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BY: Richard A. Epstein | Hoover Institution
Last month, Judge Carlton W. Reeves of the Northern District of Mississippi handed down an extraordinarily misguided decision in Barber v. Bryant by issuing a preliminary injunction against House Bill 1523, Mississippi’s newly passed religious liberty law, just minutes before it was to go into effect. The court found that House Bill 1523 likely denied the plaintiffs—a diverse group of supporters of same-sex marriage—their rights under Fourteenth Amendment’s Equal Protection Clause, and, furthermore, established preferred religious beliefs, violating the First Amendment’s Establishment Clause. Phil Bryant, the governor of Mississippi, has filed papers in the Court of Appeals to dissolve that temporary injunction. State Attorney General Jim Hood has declined to join in that defense of the Mississippi law. As someone who gave some brief advice and encouragement to Mississippi’s appellate lawyers, I think that their motion should be granted, given the major points of principle that it raises.
To put matters in context, HB 1523 was the latest effort to provide explicit protection of religious liberty and moral conscience for those individuals who are opposed to same-sex marriage. At no point does the legislation limit the right of any person to participate in a same-sex marriage, which would be an obvious nonstarter given Obergefell v. Hodges, a highly dubious Supreme Court decision, which held that the Equal Protection Clause of the Fourteenth Amendment guaranteed that right to all persons. House Bill 1523 does not seek to dislodge or compromise that decision. Indeed, it would have been dead on arrival if it had attempted any such maneuver. But as is often the case, no one quite understands the scope of a particular constitutional right until its correlative duties are accurately specified.
The correct reading of Obergefell comes in two parts. First, no private person can seek to block the performance of a same-sex marriage. Second, some public official must be prepared to solemnize those marriages, so that they have the full force and effect as traditional marriages. What the decision in Obergefell did not do, and indeed disclaimed, was the notion that people who are opposed to same-sex marriages had to participate in their validation. Even public officials can escape that duty under House Bill 1523 so long as alternative arrangements are made to ensure that “the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.” House Bill 1523 thus represents the kind of sensible accommodation that has long been the hallmark of religious liberty.
The explanation for this distinction is not hard to find. When any state bans same-sex marriage, it is using its monopoly power to block the consensual activities of private persons. They have no place else to go once that ban is in effect. The two conditions above neutralize that blocking power. But that mission is fully accomplished without conscripting other individuals to participate in these relationships, or indeed any other arrangements. The correlative duty commanded by Obergefell is noninterference; it is not support, participation, or approval. The Mississippi statute tries to cement that understanding into law by enacting three related provisions.
First, House Bill 1523 protects only those individuals with “sincerely held religious beliefs or moral conviction” that marriage is properly confined to one man and one woman, that sexual relationships should be limited to such marriages, and that the terms male and female refer to “an individual’s immutable biological sex as objectively determined by anatomy and genetics.” The protection applies to participation in religious services, but also to all employment-related and housing activities subject to the same caveat. The wording was chosen in part to make it clear that no explicit preferences were given to religious persons or groups on this score, in order to forestall the charge of favoritism. But there is little doubt that the religious element was the primary motivation for the provision.
Judge Reeves struck down the Mississippi statute because he did not grasp the fundamental distinction between forcing others to yield to your beliefs and just asking to be left alone. His confusion is evident from his opening salvo that quotes the Supreme Court in Epperson v. Arkansas (1968) as saying that the Establishment Clause of the First Amendment means that the state “may not aid, foster, or promote one religion or religious theory against another.” He then uses McCreary County v. American Civil Liberties Union (2005) to argue that it violates the Establishment Clause—“Congress shall make no law respecting an establishment of religion”—“when the government acts with the ostensible and predominant purpose of advancing religion.”
At no point, however, does Judge Reeves attempt to put either of these broad generalities into context. And context matters. The words in Epperson were directed to an Arkansas law that prohibited the teaching of evolution in public schools—a clear instance of a state-compelled law that binds all persons inside the legal system. No one could describe this as a situation in which private parties sought to run their own lives and businesses free of government interference. Similarly, McCreary County struck down two county resolutions that announced that the Ten Commandments were Kentucky’s “precedent legal code,” and authorized extensive religious exhibits on public property intended to extol its virtues. There is no similar commitment of public resources in House Bill 1523. It is practically legal malpractice to rip out of context words that were rightly intended to knock down state coercion for religion and the state subsidy of religion while invalidating a statute whose whole purpose was to insulate private parties from any form of public coercion.
One irony in this case is that Judge Reeves noted, with apparent approval, that Mississippi had passed its own Religious Freedom Restoration Act. Mississippi’s law, in line with the federal version, provides that the state may not substantially burden a person’s exercise of religion, unless it does so to further a compelling governmental issue by the narrowest form possible. This law has a broader scope than House Bill 1523, but its protection is not absolute, although it may be when these two conditions are satisfied. When the original federal statute was passed in 1993, the phrase “compelling state interest” had a reasonably clear meaning, according to which some powerful necessity had to be demonstrated to override the original constitutional right. The Mississippi statute refers to “a government interest of the highest magnitude.” Traditionally, this language meant that the state could curb religious freedom in order to prevent riots in public places. But in line with the general jurisprudence of the time, such instances were few and far between.
Not any more, one can at least argue. More concretely, the argument has been commonly made that the elimination of discrimination in all areas of American life counts as a compelling state interest, of course of the highest magnitude. Just that argument was put forward successfully in Elane’s Photography v. Willock (2014), where the New Mexico Supreme Court held that its state’s Human Rights Act prevented all private discrimination on grounds of sexual orientation. Thus when Elane’s refused to photograph a commitment ceremony for a lesbian couple, at a time when same-sex marriage was not legal in New Mexico, its appeal to the First Amendment protections of religion and speech fell on deaf judicial ears, in a case that the United States Supreme Court denied certiorari. It is therefore reasonable for the defenders of religious liberty to think that the potential evisceration of RFRA required the sterner protection of House Bill 1523.
In this case, they are right. Because there is only this narrow focus on religious and moral convictions, it is virtually impossible to think of any situation where the exercise of that right would in fact cause actionable dislocations to other people. The word “actionable” has to be inserted because otherwise any distaste for the actions of others, e.g. flag burning, becomes a harm that must be put into the scales, which means that every refusal to deal necessarily hurts the individuals who were rejected and their sympathizers.
Nonetheless, this overbroad account of harm resonated with Judge Reeves, who noted that the various plaintiffs could suffer some irreparable harm if the injunction in question were delayed. But at this point, a cold look at the relative tradeoffs explains why these alleged harms should be disregarded. On the one side, the targeted individuals may face the choice of having to go out of business to protect their religious or moral conscience. This is no better than the choice between your money and your life. But just what is the harm on the other side? There are thousands of employers and landlords, and dozens of vendors that are eager to cater to the interests of gay and lesbian couples. Indeed, it is highly unlikely that they would (as is their right) hire a photographer or caterer who was unsympathetic to their views. So how do individuals with many choices suffer from irreparable harm when persons who have no choice do not? The point should be as clear to the opponents of religious liberty as to its defenders.
Given this current impasse, it is critical to rethink the basic legal rules on private discrimination that set the stage for Barber v. Bryant. House Bill 1523 was drafted in ways in which the right to refuse service was tied to religious and moral convictions. Otherwise, a broader right would run into a collision course with one of the most venerable parts of the Civil Rights Act of 1964, the public accommodation provisions embodied in Title II. Historically, Title II had two potent justifications. The first is that it was a necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today. The other justification was that the traditional common law view—still good today—that any common carrier or public utility, by virtue of holding a monopoly position, was duty-bound to take all customers on reasonable and nondiscriminatory terms. When ordinary people have no where else to go for power, water, or transportation, they are entitled to get these services at reasonable rates. The rule covered all cases of racial discrimination, but it was not limited to it.
The implicit drawback of this position was that there was no duty to serve anyone in a competitive industry, precisely because disappointed customers had a full range of alternatives to which they could turn. The common law rightly held that refusals to deal in competitive industries counted as basic liberties. In the progressive run-up to the New Deal, the argument was put forward that every refusal to deal in economic matters was an exercise of coercion—the kind of coercion that the state had a compelling interest to stop. That misguided view marked the end of economic liberties in all cases, and led to the passage of laws like the 1935 National Labor Relations Act, which forced collective bargaining in otherwise competitive industries.
The battle over religious liberties is a novel extension of the older war in one of the few bastions of individual liberty. Until recently, the older view on religious liberties exempted private religious beliefs from this hopelessly broad definition of coercion. But with the new progressive resurgence, that protected liberty shrinks while the domain of government power expands. It is a genuine intellectual tragedy that the people who speak on behalf of religious liberties—including the plaintiffs in Barber, many of whom represent gay, lesbian, and transgender people—can be so alert to their own claims of personal liberty, and yet so insensitive and indifferent to the claims of others.
Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. Epstein researches and writes in a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporation criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation.
BY: Jerel Wade
National tragedies have a way of bringing life into perspective.
With the recent shootings of five law enforcement officers in Dallas, Texas, many people are asking questions about where we are as a human race. We turn to our governmental leaders for answers. We want to hear from the president, as if he is in the position of righting all that is wrong in America. We want to hear from Congress and our state legislators, as if they should have seen this coming and acted preemptively.
Dallas Police Chief David Brown made an astounding statement that has hit home with me. He said, “We’re asking cops to do too much in this country. We are. Every societal failure, we put it off on the cops to solve. Not enough mental health funding, let the cops handle it. Here in Dallas we got a loose dog problem; let’s have the cops chase loose dogs. Schools fail, let’s give it to the cops. That’s too much to ask. Policing was never meant to solve all those problems.”
Ironically, that is exactly how I have felt for a long time about public schools. There seems to be a program to solve any problem through the public educational system. Here in Mississippi, nearly every state agency has an office, bureau, program or project that can be implemented as part of the curriculum in public schools. Many state associations also create materials to be used by teachers in the schools to either address a deficiency in the public understanding of their industry or to promote their industry among the students.
Why do so many look to governmental agencies to solve society’s problems? Just as Chief Brown said about policing, schools were never meant to solve all of these problems. Yet, that seems to be the only place that is ever looked to to make an impact on man’s downfalls.
This has been going on for far too long. In the mid-1960s, President Lyndon Johnson launched his “War on Poverty.” His goal was to increase self-sufficiency and enable recipients of welfare benefits to have the opportunity to lift themselves out of their circumstances. Over time, this system has grown into an ever-increasing benefits program that seeks out more and more beneficiaries.
Since its inception, the United States has spent nearly $20 trillion on welfare programs without making an impact on the self-sufficiency of the masses. This is an amount virtually equal to our national debt. The problem is that, although many welfare beneficiaries have material living conditions that far outweigh those from when the programs started, dependency on those programs has grown dramatically. Defining poverty has changed over the years to include many who once would have been excluded because their economic situation was not severe.
In other words, as the conditions of those receiving benefits has gotten better, the dependency on governmental assistance has grown. People are becoming more and more comfortable with their “poverty.” And, that dependency is passed along to the next generation. A 2002 study by the University of California, Davis, found that a woman from a family who receive some type of welfare benefits was three times more likely to receive welfare benefits as an adult. A vicious cycle is started that is either broken during childhood as a student attends school, or society will expect law enforcement to handle should the need arise. Regardless, government is looked upon to solve society’s problems.
This whole process incentivizes dependency, in one form or another, at the expense of taxpayers. Often, the material well-being of families on government assistance is greater than families who refuse a handout and work hard to provide for one another.
In today’s world with today’s rules, sometimes it doesn’t pay to work hard. A recent study by the Heritage Foundation finds that the average poor family has one adult that works 16 hours each week. It would seem logical that working a full time job and increasing household income would help pull a family out of poverty. But, the loss of benefits by working is greater than the gain of the increased income. Government has disincentivized working.
Once work is devalued, the education needed to obtain gainful employment is also devalued, making the task of educating some students from families living in poverty far more difficult. If there is no need to learn reading, writing, and math skills then there is a lack of desire to learn. This concept is not specifically taught to younger generations but is observed for many years by children prior to them being required to attend school. These students often fall behind, are placed in alternative learning environments, or simply quit school all together.
The federal government measures poverty by the number of people living below a certain income threshold. This determination only accounts for the wages and income earned by individuals in the household. It does not account for the more than $800 billion in food, housing, cash, medical, and other benefits. It is entirely possible for a family to have a low earned household income but, with the added benefits from the varying welfare programs, have better material living conditions than a family with parents working full time and receiving no benefits.
Food stamp spending has increase from $19.8 billion in 2000 to $84.6 billion in 2011. In fiscal year 2011, over $900 billion was spent on nearly 80 federal welfare programs reaching more than 100 million people. That is enough to bring the annual income level of a family of four in the poorest one-third of the nation to $44,000. This doesn’t take into account the state-level spending.
These programs are not only detrimental to education, they decimate the family structure. The most effective way to combat childhood poverty is with a strong, two-parent family structure. There is an overwhelming correlation between unwed childbirth and dependence on welfare programs through poverty.
Yet, the introduction of another adult into the household, even working part-time, changes the income level and adversely affects the benefits received. For those below the poverty level, it is financially better to raise a family with a single parent than with two parents, further damaging the social, emotional, and psychological development of children and perpetuating the cycle of governmental dependency.
Chris Kieffer of the Daily Journal wrote that in 1964, slightly more than 14% of babies born in Mississippi were born out of wedlock. This was near the beginning of President Johnson’s “War on Poverty.” By 1980, that number had risen to 28%, by 2000 it was 46%, and in 2011, more than 54% of all babies born in Mississippi were born to mothers who were not married. The correlation between increased welfare programs over the last 50-plus years and the destruction of the basic family structure is mind blowing.
Rev. Chris Traylor of the Lee County NAACP said, “Family is a major problem in our society. We are thinking we can just go and perform in fornication acts and it is OK, and it is not. When a kid never hears the value of family, they don’t think it is important.”
These children are at a higher risk of dropping out of school, becoming teen parents, and living in poverty as adults. The normalization of these problems has led to its perpetuation. And, the negative impacts are felt in every area of society.
It is no secret that, generally speaking, the higher the poverty rate in a school district the lower the overall achievement for that district. The converse is true, as well. For example, eight of the ten poorest counties in Mississippi have school-level ratings of D. Yet, nine of the ten least poor districts have either an A or B rating. Poverty has an adverse effect on education, which in turn has an adverse effect on economics and society.
More than one-third of Mississippi’s children are living in poverty. And the problem is being perpetuated by a government that incentivizes its continuation.
There is no doubt that we expect students in poverty to perform lower academically as a group. We anticipate discipline problems and higher rates of failure. The government even incentivizes schools to identify these students and give them a label. Schools then reap the monetary rewards by way of grants to help these students succeed. Yet, far too often the reward is based on documenting that a problem exists and having a plan on paper rather than actually having results that show a solution.
There is a desire and monetary incentives for public schools to correct the problems that aren’t caused by a breakdown of the educational system. There are schools that develop alternate settings for some students, offer after-school tutoring, seek to work with churches and community organizations, provide afternoon activities to keep students engaged for as much of the day as possible. While these are noble efforts by well-meaning educators and community members, they only treat the symptoms and not the problem. The costs of these programs can run into the hundreds of thousands of dollars for a district without providing a long term shift in the poverty level of the district.
Ron Nurnberg of Teach for America-Mississippi, stated, “To me it ultimately one way or the other falls to the school’s personnel to solve because it lands on their doorstep.” This statement is problematic. As an educator, I should not be held responsible for fixing a problem that was created outside of my area of influence and expertise, and one that is incentivized to stay as is rather than be solved. It’s like beating my head against a brick wall.
When will this madness stop? We have real problems in America and we keep thinking the solution is to throw more government money and more government programs at them. We cannot separate these issues into small, finite boxes and solve one at the time. They are mutually inclusive, intertwined, and a change in one area affects another. We must build a case for personal responsibility. Sharing one another’s burdens was never intended to be done by force of law or by taking from one unwillingly and giving to another. We cannot continue to take from those who work hard and give to those who are incentivized to live, and live relatively well, off of governmental assistance.
Sure, there are anecdotal cases of individuals lifting themselves out of these situations. I am one of them. I know what it is like to use food stamps, eat government commodities, and struggle with family finances. But, my parents never used that as a crutch. They never sought that as a way of life. My siblings and I never saw that as a means to an end. My parents used the system for assistance, not sustenance.
Policing will be much easier; education will be much more successful when we have a government that values hard work, individual responsibility, the family, and learning. Continually relying on government to solve society’s problems, and incentivizing the perpetuation of societal degradation, will only lead to the continued collapse of our great state and great country.
Jerel Wade is an educator and small business owner from Jones County, MS. He can be reached at email@example.com.
Its memorandum of understanding with the Mississippi Development Authority, city of Hattiesburg and Forrest County, which was amended in November, was obtained by the Mississippi Business Journal under an Open Records Act request.
The maker of solar panels agreed in March 2011 to create 1,000 jobs by the end of 2017. Now it will have to create at least 500 jobs paying an average of $43,000 by the end of 2022.
The Mississippi Department of Education is preparing to release the first school rankings under the newest version of the state’s accountability model within the next few weeks and school districts across the state are expected to see lower rankings even as student performance continues to rise.
Booneville School District Superintendent Dr. Todd English, who serves as chairman of the department of education’s accountability task force, said parents and community members need to understand the upcoming ratings are based on criteria far different and more difficult than that used in the past.
“You simply can’t compare this scale to the old scale,” he said.
While retaining the well-known A-F designations, the requirements for achieving those rankings have been made much more rigorous and are now based on different sets of data. English said it’s’s expected less than 1 percent of districts across the state will receive an A rating and less than 10 percent a B rating when the results are issued.
“They’ve reset the bar and they’ve reset the bar so high it’s going to take several years to get back to where we used to be,” said English.
The new system puts less emphasis on the performance of individual students and much more focus on the lowest performing students and the progress students are making.