Author archives: Chris Gacek

The Tenth Circuit’s Kitchen v. Herbert Flubs Fundamental Rights Analysis

by Chris Gacek

June 26, 2014

Yesterday, the U.S. Court of Appeals for the Tenth Circuit affirmed a federal district court’s decision striking down the definition of marriage found in Utah’s constitution. That definition limited Utah marriages to the union of one man and one woman. It was approved by referendum in November 2004 with 65.9% of the vote. In Kitchen v. Herbert, a 2-1 majority court struck down that definition by concluding, among other things, that there is a fundamental right to enter into a same-sex marriage. There is much more to the decision, but this note will focus on this key aspect of opinion.

As the U.S. Supreme Court instructed in Washington v. Glucksberg, 521 U.S. 702 (1997), the Due Process Clause of the Fourteenth Amendment guarantees more than fair process. It “also provides heightened scrutiny against government interference with certain fundamental rights and liberty interests.” Id. at 720. But, how does one determine what rights and interests are “fundamental?” Glucksberg is the key case in setting forth the constitutional law in this area.

Paul Linton summarized the Glucksberg standard in the Family Research Council’s amicus brief in Kitchen (pp. 3-5) (edits to text, notes, and citations have been made below):

In determining whether an asserted liberty interest (or right) should be regarded as fundamental for purposes of substantive due process analysis under the Due Process Clause of the Fourteenth Amendment[] (infringement of which would call for strict scrutiny review), the Supreme Court applies a two-prong test. First, there must be a “careful description” of the asserted fundamental liberty interest. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Second, the interest, so described, must be firmly rooted in “the Nation’s history, legal traditions, and practices.” Id. at 710. ….

As in other cases asserting fundamental liberty interests, it is necessary to provide a “careful description” of the fundamental liberty interest at stake. For purposes of substantive due process analysis, therefore, the issue here is not who may marry, but what marriage is. The principal defining characteristic of marriage, as it has been understood in our “history, legal traditions, and practices,” is the union of a man and a woman. Properly framed, therefore, the issue before this Court is not whether there is a fundamental right to enter into a marriage with the person of one’s choice, but whether there is a right to enter into a same-sex marriage. ….

This is the point at which the majority opinion runs off the rails. It dodges the hard edge of Glucksberg requiring a tight, accurate definition of the claimed right. The Kitchen court goes in another direction asserting baldly (p. 35), “But we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex.” They cannot do so because they will not to do so.

Of course, there is a fundamental right to marry a person of the opposite sex. See Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967). And, homosexuals are not precluded from marrying in any state. But, what is this national debate about? It is about the definition of marriage. Homosexual men and women assert that the laws of over thirty states should be nullified because, among other things, there is a fundamental right to marry members of the same sex. Furthermore, all states must be compelled to recognize male-male and female-female marriages.

Returning to the Glucksberg test it is manifestly clear that there is no such fundamental right, for it must be deeply embedded in “the Nation’s history, legal traditions, and practices.” How can this be possible with the claimed fundamental right to same-sex marriage? There is nothing about it that is firmly grounded in this country’s history, legal tradition, and practices. There were no same-sex marriages anywhere in the United States until the 21st Century.

Google is older than same-sex marriage.

There is a Supreme Court case that is instructive here, and it is Baker v. Nelson, 409 U.S. 810 (1972). Much blood in the same-sex marriage debate has been spilled over this case. In Baker, the Supreme Court dismissed an appeal from a decision by the Minnesota Supreme Court which had rejected arguments for same-sex marriage similar to those being considered presently in our courts. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).

The U.S. Supreme Court declined the invitation to consider the matter stating that there was a “want of a federal question.” It has been argued that Baker precludes lower federal courts from even considering these issues, but federal courts have brushed aside those arguments, especially in the post-Windsor environment. It should be noted that the dissenting judge in Kitchen did accept this argument. Judge Kelly would have dismissed the case and left it for the U.S. Supreme Court to decide whether it wanted to revisit this area of the law. That seems like the correct approach.

Laying aside the argument that Baker requires a dismissal by lower courts, Baker is highly instructive in answering whether any claimed right to same-sex marriage is “fundamental.”

In 1972, the fundamental right argument was presented to the U.S. Supreme Court, and it was rejected – as it had been in Minnesota. Because Glucksberg tells us that fundamental rights must be rooted in our nation’s legal history and traditions, such a right should have been extant only forty-two years ago when the Supreme Court considered the Baker appeal. Fundamental right questions are dyadic – you either have one, a 0, or not, a 1. Baker gives us the Supreme Court’s answer in 1972: 0. Both courts had the constitutional issues presented in a manner we would recognize today. The Minnesota Supreme Court quoted Loving noting “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Baker, 291 Minn. at 315 (concluding the court’s equal protection analysis and discussing Loving).

Thus, the Baker Court had the core legal concepts and precedents before it that we now routinely see in same-sex marriage litigation (e.g., fundamental rights claim, arguments based on Loving), and it dismissed the appeal.

Of course, there are equal protection arguments to also consider, but one must reasonably conclude that the Kitchen majority’s fundamental rights analysis fails badly. This point is underscored by footnote 4 of the FRC amicus brief in Kitchen which provides a lengthy list of courts that have rejected the argument that any fundamental rights (Due Process) analysis supports the claims of the Utah plaintiffs challenging the state’s natural marriage definition.

Vincente Del Bosque, Spain’s Greatest “Football” Coach, and Pure Love

by Chris Gacek

June 17, 2014

The quadrennial playing of the World Cup soccer (“football”) tournament began last weekend and will last several more. As the tournament approached, many, many articles, especially in European papers, have focused on this worldwide competition. The Financial Times (FT), for example, published a small section with several lengthy feature articles about the World Cup in its June 7/8 weekend edition.  The weekend FT is a wonderful amalgamation of articles on a wide variety of international topics including the arts, sports, travel, real estate, books, gardening, and hard news.

This World Cup section contained a brilliant article by Jimmy Burns on Vincente Del Bosque, perhaps the greatest soccer coach in Spain’s history. Presently Del Bosque is the coach of the Spanish national team that received a drubbing at the hands of the Netherlands last week.  That said, Spain’s only World Cup tournament victory came in 2010 under Del Bosque’s leadership. There have been many other victories and honors in his career, and Burns provides a masterful overview of the coach’s professional achievements.

That said, it was another aspect of the story and Del Bosque’s life that gave the article a transcendent quality.  At the beginning of the piece, Burns informs us that Del Bosque, 63, has three children including Alvaro, age 24, who has Down’s syndrome. It is here that Burns describes a touching dimension of Spain’s 2010 World Cup campaign:

While Del Bosque’s Spain was winning the country’s first ever world cup in 2010, Alvaro became an unofficial member of the squad. Afterwards Del Bosque wrote him a letter, now reproduced with his permission in a new Spanish biography. “It wasn’t Iniesta’s goal, or Iker Casillas kissing Sara, his journalist girlfriend while being interviewed by her on TV which moved me to tears. It was seeing you on TV, saying that you felt proud of your Dad, that you always wanted to help, that your heart was with him.”

How beautiful. The article then proceeds at length to discuss Del Bosque’s career and the current state of Spain’s 2014 World Cup efforts.

As Del Bosque and Burns take leave of each other, Burns returns to Del Bosque’s family and Alvaro:

Our meeting ends as it began, with family. Del Bosque’s daughter, Gema, 21, picks him up in the family car. “Can I give you a lift anywhere?” Del Bosque asks me. Before we say goodbye, I ask about his son Alvaro. A big smile comes over his face as he shows me a photograph of Alvaro in a suit working behind a desk. “We’ve achieved what we set out to achieve, which is to find him work.” Alvaro, he says, has come to mean more to him than anything else. “I’m not very expressive of my feelings. I am not a great one for words. I am not very lyrical. I am quite a practical person. But when I think of pure love, it is what I feel for Alvaro.”

Isn’t it fascinating that so many parents of Down’s children say similar things about the exquisite nature of these innocent souls? Del Bosque is known for being a “big-hearted” decent man: “Spain’s Man of Honor,” as the article’s title informs us. Is it unreasonable to suppose that Alvaro is responsible for many of those qualities? I don’t think so.

FRC Files Amicus Brief in Michigan Same-Sex Marriage Case

by Chris Gacek

May 15, 2014

There seem to be more legal challenges to state laws proclaiming natural marriage than there are stars in the sky. One of these, DeBoer v. Snyder, arises out of Michigan. In DeBoer, a federal district court declared Michigan’s natural marriage definition to be unconstitutional.  The decision was appealed by Michigan to the U.S. Court of Appeals for the Sixth Circuit, and the Family Research Council has filed a friend of the court brief in this appeal.  The brief was written by Paul Linton, a highly regarded constitutional appellate attorney, who submitted the brief on FRC’s behalf last week on May 9th.

The amicus brief focuses on two general arguments.  First, it maintains that the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution does not create a fundamental right to marry a person of the same sex. Second, Michigan’s definition of marriage is reasonably related several legitimate state interests, most notably, its promotion of responsible procreation. Thus, Michigan marriage law satisfies the “rational-basis” review required by constitutional equal protection analysis.  For these reasons, the district court’s decision should be reversed.

Recognizing Family Decline as a Driver for Income Inequality

by Chris Gacek

April 30, 2014

Income inequality has become a hot political topic recently, so I welcome a Wall Street Journal article by Robert Maranto and Michael Crouch. Maranto and Crouch express surprise that the current public and academic debate largely ignores a powerful factor driving income inequality: the rise of single-parent families during the past half-century. The article goes on to describe the indisputable advantages of two-parent families and concludes observing that there are no “quick fixes”:

Welfare reform beginning in the mid-1990s offered only modest marriage incentives and has been insufficient to change entrenched cultural practices. The change must come from long-term societal transformation on this subject, led by political, educational and entertainment elites, similar to the decades-long movements against racism, sexism — and smoking.

The Maranto-Crouch / WSJ article has received some positive notice in other media. On Monday evening Professor Maranto was interviewed by John Batchelor on WABC Radio. (Use this link and begin listening at 31:00 on the player’s counter.)

Maranto has a humorous bio indicating that he is a professor in the Department of Education Reform at the University of Arkansas where Mr. Crouch is a researcher. Apparently, the professor is highly adept at writing very boring books.

Another Maternal RU-486 Fatality - This Time in Ital

by Chris Gacek

April 21, 2014

The Family Research Council has tracked safety news about the abortion drug, mifepristone (RU-486; also, Mifeprex®), since its approval as an abortifacient in 2000 by the U.S. Food and Drug Administration. It is with sadness that we learned on April 11 of another fatality from the use of the RU-486 abortion regimen. (RU-486 is the first drug administered in a two-drug abortion-producing regimen in which the second drug is misoprostol (Cytotec®).)

An Italian news source (The Local) carried an online article about the death of a 37-year-old woman who was treated at theMartiniHospital inTurin. The woman had taken the mifepristone but only started to experience difficulties four hours after taking the misoprostol – which she did two days after taking the first pills. The misoprostol is needed to induce forceful uterine contractions to expel the dead baby (a human embryo at that point) and other tissue from the uterus.

After taking the misoprostol, she complained of not being able to breathe normally. Shortly, thereafter, she began to experience atrial fibrillation, an irregular, rapid heartbeat. Her heart then stopped and could not be revived. She was in good health and the mother of a four-year-old boy.

I believe there have been about 15 cases of death following the use of the mifepristone abortion regime of which we are aware. Nations likeChinaare not even on the adverse event reporting grid, and the drug is used heavily in the PRC. Hemorrhage, infection, and incomplete abortions are common failures of all chemical abortion regimens.

LifeNews has posted an excellent story on this Italian death that contains more information on the safety of RU-486. Also, in May 2012 the Family Research Council published a paper containing a safety profile for the mifepristone-misoprostol regimen from 2000-12.

Truth is the Greatest Weapon

by Chris Gacek

April 14, 2014

The Brendan Eich firing controversy at Mozilla has prompted a flurry of commentary. I would like to bring your attention to two excellent opinion pieces that place Eich’s firing in a larger context. The first article is a brilliant essay written by Mollie Hemingway (The Federalist) entitled “The Rise of the Same-Sex Marriage Dissidents.” The second is Daniel Greenfield’s piece, “The Left Isn’t Pro-Gay – It’s Pro-Power,” in Frontpage Magazine (online).

Hemingway understands something so few analysts grasp these days: the struggle over the definition of marriage is more deeply about how we are going to define reality and whether truth can exist in our society about anything having to do with “gender” and sex. First, Hemingway broadens the discussion about Eich’s firing to note that we should be defending him because his support for Prop 8 was correct – not just that Eich has the right to speak freely while being wrong. Second, she reminds us of one of the most impactful political essays of the 20th Century – Vaclev Havel’s “The Power of Powerlessness.” Havel argued in 1978 that “post-totalitarian” systems rest on a bed of ideological dishonesty and falsehood. The “powerless” can resist by defending the truth – the true description of reality – and by not acquiescing in the propagation of the regime’s falsehoods. Orwell recognized this too when he said: “During times of universal deceit – telling the truth is a revolutionary act.” And, Solzhenitsyn suggested this in the title of his book, Live Not By Lies.

So, what is the Big Lie upon which the growing pan-sexual tyranny rests? It is the rejection of the reality that the male-female sexual act is the only one in which two individual humans are literally coordinated to a single bodily end. True marriage is “about the sexual union of men and women and the refusal to lie about what that union and that union alone produces: the propagation of humanity.” I would add that the sexual complementarity of male and female is physical, emotional, and psychological, and the male- female relationship cannot be duplicated by other forms of sexual relationships or behavior.

The sexual Big Lie demands that all recognition of sex differences be eradicated from public discourse. It is this foundational truth of male-female complementarity that modern feminism and all sexual revolutionary movements must reject. Unless the sexes are basically interchangeable, same-sex unions can never be considered comparable. As Hemingway notes, it was this fundamental truth that Eich refused to renounce and that refusal made Eich a dissident inHavel’s sense.

* * *

Greenfielduses the Eich firing to point out that moderate and liberal Republicans who propose a “truce” on social issues while desiring to focus on fiscal issues ignore the fact that “there is no such thing as a truce on any issue with the left.” Unlike Greenfield, I think that, on the whole, the modern Left in the West is deeply committed to sexual nihilism and the “Culture of Death.” If for no other reason, the Sexual Revolution provides a direct line of attack on the authority of orthodox religious institutions in our incredibly sexualized society. That said,Greenfieldcorrectly observes that “[t]he idea that any part of the left’s agenda can be delinked and ignored is wishful thinking.”

He continues this analysis as follows:

The left doesn’t do truces. If the right cedes gay marriage, all it will have won is the right to be called homophobes for the next hundred years. And the culture war will move on to the next issue and the one after that. The purges will continue and more criminals guilty of thought crimes will be paraded for the virtual cameras. Yesterday’s commonplace idea will be tomorrow’s act of unspeakable bigotry that prevents you from being employed, opening a business or even staying out of prison.

You may be in the clear today, but you won’t be tomorrow.

Wars aren’t won by constantly retreating. They’re won by taking a stand for what you believe in.

Greenfieldis absolutely correct. There is no political benefit in allowing ourselves to be confined to intellectual and political ghettos created by the Left. Over time they will just be eliminated or reduced to irrelevance.

Surrender comes by accepting the Left’s premises, and this we cannot do. Hemingway reminds us that tyranny is overthrown by not accepting the web of falsehoods that the Left has advanced regarding sex. Orwell, Solzhenitsyn, Havel, and Pope John Paul II knew that the Truth is the greatest weapon we possess in fighting totalitarian thought control. And, the fundamental truths supporting natural marriage, including those related to sex differences, cannot be suppressed forever. Being on the wrong side of the natural law is never being on the right side of history.

America’s Amateur Hour on Foreign Policy

by Chris Gacek

March 31, 2014

The disaster that is the Obama foreign policy continues to unfold week by week. While engaging in unilateral military disarmament, our president imitates a wrecking ball destroying decades of American alliances, relationships, and strengths. It is difficult to recall any significant Obama accomplishments, but, at the least, one could hope that he might have a “minimize the harm” operational code. Not a chance.

On March 25th in a speech at the Hague (Netherlands), President Obama made this statement: “Russia is a regional power that is threatening some of its immediate neighbors — not out of strength but out of weakness.” What a ludicrously provocative statement.

Right, Mr.President, Russiais a regional power. Unfortunately, it is a region that extends from the Bering Strait to the Baltic Sea while bordering on the Arctic Ocean, Mongolia, China, and many numerous Eurasian nations. It has a population of 142 million. Finally, thanks to you, Russia has 500 more nuclear warheads than the United States — at about 8,500. Russia is an ancient civilization noted for great scientific and artistic achievement that is anchored by a state church that traces its roots to the Byzantine Empire. Russia is no run-of-the-mill “regional power” under any serious analysis. Russia has been a major world actor for centuries, and it remains so even after 1990.

I have no sympathy for a crypto-communist sociopath like Putin, but Obama’s statement was needlessly insulting and demeaning to Putin and Russia itself. If we were trying to alienate the Russian people, could this statement have been any more effective? Probably not. It is the mark of an amateur — someone who is not a serious analyst of history and foreign policy. Underestimating an enemy is never wise.

And, this leads to Obama’s comically liberal and obtuse crack about the conquest of Crimea being the accomplishment of a weak power. The president appears to be patterning his opposition to Russia on the Black Knight in Monty Python’s Holy Grail. As the Black Knight has his limbs hacked off by King Arthur, he refuses to admit that he is being seriously injured. However, the Black Knight talks a good game, and in Obama’s world that’s all that really matters, isn’t it.

Crowding Out by Obamacare

by Chris Gacek

March 24, 2014

Recently, a local talk radio program here in D.C. had a caller who described his before and after insurance costs for his family of four. Before Obamacare: $3,500; after Obamacare: $10,500. His family’s disposable income has decreased by $7,000. He asserted that his family was middle class, so for someone who is not wealthy an income loss of $7,000 per annum is enormous. (And, substantial premium increases are expected in some regions of the country.)

Think of the businesses and organizations that may be hurt or “crowded out” by the implementation of this new tax: restaurants, auto companies, appliance makers, home improvement firms, decorators, book sellers, home sellers, educational programs, and charities. The list is long. One also has to have sympathy for young adults who may have substantial college debt along with this healthcare burden. Will people delay marriage and have fewer children? Probably so.

If we wish to restore economic growth and family formation and prosperity, it just seems obvious that the Affordable Care Act has to be repealed and replaced. The numbers are just too brutal.

Wahlburgers — An Appetizing New Show about a Devoted Family

by Chris Gacek

March 17, 2014

I have been pleasantly surprised by a cable show on A&E that celebrates family and follows the activities of a large American family that runs a business. I am not talking about Duck Dynasty. Rather, it is the show that follows DD: Wahlburgers about which I write. Wahlburgers tells about the efforts of Mark, Donnie, Paul, and Alma (their mother) Wahlberg to start a restaurant franchise (Wahlburgers) that specializes in hamburgers and sandwiches. The first restaurant is located near Boston in Hingham, Mass.

Of course, Mark and Donnie Wahlberg are the actor/singer/entertainers of various art forms. Paul is the chef who produces the recipes and food. Paul also manages the restaurant(s) and lives near Boston — as does his mother. Mark lives in Los Angeles; Donnie is a New Yorker these days. All of the family members are hard-working and entrepreneurial.

It turns out that the Alma Wahlberg raised something like nine children in Dorchester, Massachusetts. Apparently, the family grew up living around or below the poverty line. That may be due to the divorce of the parents in 1982, but Alma did raise the family on a shoestring. Alma is the peacemaker and mediator who keeps the brothers working together. As one would expect from someone who raised so many children, she is practical and she knows their personalities. Her kids mind her when she tells them to get in line. Alma is definitely the Alpha Wahlberg. That said, her sons absolutely adore her and the childhood she gave them.

A&E was insightful when it placed Wahlburgers after Duck Dynasty each Wednesday evening. While the families themselves and the programs are quite different, the centrality of family lies at the core of each series. Fewer than ten Wahlburgers have been produced, so the show could go completely off the rails. I hope future episodes focus more on Alma, Paul, and the business’s development with less time on the oddball family friends. We shall see, but it is worth a look via DVR sans commercials.

Is this the Sort of Person You Want to Run the Civil Rights Division of the U.S. Department of Justice?

by Chris Gacek

February 6, 2014

The radicalism of the Obama Administration never ceases to amaze us, does it? This was brought home this week by Mark Levin’s extended discussion of “President Obama personally nominating a former cop killer’s lawyer, Debo Adegbile, to head up the Civil Rights Division of the Department of Justice.” Please listen to the introduction Mark gives to his February 4, 2014 program by discussing this horrifying potential appointment.  Follow this link.

Remember also that Mark Levin was the chief of staff at the Department of Justice to a United States Attorney General, Ed Meese. He knows a great deal about the Department of Justice.

Brandon Darby has written a succinct background article on Adegbile who, as an attorney, fought to save Mumia Abu-Jamal from the death sentence and continued imprisonment. Abu-Jamal was convicted of killing a Philadelphia police officer, Daniel Faulkner, on December 9, 1981. This was a completely cold-blooded killing.  But, later, “Free Abu-Jamal” was the cry of the Left and Hollywood for years and years. It worked. His death sentence was made impossible.

Even the worst criminals are entitled to a defense under our legal system. However, that does not mean that the lawyers who choose to do that work are worthy of holding highly trusted positions of authority in our government. Do we want this man reviewing the policing activities of law enforcement agencies across America for violations of federal civil rights laws? Do you want him overseeing discipline policies in local schools? Clearly not.

Chuck Canterbury, the President of the Fraternal Order of Police, an organization representing 330,000 police members, wrote this scathing letter of protest to the President on January 6th expressing his organization’s outrage about the nomination. If you want to learn a more about the case go to the website created and maintained by Officer Faulkner’s loving widow, Maureen.

Folks, this nomination does not have to succeed. Spend an hour or two learning about the case, and consider calling the offices of your two United States Senators. Hopefully, this nomination will fail demonstrably, but we can’t be passive and assume it will happen.

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