Thursday, April 30, 2015

Marriage Equality, the Fourteenth Amendment, and Loss of Religious Liberties: Not Everything Is a Function of the Law of Unintended Consequences

On the Law of Unintended Consequences

In Jurassic Park, Ian Malcolm introduced many of us to the Chaos Theory in mathematics. Chaos Theory, he explained, seeks to explain the behavior of highly complex systems, particularly the impact of small changes on such systems. In Malcolm’s wake, some folks wonder whether a butterfly flapping its wings in New York's Central Park might cause rain in China. Even given Chaos Theory, I suspect anyone that accuses a butterfly in New York City of intending to cause rain in China is bound to be looked on as "special."

Chaos Theory might help us understand another phenomenon, often identified as the Law of Unintended Consequences. How often have we been told that some ill outcome was not intended to be provoked by some action? There are too many instances of folks describing something as being the result of the law of unintended consequences to try to detail them all. Still, it is a source of disturbing amusement to consider examples of the Law of Unintended Consequences, so let me offer a couple examples.

Yes, The Law of Unintended Consequences Can Kill

Under Chairman Mao, Communist China instituted an agricultural campaign to improve production. They called it the "Four Pests" campaign. The four pests were sparrows, rats, flies and mosquitoes. Yes, sparrows. Sparrows enjoy grains, and fed on growing crops. So the Communists included sparrows in its extermination program.

Of course, any good campaign by the People must have good posters. Here's a poster showing siblings working hard to protect the Proletariat from the sparrows. (Notice the young lady's stringer of dead sparrows!)

The Four Pests Campaign aimed to insure great crops for "Ten Thousand Generations." Of course, doing so would depend on involving children in more than just the sling shooting of sparrows. So, here is a lovely poster from the early 1960's showing
Chinese children attacking the four pests; you can see the four pests depicted in the center rhombus.

Apparently, the Four Pests Campaign succeeded, after a certain manner. The sparrow population was substantially culled. In fact, so many sparrows were killed that its decline impacted the Chinese agricultural ecology. As it turns out, sparrows are a natural predator of locusts. Having killed of so many sparrows, the population of locusts exploded. The locusts ate freely and the Chinese agricultural economy suffered greatly.

That is a great example of the law of unintended consequences.

Here, the Chinese adopted the Four Pests Campaign as an intentional policy. Eliminate pests to increase crops and health. In the process, eliminate the predator in a natural prey-predator relationship. With no predator, the population of the prey explodes. Depending on the source consulted, some 20 million Chinese died during the Great Chinese Famine. It isn't known the precise number whose starvation resulted from killing the sparrow population and freeing the locust from its natural relationship in a predator-prey relationship.

Consider another example.

Under colonial rule, the British Government sought to ameliorate the problems of a heavy population of the highly poisonous cobra snake in India. The British Government attacked the problem with bureaucratic efficiency. It would pay a bounty for each dead cobra. The problem of the cobra population should have abated.

Enterprising Indians, however, realized that the British Colonial Government was offering more for a dead snake then the cost of breeding and rearing snake.  As a consequence, Indians began breeding cobras. Eventually, program expenses grew too great and the British Government canceled it. Indians, unable to sell the snakes to the government quickly resolved their own, new cobra problems. They release the snakes they were breeding into the wild. Ultimately, the snake control program increased the native cobra populations.

Now, suppose you worked in the Chinese government. Suppose you knew that the sparrow was a key predator for locusts and other crop pests. Suppose studies demonstrated that the damage and loss caused by the predatory sparrow would be infinitesimally smaller than the harm caused by locusts and other crop pests no longer suppressed by the sparrow. Suppose, finally, that you imposed the Four Pests Campaign anyway.

Could you really call the deaths and privations that followed crop failures due to locust swarms and pest infestations an "unintended consequence?" Of course you could, because you are the government, after all, and you are seldom held accountable for the consequences of government programs.

Frederick Bastiat, the French economist, didn't refer to the law of unintended consequences by that moniker. In his last monograph, What is Seen and What is Not Seen, he spoke of the immediate effects of our actions, and of the effects that come later and that should, to prevent harms, be foreseen:
In the economic sphere an act, a habit, an institution, a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them. There is only one difference between a bad economist and a good one: the bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.
Marriage Equality: Fourteenth Amendment Inevitability?

On Tuesday, April 28, the Supreme Court heard arguments in a set of consolidated cases arising out of Ohio, Michigan, Kentucky and Tennessee. In the cases, a federal appeals court had upheld the constitutionality of state laws limiting marriage to opposite sex couples. The appeals court rejected arguments by Marriage Equality advocates that the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment required States to license couples of the same sex to be married.

Other federal appeals courts to consider these issues had held that the Fourteenth Amendment required States to allow same sex couples equal access to marriage. Consequently, the decisions in the Ohio and related cases produced a conflict among the federal appeals courts. One of the Supreme Court's primary responsibilities is to insure uniformity across the Nation in the application of federal law, including the federal constitution. Consequently, the Supreme Court faced just such a lack of uniformity and just such need to address an inter circuit conflict.

The Supreme Court's decision, expected by the end of June, will either affirm the Sixth Circuit's decision or overturn it. If the Court affirms the Sixth Circuit, its decision would have the effect of restoring to other States the ability to enforce laws limiting marriage to opposite sex couples. If, on the other hand, the Court reverses the Sixth Circuit, the likely outcome will be the sweeping completion by judicial fiat of the alteration of the definition of legal marriage in the States of the Union.

Will Harms to Religious Organizations Result from Recognizing a Fourteenth Amendment Right to Marriage Equality

Now, as to the law of unintended consequences, an exchange between the Justices and Solicitor General Donald Verrilli has drawn some modest, post-argument attention.

The Solicitor General speaks for the United States in cases before the Court. Here, the Solicitor General filed a brief as "friend of the Court" and argued orally in support of the Petitioners. To clarify, the Solicitor General, representing us, argued that the Constitution requires recognition of the right to same sex marriage under the Fourteenth Amendment.

Remember, as we are told, legalizing same sex marriage has to do with recognizing the equal human dignity of gays and lesbians, and with recognizing that their intimate choices in relation to love, sex, and, yes, marriage, are accorded treatment under current law that leaves them as second-class citizens. Given the humanitarian appeal of such arguments, we might tempted to conclude that there are no dangerous unintended consequences that would result from ensconcing in the Constitution the recognition of a fundamental right to same sex marriage. And it is on that point that the Solicitor General's participation is concerning.

Here is a transcript excerpt from the argument:
CHIEF JUSTICE ROBERTS:  Counsel, I'd like to follow up in a line of questioning that Justice Scalia started. We have a concession from your friend that clergy will not be required to perform same­ sex marriage, but there are going to be harder questions.
Would a religious school that has married housing be required to afford such housing to same ­sex couples?
GENERAL VERRILLI:  I guess what I'd ­­ I'd like to make three points about that, if I could, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS:  Well, the first part ­­
GENERAL VERRILLI:  And I will ­­ and I'll go right at the question you asked. The first one is, of course, this Court's ruling addresses what the States must do under the Fourteenth Amendment.
And the ­­ and the second point is that when you get to a question like the one Your Honor asked, that is going to depend on how States work out the balance between their civil rights laws, whether they decide that there's going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under State law. And they could well ­­ you know, different states could strike different balances.
CHIEF JUSTICE ROBERTS:  What about Federal ­­ it's a Federal question if we make it a matter of constitutional law.
GENERAL VERRILLI:  But the question of what ­­ how States use their enforcement power is up to the States.
CHIEF JUSTICE ROBERTS:  Well, you have enforcement power, too.
GENERAL VERRILLI:  Right.  And ­­ and ­­ well, that's certainly true, but there is no Federal law now generally banning discrimination based on sexual orientation, and that's where those issues are going to have to be worked out.
And I guess the third point I would make, Your Honor, is that these issues are going to arise no matter which way you decide this case, because these questions of accommodation are going to arise in situations in States where there is no same­ sex marriage, where there are and, in fact, they have arisen many times.  There ­­ there are these commitment ceremonies.
For example, in the New Mexico case in which this Court denied cert just a few months back, that did not arise out of a marriage.  That arose out of a commitment ceremony, and the ­­ and these, you know, commitment ceremonies are going to need florists and caterers.
JUSTICE ALITO:  Well, in the Bob Jones case, the Court held that a college was not entitled to tax ­exempt status if it opposed interracial marriage or  interracial dating.  So would the same apply to a university or a college if it opposed same­ sex marriage?
GENERAL VERRILLI:  You know, I ­­ I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I ­­ I don't deny that.  I don't deny that, Justice Alito.  It is ­­ it is going to be an issue.
So what was that all about?

Here, in a nutshell, is what that was all about. If the Constitution guarantees the right to marriage equality, it does so because it prohibits discrimination on the basis of sexual orientation. (The possible exception would be were such discrimination was required to meet a compelling government interest and was served by the most narrowly drawn regulation possible.) In turn, if the Constitution does this, if it says, not in so many words, that legal classifications based on sexual orientation are invidiously discriminatory, then marriage equality will not be mandate for change to be found in the Constitution.

In fact, based on a prior decision of the Supreme Court, it is entirely possible, if not likely, that the right of religious organizations to define their doctrines, to select their ministers and teachers, to maintain their identity, would be lost.

How is that likely to be the case?

As the excerpt above shows, the justices raised as a concern that a decision finding that the Fourteenth Amendment mandates marriage equality could result in revocation of tax exempt statuses of religious schools. The Solicitor General did nothing to assuage the concerns raised by the justices.

Remember, Justice Alito referred to "the Bob Jones case."

Bob Jones University: Losing Tax Exempt Status Due to Important Public Policies on Discrimination

In Bob Jones University v. United States, the Supreme Court held that the IRS had not violated the free exercise of religion rights of the University by revoking its tax exempt status. The IRS revoked BJU's tax exemption because it maintained a scheme of racially discriminatory admissions policies. For years, BJU denied admissions applications from blacks; later, BJU admitted blacks, but maintained a ban on interracial dating.

(As bizarre as it may be to say it, BJU apparently believed that God prohibits interracial marriage. As an aside, despite searching, I've been unable to find BJU's explanation of how its racial discrimination avoided what I like to refer to the Sin of Aaron and Miriam. Remember God inflicted leprosy on Moses' siblings after they made fun of Moses' dark skinned wife.)

BJU, having lost its tax exemption, sued the IRS to recover its exemption. The case came to the Supreme Court, which granted review. In its Order granting review, the Court stated that it would review this question:

Can the government prohibit race discrimination at the expense of the First Amendment's Free Exercise Clauses?

The Court concluded that BJU was ineligible for tax exempt status because, given its racially discriminatory policy, it did not qualify as a charitable organization. BJU never regained its tax exempt status, although a number of affiliated organizations are, themselves, set up as tax exempt organizations. Nearly the entire opinion for the Court focuses on interpretation of tax laws.

Despite the question on which the Court granted review, the Court's opinion barely glances at the issue of religious freedom as it speeds past it. The glance was, apparently, just enough to justify rejecting the argument for religious liberty. First, the Court concluded that the government had a compelling, fundamental, overriding interest in eliminating racial discrimination in education. Second, the Court concluded that the interests in religious freedom asserted by BJU were not able to be accommodated because no less restrictive means to secure the government interest was available:
The governmental interest at stake here is compelling. [T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education -- discrimination that prevailed, with official approval, for the first 165 years of this Nation's constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs. The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, [] and no 'less restrictive means,' [], are available to achieve the governmental interest.
Now, you can see Justice Alito's concern and the reason for his questions. By deciding the question presented by the petitioners, in the way requested by the petitioners, it is at least possible that the Court would be setting the stage for additional, "unintended" consequences. Among the consequences is the threat to the religious liberties of religious organizations, depending on their doctrines related to marriage, their policies on employment, and on other issues, such as admissions.

Petitioners challenged Ohio's statutory marriage scheme as a violation of the federal Constitution. To obtain relief from a federal court, they crafted a legal argument that depended on federal legal authority. That legal authority, as they posited it, is the Fourteenth Amendment, particularly the Due Process and Equal Protection Clauses of it. Had the federal courts agreed with Petitioners, concluding that Ohio's definition of marriage -- limiting legal marriage to opposite sex couples -- violates the Fourteenth Amendment, then Ohio's law on marriage would be unconstitutional.

Past is Prologue: Employment and Other Disputes Accusing Religious Organizations of Discrimination in Matters Sexual are Already Ongoing

So now we are left to ponder, as we await the likely June decision of the Supreme Court, what will be the consequences of recognizing a constitutional right to same sex marriage? Will the right to free exercise of religion -- a right expressly protected under the First Amendment from diminution by government -- get the same slipshod and shortchanging treatment in a future case that it received from the Court in Bob Jones University?

Now, lest you believe others who assert that it is panic peddling to warn that Catholic schools, Orthodox Jewish yeshivas, and B'ahai worship centers could lose their tax exempt status as a consequence of a Fourteenth Amendment right to marriage equality, you should know that there is a rich history of legal disputes over religious identity and moral conduct requirements in the arrangements of religiously affiliated schools.

Just last year, for example, a teacher employed with a Montana Catholic school sued the Butte Diocese (under law and Catholic doctrine, Catholic schools are administrative units of the Diocese, and the Diocese answers for the acts of the school). Shaela Evenson taught literature and physical education, and her employment was under a contract with the Diocese. When an anonymous tip advised the Diocese that an unmarried teacher in one of the Catholic schools of the Diocese had become pregnant, an investigation followed. The Diocese offered Evenson the opportunity to resign rather than to suffer termination due to her breach of contract.

Evenson declined and the Diocese fired her. She filed suit. Evenson's complaint states that she is not a "ministerial" (religious) employee, not even Catholic, and not involved in the teaching of religious classes. Her termination, she alleged violated the employment contract, federal law and state law.

Evenson's suit follows on the heels of another, brought by a teacher in a Catholic High School near Detroit. There, Barbara Webb, who lived in a same sex relationship, became pregnant through artificial insemination. The school investigated, and her termination also quickly followed. In Webb's case, the school offered to continue her health care coverage (presumably for the sake of needed health care during the pregnancy). Webb declined.

These two examples are just culled from a quick search on an internet search engine.

The idea that religious grounds might justify policies treating people disparately based on their religious identities, or based on their comportment with religious teachings seems to aggravate various issue groups. The American Civil Liberties Union, for example, warns of these dangers on its Religious Discrimination web page:
Similar warnings can be found on the pages of the Secular Coalition of AmericaAmericans United for Separation of Church and State, and People for the American Way.

Obviously, others have drawn the likely connection between a newly recognized constitutional right to marriage equality and practices previously recognized as protected due to their religious dimensions. Bob Jones University tells us that the IRS -- already shown to be a potent political tool when the administration in power seeks to use it in that way -- can justifiably deny tax exempt status where a sufficiently compelling government interest exists as part and parcel of an important public policy.

So we have been warned. We have been warned that schools, hospitals and convalescent facilities, elder care homes, and a variety of other religiously affiliated providers of services in the United States precariously possess their tax exempt status under federal law.

The thing is, I am fairly certain that, if such consequences follow, it won't be because they were unwanted, unforeseen, or, for that matter, unintended.