Internet Scofflaw

The Supreme Court ruled against the EPA today, finding that the EPA must take cost into account when deciding whether to regulate power plants. But don’t be too excited. (Or, if you favor regulating coal-fired power plants out of existence, don’t be too disappointed.) The Court leaves up to the EPA how to account for cost, so the EPA will simply come up with an accounting scheme that will justify doing the exact same thing.

The main benefit of this is to delay the regulations, perhaps long enough to elect a new president. But I wouldn’t even count on that. Rather than restarting the process from scratch, I expect that the EPA will try to rush through a new “appropriate and necessary” finding, and then use the same regulations it already devised.

So, I saw this cross my Twitter feed:

This gives the impression that Texas is preparing to ignore the Supreme Court ruling. That would be surprising, and in fact, the actual facts are a bit different:

He said his office believed state religious freedom laws would allow clerks to refuse to issue marriage licenses to same-sex couples if they have sincerely held beliefs that prohibit them from doing so, and if there was someone else present – like a deputy – who would be willing to service the couple.

So, it’s not that Texas is going to deny same-sex couples a marriage license. Rather, some government agents empowered to issue licenses might decline to do so, leaving it to others to do so. Paxton went on to say that anyone who tried it should expect to get sued. (That’s for sure!)

This may or may not be legally defensible (I am not a lawyer), but I think it’s wrong. If it’s part of your job to issue marriage licenses, it’s part of your job. If government provides a service, its agents should provide that service to everyone entitled to receive it, without adding additional inconvenience for applicants you’d rather not serve. (ASIDE: This principle is routinely flouted in applications for firearms permits, and that too is an outrage.)

But let’s suppose that Texas really were going whole hog, and simply ignoring the Supreme Court ruling. That would certainly be wrong. It’s also exactly what the Democrats were talking about doing if they lost in King v. Burwell (the Obamacare subsidy case). From the pages of the New York Times:

Luckily the Constitution supplies a contingency plan, even if the administration doesn’t know it yet: If the administration loses in King, it can announce that it is complying with the Supreme Court’s judgment — but only with respect to the four plaintiffs who brought the suit.

This announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it. The administration would simply be refusing to extend the Supreme Court’s reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue.

The whole matter became moot when they won the case, but back when they looked likely to lose, this scheme was the talk of the town. We certainly never saw anyone from the White House rule it out.

The analogous scheme regarding Obergefell would have been to issue marriage licenses to the 14 plaintiffs, but otherwise ignore it. I trust that progressives have no trouble seeing that such a response would be lawless and wrong. But that’s exactly what they wanted to do prop up Obamacare.

For some time, the ACLU has been lukewarm at best toward religious freedom, but now they have officially come out against it:

The ACLU supported the RFRA’s passage at the time because it didn’t believe the Constitution, as newly interpreted by the Supreme Court, would protect people such as Iknoor Singh, whose religious expression does not harm anyone else. But we can no longer support the law in its current form. For more than 15 years, we have been concerned about how the RFRA could be used to discriminate against others.

It’s useful to start by looking at what the 1993 Religious Freedom Restoration Act actually says. The key provision says:

(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

This means that “strict scrutiny” (the standard used for freedom of speech) applies in all religious freedom cases. This was the precedent until 1990, when the Supreme Court ruled the government could burden religious freedom pretty much as much as it wanted, provided that the law applied to everyone equally. Thus, for example, the government could ban circumcision — a key ritual for Jews for thousands of years — provided the ban applied to everyone equally. (Alas, this example is not entirely hypothetical.) The RFRA sought to restore the old standard; it passed almost unanimously and was signed by President Clinton. (The Supreme Court later narrowed it to federal cases only, which is what occasioned many states to pass their own RFRAs.)

So if you say you are against the RFRA, you need to say what you think should change. You have three possibilities: (1) the government should be able to burden religion without a compelling government interest, (2) the government should be able to burden religion more than necessary, or (3) both. So which is it, ACLU?

Okay, but what about discrimination? The ACLU opines:

In the states, legislators, governors and businesses are citing state religious freedom restoration acts to justify all manner of discrimination against gay men and lesbians, including at commercial establishments.

Okay, perhaps they have been citing it, but how many of them have been successful? I believe the answer is zero. (Indeed, hardly any have even gone to court.) The reason is that ending discrimination has been found to be a compelling government interest, and prohibiting it is arguably the least restrictive way of ensuring it doesn’t happen. (ASIDE: As a libertarian, I think that all virtually exchanges should be voluntary. But we’re talking here about what the law is.)

Is the ACLU conceding that ending discrimination is not a compelling government interest? That would be a surprise. And if not, what are they saying? They don’t say; in fact, they say nothing about the actual content of the law at all.

I think the whole discrimination thing is a smokescreen. This is what it’s all really about:

In the Hobby Lobby case last year, a Supreme Court majority blessed the use of the RFRA by businesses to deny employees insurance coverage for contraception, a benefit guaranteed by law, if those businesses object on religious grounds and there is some other means of furthering the government’s interests.

Yes, it did. The Obama administration (not the Congress, mind you, just the HHS department) sought to force Christian employers to violate their beliefs by paying for abortion drugs. This plainly violates strict scrutiny, since the government could easily arrange for employees to have such drugs without requiring the employer to pay for them — for example by the government paying for them itself.

This would be just like the government mandating that all restaurants serve bacon (yum!) — including kosher and halal restaurants.

Except that it’s not Jews or Muslims. It’s not native Americans. It’s not Sikhs. It’s Christians, and I think that’s the point.

The ACLU suddenly realized that it was against religious freedom as soon as it was used by Christians, instead of various religious minorities.

As a libertarian, I’ve long felt that people should be able to form whatever partnerships they want to form, without interference from the government. However, as a constitutionalist, I’ve long felt that that change should be made by the legislative process, not by judicial fiat. In any case, this outcome was so obviously going to happen, I cannot muster much satisfaction or much outrage. I pretty much priced it in long ago.

Ideally, the government should now get out of the marriage business entirely. Let any two (or more) people form whatever relationship they choose, and then let society decide which ones they wish to respect. If not all parts of society make the same decision, that’s fine.

But the progressives are clearly against that outcome. They want everyone to be coerced into respecting same-sex marriages, and indeed into participating in the ceremonies. We’ve already seen bakers threatened with ruinous fines, and we’ve even seen ministers threatened with arrest, for refusing to participate. As the Chief Justice’s dissent observed (p. 28), Obama’s Solicitor General has basically promised to try to revoke the tax exemption of churches that refuse to perform same-sex marriages.

So if there used to be some tension between libertarianism and constitutionalism, there won’t be any going forward.

What happens next? When it comes to social issues, most American opinion always sides against the side they see as the aggressor. Much of America has already decided who they see as the aggressor, but media is key for swinging the middle. Ordinarily, they paint the conservative side as the aggressor, and the progressive side as the victim. They were able to do that for same-sex marriage (“why not let these loving couples get married?”), but it will be much harder when it comes to punishing churches.

POSTSCRIPT: For a particularly bizarre instance of coercion, consider this:  A same-sex couple asked a jeweler to make their custom-made wedding rings. The jeweler, who was personally opposed to same-sex marriage, nevertheless made them the rings. The couple were happy with the outcome. However, when they subsequently discovered that the jeweler opposed same-sex marriage, they demanded a refund! The jeweler, having done exactly the work requested of him, naturally refused to refund the money, but he eventually agreed after heavy pressure on online media was brought to bear. So what exactly is a jeweler supposed to do?

First, Obama decided to ignore the law and admit illegal immigrants by executive order. Second, when a federal judge was examining the order, the Obama administration lied to the judge:

At issue is whether the DOJ misled the judge into believing that a plank of the Obama program — giving deportation reprieves to thousands of young illegal immigrants brought to the U.S. as children — would not go forward before he made a ruling on a request to halt it. In fact, federal officials had given more than 108,000 people three-year reprieves before that date and granted them work permits under the program.

So I guess we shouldn’t really be surprised that, third, the Obama administration kept doing their thing even once the (angry) judge ordered them to stop:

The government “erroneously” doled out about 2,000 expanded immigrant work permit authorizations under President Obama’s controversial executive actions, even after a federal judge blocked the move, the Justice Department says.

“The Government sincerely regrets these circumstances and is taking immediate steps to remedy these erroneous three-year terms,” the Department of Justice wrote in a court advisory filed late Thursday in the Southern District of Texas.

The advisory comes after District Court Judge Andrew Hanen halted the implementation of the executive actions, which defer deportations for immigrants living in the U.S. illegally and provide them with expanded access to work permits, until the courts could decide whether the policies are constitutional.

The Obama administration has nothing but contempt, not only for Congress, but also for the courts. That is, he has nothing but contempt for any branch of the US government other than his own. The Constitution envisions our government as a three-legged stool, but Barack Obama sees it as a pogo stick.