Confusion among the Courts

It has been an interesting week in Alabama. A federal district judge had decided that the state of Alabama was not allowed to keep the definition of marriage it has always had—that it must change from the family forming purpose of permanently joining a man and a woman to a recognition of any two people currently in a sexual relationship. Of course the judge, Callie Grenade, didn’t word it that way. She referred to the unfairness of “banning” homosexuals from marriage, even though Alabama law (nor in any state) prevents homosexuals from marrying the opposite-sex person of their choice. And certainly over the centuries many have.

The judge had recognized that there would be appeals, and also that there was a strong possibility some questions would be settled by the US Supreme Court this term, within the next few months. So she had allowed for a stay of implementing what she declared to be the new law.

But SCOTUS saw fit to take up this issue, quickly, and rule 7-2 that the stay was not allowed, and Alabama must go ahead and start issuing marriage licenses to same-sex couples. (More about the reasoning, and the strong dissent in a moment.)

But Alabama Supreme Court Justice, Roy Moore (the same one who stood up against SCOTUS by refusing to remove the Ten Commandments from his courtroom some years back) instructed Alabama officials not to issue the licenses.[*] He said,

Effective immediately, no probate judge of the state of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.

There are still cases pending. There is reason to assume a state does have the ability to define terms in a standard contract such as marriage. For officials in the state, the question is, do we obey the state supreme court or the federal circuit judge? Hmm. The people of Alabama elected Justice Roy Moore, but they did not elect an appointed federal circuit court judge, nor did they elect any of the SCOTUS justices. Also, federal courts under these circumstances are supposed to be applying current law in a particular case; they are not intended to set precedent.

But officials are torn; some counties are offering the marriage licenses to same-sex couples, while some counties are not. Confusion is the key word for the day.

But if there is a good chance the licenses would be declared null and void just a few months down the road, wouldn’t there be less confusion by waiting? SCOTUS is causing the confusion.

In Justice Clarence Thomas’s dissent (joined by Justice Scalia), he refers to patterns of the court in the past, leading to the expectation that there would be a stay in implementing the change, as Alabama requested. He listed several cases where SCOTUS had granted such a stay:

When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review. See, e.g., Herbert v. Kitchen, 571 U. S. ___ (2014); see also San Diegans for Mt. Soledad Nat. War Memorial v. Paulson, 548 U. S. 1301 (2006) (KENNEDY, J., in chambers) (staying an injunction requiring a city to remove its religious memorial).

Recently the Court had chosen not to stay, but those cases were following the Court’s refusal to take up the cases, last fall. At that point, while a stay still would have been useful and respectful to the states, there wasn’t an expectation of a permanent resolution in the near future. Now, after the circuit courts had disagreement, and the Court decided to take on the cases, there is an expectation of resolution in the near future, and the stay would therefore be expected and normal. Yet the Court went against pattern, and against respect for the State of Alabama, and refused the request for a stay.

Thomas adds,

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States…. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.

What is a state to do when the Court inserts itself disrespectfully in an unresolved issue? Particularly when the issue to be resolved is whether a state has the right to do what states have always done? One could assume that the state might do just as Alabama did: ignore the federal edict and assert its state sovereignty.

There’s a bill in the Texas legislature right now with a similar purpose. It’s Texas HB 623, “relating to the funding, issuing, and litigation of certain marriage licenses (preventing officials to grant same-sex marriage licenses against Texas constitution and law).[†]

Texas, as many other states, strengthened existing defense of marriage laws by placing the definition of marriage in the state constitution—which meant that it could not be overturned by federal courts or legislation without directly challenging the sovereignty of the state. Most of the 37 states (I think that's the latest count) where same-sex “marriage” licenses are granted, have had it imposed on them even after the citizens of the states have voted to protect the traditional definition of marriage.

If the federal government derives “its just Power from the Consent of the Governed,” as we’re reminded in our Declaration of Independence, and neither the people nor the people’s representatives have changed the laws, what do the states, or the people, do when a law change is nevertheless imposed on them? Stand up. Stay strong. Refuse to give in. Ignore.

Some smaller states might fear to stand up. That’s why it’s important for a state the size and strength of Texas to stand up. To dare the federal government to invade the state and force submission. What are the odds that the US Military would invade Texas and enforce unjust laws?

We’ve had a Civil War before, and the resistors lost. But the pro-slavery South was out of alignment with the Constitution, which is based on natural God-given rights to life and liberty. If the resistors are standing up for state’s rights, religious freedom, and millennia-old beliefs about the value of family to civilization, will the military engage in a civil war over that?

We won’t know if we don’t stand up and give it a try.

No, I don’t want any kind of violent reaction. But what I trust is that, when you’re in the right, when you’re in alignment with the Constitution, and with God’s law, the good people of America will not violently react to that. They will say, “Oh, the people of Texas really mean it. Maybe we should think long and hard about the principles involved here.” And when thoughtful people think through the principles that lead to freedom, prosperity, and civilization, they choose those outcomes over the alternatives of tyranny, poverty, and savagery.

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[*] A story about this news contains both Justice Thomas’s dissent and Judge Moore’s declaration: “Confusionin Alabama as State Judge Fights Supreme Court After It Allows Same-Sex Marriage,” February 9, 2015, TheBlaze.com.

[†] A story on this bill can be found at "Texas Rep Introduces Bill to Defend Traditional Marriage and StateSovereignty,” January 11, 2015, Breitbart.com.

Gun Non-Violence

As one who loves our Constitution, I have strong feelings in favor of the 2^nd Amendment. I don’t write about that issue very often, because there are many others who are more clearly laying out the issue than I can. But the onslaught since last month, along with the president’s unprecedented 23 executive order yesterday, merit some comment.

Here are the two main points:

·       The main purpose of the 2^nd Amendment is to guarantee the God-given right for individuals to protect themselves against attack—from any (Spherical Model) southern hemisphere attacker, either from the chaos side, as criminals are, or from the state tyranny side, either foreign or domestic.

·       The only purpose of an executive order is to direct federal employees in the manner in which they will enforce duly legislated laws; the executive branch does not have power to make laws for individual or all Americans.

One of the best things I’ve read in the past month is a 13-part essay by my Facebook friend Shawn Rogers. He does have a blog, with a small part there: www.sbrogerstx.blogspot.com. But to get the full essay, you’ll need to “friend” him and start reading in the last half of December 2012. One article he recommends a piece by Larry Correia, from December 20, 2012, called “An Opinion on Gun Control.” It’s a very long but worthwhile piece (18 pages, about 10,000 words). This part comes after you’ve scrolled down a ways (links are from original):

It doesn’t really make sense to ban guns, because in reality what that means is that you are actually banning effective self-defense. Despite the constant hammering by a news media with an agenda, guns are used in America far more to stop crime than to cause crime.

I’ve seen several different sets of numbers about how many times guns are used in self-defense every year. The problem with keeping track of this stat is that the vast majority of the time when a gun is produced in a legal self-defense situation no shots are fired. The mere presence of the gun is enough to cause the criminal to stop….

So how often are guns actually used in self-defense in America? http://www.guncite.com/gun_control_gcdguse.html

On the high side the estimate runs around 2.5 million defensive gun uses a year, which dwarfs our approximately 16,000 homicides in any recent year, only 10k of which are with guns. http://www.cdc.gov/nchs/fastats/homicide.htm Of those with guns, only a couple hundred are with rifles. So basically, the guns that the anti-gunners are the most spun up about only account for a tiny fraction of all our murders.

But let’s not go with the high estimate. Let’s go with some smaller ones instead. Let’s use the far more conservative 800,000 number which is arrived at in multiple studies. That still dwarfs the number of illegal shootings. Heck, let’s even run with the number once put out by the people who want to ban guns, the Brady Center, which was still around 108,000, which still is an awesome ratio of good vs. bad.

So even if you use the worst number provided by people who are just as biased as me but in the opposite direction, gun use is a huge net positive. Or to put it another way, the Brady Center hates guns so much that they are totally cool with the population of a decent sized city getting raped and murdered every year as collateral damage in order to get what they want.

Unlike the DOJ (I’m referring to the Fast and Furious debacle), I am in favor of keeping guns—of any kind that will shoot even a single bullet—out of the hands of violent criminals. That is already the law. So it’s puzzling why it would take four full years before this president finally mentions to his employees that they should enforce that law.

I am also in favor of keeping guns out of the hands of the criminally insane, even if they haven’t yet committed a violent crime. But doctors are not employees or agents of the federal government, and any directive to them is an overreach. And, as with all power overreaching, the unintended consequences bring about almost exactly the opposite of the stated intended result. If people thank that simply going for treatment for a mental illness, either for themselves or for a family member, could result in forfeiting their 2^nd Amendment rights, that discourages people from seeking treatment, resulting in more untreated mentally ill.

While I appreciate having a criminal data base, so that background checks can be quick and thorough, I am against any federal database identifying law-abiding citizens who own guns. There is no Constitutional reason for such a database, but it does hold the potential of laying the groundwork for the federal government to move ahead with an incremental encroachment on our civil liberties.

I appreciate the Texas response to the president’s overreach, pointing out the hypocrisy. I also appreciated the Wyoming response, to arrest any federal agent who attempts to enforce federal gun laws in that state. A growing number of states have responded that they will nullify any attempt by the federal government to infringe on the 2^nd Amendment rights of citizens within their states. In addition, various US Congressmen, such as Rand Paul, are putting forth legislation to nullify those 23 executive orders, defund them, and press the Senate to file a court challenge to them.

Standing up against tyranny is exactly what the 2^nd Amendment is about, so that’s what I like to see.

That being said, one of the interesting things I came across this week was Glenn Beck’s suggestion on Monday that there is a better way of standing up against tyranny than shooting any federal agent that shows up to take your guns. Resist, but don’t attack. (The full video clip is below.) I’m reminded that Ghandi spent a number of years in prison, when the government was in the wrong to put him there. It may be that, before Americans have a moral right to violently respond, a number must first be willing to say no, stand firm, and suffer even wrongful incarceration, to prove the wrongfulness of the tyranny—which is something best thought of in the calmness of theory before any of us must face it in reality.

 

 

Local Nullification Efforts

Voluntaryist Student made several good points in comments last week, one about nullification, so I thought I’d do a response to that concept. I read Thomas Woods’ book Nullification some months ago and found it persuasive—enough that I don’t fully understand why the concept seems so far outside the mainstream. The word refers, essentially, to states or lower levels of government asserting their autonomy (see 10^th Amendment to the Constitution) when the federal government usurps powers not granted to it.

States and individuals are working from various angles to nullify (make of no import) Obamacare, for example. I’ve been following a couple of attempts in my state legislature. One is a bill that disallows the mandate to purchase health insurance, saying essentially that Obamacare can’t be enforced in this state. And since we’re a big state, it’s unlikely the federal government would quell our resistance with force (at least we can hope). The other is to join in the multi-state compact, a work-around of sorts, to use market forces, cross state lines, and give states the responsibility to deal with their own health care issues as they see fit. I’m a little hesitant about the compact, mainly because when I read the legislation, or even the website, I can’t tell precisely what any unforeseen outcome might be. But in theory having states join together to resist a federal order against their interests, and which the federal government was never given the authority to impose, seems to be a good thing. You can read more about the compact at the official site: HealthcareCompact.org.

There’s another very local version of nullification that I’m observing with some interest. About ten miles from my lives a special forces marine, retired, who put up a good-sized flagpole in his backyard, where he displays the American flag with great respect. His homeowners association decided that this wasn’t to be tolerated. There wasn’t actually a decree in the HOA covenants saying such a flagpole was not allowed, but when the veteran refused to take it down, the HOA enacted such a covenant and refused to “grandfather in” the veteran. They are fining him $200 a day, suing him for payment, and including their legal costs in the suit—so far approaching $20,000. I hope your outrage is approaching mine. It’s his back yard! It’s the American flag! He’s a veteran and displays it respectfully! In what possible way can such a display lower the home value in the neighborhood—the purported reason for an HOA to have any say in how a person’s yard looks?

There is a bill currently in the state legislature attempting to make such a display legal, essentially nullifying the HOA rule and any like it across the state. But there are thousands of bills in a legislative session. Getting attention to this small issue is a challenge. We’re nearing the end of the session; I’m not certain whether we’ve already passed the date when it must already be placed on the calendar in order to receive a vote before the session closes. (I’ve been following a list of bills this session but only became aware of this one lately and don’t have a bill number, so I’m uncertain how it’s turning out.)

This could be another whole post, but I am curious about how HOAs got this tyrannical power. The rule of thumb is that whatever must be done by a government should be done at the most local level possible. It’s hard to get more local than an HOA. And yet these little tyrannies have been known to impose ridiculous rules about paint color and gardening rules, and have enforced them with the threat of taking your property. I can’t see any situation where an HOA should have the power to seize property. If you have failed to pay your dues for some time, I can see they might be able to put a lien on your property, so that the payment dues (maybe even with a standard interest added) could be recouped upon sale of the property. I can’t see why they should be able to usurp ownership, sell your property out from under you for the cost owed, leaving you without your property.

I’m told it has to do with contract law; it depends on what you agree to when you sign the covenants. But you have to sign the covenants in order to purchase the property. And while that is a choice you make, finding a home without an HOA might not be an option—and it certainly wouldn’t be an option for a specific house. Nor is an owner able to sell a property to someone who won’t sign the covenants.

While I appreciate that my HOA tends to keep home values up, I do resent it a little when they inform us that the north side of our house has mildew on the siding that must be removed, or we will be fined. This is a humid climate. I don’t mind the reminder. But it’s odd that they always find it before we do. It isn’t visible from the street. It isn’t really visible from the sidewalk. You have to get off the sidewalk, look up from under the neighbor’s tree, and hunt for the flaw in our home care. What would be better, if they have people dedicated to finding these little bits of mildew growth, would be to send us a notice along with recommendations for how to treat it or prevent it, rather than simply a threat along with the assumption that we are derelict homeowners.

In a way, the usual principle applies: let the lowest level of government handle the problem. If an HOA is controlling what the homeowner should be handling—even when the control is not relevant to the larger neighborhood—then that opens up the possibility of tyranny that we experience in our very homes.

But you can see that nullification (ignoring the HOA), as the marine veteran has done, can be dangerous and costly when you do it all alone. So the way for nullification to be effective is for the idea to spread, so that the force of the people cannot be overcome by the dictating government. That takes persuasion and connecting, skills I believe we need to acquire.