose of staying in the country.) Divorce rates are up. Birth rates amongst native Europeans has fallen far below the replacement rate. What births they are experiencing are increasingly being had out of wedlock and more and more frequently the state is responsible for providing the basic support for those children. More and more the family is becoming irrelevant as everybody becomes a ward of the state.

Across the continent countries are losing their identities as the only growth they are experiencing comes from immigrants largely from countries that do not share the same core, fundamental, traditional western values. As a result Europe is facing tremendous challenges. Greece is burning as the socialist state can not support itself. France faces constant uprisings from youths who have spent their lives in France but feel no loyalty to the country or its culture. England is seeing growing pockets of immigrants demanding that they no longer be subject to British law but instead to Sharia. These problems start with the divorce of the state from its culture, and marriage between a man and a woman has been one of the core elements of western culture for more than two millennia.

As has so often happened over the last 200 years, the United States is where the west’s future is written... twice America was the last man standing who helped pull it back from the brink of hell. The question is, are we going to be pulled further into the European morass of cultural ambiguity where all ideals are equal, where no institutions survive an aggrieved minority and the state has no role in maintaining the nation? Or are we going to recognize that the ideal of marriage between a man and a woman, while imperfect in execution, is one of those fundamental ideas that ties us to our history, our culture and has helped shape the world we live in? If the answer is the latter, is it not worth preserving?