The Federalist: Wyoming Censures Judge For Marriage Beliefs Even Though No Law Requires Her to Perform Marriages

 If the Wyoming Supreme Court is permitted to insert an unstated requirement upon judges, what prevents some future court from reading pastors, priests, and bishops into the same decision?

Earlier this month, the Wyoming Supreme Court handed down a 3-2 decision in the case of Judge Ruth Neely from Pinedale. Writing for the majority, Justice Kate Fox said, “Judge Neely violated Rules 1.2, 2.2, and 2.3 of the Wyoming Code of Judicial Conduct. However, we do not accept the Commission’s recommendation for removal, and instead order public censure, with specific conditions.”

In contrast, Justice Keith Kautz wrote for the minority, “There is no clear and convincing evidence that Judge Neely violated any of the rules of the Wyoming Code of Judicial Conduct. Wyoming law does not require any judge or magistrate to perform any, particular marriage… There is no cause for discipline in this case… There is room enough in Wyoming for both sides to live according to their respective views of sex, marriage and religion.”

Continue Reading on the Federalist.

 

Liberty Is for Human Thriving, not Just Convenience

This past week the United States Senate held confirmation hearings for Judge Neil Gorsuch. Hours of questions and answers provided a great opportunity to learn about how our government works.

One standout moment was when Senator Sasse (R-Nebraska) asked Gorsuch to teach a civics lesson on why we have the Bill of Rights. Gorsuch’s answer was brilliant -- what every American should know and always remember.

He first said, “The Constitution is a negative document.” We did not write a constitution to make sure the federal government had enough power, we wrote it to make sure that it never got too much power.

The theory behind the Constitution is to divide power. That protects liberty. America’s founders had learned the hard way that when “you put all power in one set of hands, you’re going to get tyranny.”

Let this sink in, deeply. The opposite of liberty is not inconvenience. The opposite of freedom is not a citizen who opposes your will, or who won’t do what you want them to. The opposite of liberty is government tyranny.

To stand up for liberty is not to argue for the right to have my way. It is to fight against the accumulation of power that can bankrupt your businesses, tear apart your families, and force your silence.

To protect this vital liberty America’s founders divided power in three ways. First, they divided the power of the federal government itself into three branches; Legislative, Executive, and Judicial. This is not just a convenient way of splitting up the work, as though there’s just too much for any one branch to do. This is a separation of powers.

It’s not merely that the legislature usually writes the laws, but sometimes it’s O.K. to have the other branches write laws too. Rather, if the judicial branch writes a law from the bench, they are not only taking freedom away from the person who is ruled against. They are taking a step toward putting both parties, and all the rest of us, under tyranny.

If legislators pass a law giving bureaucrats from the Executive branch authority to write the rules they will enforce, they are not merely speeding up the law-making process. They are selling their constituents out to tyranny.

So why do they do it? Because legislating is hard. It’s hard to get that many people to agree on something. That’s the point! Gorsuch reminded us, “It’s supposed to be tough, to protect liberty. We don’t’ just have one house. We have two houses.”

For something to become a law, it has to pass through both the 435 member House of Representatives, and the 100 member Senate. Then, it has to be signed by the president too! If you think this is too frustratingly slow of a process, and you want to speed it up by assigning the work to some committee, think again.

The people who wrote the Constitution had lost loved ones, and bled themselves. They learned the hard way that when it’s too easy to pass laws, too many laws are passed. And that’s very bad for human freedom. All of this is designed to be hard. Part of protecting liberty is making it difficult to legislate.

We, the people of America, are interviewing Gorsuch for a perpetual position on the highest court in the land. I can think of nothing that qualifies him better, than for him to answer, “The president’s powers are to execute the laws, not make them, not adjudicate disputes. Our role is to decide cases and controversies between people under law as it is, not as we wish it to be.”

Not only does he understand the purpose of three branches in the federal government. He knows that our Constitution divides power in another way as well. He said, “The federal government has certain enumerated powers and authorities. And what the Federal government doesn’t enjoy, the states do as sovereigns.”

The fact that state laws differ from state to state is not a problem. We do not need the federal government to impose lock-step uniformity from on high. The United States of America are states, first of all. They are united by a limited, federal government. The Constitution does not put limits on state powers, it put’s limits on federal powers.

It does this by enumerating what powers belong to the federal government. Then the Tenth Amendment states, “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.” This is plain and simple language which means, if the Constitution doesn’t specifically say that Washington has the right to pass some law, they don’t.

This too is not just for convenience, but to protect us from tyranny. It allows the states individually to wrestle and experiment with all the difficult problems of forming a just society. This unleashes the ingenuity of the citizens in fifty different states to learn from each other and improve on each other.

More than that, it treats every citizen as a human being created to rise to the challenges of life by their own creativity, and not be hampered by the mistakes of others, far away. Federal overreach – whether it be a judiciary that throws out state’s marriage laws, or an executive agency that won’t let a man dig a stock tank on his own land – is an attack on our common humanity.

For this reason, America’s founders were still not through protecting our liberties. While many fine people thought that the Constitution was enough to prevent these tyrannies, others insisted that we needed still more protection. So, they added the Bill of Rights.

These ten amendments to the constitution picked out a few of the most basic rights and explicitly denied the Federal Government any power at all in these matters. Freedom of speech, press, and religion are among the first listed. So also gun rights, freedom from military or law-enforcement oppression, and the list goes on.

Those founders who were opposed to the Bill of Rights, were not opposed to any of the rights themselves. Everyone understood that these things should be protected without question. But there were those who feared that if we singled out any rights for protection, some federal bureaucrat would assume that they could mess with the ones we didn’t name.

So, perhaps the most important amendment of all in the Bill of Rights, is the Ninth Amendment. It says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This amendment takes us back to the main limiting function of the Constitution. All rights are granted, not by our government, but by our Creator. They are granted by the One who makes us human and gives us the responsibility to live as the human beings we are.

Tyranny, which does not recognize these rights, is not just an infringement against doing whatever we want. It is an attempt to replace our Creator, and, by extension, an attack on who we are, as His creatures.

Now, more than ever, we need to relearn the genius of the Constitution. Now, more than ever, we need to defend its original meaning. Now, more than ever, we need to elect those who will uphold it, and impeach those who do not. It shouldn’t matter whether that person agrees with our favorite policies or not. Because freedom lost, even for a good cause, is a loss for all humanity.

I’m glad that Judge Gorsuch gave us such an eloquent civics lesson. I hope that he is our next Supreme Court justice. But more than that, I hope that each and every reader of this column will dig deeply into the Constitution and stand with him in defending it.

Gun Rights Rooted in Responsibility to Defend

Last Wednesday (March 15, 2017) Governor Mead signed HB 194 “School Safety and Security” into law. That same day, he vetoed HB 137 “Repeal Gun Free Zones.” I applaud the first, but decry the veto.

This may come as a surprise to some. This pro-life, conservative, Christian is in favor of people carrying firearms into schools and into government meetings.

I have even encountered some cynics who attack my integrity. They claim that no one can honestly be pro-life while also defending the right to keep and carry weapons meant to kill a man.

Such inflammatory assertions usually pop up in Facebook memes. They are not invitations for rational dialog. But this challenge deserves a solid answer. So today let me outline a few points in reply.

First, we should dial back the rhetoric, just a tad. While I appreciate fine poetry as much as the next guy, a line from Lynerd Skynerd’s Saturday Night Special is hardly adequate to frame the debate about the Second Amendment.

“Ain’t good for nothin’ but to a put a man six feet in a hole,” does not adequately describe a concealable firearm. Hand guns are not built to kill people, but to defend them from being killed.

Designed so that their size and weight makes them easier to carry, they are more likely to be close at hand should the need arise. What kind of need? Let’s be clear. Law abiding carriers know that the only need for a firearm is when there is an imminent threat of grave bodily injury.

It is a tool of last resort to prevent grave bodily injury to yourself and others. Anybody who brandishes a weapon for any other reason is breaking the law and may be fined, jailed, or both. So, if that’s what you are worried about, relax. We already have strict laws on the books to prevent people from waving around pistols in public.

The problem is that someone who is intent on doing you grave bodily injury already is in contempt of the law and, so, is not likely to keep his own gun holstered until you threaten him. Nor is he likely to obey a state law which prohibits him from taking it into a public meeting. For those rare but real situations, the Second Amendment to the U.S. Constitution guarantees “the right of the people to keep and bear arms.”

Once we have dialed back the rhetoric, we are in a better position to consider this right. First, let’s consider the Constitution. Then, look at the principle behind it.

The first reason to advocate for the right to keep and bear arms is simply that this is the law of the land. We teach our children to follow the rules at school. As adults, we also follow city, state and federal laws. In the same way, we should expect and encourage our elected officials to follow the Constitution. This legal document sets boundaries on the kind of laws our elected officials can legally write, and legally enforce.

This is the rule of law, and it sure beats the chaos of tyranny. We are a constitutional government because we have seen the evils that arise when rulers have the power to say and do anything they think is right. If any elected official, or group of officials, is willing to ignore Constitutional boundaries in order to accomplish what they think is good, what principle will check their power?

C. S. Lewis wrote, “Of all tyrannies, a tyranny sincerely exercised for the good of its victim may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated, but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

At this point, someone might object and say that the 2nd Amendment was a bad idea. They may think it should be abolished, and that law-makers should have the ability to infringe upon the rights for persons to keep and carry arms.

Anybody is certainly free to think that. We even have a constitutional way to act on this thought and to amend the Constitution. But amending is lawful correction. Disregarding is lawless tyranny.

Imagine the chaos if the temperance movement had started fining and jailing people who made beer, without bothering to pass the 18th Amendment. Again, witness the corruption and murder that happened when lawmen who disagreed with the 18th Amendment disregarded it and illegally protected the mobs.

But while anybody is free to work at repealing the 2nd Amendment, I counsel caution. To do so would work against our basic humanity in a profound way.

All human beings are endowed by their creator with a deeply human impulse to help and protect those in danger. This impulse is not typically found among the higher animals. Soldiers, lawmen, EMTs, and firefighters will regularly run into harm’s way to aid the fallen. But, herds of deer and elk regularly run away from them.

When we, personally, see someone being bullied, we want to help them. We want to raise our own child to be the one that pushes through the crowd and stops the tormenter. As policy-makers, we want to find ways to provide effective tools that teachers and students can use to stop bullying whenever they see it.

We shame people who see one person abuse another and do nothing to stop it. In fact, we have laws which punish people who can do something about it, but don’t. That’s not only because it helps the person who is being abused. We can also see how dehumanizing it is to stand idly by without trying to help.

That’s the same principle involved in the 2nd Amendment. Rights are merely expressions of pre-existing responsibilities. The right to keep and bear arms was written into the Constitution because we each have a fundamental responsibility to help and protect our neighbor.

If I expect all my fellow citizens to stand up for a neighbor in danger of direct bodily harm, it becomes my own moral responsibility to equip him or her for the task. How dare I push somebody else into performing a dangerous and potentially deadly task while withholding the tools to do that task?

We all know how reprehensible it is for a government to send troops into the fight who are ill-equipped and at a disadvantage. The same goes when we want to cultivate a civilization where people help each other, no matter what the danger.

Much of the debate surrounding the 2nd Amendment is misdirected. We talk as though it were about personal rights and power. Things come into better focus when we consider our personal responsibilities to help and protect. Once we acknowledge these, our love and care for the protectors will make us desire to give them the tools they need.

Does the Neely Decision Maintain the Public's Faith in the Judiciary?

On March 7, 2017, the Wyoming Supreme Court handed down a 3-2 decision in the case of Judge Ruth Neely from Pinedale. Writing for the majority, Justice Kate Fox said, “Judge Neely violated Rules 1.2, 2.2, and 2.3 of the Wyoming Code of Judicial Conduct. However, we do not accept the Commission’s recommendation for removal, and instead order public censure, with specific conditions” (1).

Justice Keith Kautz wrote for the minority, “There is no clear and convincing evidence that Judge Neely violated any of the rules of the Wyoming Code of Judicial Conduct. Wyoming law does not require any judge or magistrate to perform any, particular marriage… There is no cause for discipline in this case… There is room enough in Wyoming for both sides to live according to their respective views of sex, marriage and religion” (56).

Before we look at the differences of opinion, we should note what they agree on.

For starters, the Court rejected every punishment recommended by the Commission on Judicial Conduct and Ethics (CJCE). They unanimously and unconditionally declined to remove her as municipal judge of Pinedale. They also agreed unanimously that she should not be removed as magistrate of the 9th Judicial District. Finally, they did not even consider the suggestion by the CJCE that she reimburse the state for prosecuting her.

As for the charges, the Court unanimously agreed that Judge Neely did not violate Rule 1.1 of the Code of Judicial Conduct. They further agreed that “Judge Neely remains ‘free to practice her [religious] beliefs,’ and she is ‘free to believe that marriage is a union between one man and one woman, as many Americans do” (17). Further, all five members of the court stipulate that a judge may openly “express her religious beliefs” (11).

Finally, the Court rejected the CJCE’s assertion that Judge Neely broke any rules merely by “announcing her position against marriage equality,” and that “judges do not enjoy the same freedom to proselytize their religious beliefs as the ordinary citizen” (Respondent’s Brief, 14,15). All of this is good news for anyone concerned about the erosion of First Amendment rights.

In spite of broad agreement, still the Court was sharply divided on the question of whether she violated the Code of Judicial Conduct at all. The majority says she did. The minority wrote, “I must respectfully, but vigorously, dissent” (33). The disagreement can be broken down into two basic topics: one being  Constitution, the other, the law.

The U.S. Constitution guarantees that “Congress shall make no law…prohibiting the free exercise” of religion. But the very first paragraph of the majority opinion posits a “distinction between the freedom to believe and freedom to act” (6). Then, throughout their discussion, they insist that this case is not about Neely’s beliefs, but about her actions.

It is awkward, however, that her “actions” consist entirely of words. She has never taken any action in a same-sex marriage. She has never been asked to. What she has been asked, first by a reporter and then by the commission, is to speak to hypothetical questions involving various scenarios. In the absence of any actual case, the Court is creating a verbal test that she must pass by speaking the right words.

It is especially the conditions required by the Court for her continuing in the magistracy that highlight the absurdity of this position. “She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies…” (32). But, when pressed by the dissent, they admit that judges can still turn down any request to perform any particular marriage ceremony.

This places the majority in the peculiar position of allowing a judge to decline to perform any marriage ceremony for any reason whatsoever--except one. Of course, such a stance remains non-enforceable so long as the reason remains only a thought. But it becomes punishable if it is spoken. How is this not the restriction of free speech?

One can approach it from the other side as well. The Court majority stipulates that she can speak freely about her religious views toward marriage. But, once she does, she is no longer free to exercise that religious view. So, the claim that “this case is not about same-sex marriage or the reasonableness of religious beliefs” (1) is true only as long as your words and actions contradict each other.

This ruling is predicated upon the Court’s assumption that the law requires each and every judge to perform same-sex marriages. This is what the majority means when they opine that a judge’s religious beliefs must not “interfere with her fair and impartial application of the law” (28). But is this assumption based in any legal text? Here, the dissenting opinion lays bare a glaring problem.

The Wyoming law that prohibits same-sex marriage (W.S. 20-1-101) was annulled by the 10th Circuit Court in 2014 (Guzzo v. Mead). But if the Wyoming Statute is no longer in effect, what law has replaced it? That’s the question that the majority opinion never really examines, but Kautz’ dissent does.

Guzzo v. Mead is a judicial decision (not a statute) which prohibits the state of Wyoming to “deny marriage to same sex couples or to deny recognition of otherwise valid same-sex marriages entered into elsewhere. Marriage licenses may not be denied on the basis that the applicants are a same-sex couple.” But Guzzo pointedly does not say who is required to perform these ceremonies. If it had, the CJCE would at least have a legal basis to say that Judge Neely refused to follow the law. But, as it is, this is an unwritten assumption.

Perhaps the Guzzo court wishes that they had stipulated this, or perhaps they intended to leave it to the state. All we know for sure is that they didn’t answer the question. But the majority opinion against Neely acts as though they did say what they did not actually say.

As a Lutheran pastor, I am one of these marriage performers under Wyoming law (W.S. 20-1-106). Does the majority opinion apply to me, or only to judges? They don’t say, just as the 10th Circuit Court refrained from saying. But if this Court is permitted to insert an unstated requirement upon judges into the Guzzo decision, what principle prevents some future Court from reading pastors, priests, and bishops into the same decision?

The truth is that the majority opinion has not interpreted the law, but written a new one. This is the most dangerous thing of all. This is particularly striking since the opinion was handed down at the close of Wyoming’s legislative session.

During the past 40 days, ninety legislators, dozens of lobbyists, and thousands of private citizens have engaged in a process of give-and-take. This process requires that bill pass nine separate votes. At each one of these votes, words can be added or subtracted, entire clauses can be rewritten, and unforeseen problems can be addressed.

All the while, citizens are advising their elected representatives and their elected representatives are working with one another to arrive at a law which will be clear, wise, and gain the greatest consensus possible. Then, even after all of this hard work, the bills face one more hurdle. It is Governor Mead’s burden to decide whether to sign, or to veto, two months and countless hours of work.

Contrast this with what just happened at the Supreme Court. In a hearing last summer, two people addressed the Court for only one hour. Since then, five people, worked in secret, with no public input for almost seven months. Finally, with a single 3-2 vote, they have added a law to Wyoming jurisprudence which can neither be amended where it is unclear, or augmented where it is insufficient. It cannot be vetoed by the Governor, nor taken up by the legislative process.

The majority opinion claims, from the outset, that this case is about “Maintaining the public’s faith in an independent and impartial judiciary that conducts its judicial functions according to the rule of law,” (1). This is certainly a noble goal. But for Judge Neely, to have a new law written by the very court that is judging her is an outrageous overreach. Faith in an impartial judiciary is only maintained by a judiciary that applies the law as written. Writing laws that favor one party to the dispute is the very definition of partiality.

Further Reading:
The Federalist: Wyoming Censures Judge for Marriage Beliefs Even Though No Law Requires Her to Perform Marriages
Wyoming Tribune Eagle: shorter version
Rock Springs Rocket-Miner: shorter version

Why We All Should Care about an Oregon Bakery

This past week (March 2, 2017), Aaron and Melissa Klein finally had their first day in court.

Here are the facts of the case. On January 17, 2013, a repeart customer of Sweet Cakes by Melissa, in Gresham, Oregon, entered the shop and asked the co-owner, Aaron Klein, to create a wedding cake for the occasion of her same sex wedding. Considering the biblical teaching on marriage (Genesis 2:24), he declined to create the requested cake.

At the time of the incident, the State of Oregon itself did not recognize same sex marriages. Nevertheless, in February 2013, civil enforcement officers from the state’s office of Attorney General, opened an investigation to see if Aaron had violated Oregon Equality Act passed in 2007.

Activists began to harass and threaten their suppliers into breaking business ties with Sweet Cakes. Physical damage was done to their delivery truck, and death threats were delivered to the Kleins. By September, they were forced to close the shop and work out of their home.

More than two years after the incident, in April 2015, an administrative court awarded $135,000 in damages to the customer. Then, in July of that year, the Oregon Bureau of Labor and Industries (BOLI) made it final. The Kleins asked for a reduction of the amount since it would lead to their financial ruin. Brad Avakian, the Commissioner of BOLI denied their request.

They objected that they should not have to pay the penalty until their case was heard by a court of law. But weeks before Christmas, the state of Oregon emptied their bank accounts of nearly $7,000. Then, December 28, 2015, they were forced to pay an additional $136,927 to cover not only the penalty, but interest accrued.

In April 2016 they filed suit with the Oregon Court of Appeals. By September 2016, they announced that even the business that they had moved to their home was now closed down. Last week, on March 2, 2017, they finally had their first hearing before an actual court of law. The three judge panel heard their case but likely will not rule for several months.

These are the facts of the case, as neutrally as I can report them. Now it is time for some comments on its substance.

First, it is always troubling when the law is a moving target. At the time this case began, the State of Oregon itself did not recognize a same sex marriage as legitimate. The Oregon Equality Act had been on the books for five years and had never been used to prosecute the state’s own position. How, then, could anybody anticipate that an agency of the state, could penalize a citizen for its own position?

Since Hammurabi’s Code (1754 BC), one of the basic principles of law is that it is equally applied to citizen and king alike. In keeping with that, the law must be understandable and predictable. How are we to live equally under the law if nobody knows what the law says until some bureaucrat decides what it says?

Second, we should all be alarmed when judicial authority is usurped by the executive branch. Brad Avakian is the Commissioner of the Oregon Bureau of Labor and Industry, an executive agency. He, and the administrative courts of his agency have acted as judge, jury, and executioner from 2013 until now.

Within months of the initial investigation, Avakian declared that his goal was to “rehabilitate” the Kleins. A year later, their appeal for a more reasonable penalty had to go directly through him. A year after that, he authorized the seizing of their bank accounts – all before the judicial branch even heard the case. I don’t care where you stand on the right or wrong of the Klein’s case. Everybody should be alarmed at the power of a single bureaucrat to destroy a private citizen.

Third, justice delayed is justice denied. It would be bad enough if one government functionary had such discretionary power for even a month. But Brad Avakian has effectively controlled the finances of the Klein family for over four years. Even now that the case has finally been heard by an appeals court, it will be months before they have a chance to regain the money and assets that have been taken from them.

There is a reason that our courts treat people as innocent until proven guilty. To deprive people of money, property, and good name – even for a short while – has permanent consequences. Even should the matter finally be resolved in the Klein’s favor, they can never regain their business or undo the years of damage this has cost them.

Fourth, the Constitution was intended as a preventative, not as a last ditch correction. It is simply ludicrous that the words of the Constitution cannot even be considered until every bureaucrat has had his say. But that is what has happened here.

Aaron Klein explains, “Every time we tried to make a constitutional argument it was stomped on, because it was administrative law… But now we’re finally in a courtroom where the Constitution and due process can be argued on a level we haven’t seen before. I’m looking forward to seeing the outcome.” We see this same pattern happening in our own state with the prosecution of Judge Ruth Neely.

I recently reviewed the oral arguments of her case before the Commission on Judicial Conduct and Ethics (CJCE). Time and time again, when Neely’s defense attorneys would bring up statements in the Wyoming and U.S. Constitutions which should protect her from the actions of the CJCE, the attorney for the CJCE would blandly reply that such questions will have to wait for the Supreme Court to decide, “I don’t believe it is the prerogative of this panel or the full commission to decide and rule on constitutional issues.”

Fifth, justice involves proportionality. Even if you judge the Kleins to be in the wrong, consider the hugely disproportionate effects on the two parties. On the one side, a woman was upset by the treatment she received at the bakery, and verbal harassment from others when her case became public. She lost no money, was not physically assaulted, was not vandalized, or run out of business. On the other side, the Kleins have been vandalized, run out of business, treated as criminals by the state, and forced to give over $140,000 to an escrow account for the offended woman.

Would anybody call it just if a jay-walker were fined a year’s wages? Or, if pulling hair were punishable by death? I just watched a powerful movie called, Sophie Scholl: The Final Days. In it several college students were guillotined for passing out anti-government pamphlets. Disproportionality is the very definition of tyranny.

Sixth, and finally, the charge itself is obviously false. The person requesting the cake was a repeat customer. That means they had already proven they do not refuse service based on sexual orientation. It’s about what they were asked to say, not who they were dealing with. Is the creation of art free speech, or not?

Are cake-decorating, photography, and flower-arranging artistic performances protected by the First Amendment? Or can the government mandate what these artists must, or must not say? Be careful how you answer, or you too will soon be forced to dance to the government’s tune.

These are the questions raised by the case of an Oregon bakery. Although they are happening two states away, they hit very close to home. Every Wyomingite should care, because if Oregon prevails, we will all be served the same cake that Oregon is baking.