Oregon Judge Attacks Free Speech in Wake of Obergefell

BakeTheCakeIn the wake of Obergefell, the outrageous U.S. Supreme Court decision finding that the traditional definition of marriage violates “due process,” Americans need to turn their attention to the dangers of overly broad state public accommodation laws. Christian business owners are especially burdened when individuals seeking to exercise a new “right” are deemed “suspect classes” and are thus entitled to heightened legal protection that appears to trump the First Amendment.

For example, Breitbart reports that Christian bakery owners in Oregon have just been hit with a gag order prohibiting them publishing any material indicating a refusal to bake cakes for same-sex weddings. Their speech is silenced contrary to the Bill of Rights. The bakers were also ordered to pay a gay couple $135,000 for mental anguish caused by the refusal to bake the cake. The Daily Caller has this article on the judge’s ruling.

Oregon law is a good example of the dangers to First-Amendment freedoms posed by state public accommodations laws.

Under Oregon’s statute “all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.”

The statute broadly defines a place of public accommodation as “Any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise.”

These statutes, rather than promoting freedom, serve to burden Christians and go far beyond the common law. Under the common law, the concept of public accommodation was circumscribed. The common law imposed a duty to serve all comers on businesses providing essential goods and services to travelers. This rule developed in light of circumstances where travel posed myriad dangers. A traveler denied access to an inn would be at the mercy of the elements, robbers, and hunger. Inns were havens, and usually the only available haven, where someone on a journey could obtain refreshment and shelter. Similarly, common carriers such as railroad companies usually enjoyed a monopoly on transportation services. If the carrier refused to sell a ticket to a traveler, then the wayfarer would be stranded and subject to many of the same indignities as a person denied access to the inn. Consequently, common carriers were cloaked with the public interest and were prohibited from discriminating.

The common law’s constraints on inn keepers and common carriers made sense. Travelers had nowhere else to turn for safety or passage. Hence, these few businesses cloaked with the public interest had to provide services to all. Early state and federal accommodation laws expanded the idea of the public’s interest, and specifically addressed the situation of the freedmen. In 1964, Title II of the federal Civil Rights Act did not stray far from its forerunners in the 1860s and 70s, and much like the old common law focused on businesses relating to interstate travel and restaurants.

But today under the law of many states, there is no limitation on what is a public accommodation. Every business finds itself in the position of the inn keeper of yesteryear. Moreover, the list of suspect classifications continues to expand. While the legislators were probably well meaning in enacting these broad statutes, the Oregon ruling and its statute should cause us to rethink the wisdom of labeling every business as a public accommodation. Actually, the First Amendment and common sense require that we do rethink these laws.

What Happened to the Midwives? (Hint: Government)

newbornIt seems like every time I log on to one of my social media accounts, someone is announcing a pregnancy or birth. Perhaps this is why I’ve recently written on the supposed “gender-wage gap” and mandated paid maternity leave.

One thing that keeps popping up among my pregnant friends is the question of whether to have a midwife deliver their baby at home or in a birth center, or seek the medical care of a doctor in a hospital when the time comes to deliver their little ones. For most of my friends, the choice is a doctor. For a few, however, the choice is midwife or bust.

My friend group appears to follow the typical statistics for birth in the United States. Of the approximately 4 million babies born annually in the U.S. (holy procreation, Batman!), about 99 percent of them take place in hospitals. The other one percent of births, however, occur outside of the hospital. While cases documented by TV shows like TLC’s “I Didn’t Know I was Pregnant” account for some of these births (yes, this is a real thing, and no, I don’t know how this happens either), many of these “more primitive” births are completely intentional. In fact, one recently launched TV show titled, “Born in the Wild,” documents women who choose to give birth to their children out in the woods.

This got me thinking. One percent of 4 million isn’t trivial—it’s still 40,000 babies annually. What’s more interesting is that this number used to be much higher—and not that long ago. In fact, Jimmy Carter was first U.S. President to be born in a hospital. In 1900, nearly all births occurred outside a hospital according to the Centers for Disease Control and Prevention. By 1970, the number of out-of-hospital births had fallen to one percent.


Why Frédéric Bastiat Still Matters

the_law_140Yesterday marked the 214th anniversary of Frédéric Bastiat’s birthday on June 30, 1801, in Bayonne, France. One of the seminal thinkers of the classical liberal tradition, Bastiat made great contributions to the field of political economy, laying many of the foundations for the later school of Austrian economics. Both a politician and a writer, Bastiat penned numerous books and essays on political economy and how its principles could be applied to mid-19th century France, writing with his razor-sharp wit and renowned rhetorical flair. While his works pertain to post-Napoleonic France, they carry important lessons for our nation’s leaders, politicians, and economists.

One of Bastiat’s most important lessons appears in That Which is Seen, and That Which is Not Seen, where Bastiat applied his careful method of logical procession to economic questions. In this work, he examines the same topics that are commonly misunderstood by contemporary politicians: military spending, taxes, the economic benefits of saving, and mechanization, among others. In each examination, he demonstrates that the economist or policy maker must look beyond the apparent to understand the true effects of a policy, showing in every case that the arguments for government intervention are inherently flawed. If one were to apply this method to the argument for raising the minimum wage to $15, for example, one would see that the unseen effects, the firing of low-skill workers and increased prices, are damaging. It is this logical method that informed many in the Austrian school of thought and formed the foundation of Henry Hazlitt’s seminal Economics in One Lesson, which is a more thorough investigation of Bastiat’s principle.


Justices Breyer and Ginsburg Would Hold the Death Penalty Unconstitutional

DeathPenaltyToday, the Supreme Court in an ongoing effort to micromanage state laws and procedures reviewed whether a certain chemical cocktail used by Oklahoma in executions is constitutional. In a 5-4 decision, the Court rejected the challenge to the use of the chemical midazolam.

What is especially of interest is a dissenting opinion in which two justices (Breyer and Ginsburg) stated that they would hold that the death penalty is unconstitutional as cruel and unusual punishment prohibited by the Eighth Amendment. Never mind that the Fifth Amendment provides that “[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life . . . without due process of law.” In other words, the Constitution specifically contemplates a punishment—the death penalty—that two justices would hold is inherently unconstitutional.


41 Percent of Obamacare Silver Plans Have ‘Small’ or ‘Extra Small’ Networks

DoctorObamaI spent the weekend in Denver at the excellent Western Conservative Summit, where I spoke about health reform with Philip Klein of the Washington Examiner. Mr. Klein has written Overcoming Obamacare, in which he describes three schools of free-market reformers: The “reform school,” the “replace school,” and the “restart school.” (I belong to the “replace school.”) The panel was moderated by Dr. Jill Vecchio, a radiologist and Senior Fellow in Health Care Policy at the Centennial Institute.


Should Gone with the Wind Be Banned?

GoneWithTheWindTragic events provide platforms for political opportunists—remember we can’t let a good crisis go to waste—and the mass shooting of African Americans by a white racist at a Charleston, S.C., church has created a plethora of opportunities. The one on my radar screen today is New York film critic Lou Lumenick’s argument for banning the Academy Awardwinning film Gone with the Wind. It’s a great reminder of why we don’t want film critics in charge of social policy.

Lumenick notes, accurately, that the film, based “on a best seller by die-hard Southerner Margaret Mitchell, ‘Gone with the Wind’ buys heavily into the idea that the Civil War was a noble lost cause and casts Yankees and Yankee sympathizers as the villains, both during the war and during Reconstruction.” Lumenick also says that the movie, and the Confederate flag, represents slavery and a defense of slavery.


When Thinking about Obergefell We Must Distinguish between Policy and Law

LadyJusticeAmong the friends of liberty, there is much confusion about whether the Supreme Court’s Obergefell opinion is a vindication of liberty or an usurpation of power. When thinking about the opinion we should be aware of two different modes of analysis: policymaker and judge. How we see Obergefell depends on which mode we have switched on. Let me explain.

I was an undergraduate when I first encountered the case of Lochner v. New York, 198 U.S. 405 (1905). Lochner dealt with a New York statute prohibiting bakers from working more than 60 hours per week and/or 10 hours per day. The state argued that the statute was a simple exercise of the police power—the reserved power to pass general legislation for the health, safety, and welfare of the people. The Supreme Court, however, held that the statute deprived bakers of liberty without due process of law contrary to the Fourteenth Amendment. Asserting that bakers were not “wards of the state,” the Court found “no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor, in the occupation of baker.”


Libertarians Should Be Cautious in Celebrating Obergefell

SCOTUSTo no one’s surprise, five justices of the U.S. Supreme Court held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.” The full opinion is here.

For example, Robby Soave over at Reason blasts the dissent from Justice Scalia and observes that he is no friend to libertarians. Also, Ilya Shapiro at the Cato Institute gives a thumbs up to the Court’s decision. Undoubtedly many readers of this blog share these sentiments and cheer today that homosexual couples can marry just like opposite-sex couples. However, before you get caught up in celebrating this “victory” for liberty, think about several things.


Health Spending as a Share of Personal Consumption Keeps Rising

health_costsWhere is your money going? Increasingly, the answer is health care. This morning’s third estimate of first quarter Gross Domestic Product (GDP) was not as awful as previously estimated – a real decline of 0.2 percent, not 0.7 percent.

The overall drop of $7 billion was driven by a decline in exports and nonresidential structures. Personal consumption expenditures increased by $58.3 billion. However, $48.1 billion of that was services, of which $24.2 billion was health care. Almost half the quarterly increase in personal consumption was health care.


The War of Ideas

battle of ideasWriting popular press pieces, you open yourself up to a lot of criticism. If you write about economic topics, you might as well be waving a red flag in front of a bunch of Spanish bulls. Without a doubt, I’ve received my fair share of critical commentary, been accused of pushing all kinds of agendas and being the worst of both political parties. Some comments, though, are pretty creative. Some of my personal favorites include,

“The author probably isn’t smart enough to tie her shoes.”

“The author is clearly a socialist.” (I was writing a piece which, in fact, was highly critical of socialism.)

“Someone forgot her meds this morning.”

I am not alone in my experience. Though these types of comments are often worthy of a smirk or occasional chuckle, some aren’t as amusing. I was once discussing reactions to popular pieces with another colleague who writes a regular column for a popular outlet. He stated that most comments don’t bother him. The exception was one commenter who, in responding to a policy piece, stated he hoped my colleague’s wife and children would die in a car wreck.


  • MyGovCost.org
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