Another Nail

On February 16, the Washington State Supreme Court ruled on the case of State of Washington v. Arlene’s Flowers and Ingersoll v. Arlene’s Flowers.

Baronelle Stutzman of Arlene's Flowers
photo from Alliance Defending Freedom

Here’s a review of what happened. Baronelle Stutzman, the owner of Arlene’s Flowers in Richland, WA, had been happily serving her friend, a gay man, for several years. But in 2012(just three months after the state invented same-sex “marriage” in a close vote) he asked her to be the florist for his same-sex “wedding.” She kindly declined. Her Christian belief that marriage is the union of one man and one woman prevented “her from using her artistic talents to promote contrary ideas about marriage.” But, while she couldn’t do the work, she gave him the names of three other florists she thought would be glad to do the event.

In a normal world, the gay man, who had been a friend and had clearly not been discriminated against because of his sexual orientation, would have simply gone to one of the other florists on the list. But this is not a normal world.

He sued her for discrimination. And then the State of Washington joined in its own suit, claiming she violated its anti-discrimination law. In 2015 the trial court ruled against her. The ruling this week was the appeal to the state’s supreme court; they ruled unanimously against her.

Her defense had two prongs: freedom of religion and freedom of speech. The court was unsympathetic to both.

A person has a right to practice their religion, says the state, but only within the limits that the state sets. If the state decides it has a compelling interest, it is free to trample religious freedom at will. The state calls it punishing an “independent social evil.” What was the evil that the kind florist did? Disagree with the state’s current opinion about sex. So they say they have a “broader societal purpose: eradicating barriers to equal treatment of all citizens in the commercial marketplace.”

A person does not have a right, the state says, to refuse to perform an event that a homosexual—or some other protected class—requests. A person is obligated to provide the service so as not to “disrespect and subordinate” someone in that class. The state believes it has the right and power to coerce specific work; the state believes it owns slaves.

It was clear in the facts of the case that Stutzman did not deprive anyone of a service; she accommodated reasonably by recommending other florists. That was a win/win solution; the customer would receive the service he wanted, and she would preserve her right to live her religion according to her conscience.

But the court disregarded the facts of the case, as well as the clear wording of the law. The court has no sympathy for this particular religious belief, so they punish for it.

But the test for them will be when a white supremacist goes to an orthodox Jewish-owned business and insists that they print the advertising for their anti-Semitic event. Or when they require a Muslim business to cater a pig farmers’ banquet. Or require a Jewish photographer to photograph the third polygamous “marriage” of a Muslim client.

It appears the law will only rule against Christians, or anyone who has the temerity to go against their preferred religious position on sexuality.

Beyond the religious freedom argument, there is the freedom of speech—or expression. When I look at a court case, I often turn to the Volokh Conspiracy (a legal blog). Eugene Volokh gives this summary:

[T]he court concluded that flower arranging isn’t sufficiently expressive to qualify. (I think the analysis should be different for people who produce material that has been traditionally viewed as expressive, such as photographers, calligraphers, printers, singers, artists and the like, though it’s not clear how Washington state’s Supreme Court would decide on that.)

It appears that courts also get to define, at their whim, what is “sufficiently expressive to qualify.” A printer has a stronger case, possibly, because actual words are involved. If a cake decorator is asked to write words on the cake, that makes a stronger case. And, if a court decides that a singer, photographer, calligrapher, or other artist is using his/her talent as a form of expression, the court might be more sympathetic about coercing use of that expression. But floral design, they have arbitrarily decided, is not really a talent, or an expression, or anything but a commercial service.

While Alliance Defending Freedom, which has been representing Stutzman, plans to appeal to the US Supreme Court, Volokh is not encouraging. He says,

I doubt the U.S. Supreme Court will review the case further: It could only review the First Amendment issue (since the state supreme court is the final decision-maker on the state constitutional issue), and the compelled speech case here is weaker than in the New Mexico wedding photographer case, which the U.S. Supreme Court refused to hear.

Even if SCOTUS were to take on the case, their decision would still hinge on Justice Kennedy’s ruling. He’s the one who heard all the evidence in Obergefell, heard the warning about religious freedom being affected, and then ruled broadly that same-sex couples have always had a right to marry—six thousand years of multi-cultural world history to the contrary.

What is particularly disturbing about this case was the extent to which the Washington court was willing to go. They punish to excess—and, again, beyond the law. A business owner is generally protected from having personal property affected by a lawsuit against the business, unless there are certain overriding factors. As David French wrote,

[I]f you doubt the court’s malice, look only to its last ruling—that Stutzman can be held personally liable for her allegedly discriminatory act. In other words, the court is willing to pierce the corporate veil to impose individual liability even in the absence of the traditional justifications for that drastic step. Stutzman didn’t commit fraud. She didn’t commingle her personal and corporate funds. She kept her private and professional affairs separate. But she still faces personal financial ruin.

Arlene's Flowers
photo from here

Remember, Baronelle Stutzman was 70 years old in 2012, at the time of the original incident—after spending 40 years as a florist. The fine was only about $1000, but she was also required to pay the legal fees of the ACLU—about $1 million—in addition to never operating her business again. Her small business never had that many assets. Add in all of her belongings, savings, preparation for retirement, and she is placed in penury with no chance of recovery. If you have any sense of justice, this seems way out of line for the crime of slightly inconveniencing a longtime customer/friend.

As I wrote in 2015:

When you’re taking the life, livelihood, home and savings of a 70-year-old woman who has always served you sweetly and cheerfully, you really need to re-think who is the intolerant one.

Anthropomorphizing Government

If you were to create an extremely powerful android, including feelings and inclinations, what would that look like? And would you subject yourself to such a creation?

We want our android creation to “care” about people. An android can’t actually care; it doesn’t, by definition, have feelings. But it can appear to have them.

For example, if people are starving, our android must be programmed to give food, or money for food. If people are homeless, our android must be programmed to build and/or otherwise provide housing to those in need. If people need medical care that is beyond their ability to pay for, our android must be programmed to pay their medical bills.

There might be other “feelings” we’d like our android to seem to feel. Maybe it should be free from bigotry. We tell it to ignore skin color, gender, age, and other human attributes when making decisions. It should instead give preferences based on character, perhaps, or sometimes need. There could be an algorithm.

We might program our android to “care” about the next generation with a passion about educating children.

If our android creation now has the inclination to provide food, shelter, medical care, and education to anyone in need, it must either suffer the “sadness” or “frustration” of failing to meet its programmed goal (which would mean blowing its circuits or some technical breakdown), or it must have resources with which to do those things.

We will need to program our android to obtain those resources. Will we make it super talented, so it can do some job that people are willing to pay a lot of money for? Maybe be a superstar performer? Maybe a great entrepreneur that happens to succeed in many business ventures? Maybe it will do physical labor to earn a nest egg to then invest and earn a surprising return on investment?

It needs to be something that keeps resources coming in while the android spends proceeds on those charitable things we assigned it to care about.

And here’s another detail: we can’t program it to do something we aren’t capable of doing. It won’t sing or act better than the programmer. It won’t invent and take entrepreneurial risks better than the programmer. It won’t make better investments than the programmer.

Maybe we could program the android to come up with its own means of finding resources. “Just find a way,” we could say. What could go wrong? Well, if you’re into sci-fi, the rule is that androids always turn on the people. Always. (This has come up in recent story lines on Marvel's Agents of S.H.I.E.L.D., in which very human-like androids have been popping up--with feelings, like anger, jealousy, and vengeance. And Mack says something like, "Don't you ever watch the movies? The robots always turn on the humans.")

Android Aida starts doing damage to humans
on Marvel's Agents of S.H.I.E.L.D.
image from here

Let’s say this android creation of ours is our government. People talk as if it actually has feelings. A “caring” government must provide free health care. A “caring” government must get rid of bigotry. A “caring” government must “feel” guilty of its success compared to other countries and give away its wealth to other countries to even the playing field. A “caring” government must give everyone the same opportunities for education—more than K-12 and all the way through college.

This creation we call government doesn’t actually earn a living, let alone a living plus proceeds to pay for all of this largesse. So we’ve programmed it to “just find a way,” including the permission to take resources from the creators, who actually do work for a living.

Since government has been programmed to do so many specific things to show that it “cares,” it finds a way. It seizes our resources, usually through taxes, fees, tariffs, licenses, and sometimes outright theft—because somewhere in the algorithm it prioritizes who it decides is deserving, regardless of who earned or built up the property.

The android, supposedly programmed to “care” for people, turns on them—at least on some of them—and asserts its power. It takes and gives as it chooses. And we, the creator of it, find ourselves at its mercy. Because, as sci-fi lit tells us, the more human-like you make the android, the more likely it will turn on humans—with super-human power. 

Then, when the creature is out of control and on a rampage, what must be done? Die or take it down.

It would be preferable to avoid the problem. Instead of saying, “This time it will be different,” say, “This time I will limit the powers of the creation to specific purposes."

With government, the limits of its power should be where it can do what we can do ourselves, but better; that's a very few things. The creators of our government—the writers of the US Constitution—spelled out the limited purposes in the Preamble:

·        Establish Justice (law enforcement and adjudication).

·        Insure domestic Tranquility (avoid civil wars, settle interstate or regional disputes).

·        Provide for the common defence (protect sovereignty from attacks).

·        Promote the general Welfare (handle things that affect everyone, such as coining money, standardizing measurements,providing some infrastructure, and encouraging interstate commerce).

·        Secure the Blessings of Liberty to ourselves and our Posterity (the blessings of protecting life, liberty, and property lead to general economic prosperity and civilization).

The rest of the Constitution, including the Bill of Rights, enumerates the specific things the federal government can do—the limited programming.

The creation is, indeed, power, which, like fire is good when contained and used for its specific purposes, but is dangerous outside those boundaries. There’s nothing in there about “caring.” Any attempt to program in “caring” goes beyond the bounds of its proper purpose.

We can’t enforce caring in our neighbor; we can only persuade. And we can model the behavior by doing it ourselves. So we cannot program caring into government. We cannot take our neighbor’s property and give it to government to redistribute to someone it deems more deserving—because we do not have the right to take our neighbor’s property in the first place. When you attempt to imbue government with that power, you are creating a monster.

If we want government to be our servant, rather than our tyrannical oppressor, we’d better remove any of the dangerous programming—anything beyond the limited purpose of government.

Nonequivalents

Some things have been spun as equivalent that are not. Here are a few:

·        Defunding NPR ≠ killing Big Bird, or closing down that communications company; it simply means funding would need to come from someplace other than taxpayer money.

·        Medical insurance ≠ medical care. In fact, medical insurance—especially once mandated as an employee benefit, interfered with the market and raised prices so that medical care became harder for the patient to pay for.

·        Repealing Obamacare ≠ eliminating health care. It means that we would eliminate the expensive mandates and other coercions that have made it harder for people to pay for the insurance they want or the care they need.

·        Being against illegal immigration ≠ racism; it is not even equivalent to being anti-immigration. It is likely equivalent to favoring law-abiding immigrants.

·        Being against a higher minimum wage ≠ keeping families in poverty. It is, rather, being in favor of a free market in which entry-level workers get opportunities to earn entry-level wages while gaining valuable experience that will help them become more valuable employees in the future. Conversely favoring a higher minimum wage = outlawing jobs for many entry-level workers.

This list could do on. But I’ll add one more, that I’d like to spend time on today:

·        Favoring school choice ≠ being against educating all children. Just the opposite, in fact. And I’ll add, eliminating the US Department of Education ≠ eliminating public schools. After all my entire public education happened before that political entity was established, so I know it can be done.

In the December issue of Imprimis, Hillsdale College President Larry Arnn speaks about “A More American Conservatism.” The overall piece looks at the question of whether the new president can be identified as a conservative (answer: we’ll see what he does, but there are some reasons to be hopeful). But a large section talks about education, which is a specialty of his, as president of an influential liberal arts college. And I’d like to share some of that.

Dr. Arnn mentions that he approves of the appointment of Betsy DeVos. He says, “Trump has nominated the splendid Betsy DeVos to be secretary of the Department, and she is a fighter for every kind of school choice.” These words are comforting. She has now been sworn in, after a tie-breaking vote from Vice-President Pence.

Dr. Arnn says this about the Department of Education:

The federal government spends seven or eight percent of its money on education, and its method is typical of the federal intrusion into local matters: it gives money from the federal treasury to state and localities on condition. The conditions are myriad, confusing, and usually ugly when they can be understood. Title IV of the Higher Education Act governs federal student aid, and it numbers around 500 pages. A lawyer for our college told me once that I would be unable to read it, because he himself cannot read it, for which reason his firm keeps a specialist who is the only person he knows who understands what it says. For this reason alone, it would be a grand thing to get rid of the Department of Education.

Someone quipped that, if you really hate DeVos in charge of the Department of Education, support the bill to eliminate that department—and she’s gone.

Here’s another nonequivalence:

·       The Department of Education ≠ better education outcomes for students. In fact, there have been no appreciable increases in education outcomes since this bureaucracy was established, but costs per student have skyrocketed.

Dr. Arnn shares a basic principle about education:

The first thing to understand is that human beings are made to learn, and they desire to do it naturally. This means the job of teachers, like the job of parents, is to help children learn, not to make them or cause them to learn. Good schools are built around this fact.

One of the arguments for a national bureaucracy over education is that every student, in every state, ought to have the opportunity for education as some minimum standard, and so national standards and testing are necessary. But testing ≠ meeting a standard. In fact, setting a minimum standard ≠ better education outcomes.

Dr. Arnn talks about a kind of standard that would be useful:

The chairman of our education program at Hillsdale College has written a series of standards that states might adopt for K-12 education. For each grade, they take up about half a page. But if a child can do the things on that half a page, the child has earned a lot. Here is a way for higher levels of government to be sure that any money they give to lower levels is well spent in education. It involves hardly any management of details. That is the constitution model, the model that comes from our Founding.

To follow this practice would liberalize the system. It would mean that there would be plenty of bad charter schools, just as there are plenty of bad schools now. But it would also mean that there would be a proliferation of good ones.

Charter schools are just one type of school choice. At this point there are not enough of them. 

Here are some of the numbers in Texas. There are 5.2 million K-12 students (10% of all kids in US). Of that 5.2 million, 250,000 attend private schools, 300,000 are homeschooled, and 250,000 attend charter school. There’s a wait list of an additional 130,000 for charter schools. That’s why there must be lotteries to settle who attends a charter school (which is a public-school-funded entity that operates on different principles with different, often innovative practices).

Of those 87% attending public schools, 900,000 (20% of public-schooled students) are stuck in 1,032 failing schools—schools that have failed to show progress for three years in a row. There are considerably more students stuck in hopelessly failing schools than there are students being taught by parents, private schools, and charter schools added together.

That is what bureaucracy has wrought. To want that status quo = not caring about the education of the next generation. There ought to be a better choice for every family with a student they care about.

Dr. Arnn talks about what the 16 successful charter schools Hillsdale College operates look like:

Everybody wears a uniform and signs an honor code. Everybody studies mathematics at least through pre-calculus. Everybody learns Latin, history, literature, philosophy, physics, biology, and chemistry. Everybody is admitted by a lottery system. For the inner-city schools, care is take to advertise only in the immediate area, to make the opportunity available to the children who live in poor areas. The students in these schools make on the average excellent scores on the ubiquitous state standardized tests, and they do this without class time or curriculum set aside to pare for those tests. They do very well even in relation to the legions of public schools that now take months to cram only for those tests.

While these schools work well, he does not recommend making every school like this. It is the choice that makes the difference. Standards are high. Everyone is there voluntarily. The same is true at Hillsdale College. He says,

At Hillsdale College the curriculum is rigorous and the standards of behavior are high. But they are not imperative. The ultimate penalty is simply this question: are you sure you want to be here, when there are so many other options, options generally not quite so difficult or strict? The student who responds yes to that question is self-governing, which is the aim. That is why we at Hillsdale would not support a national law that everyone had to do what we do. We know too much about human beings to think that would work.

Knowing about individual human beings is something distant bureaucracies are particularly not good at.

Dr. Arnn ends his education portion with these hopeful words about a reformed Department of Education:

[I]t would be teaching the governments below not to give people orders all the time. It would be teaching them that parents do after all love their children in the great majority of cases, and that the strongest institutions are built on love. It would be teaching them that schools can do better without a national engineering project to take over their work, to set their tests, to prescribe their behavior.

He admits that such reforms would indeed “lay the ground for the Department’s abolition.” But, again, that ≠ less education; it actually can mean better education at lower costs—which are outcomes that market choices among good, free people, almost always bring.

Disagreements Among Friends

The Texas legislature is underway. That happens late January through early June every odd-numbered year. So there an intense couple of months during which everybody is trying to get attention for their issues. The only required legislation is the budget (balanced budget is required). Everything else is extra—sometimes good, sometimes bad.

This past Saturday our District 7 State Senator Paul Bettencourt held a luncheon with precinct chairs and other interested conservatives, to talk about several issues and encourage support. Over 100 people attended.

Sen. Paul Bettencourt speaking to the crowd on Saturday

Then, Monday night was the quarterly Harris County Republican Party Executive Committee Meeting, which is made up of precinct chairs and other officials. When we do new business at these meetings, that can include resolutions, which basically are statements we vote on. They are not law, and are nonbinding, but can have some clout with the legislature since we’re a big conservative body. I didn’t get the official count, but somewhere around 200 people had a vote, while an additional 50 or so looked on.

At the Saturday meeting Paul Bettencourt talked about lowering property tax increases. The idea is to cap annual increases at 4% (down from 8%). This is in response to the average home’s taxable value being increased 36.4% between 2013 and 2016, even as the oil industry has been in a downturn.

This is SB 2 in Texas. The low number indicates high priority interest among Senate bills. It is now in the Finance Committee, waiting for consideration. Interested citizens can contact their state senator as well as members of the finance committee to express their opinions.

Paul Simpson chairs the HCRP Executive
Committee Meeting on Monday

An issue that came up at both meetings is school choice. There’s a bill containing two good ideas: Education Savings Accounts and Tax Credit Scholarships [SB 3, which is a priority for Lieutenant Governor Dan Patrick]. Another bill suggests ESAs for special education students only, which is how it was handled in Arizona [HB 1335]; I would prefer this be open to any student. And there are companion bills for Tax Credit Scholarships [HB 1184 authored by Dwayne Bohac, my representative, and SB 542 authored by Senator Bettencourt].

I’ve been writing about ESAs since last spring when I learned about the idea. The tax credit scholarship idea is new to me, but it fits what I’ve had it in my mind for a long time. Businesses can receive a tax credit for donating to a scholarship fund. Students in either public or private schools can access an allotted amount for these scholarships. No money comes out of the state’s education budget. It is a free-market solution. I envision a day when we are post-public-school-monopoly, and this is the type of solutions that allows us to see that every child still gets an education.

HB 1184 came up as a resolution at the HCRP meeting, and there was a lot of disagreement. The procedure for debate is: the resolution is presented, the presenter gets 1 minute in support, then a person in opposition gets 1 minute, going back and forth until either no one else wants to speak in favor or opposition, or there have been 3 speakers for each side.

Unless you’re in the world of alternative education, you might think just the way you’ve been trained to: public school is the way we care about the education of the next generation, and care about the teachers who teach them. Anything outside that paradigm faces resistance. But among conservatives as a whole, we generally prefer free market to government solutions. And we prefer individual choice and accountability to government mandate. So the fact that there is disagreement shows there is some education of conservative activists that needs to happen if we’re going to get school choice ideas mainstreamed.

One of the arguments was that we should be against anything that takes money away from public schools—but this legislation takes zero dollars from that budget.

Another argument came from a homeschool mom I respect. She resists anything that could be skewed in any way to allow the state to regulate homeschooling. I am with her on the concern—but not about this opportunity. Tim Lambert of Texas Home School Coalition is reading every word of legislation to make sure we can support it, and feel assured it can’t do damage to homeschool freedom.

In addition, there’s a proposed constitutional amendment [HJR 62] to protect private and home schools from state and local regulation. This is already the law in Texas, but there’s so much public school mindset that well-meaning people say things like, “Well, they should have accountability” and “Someone should be making sure they’re actually teaching, for the sake of the children.” If you know better, you know that is always interpreted as government interfering the parents’ decision about the care and upbringing of their children, overruling the parent, and using governmental power to coerce certain things to be taught, regardless of the parents’ better wisdom about their own child.

When it came to the vote on this resolution, it was close. The chairman called it in favor of the proponents, but a standing vote was called for. That also looked somewhat close, but the chairman again called it in favor. A roll call vote was requested, but the body refused.

After this kind of disagreement, even among those you’re sitting next to, everybody just moves on. It’s an interesting phenomenon.

Another issue of disagreement Monday night was a resolution to eliminate multilingual ballots. I wasn’t in favor of the resolution, although I understand where this is coming from. I am in favor of making English the official language of the United States, and I’m in favor of making it the official language of the state I live in—and any other state where the people choose that. We have official state trees, birds, and flowers. Of course we should have an official language. If you don’t speak that language, you’re at a disadvantage in our society.

But that doesn’t mean we outlaw every other language, or act like we’re too good to tolerate anyone who doesn’t speak our language. We’re a country of immigrants. My grandfather arrived here in 1906, unable to speak English. Of course, he learned the language, and became a citizen.

Learning the language is a requirement for citizenship. That is why there’s some resentment about a law that forces us to spend money to provide ballots in multiple languages. There seems to be an assumption, as well, that if a person can’t speak English, then how can they legally be a voting citizen?

They have a legitimate question. But, if someone is a citizen and not in prison, they have a right to vote.

Learning a language is a challenging thing. I’ve learned two foreign languages. I’ve gotten good in at least one of those to study the materials for citizenship in that language (hypothetical, since you study in English here). I have opportunities to speak in these languages usually a couple of times a week. But I’m not fluent enough to read and fully understand the wording such as we see in ballot propositions—which are sometimes oddly worded and cause confusion.

As a good citizen, I study the issues before going to the polls. Arguably, a person who speaks English only marginally could study ahead of time, and prepare. Look up words. Maybe even read a translation ahead of time. But you have to admit that a great many English-speaking Americans don’t do that level of preparation before going to the polls. We let them vote anyway.

So, while I don’t think the law should require us to provide ballots in multiple languages, it is a courtesy I think is good to do. I qualified this past election to be a bilingual election clerk. My polling place was expected to have bilingual clerks for Spanish, Chinese, and Vietnamese; a precinct with 50+ surnames related to those ethnicities is expected to offer these services if we can. Those who need language help can also bring in their own helper, who is sworn in with an oath not to influence the voter. We usually get 2-3 Spanish speakers and maybe one of each of the others on a busy election day. Those who speak other languages must provide their own helper, and they won’t get the ballot in their language. They know that ahead of time. Since they’re in an English-speaking nation, this shouldn’t surprise them.

But since we use e-Slate machines, rather than paper ballots, there’s very little printing costs—only the estimated amount for those who request a paper ballot. So, as a courtesy, it doesn’t seem too big a burden to provide a ballot in these three common languages.

There was debate on both sides at the meeting. An argument against is that it makes us look bigoted to have this resolution go through, where media will its spin without allowing the full context of the arguments. Proponents won handily.

And then we went on to the next issue.

I’m surprised at how much disagreement there is, sometimes passionate, all in one party where conservatism is the rule. But the example of civil discourse, and moving on while remaining friendly with your differing neighbors, is something I’m glad to experience.

Appointments

For the most part I have not been disappointed in the appointments to cabinet positions for the next administration—plus the first appointment to the Supreme Court. I don’t know any of the appointments—or was even aware of them beforehand, with the exception of Rick Perry, as Energy Secretary, who was Governor of Texas, and Ben Carson for Housing and Urban Development, who ran for president.

General James Mattis, now confirmed as Secretary of Defense, made his first communication to the troops, and it is better than we have seen in some time:

Secretary of Defense James Mattis
photo found here

It’s good to be back and I’m grateful to serve alongside you as Secretary of Defense.

Together with the Intelligence Community we are the sentinels and guardians of our nation. We need only look to you, the uniformed and civilian members of the Department and your families, to see the fundamental unity of our country. You represent an America committed to the common good; an America that is never complacent about defending its freedoms; and an America that remains a steady beacon of hope for all mankind.

Every action we take will be designed to ensure our military is ready to fight today and in the future. Recognizing that no nation is secure without friends, we will work with the State Department to strengthen our alliances. Further, we are devoted to gaining full value from every taxpayer dollar spent on defense, thereby earning the trust of Congress and the American people.

I am confident you will do your part. I pledge to you I’ll do my best as your Secretary.

He serves. Her serves alongside. He respects those he leads. And he leads them with the larger mission in mind—defending American freedom. He intends to earn trust, rather than demand it. He has the leadership qualities that Jim Collins identifies in his business book Good to Great.

While I wasn’t aware of Neil Gorsuch before his nomination to the Supreme Court, those who do know him are very pleased. He sees his role mainly as his oath states, to

administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as justice under the Constitution and laws of the United States.

There’s nothing in there allowing a justice to make up laws, or to pretend laws say what he/she thinks they ought to say. So refreshing!

Justice Scalia (left) and Neil Gorsuch
photo found here

People say he is much like Scalia. Maybe even in writing talent, which is good, because we will so miss Scalia’s wit and colorful language. According to a recent study of “Scalia-ness,” out of 15 judges, Gorsuch comes in second, out Scalia-ed only by Justice Thomas Lee of the Utah Supreme Court.

He is known to quote Scalia as saying,

If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.

The item of interest about Gorsuch is where he differs from Scalia, specifically on what is called the Chevron Deference, sometimes called the Chevron Doctrine. In the 1984 case the court ruled that, when a statute (regulation, typically) is not clear, the courts must defer to the regulating agency to determine meaning as long as they have a reasonable basis. There are arguments in favor of that view, in theory. But in practice the Chevron Doctrine has shifted a great deal of power away from lawmakers, to the executive branch, through regulatory agencies.

In 2016, in the case Gutierrez-Brizuela v. Lynch, he concurred with the 10^th Circuit ruling, but wrote a separate opinion, referring to the Chevron Deference:

[T]he fact is Chevron… permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.

Ironically, the new president has appointed a justice likelyto limit his power. I don’t know for certain whether President Trump agrees with that limitation, but I think it’s long overdue. As Gorsuch added in his opinion, “[m]aybe the time has come to face the behemoth.”

He was on the right side for the religious freedom in the Hobby Lobby and the Little Sisters of the Poor cases. He’s a strong defender of 4^th Amendment rights.

He was easily approved for the 10^th Circuit, so it would be for political reasons only if democrats oppose him now. There is hope that at least a few democrat senators will do their duty and vote to appoint. While senate higher-ups are refusing to say the words “We will use the nuclear option implemented by Harry Reid,” they do say, “He will be appointed.”

The appointment with the most opposition has been Betsy DeVos. I haven’t known her, but early reactions from conservatives was positive. Still, some good friends are very worried about her, so I’ve wondered why. If nothing else, she is in favor of choice in education. She has championed vouchers, and has been anti-Common Core. My feeling about vouchers is that they are such a small incremental move that they solve very little, but are at least better than total public school monopoly.

Since my view on education freedom, as a homeschooler, is an outside view, I have searched for other people’s views.

Oddly, articles seem to be titled “5 things” about Betsy DeVos, either in her favor, or supposedly against her.

Here are five mostly favorable, from “5 Things to Know About Betsy DeVos” from The Atlantic:

1.       DeVos will push for school choice.

2.       Critics of the Common Core standards may have reason to worry.

3.       Expect deregulation to be a priority.

4.       She’s politically active, but she doesn’t have a lot of political experience.

5.       The reaction to her nomination is mixed.

That last one includes a tweet against her, quoting someone calling “DeVos the ‘most ideological, anti-public education nominee’ since the start of the Ed Dpt.” Among teachers’ unions that might sound ominous. To me, I think that’s a huge plus.

Here are another five from “5 Reasons to Oppose Betsy DeVos” from US News and World Report:

1.       Lack of experience.

2.       Lack of knowledge and preparation.

3.       Well outside the mainstream.

4.       A dangerous precedent for pay-for-play in politics.

5.       No plans or vision, except for outdated and ineffective policies that are harmful to public education.

These require some response. As for lack of experience, she has not worked in public schooling, nor sent her children to public schools. The fears of pro-public-school-as-religion adherents are in evidence.

Education is not a proper role of government, and is not among the enumerated powers granted to the federal government. The creation of the Department of Education has cost money without virtually any positive outcomes for American education as a whole. I am perfectly happy to have someone not taken in by the public-school believers.

There is further lack of experience in government, and in running a particular bureaucracy. But we have a president who wants to shake things up, so we shouldn’t be surprised he didn’t appoint a go-along-to-get-along bureaucrat. She has, however, managed multi-million-dollar philanthropies and has worked toward influencing society in the way she is now being given the opportunity to act on.

The opponents call that pay-for-play. It’s an ugly term. I’ve come across it locally and have mixed feelings about those who work that way. But I try to use my influence in my small circle—pretty much without money, since I don’t have that as an option. But if I had plenty of money, would I donate to candidates I liked? Yes. And then would I make sure they knew me and heard what I have to say? Yes. I do that even without the donation. So I really don’t look at her wealth and donations as a disqualifier. Nor do I believe she “bought” the position; she holds the position this administration wants to implement. Does she have the skill to carry it out? We’ll see.

If the mainstream is being over-protective of the public school monopoly, even at the expense of educating our children, then being outside the mainstream is a good thing. I wrote about school choice ideas just last month. We're hoping something useful will make it's way through the Texas legislature now in session.

I don’t know whether Betsy DeVos has the capacity to do what she intends—to put more choice into the hands of parents for their own children, and hopefully to get rid of the federal education bureaucracy entirely—but I’m here to cheer her on in her attempts.

It’s been an interesting couple of weeks so far. But, if you can get past the hyperventilating press, there have been some things to bring us hope.

Defining Boy Scout Moment

Boy Scout badges, photo from here

Tuesday, before the big news about the Supreme Court nominee, some of us took note of a different announcement. The Boy Scouts of America made, not a change in policy, but a change in determining definition. Here is the specific wording:

Starting today, we will accept and register youth in the Cub and Boy Scout programs based on the gender identity indicated on the application.

The only difference is that, rather than requiring proof that an applicant is a boy by using a birth certificate—as do schools, youth sports, and other youth organizations—the BSA will put the burden on the child and the parent to determine whether the child is actually a boy.

There’s been a hue and cry from erstwhile supporters of the Boy Scouts—saying this is just one more nail in the coffin, following acceptance of homosexual scouts and leaders in 2015. [I wrote about this here.]

I agree that I would have preferred not to have this redefinition. I would have preferred not giving credence to the LGBT agenda at all. But, as with the previous announcement, this one will lead to no perceptible change for the vast majority of scouts.

There was a Q&A that came out in the afternoon from our council office. The impact for your basic troop out there—the majority of which are sponsored by churches and other religious organizations is this:

Q: How does this impact religious organizations who sponsor Scouting?

A: While religious partners will continue to have the right to make decisions based on religious beliefs, we will work with families to find local Scouting units that are the best fit for their children.

Q: Will non-religious chartered organizations be allowed to determine eligibility?

A: As with all Cub Scout packs and Boy Scout troops, volunteer leadership of each unit determines their ability to provide a safe and effective program for the youth who seek membership.

The answer, in case you can’t see it in the subtle answer, is that it is the responsibility of the Council to accommodate a transgender girl who decides she is a boy and has parents who go along with her. No unit, whether religiously affiliated or not, will be required to be the unit to accommodate her/him.

BSA is taking a bit of a risk here. If a unit cannot be found that is willing to accept a female “boy,” or cannot find one within a reasonable distance for the family, the family could sue. But the family would have to prove that the local area Council is purposely discriminating, and not simply unable to find an accommodating unit.

There are many good reasons for a boy to participate in Boy Scouts. Some of those reasons could hold true for a transgender child, but not all. And there are burdens a transgender child puts upon young growing boys that their parents very well might want to protect them from.

There are fewer problems for Cub Scouts—no campingvi, no puberty. So let’s set that aside for the moment and look at Boy Scouts, which officially start at age 12.

There are regular campouts, typically monthly. This requires boys to sleep together in tents; adults sleep in nearby tents, but for safety reasons do not share tents with the boys.

They use pit toilets, or bathrooms with urinals plus limited stalls. In primitive camps they might build a temporary lean-to latrine, which they take down and bury afterward. They use open shower areas.

Scout camps often include water sports. Boys typically swim shirtless. But even if they choose to wear a shirt, body shape is clearly visible.

If you are the parent of this child, what do you think will happen when s/he attends a scout camp with boys who are also going through puberty? They can see that her/his body parts are female. S/he will have to deal with menstruation—which there will be no accommodation for because the camp is for boys, which your child claims to be. And I’m not sure what you expect of early teen boys who can clearly see the developing breasts on this strange kid in their troop. Do you expect them not to gawk, or be embarrassed, or mention it? Do you know any real boys that age?

If not, then maybe you’re not aware that boys play rough. They kind of need to. They run hard, play hard, wrestle, and hit hard. Scout leaders keep violence in check, but there’s going to be a healthy amount of roughhousing they’ll allow while they’re outdoors, having guy time. If s/he gets hurt, will you immediately assume s/he’s been bullied? Or will you ask for special treatment? Because if s/he’s a boy, s/he won’t fit in with the guys that way.

There could be real bullying. Leaders can and will teach the boys to treat everyone with respect. But the purpose of Boy Scouts is to raise them into good men; you can’t assume they already are. Put boys that age in a situation where someone is weird, or clearly not what they claim to be, and you’ll get boys who push limits, quite possibly into bullying—because they don’t yet have the tools to deal with the cognitive dissonance. Parents aren’t supposed to throw them into that kind of situation.

You’re bound to get parents of Boy Scouts—in nearly every troop—who will insist that their son not be forced to sleep in a tent with a female-bodied person. Or to shower with her/him. Or swim with her/him half-naked. Or risk being accused of bullying if there is any roughness s/he doesn’t like.

It’s hard to imagine a parent who would push their transgender girl/boy to suffer the indignities of being a "boy" who menstruates, has breasts, and is missing male body parts into a situation where typical boys are likely to notice and have no politically correct agenda requiring them to pretend there are no differences.

Transgenders make up a minuscule portion, about .3% of the population; that is 3 per 1000. Most transgenders do not reassign their gender until adulthood. Certainly those who undergo chemical or surgical operation are adults—because the American College of Pediatrics calls such alterations child abuse when done to a minor.

Here are some numbers:

2.4 million	Youth participating in BSA (some girls are welcome in some programs)
45 million	Youth of scouting age in US[i]
5.3%	Percentage of youth who participate in scouting
94.7%	Percentage of youth who do not participate in scouting
.3%	Percentage of population who choose a gender other than their DNA indicates
99.7%	Percentage of population who accept the gender of their DNA[ii]
135,000	Total possible transgender youth in US
67,5000	Transgender youth in US who are female-bodied presenting themselves as male.[iii]
3578	5.3% of female-to-male transgender youth likely to participate in scouting[iv]
100,000	Chartered organizations in BSA[v]
3-4%	Percentage of troops who could theoretically face the question of whether to accept a transgender youth

So, in all likelihood, very few troops (probably much fewer than this estimate) would ever face the question of whether to accept a transgender scout.

My guess is that, taking away the news story is also likely to take away the incentive for such an eventuality. It could happen; it will probably not happen anywhere nearby. And if you are in a troop that determines, among its own volunteer leadership, that it cannot provide a “safe and effective program” for boys that includes a transgender child, your troop cannot be forced to do so.

There are some who disagree with the strategy of giving in where it won’t make a difference, so keeping what does make a difference—a good program for youth, in a safe environment—is possible. The change in policy toward homosexual youth and leaders led to very little—essentially no perceptible—change for Scouting, but it took away a news item. This is just the next thing. It’s a strategy question, and I don’t always know how to predict strategy effectiveness until hindsight.

There has been a huge amount of prejudice against the Boy Scouts for a couple of decades, coming from intolerant social engineers who use labels like “bigoted” and “homophobic” to bully people into submission. BSA won in court the right to decide who to accept so they can serve the needs of boys. But that didn’t stop the onslaught. There has been a lot of damage.

This past Saturday we attended a District Boy Scout dinner (Mr. Spherical Model serves as a volunteer leader there. There wasn’t, by the way, any mention of this announcement; we got no heads up.) At our dinner table a couple of the women, who volunteer in Cub Scouts, were talking about the difficulties of recruiting. They participate in a school-sponsored Cub Scout pack. They had a flyer they wanted to send home with kids, to let parents know about the troop, for recruiting. It met all the standards required by the school and school district. Other similar flyers for other organizations—including some fundraising ones—were allowed. But someone at the school, someone with no more authority than a secretary, decided the Cub Scout flyer wasn’t allowed, because it’s a bigoted organization.

When you add together the unfair prejudice against Boy Scouts with emotional reactions from Boy Scout supporters who believe the organization is losing integrity, you can see that the end game of anyone who would insist on either homosexual scout leaders or a transgender s/he in scouting is intent on destroying the organization—because it helps raise boys into good men.

It is not “unfairness” they are protesting; it is civilization.

---

[i] Pulling from census data, the closest bracket to scouting age is 5-17; there are nearly 54 million in that bracket in 2010. That covers 12 years; Scouting generally covers 10. So we cut the total to 5/6, which is 45 million.

[ii] We’re using the whole population total of .3% transgender, even though it is likely lower in children.

[iii] For simplicity, let’s assume half of transgender youth might be male-bodied children who choose to present themselves as female—so they would have no effect on those joining Boy Scouts. So that leaves 67,500 female-bodied youth who choose to present themselves as male. It is possible there are fewer in this category, but we are estimating liberally.

[iv] For reasons given above, parents are less likely to put a transgender child in scouting than is the total population. So, again, we are estimating liberally.

[v] We’re simplifying here and not trying to figure out which children want to join Cubs or regular Scout troops, and just spreading them across the board.
[vi] I'm adding this note on February 12. Mr.Spherical Model pointed out some errors, so I'm attempting to correct those. I'm aware there are differences between Latter-day Saint-sponsored Scout troops and others, but I'm not always aware of what the specific differences are. Non-LDS-sponsored Cub Scouters do sometimes go camping. And technically regular Scouting begins at age 11. In our troops the 11-year-old Scouts are working on regular Scout things, but they do it separately until age 12.