Enforcing Freedom

“And you’re in a tough spot, Jimmy, because you didn’t read the Playtone contract that you, yourself, signed.  And it says you do what I say.  And I say you record these songs from the Playtone catalogue.  You record That Thing You Do! in Spanish.  You get one cut per side of the L.P., but I don’t want any of this lover’s lament crap. I want something peppy, something happy, something up-tempo. I want something snappy.

            —Tom Hanks as Mr. White in That Thing You Do!

Back in 2006 Elaine and Jonathan Huguenin, owners of a small Taos photography studio, declined Vanessa Willcock’s request to shoot her same-sex “commitment ceremony,” citing the conflict between their Christian beliefs and same-sex unions.  Although Willcock found another photographer to do it—for cheaper—she sued the Huguenins anyway for illegal discriminatory practices.  On Thursday the New Mexico Supreme Court ruled that the their refusal to take the assignment violated the New Mexico Human Rights Act.  In his opinion for the unanimous court, Justice Richard Bosson trumpeted the case as highlighting the compromise and accommodation that he says is the essence of what America is about:

“At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others . . . But there is a price, one that we all have to pay somewhere in our civic life . . . The Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people.”

As an initial matter, let me say that if you accept the Rule of Law, as I do, the court appears to have gotten this one correct.  Under the New Mexico Human Rights Act, it is an unlawful discriminatory practice for

“any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap[.]”

N.M. Stat. 28-1-7 (F).  The statute defines a “public accommodation” as “any establishment that provides or offers its services, facilities, accommodations or goods to the public[.]”  N.M. Stat. 28-1-2 (H).  Thus, taking the statute on its face, by opening their doors and offering their services to the public, the Huguenins were forbidden from making any distinctions—for whatever reason—in offering or refusing to offer those services based on sexual orientation or gender identity.  This is the statute the court was given to work with, and under the Rule of Law the court was bound to enforce it.  The court did its job.

But notice the inconsistency the application of the New Mexico statute in this case highlights.

Justice Bosson says that the essence of America is that “all of us must compromise, if only a little, to accommodate the contrasting values of others,” but apparently that’s a one-way street; the Huguenins have to compromise to accommodate lesbian unions, but neither the lesbians nor the State of New Mexico have to compromise to accommodate the Huguenins’ Christian beliefs.  To the contrary, they punished the Huguenins for adhering to their religious convictions and withholding their services.  And there’s the rub.

Say what you want about this being a natural extension of the Civil Rights era.  This case is VERY different than, say, a diner refusing to serve lunch to blacks.  Eating lunch has nothing to do with race, thus the service of the meal isn’t in any way condoning the thing to which a racist diner owner objects.  The diner owner isn’t participating in the patron’s blackness.   But the nature of the Huguenins’ services—wedding photography—requires them not only to tolerate or even accept a same-sex union, they actually have to participate in it, thus taking part in the very activity to which their religious conscience objected.  Justice Bosson pays lip-service to the Huguenins’ rights, saying they only need channel their conduct, not their beliefs, but his sentiment is hollow: in sum, they can believe whatever they want as long as they don’t act on those beliefs.

In a different context, this case would be patently shocking.  Imagine the Huguenins were approached by a Satan-worshipper to photograph a Satanic wedding.  Very few would go so far as to say that they should be compelled to accept that assignment, yet that’s what the New Mexico statute would appear to require.  Or let’s reverse the case and suppose a gay photographer were approached by a vocal opponent (on religious grounds) of gay rights to shoot his Southern Baptist wedding.

You’d never hear the end of that one.

With the PC crowd, it’s always all about individual freedom and individual rights . . . as long as it’s their freedom and rights we’re talking about.  When it’s your freedom and rights and they conflict, well, you understand we all [read: you] have to make compromises to accommodate different points of view. 

In this instance, the Constitution should have protected the Huguenins.  They have a First Amendment right to the free exercise—that’s their “conduct,” Mr. Justice Bosson—of religion.  They have a Fifth Amendment right not to be deprived of their liberty or property without due process and just compensation.  They have a Thirteenth Amendment right to be free from involuntary servitude.

More fundamentally, whether you like it or not individual freedom necessarily includes the freedom to discriminate; to choose with whom you will associate, and with whom you will do business.  It has to.  You may disagree with the bases for my particular prejudice; I may even be morally, fundamentally, and in every other way wrong.  But so long as I am not harming another or infringing upon another’s rights, the concept of individual freedom, if it is to mean anything, must mean I am nevertheless free to indulge in it.  If you disagree with me, you are equally free to refuse to associate or do business with me.

But in this age of political correctness run amok, it doesn’t work that way.  And now we see it taken to its logical conclusion, that it’s no longer enough to have to accept the views and behavior of those in PC-favored groups with whom you disagree, apparently now you have to condone or even forcibly take part in them, your rights and freedom be damned.

The Huguenins didn’t prevent Vanessa Willcock from having her same-sex ceremony.  Nor did they keep her from having it photographed—indeed, she got that done for less money than the Huguenins would have charged, thus arguably doing her a favor.  All they did was decline to participate in an activity to which they had a moral objection based on their religious beliefs.  And for that, the State of New Mexico has ordered them to pay thousands of dollars in attorneys’ fees.

American liberty at its core should be about live-and-let-live.  Justice Bosson is correct in that sense when he writes that we must “leave space for other Americans who believe something different,” and support “the tolerance that lubricates the varied moving parts of us as a people.” 

But that space and tolerance has to go both ways.

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Eat Mor Chikin

Saleswoman:  Are you looking for something in particular?
Vivian:            No.  Well, yeah.  Something . . . conservative.
Saleswoman:  Yes.
Vivian:            You got nice stuff.
Saleswoman:  Thank you.
Vivian:            How much is this?
Saleswoman:  I don’t think this would fit you.
Vivian:            Well, I didn’t ask if it would fit, I asked how much it was.
Saleswoman:  How much is this, Marie?
Marie:             It’s *very* expensive.
Saleswoman:  It’s *very* expensive.
Vivian:            Look, I got money to spend in here.
Saleswoman:  I don’t think we have anything for you.
Marie:             You’re obviously in the wrong place.
Saleswoman:  Please leave.
            —Dey Young as Saleswoman, Julia Roberts as Vivian, and Shane Ross as Marie in Pretty Woman 
Isn’t it funny, for all their talk about diversity and tolerance and inclusion and open debate, how quickly the Left moves to silence through the force of government anyone who disagrees with them?
Most of you have at least a passing familiarity with the fast food chain Chick-Fil-A.  Many of you may also be aware that the company remains privately held by its founder Truett Cathy and the Cathy family, and that in keeping with their Southern Baptist beliefs the restaurants are closed on Sundays and holidays.  A few of you may know that the Cathys have incorporated their beliefs into their business by embedding them in the company’s statement of purpose.  You may not share their convictions, but these are people who at least have all the appearance of being serious about trying to live out their faith as they understand it.
Well, it seems that earlier this month the company’s COO Dan Cathy gave a couple of interviews in which he acknowledged his family’s support for what they see as the biblical definition of the family unit.  While as far as I can tell he never outright said his family is opposed to same-sex marriage, he did say that they invite God’s judgment when we try to redefine what marriage means.  Again, you may disagree with him on this issue, and that’s fine.  I’m not here to debate the merits of same-sex marriage (at least not this time).  What is undeniable is that opposition to same-sex marriage on biblical grounds as they understand them is in fact the teaching and position of the Southern Baptist Convention:
“We affirm God’s plan for marriage and sexual intimacy—one man, and one woman, for life.  Homosexuality is not a ‘valid alternative lifestyle.’  The Bible condemns it as sin.  It is not, however, unforgiveable sin.  The same redemption available to all sinners is available to homosexuals.  They, too, may become new creations in Christ.”
If you’re going to claim to be a Southern Baptist, as the Cathys do, this is part of what you’ve signed up for.
As you might imagine, with Cathy’s public invocation of God in opposition to anything gay, all Hell broke loose.  Boston Mayor Thomas Menino announced that, by the infinite power vested in him, he would not permit Chick-Fil-A to open any more restaurants in Boston.  Chicago Mayor Rahm Emanuel and Alderman Joe Moreno have likewise said they will use local government to ban Chick-Fil-A restaurants from opening in Chicago.  According to Emanuel, “if you’re going to be part of the Chicago community, you should reflect Chicago values.”  A similar ban is in place in the San Francisco suburb of Mountain View, California.
I see.  If anyone disagrees with the community’s “values”—as Emanuel defines them—they should be run out of town.  In other words, agree with me, or leave.
Let’s be clear about something.  Neither Chick-Fil-A nor the Cathy family, so far as I can find, has said they won’t serve gays, or that they’ll require gays to eat in a segregated part of their restaurants.  No one has charged them with discriminatory hiring practices.  I’m not even aware that they ask anyone entering their restaurants whether they’re gay.  All Mr. Cathy said was that because of his religious beliefs he opposes gay marriage.  And while you may disagree with him until your blood boils dry, let me let you in on a little secret:
He’s absolutely entitled to that belief, whether you like it or not.
The dangerous problem with the gay lobby in this country is they’re no longer about acceptance or tolerance.  They are about force-feeding you their lifestyle, ideology, and worldview and compelling you affirmatively to agree with it.  It’s not enough for you to leave them alone to be however they will be; you must change your beliefs to adopt theirs, and if you don’t they’ll use the force of government to bludgeon you back in line.  Dissent is not tolerated.
So in these cities controlled by the Left, anyone who disagrees with the Left’s views on gay marriage is now going to be put out of business.  By the government.  This is exactly the sort of tyranny against which the Constitution was intended to protect.
Let’s start with Article VI’s Supremacy Clause:  “This Constitution . . . shall be the supreme Law of the Land.”  There is no authority, federal, state, or local, that overrides the Constitution.  Not even Rahm Emanuel. 
Then we have the First Amendment:  “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof[.]”  The government can’t take action that prevents a person from acting in accordance with their religious beliefs.  Even if it disagrees with those beliefs.  [As an aside, yes, the First Amendment applies via the Fourteenth Amendment to state and local governments, too.  SeeGitlow v. New York, 268 U.S. 652 (1925), and its progeny.]  And the First Amendment continues: “Congress shall make no law . . . abridging the freedom of speech[.]”  Not only can the government not prevent you from worshipping as you choose, it also can’t prevent you from talking about your faith.  As Justice David Souter wrote in Board of Education v. Grumet, 512 U.S. 687 (1994), “government should not prefer one religion to another, or religion to irreligion.”  In other words, government is forbidden from drawing distinctions between citizens based on their religious beliefs.  The Fourteenth Amendment bolsters this by guaranteeing equal treatment under the law for all citizens:  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”  Nothing limits this protection to citizens who agree with the majority, or to persons whose values reflect the values of the locality. 
This is an exceedingly dangerous construct that’s developing.  Despite the First Amendment’s guarantees of free speech and religion, and the Fourteenth Amendment’s guarantee of equal protection, we have government denying the right to do business to someone solely because their expression of their religious beliefs conflicts with the views of others.  And notice the arrogance; we have a total of three government officials purporting to state what the beliefs and values are of metropolitan areas with literally millions of residents.  Emanuel talks about “Chicago values,” as though the nearly 3 million inhabitants of that city share a single monolithic belief system.  Presumably if Chick-Fil-A’s and the Cathy family’s values are that antithetical to those of Chicagoans, Chicagoans won’t patronize the restaurants and they’ll be gone in fairly short order. 
But rather than allow Chicago’s residents to decide for themselves what their beliefs are and to act accordingly, Emanuel is taking it upon himself to declare unilaterally what those values are, and then is going to apply the force of government to discriminate between citizens based on that declaration.  Those who agree with what Emanuel says are Chicago’s values can stay and do business.  Those who do not, have to close up shop and leave.  A single man choosing who stays and who goes, who may do business and who may not, based solely on whether he agrees with their religious convictions.
Whether you agree or disagree with Don Cathy’s views on gay marriage, this kind of government reaction to an individual’s statement of his beliefs should scare the bejeezus out of you. 

Why Is Obama Bucking Swing States On Gay Marriage?

McInerney:    And you think you’re wrong?
Shepherd:      I don’t think you win elections by telling 59 percent of the people that they are.
—Martin Sheen as Chief of Staff A.J. McInerney, and Michael Douglas as President Andrew Shepherd in The American President
On Tuesday, North Carolina voters approved an amendment to their state constitution prohibiting legal recognition of same sex marriage, civil unions, and domestic partnerships.  Wednesday, immediately following that result—and under considerable pressure from gay rights groups after Vice President Biden and Education Secretary Arne Duncan came out earlier this week in favor of gay marriage—President Obama announced his thinking on the issue had evolved to the point that he was now publicly, officially, and in every other way in favor of gay marriage.
Thanks for clearing that up, Mr. President.  I was really wondering where you’d come down on that issue.
Now, I have my opinion on the subject, and you can probably guess what that is.  I’ll leave that for another day.  For now, let me say I think we have much bigger fish to fry.  For example, I’m wondering just how Obama has been able to give this matter due consideration given that he swore he was focused like a laser on the jobs issue, and “will not rest” until every American has a job—yet unemployment remains stuck above the 8% mark he swore we’d never hit in the first place.  I’m wondering why I keep seeing CNN and the New York Times report sensitive national security intelligence matters like the CIA having a double agent within al Qaeda providing critical information on current bombing capabilities and planning—guess that lead’s cold now, eh?  I’m wondering whether, despite the growing threat of a nuclear Iran, the Israelis sleep better at night now knowing that Obama is OK with gays being married.
Ultimately, as I’ve posted before, this is a state issue.  If states like California and New York want to recognize gay marriage, fine.  If states like Texas or North Carolina don’t, fine.  Neither is any of the President’s business.  The President’s job is to protect and defend the United States Constitution, and marriage—whether in word or in concept—just isn’t in there.
But what I want to focus on today is what I think is a potentially serious political mistake by the President in coming out with this position in a year when he faces an extremely tight re-election campaign.  Just as an initial point, he didn’t need to do this from a campaign perspective.  The only people he’s really going to get fired up by coming out in support of gay marriage are single-issue gay rights activists, and guess what:  those people were gonna vote for Obama anyway.  I don’t see what Obama perceives as his upside.
More importantly, however, is the electoral math on the gay marriage issue.  The message implicit in the timing of the President’s announcement is unmistakable: 
North Carolina, you’re wrong.
Consider, however, that North Carolina and its 15 electoral votes is a swing state.  Its voters approved the amendment by an overwhelming 61% to 39%—a staggering margin.  That’s a substantial majority of voters to whom the President has effectively just given the bird.
And North Carolina is not alone in either the fact of its opposition to what is now the President’s official position on gay marriage, or in the magnitude of that opposition.  North Carolina is now the 30th state to enact a ban against legal recognition of gay marriage in one form or another.  Since 1998, this issue has come before voters via referenda on proposals either to establish/expand or prohibit legal recognition of same-sex unions 33 times.  The pro-gay-union side has lost 31 of those contests, including losing twicein ultra-gay-pride California.  The two wins (Arizona in 2006, and Washington in 2009) were by razor-thin margins, and both require an asterisk (Arizona later passed a constitutional amendment banning recognition of gay marriage in 2008, and Washington’s 2009 referendum was only on expanding rights afforded under a civil union structure that already existed). 
Significantly, no state—not even California—has legally recognized gay marriage through a measure voted on by the public.  The six states that recognize same-sex marriages, and twelve that recognize civil unions, have all done so either by judicial decree or by legislative action.  Over that last 15 years, when presented to the electorate, gay marriage has lost 31 of 33 votes by a total of 47,646,382 to 28,976,321, or an overwhelming 62% to 38%–effectively identical to the margin in North Carolina.  In other words, not only has gay marriage been defeated at the polls over and over and over again, but it has been defeated by a nearly 2/3 majority. 
CNN can Gallup Poll this until the cows come home.  This is where the rubber meets the road.
But here’s where it really gets sticky for Obama if he continues to push this as a campaign issue.  Gay marriage has been repeatedly and resoundingly rejected when it’s put to the voters in critical swing states:
Florida (29 electoral votes)                 62% to 38% in 2008
Ohio (18 electoral votes)                     62% to 38% in 2006
North Carolina (15 electoral votes)     61% to 39% in 2012
Virginia (13 electoral votes)                57% to 43% in 2006
Missouri (10 electoral votes)               71% to 29% in 2004    
Even in blue-leaning but potentially in-play states like Michigan (16 electoral votes) and Wisconsin (10 electoral votes), gay marriage was rejected by the voters by a decisive 59% to 41% margin (Michigan in 2004, Wisconsin in 2006).  In Iowa (7 electoral votes), when the state Supreme Court struck down a statute defining marriage as a union of one man and one woman, voters responded by removing all three justices out of office; the first time an Iowa supreme court justice had lost a retention bid since 1962.  Other key battleground states Indiana (11 electoral votes) and Pennsylvania (20 electoral votes) also have statutes defining marriage as the union of a single man and woman, and Virginia (13 electoral votes) did it by constitutional amendment in 2007.
It seems to me the President is really sticking his neck out if he intends to push this issue.  He is staking out a position overwhelmingly rejected in five key swing states representing 85 electoral votes.  If you conclude that Michigan and Wisconsin are in play, that total moves up to 111.  Add in that the President’s position is contrary to statutes or constitutional amendments adopted in Iowa, Indiana, Pennsylvania, and Virginia, and it’s 162.  In other words, Obama has just come out against a position adopted by decided majorities or by legislative action in 10 swing states comprising well over half the number of electoral votes necessary to win.  I count a likely 181 electoral votes as solidly Republican at this point.  Obama’s stance on the gay marriage issue by itself could potentially pull as many as 78 to 91 more out of these swing states, yielding 259 to 272, and that’s still conceding Michigan, Pennsylvania, and Wisconsin. 
270 wins.
Conversely, I don’t see Obama picking up any of these states by coming out in favor of gay marriage.  I can only assume that Obama’s hope is that Romney will feel compelled to stake out the opposite position, allowing Obama to paint Romney as an intolerant social extremist (as, apparently, are some two-thirds of Americans).  The trick for Romney is to not take that bait, and stick to the real issues.  Let Obama hang himself on this one by pointing out that all Obama is doing is trying to distract from his record by dividing us on a state issue where the vast majority of Americans have reached a position different than what he’s advocating.  Then go right back to the economy, Obamacare, the “green” debacle, Iran, North Korea, China, and Russia.
This is a time for focus.
 
*****************************************
EDITOR’S NOTE:  Coming soon, The Sobering Reality

Liberal Censorship

 
“What’s new, Buenos Aires?  Your nation, which a few years ago had the second largest gold reserves in the world, is bankrupt!  A country which grew up and grew rich on beef is rationing it!  La Prensa, one of the few newspapers which dares to oppose Peronism, has been silenced.  And so have all other reasonable voices!  I’ll tell you what’s new, Buenos Aires!”
—Che, in “She’s a Diamond” from Evita
FoxNews.com is reporting that a 15 year old Wisconsin high school student was censored and threatened by the school district superintendent over an op-ed piece in the school paper. 
It seems that Brandon Wegner was asked to participate in a point-counterpoint discussion of an issue of current political significance.  The problem for young Mr. Wegner was he had the “against” side on the paper’s choice of topics:
Gay adoption.
The point-counterpoint format is a common angle for a newspaper to take in its editorials, particularly a newspaper legitimately interested in balanced coverage.  One would think that, in a school newspaper that is faculty-supervised and—I expect—written as part of a journalism class, running pieces like this is an excellent educational exercise.  But, as you can already guess, with this particular topic, Mr. Wegner was basically screwed from the get-go.
You can check the piece out for yourself here.  Wegner offered a spirited argument of his case against gay adoption, citing not only Biblical authority, but studies and statistics.  Another student took the “for” side, and likewise offered an enthusiastic case.  By any measure, the collective piece was a decent example of the open debate that is exactly what a point-counterpoint op-ed is supposed to be.
Then all hell broke loose.
Predictably, a gay couple whose child attends the high school bitched.  The school immediately apologized, not for the choice of subject matter, and not for the piece as a whole, but that Wegner had had the audacity actually to take the “against” side of the issue.  The school’s apology called Wegner’s opinion “a form of bullying and disrespect.”
Apparently, “vigorous debate,” like “bipartisanship,” means “you must agree with me.”
But it gets worse.  After falling all over themselves to apologize, the district dragged Mr. Wegner down to the superintendent’s office—not the principal’s office, but the head of the whole freaking school district—where apparently he was berated for hours over his supposed violation of the school’s bullying policy.  He was asked to sign an apology saying he regretted writing the piece—he refused.  He was then threatened with suspension, and called “one of the most ignorant kids” for standing up for his beliefs.
Let me repeat that.
A school district superintendent took a 15 year old kid he disagreed with, tried to coerce him into recanting, threatened to suspend him, and berated him over his “ignorance.” 
Maybe next time he’ll take on Mike Gundy.    
I’m not here today to take sides on the substantive issue of gay adoption, although you can probably guess what I think.  The thing that’s of importance here is the school district’s—and the superintendent’s in particular—conduct, which should be reprehensible to any reasonable person, regardless of your view on the political subject.
Let’s start with the fact that this kid was asked to write this piece, and to take the side of the opposition.  He didn’t hack into the school’s website and unilaterally spew his message over the Internet.  He didn’t commandeer the school’s P.A. system and lecture a captive audience over the loudspeakers.  He didn’t spray paint anti-gay slurs on the school’s front door.  He was asked to take one side of a controversial issue for an op-ed piece in the school paper—a paper that, I think it’s reasonable to presume, is subject to some editorial controls and faculty reviews before being published.  Now, you could reasonably question the judgment of selecting such a polarizing topic for debate in a high school paper.  But once the topic was selected, if there was a problem with the content of his article, why does there seem to be no hammer coming down on the faculty member(s) who let the thing be published?
In police work, it’s called “entrapment”—luring a person into committing an offense by inviting them to do so, then charging them with that very offense you encouraged them to commit.
Second, Wegner didn’t threaten anybody.  He didn’t use foul language or hateful epithets like f*gg*t or qu**r.  He did quote the Bible, and Heaven forbid anyone do that.  You may not like to hear homosexual practices referred to as detestable or an “abomination,”—and I’m not here to argue over the authority or divine inspiration of either the Old or New Testaments—but those are the words the book of Leviticus uses in most English translations I’ve been able to find.
Third, there’s this pesky problem of the First Amendment, which applies to State organizations via the Fourteenth Amendment.  This means it extends to public schools, which Justice Abe Fortas wrote in Tinker v. Des Moines ICSD, “may not be enclaves of totalitarianism.”  I recognize that First Amendment rights are somewhat limited for school newspapers, where legitimate parochial concerns may permit some censorship in order to further the educational aims of the school; but that would have entitled the school to reject the topic or pull the piece, not berate and threaten the kid for writing it.  Further, there’s a big difference between censorship due to content—we don’t, for example, have to permit a high school journalist to drop f-bombs all through his article—and censorship due to the expression of an opinion on a political issue.  Political speech is the very essence of what the First Amendment is designed to protect.
There can be no doubt that this has absolutely everything to do with the substance of Mr. Wegner’s opinion—namely, that he opposes gay adoption.  But the Left—and particularly the gay lobby—isn’t capable of rational discourse on these sorts of issues.  They say they’re all about diversity and inclusion, but the tent’s never broad enough to cover anyone who disagrees with them.  Speech is free, but only as long as you agree with them.  I have a buddy who’s holding his breath waiting for the ACLU to show up to defend Mr. Wegner—to the contrary, I half expect them to mount a public campaign to pressure local police to arrest Mr. Wegner on hate crime charges. 
Like the tired cries of racism we hear from the likes of Maxine Waters any time she doesn’t get her way, it’s empty and childish to accuse people of bullying and hate speech every time they disagree with you.  I know you on the Left don’t like it, but the fact of the matter is there are a substantial number of people—in most states, significant, if not overwhelming majorities—who disagree with you on this issue.  I’m not suggesting you have to change your view, but you don’t just get to say “I’m right, you’re a bully/bigot/racist/hatemonger, debate over, you shut up.” 
American discourse doesn’t work that way.

Federalism And Why Rick Perry Hasn’t Flip-Flopped On Same-Sex Marriage

Explain the change, the difference between

What you want and what you need
There’s the key
—R.E.M., I Believe

Full disclosure:  I’m a Texan.  But no, this isn’t a campaign endorsement.  It’s just an effort to keep the record clear.

Since the day Rick Perry made it official that he was running for President, the Houston Chronicle has cranked out daily (sometimes more than one a day) hatchet pieces all but expressly aimed at discrediting his candidacy.  It’s almost as though they had an inventory of such articles in the can and ready to go.
Shocking, I know.
Saturday’s article stems from Perry’s signing of the National Organization of Marriage (“NOM”) pledge to seek a constitutional amendment defining marriage as the union of one man and one woman.  The Chronicle headlined this article with the notation that “[a] month ago, he said same-sex marriage was for states to decide[,]” referring to Perry’s remarks at a Republican Governors Association gathering about New York’s recent legislation permitting same-sex marriage.  The suggestion is that by signing the NOM pledge Perry has changed his position to pander to social conservatives who immediately criticized his remarks.
I have news for both the Leftist media and the social Right (the latter of which I count myself as being among): Rick Perry’s position on the New York same-sex marriage statute was and remains correct, and by signing the NOM pledge he hasn’t flip-flopped on the issue.
Let’s start by looking at what Governor Perry actually said:
“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex.  And you know what?  That’s New York, and that’s their business, and that’s fine with me.  That is their call.  If you believe in the 10th Amendment, stay out of their business.”
Perry didn’t say he supported same-sex marriage.  He simply didn’t.  What he said was what New York does on that issue is New York’s business.  And this highlights a fundamental point that so many misunderstand.
There is a basic misconception in this country that States are merely subordinate branches of a single government that emanates from Washington.  We’ve seen this misconception manifest itself repeatedly in the Obamacare discussion as supporters ridiculed those who criticized the program’s individual mandate as unconstitutional by pointing to car insurance.  Of course government can require the purchase of health care insurance; every state in the union already does that with car insurance.
The problem, of course, is that States aren’t subunits of the federal government, and the rules for States are, in fact, very different than they are for the federal government.  This is why the car insurance analogy was always irrelevant to the Obamacare debate, and why criticism of Mitt Romney over Massachusetts passing a similar statewide healthcare law during his watch as Governor is largely misplaced.  Recall that at this nation’s inception the colonies-cum-States were 13 individual sovereign entities, and the very core of the debate over whether to ratify the Constitution and create the Union at all was the concern over how much of that sovereignty the States would retain.  The Ninth and Tenth Amendments were specifically added to the Bill of Rights to guarantee that the States retained their sovereignty with very limited and specific exceptions, and were necessary inclusions to secure ratification; without them, the Constitution would never have been adopted, because States like Virginia, South Carolina, and even New York would never have agreed.
Under the Ninth Amendment: 
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
And the Tenth: 
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Framers couldn’t have been more clear.  Certain specific powers are conferred upon the federal government, and EVERYTHING else is reserved to the States or to the people.  James Madison famously elaborated on this idea in Federalist Paper No. 45: 
The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Try as you might, you won’t find marriage discussed in the Constitution.  It’s just not there.  And because it’s not among those matters specifically delegated to the federal government, it is an issue expressly reserved to the individual States.  This is the point Perry was making with respect to New York.  I don’t like it, but at present there’s nothing Texas or the federal government can do about what New York has decided with respect to same-sex marriage within its borders. 
Perry understands what the Left can’t or won’t accept:  there are rules that are supposed to bind what the federal government can and can’t do, and if you want something at the federal level that isn’t provided for, there’s a process for accomplishing that and that’s called amendment.  And perhaps this is what has the Leftist media confused.  They can’t figure out why Perry wouldn’t simply appoint a judge to overrule the New York statute.
Isn’t that how we always do it?
The fact is that Perry hasn’t flip-flopped on the same-sex marriage issue.  In 2003 he signed Texas’ state version of the Defense of Marriage Act, specifying that Texas does not recognize same-sex marriages or civil unions.  In 2005 he supported the Texas Marriage Amendment to the State Constitution (which passed in a statewide referendum by an overwhelming 76% of the vote) making it unconstitutional for the State to recognize or perform same-sex marriages, plural marriages, or civil unions.  Perry’s statements regarding New York and his signing of the NOM pledge are consistent with his opposition to same-sex marriage and view that the issue is one for the individual States.
If you don’t like what New York has done with same-sex marriage, don’t move there.  But don’t blame Rick Perry for it.