Corporations Committee Considers Gender References

Rep. Daniel Zwonitzer testifies before the House Corporations, Elections & Political Subdivisions Committee, of which he is the chairman, on Jan. 26. (Andrew Graham/WyoFile)

The Joint Interim Corporations Committee met in Sundance on Nov. 20. Their unusually full hearing room was abuzz with nearly 70 people who wanted to weigh in on the draft bill called “Statutory Gender References.”

This is a rehash of HB 212, which failed in last February’s General Session despite the last-minute flurry of effort by Rep. Dan Zwonitzer, co-sponsor of the bill and chair of the committee that sent it to the house.

The summary of the bill says that it is to “amend archaic language; [and] codify rights of parties legally authorized to marry in Wyoming…” In plain English, “Statutory Gender References” (SGR) changes more than 60 Wyoming laws in one fell swoop. The bulk of these changes are in Title 14 regarding child custody.

The “archaic language” that it targets is virtually every reference to husband or wife, male or female, his or her, mother or father, man or woman, paternity, widow – anything that might specify a legal distinction between the sexes.

But it’s more than an exercise in search and replace. It alters the very definition of “parent” at its core. The net effect of its drastic re-orienting of child custody law is to change fundamentally Wyoming family law.

For this reason, some objected that SGR violates Article 3, Section 24 of Wyoming’s Constitution, “No bill, except general appropriation bills and bills for the codification and general revision of the laws, shall be passed containing more than one subject…” SGR’s sponsors generally painted it as a mere “general revision of the laws.” But when Zwonitzer said, “I do believe this is a fundamental bill,” he seemed to agree with the objectors’ point.

Certainly, there are sections which merely clarify existing laws. For instance, it amends various property and civil laws by replacing the words “husband and wife” with “spouses,” and in Title 15 it replaces “policeman” with “police officer.” But these relatively innocuous changes are the smallest part of the bill.

The bulk of it (27 out of the bill’s 43 pages) is concerned with changing either child custody laws (Title 14), marriage laws (Title 20) or birth certificates (Title 35). 

Current law defines “parent” as either the “legal guardian,” “natural parent” or “adoptive parent.” The SGR law would add a fourth definition of parent: “a person adjudged as parent...in judicial proceedings.” This creates a new category of parent and, along with it, a new power for the courts.

Natural parents are created by God when conception takes place. At that moment, a new child has a natural father and a mother. Governments recognize these relationships but don’t make them. Courts get involved only if natural parents give their parental rights to others. This is called adoption. Courts oversee it to make sure nobody is exploited. But, again, they only recognize what others have done.

In some circumstances, a court may assign that legal guardianship for the welfare of the child. But, even here, it cannot deny the reality of natural parentage. Courts have never held the authority to make or unmake natural parents. SGR would change that.

This new  category, “person adjudged as parent,” draws on language already present in Wyoming statute but falls into the error of equivocation. It uses the same term with a different meaning than before.

The current term, “adjudicated father,” is not a different kind of father. It is the natural father as determined by the evidence presented in a court of law. When we see a child, nobody asks if it has a father, only who the father is. We also know that our pool of candidates is immediately narrowed to the Y-chromosome crowd.

What is new in SGR is that adjudication is no longer about discovering the truth but denying it. Adjudicated parentage, under SGR, disregards the fact that a child already has both a natural mother and a natural father. In their place, and quite apart from adoption laws or legal guardianship protocols, the court simply declares a person (male or female) to be “a father” of the child, but not necessarily “the father.”

Yes, you read that right. Under Title 35-1-411 SGR explicitly adds the word “she,” to the section where “the person to be named as the father sign[s] an affidavit of paternity.” This deliberately creates the possibility that a woman could be named as “a father” simply by signing an affidavit.

Until now, Wyoming family law has steered a neutral path in debates over assisted reproduction. 14-2-403 (d) explicitly declines to authorize surrogacy in the state of Wyoming. But, without coming clean in its summary statement, SGR inserts paragraphs into Title 14-2-904 and 905 that would create a new legal framework for surrogacy!

Under this proposed framework, fatherhood can be made by judicial fiat. Not only that, but a claim to paternity can also be denied on the mere ground that two people have previously been assigned parental rights, and it makes no difference whether either of them is the natural father, or even an “adjudicated father.”

Finally, there is another curious consequence of these changes. Thirty-eight times, SGR replaces the word “father” with “parent,” and an additional 14 times, it replaces “paternity” with “parentage.” The net result of this neutering frenzy is not to keep things neuter. On the contrary, it opens the door for courts to meddle in matters of maternity where the natural maternity is not in the slightest doubt.

For 5,000 years of recorded history, motherhood has been the easiest of all relationships to establish. The blood, sweat and tears of labor are the irrevocable badge of motherhood. Witnessed by doctors, nurses and midwives there is never any question about who the mother of a child might be.

Under SGR, a bloodless piece of legal parchment would trump even the fact of a child issuing forth from a woman in labor. Any person -- male or female, single or married -- could sign a legal document that claims motherhood and strips the pregnant woman of any maternal rights to care for the child that she is bearing.

This doesn’t fill gaps in Wyoming family law, it creates them. Current laws safeguard the parent-child relationship established either by conception or by adoption. The creation of a new “adjudicated parent” category and surrogacy laws that enable the purchase of a woman’s maternal rights undermine those protections.

This fundamental overhaul of Wyoming family law is being presented as a mere update of “archaic language.” That is both disingenuous and dangerous.

Children should not be pawns in an ideological game. Laws should not be written that establish obvious falsehoods as legal truth. The government has no legitimate power to break and remake the natural bonds of mother and father.

Thankfully, when SGR finally came to a vote, Senators Agar and Nethercott, together with Representatives Blackburn, Edwards, Eyre, Furphy, Lindholm and Lone, opposed the measure. Senators Case, Pappas, Scott and Sweeny joined Representatives Byrd and Zwonitzer approving the bill.

Even though the nays prevailed last Monday by an 8-6 margin, don’t think that this is the last you will hear of it. Already at the meeting co-sponsors Zwonitzer and Connolly indicated that it would be brought up again during the budget session.

Further Reading:
WyoFile: Perspectives: the Sundance Fallout from Two Sides
Daily Signal: "GOP Congressman, Trent Franks to Resign for having discussion of surrogacy with female staffers"

Dennis Prager Visits UW Campus

Two weeks ago, I didn’t know very much about Dennis Prager. I had heard his name and had seen a couple of his videos from Prager University. But I didn’t even know that he has been a nationally syndicated columnist and radio host for 35 years.

So, I’m truly thankful that the Wyoming Tribune Eagle publicized the “Protest Dennis Prager” Facebook page (Conservative Firebrand Dennis Prager to Visit UW, Nov. 3, 2017). It gave me a reason to listen to Dennis Prager himself and compare that with how he was characterized in the newspaper.

I am also thankful to the UW chapter of Turning Point USA and their President, Jessica Leach. Given the vitriol that was aimed at their group and the physical violence experienced by both guest and host at Middlebury College, bringing Mr. Prager to Wyoming required considerable bravery on her part.

Credit should also be given to UW President Laurie Nichols. A protester wrote, “This will be another Milo situation,” invoking the vandalism, riots and costly property damage that happened at Berkley. Whether these were being threatened or merely predicted, the administration was put in a hard place. Thankfully, it did not cower. Bravo!

Nichols wrote, “I encourage our university community to consider that the principles of free speech and campus inclusiveness should not be mutually exclusive; that is, they should not conflict with, but rather reinforce each other. Inclusiveness is about widening the circle of voices, including more perspectives from different backgrounds, all free to speak, free to disagree, free to discuss and debate.”

Wyoming can be proud of the way our students and administration handled themselves. The handful of protesters at the event were respectful and caused no property damage. The event was filled to capacity by an attentive and appreciative audience. The Q & A following Prager’s speech was thoughtful and measured.

Prager began his speech by talking about the rhetoric from the Protest Dennis Prager Facebook page, which called him “a racist, homophobic, xenophobic, red-baiting, anti-academic, climate-denying, rape apologist,” and a comment which called him an “anti-Semite.” The life-long, practicing orthodox Jew pointed to his published books on the Torah and Jewish concerns and asked if it's reasonable to accuse a man of hating himself. The irony that a Jew should be accused of anti-Semitism during Holocaust Education Week is over the top.

Not only did Prager call out the slander, he addressed the bigger problem saying, “[We have] a crisis in America. The crisis is the creation of lies about decent people. And it needs to be acknowledged for what it is – lies about decent people.” Differing with others is not the problem, he said. “But there is a very big difference between differing with people and throwing the worst possible labels onto a human being who doesn’t deserve it.”

He went on, “Aside from smearing decent people, which is in itself a terrible thing, what [these people] are doing is they are completely undermining the fight against real racism, real white supremacy, real misogyny, real xenophobia.”

“When the real Nazis and anti-Semites and racists and misogynists and white supremacists show up, there will be no vocabulary left.” By using such terms as weaponized labels, stripped of their meaning, it strips us all of the ability to fight against real evil.

After an extended discussion of these points, Prager got to the main theme of his talk, “Why Socialism Makes People Selfish.” His answer to this question begins with a simple observation: “The only thing that has ever raised large numbers of people from abject poverty is capitalism.”

Nothing else in the history of humanity has had such widespread positive impact on people. This fact can be established by pages of statistics, historical data, and sociological theories. But the simplest way to see it is to remember that immigrants from all over the world seek to enter America because of her freedom.

Capitalism, after all, is not some economic theory devised by eggheads and taught in universities. Capitalism is simply a name for what happens when people are free. It is not imposed from top down. It is the form that freedom takes in the marketplace.

If you are interested in lifting the greatest possible number of people out of abject poverty, you will be interested in free markets. But socialism is interested in something else. Socialism is interested in equality. For socialists, inequality of any kind is a problem to be solved.

Here’s the problem: The freedom to be different is the very freedom that makes inequalities – differences. The only way to solve the problem of inequality is to take away the freedom to be different. Similarly, capitalism is full of inequalities because capitalism is full of freedoms.

Prager said, “inequality only bothers people who are bothered by inequality.” Of course, that’s redundant. But it is profoundly true. The mere fact that someone may have more than I have need not bother me in the least. I can choose to covet, but I don’t have to, and it serves no good purpose.

Socialism’s obsession with equality cannot help but lead to covetousness. Karl Marx was not ignorant of this. He counted on it. The Marxist state depends on people set against each other, and fostering covetousness does this better than anything.

The God of the Bible, on the other hand, explicitly teaches us not to be covetous. He teaches people to be content with what they have and to live at peace with all people. It is precisely for this reason that the communist state was at perpetual war with Christianity. How can you foment class warfare when people are content with what they have?

This theological observation creates observable results in free nations. Citing statistics from a Johns Hopkins study of charity (Forbes (Dec. 26, 2008), Prager pointed out that “Americans give more to charity per capita than any other people in the world.” Conversely, “Among developed nations, those with higher taxes and bigger social safety nets tend to have lower rates of giving.”

This is a fascinating fact, which deserves an explanation. Prager answers that America was founded on a basic hierarchy of needs: “I have to first take care of me, then my family, then my community, then my whole society… Socialism kills all four. The state will take care of me. The state will take care of my family. The state will take care of my community. The state will take care of my society.”

According to this explanation, socialism doesn’t make people selfish because of its failures. It does so because it is effective. Whether or not socialists intend to make people selfish, socialism as a system does just that. It is extremely effective at doing what it sets out to do.

But socialism does not set out to lift the maximum number of people out of poverty. That’s simply not its goal. Its goal is equality, achieved at the price of freedom. In order to accomplish this, it sets out to teach selfishness. At this it is very good.

Prager gave a challenging and invigorating talk. There is much here to ponder and still more to research. President Nichols’ words are worth hearing again: “Inclusiveness is about widening the circle of voices, including more perspectives from different backgrounds, all free to speak, free to disagree, free to discuss and debate.”

I am thankful to have heard Prager’s speech. It was recorded and placed on YouTube. I would encourage you to hear it for yourself.

Third Annual WPN Conference

Gender and Sexuality

November 14, 2017

10:00am Navigating the LGBT Issue with Grace and Truth Based on his book, "Loving My (LGBT) Neighbor, Glenn shows how these do not make up a monolithic community but persons with different characteristics and needs. This informative and sensitive presentation breaks down the letters of the LGBT acronym helping us to love with grace and truth. PowerPoint slides.

1:30pm Marriage as Gospel from Genesis to Revelation Sometimes we become so wrapped up in the cultural jargon of our day that we can lose sight of the forest for the trees. Glenn takes us through the over-arching Biblical narrative beginning with the marriage of Adam and Eve and culminating with the marriage feast of the Lamb. PowerPoint Slides.

3:30pm Manhood as Social Construct In this provocatively titled presentation, Glenn explains how manhood is developed differently than womanhood. From this perspective, he explains the challenges we face today in passing along genuine masculinity to the next generation. PowerPoint slides.

PRESENTER:

Glenn T. Stanton is the director of Family Formation Studies at Focus on the Family. He debates and lectures extensively on the issues of gender, sexuality, marriage and parenting at universities and churches around the world.

Stanton also served the George W. Bush administration for many years as a consultant on increasing fatherhood involvement in the Head Start program.

Stanton is the author of eight books on marriage and families and a regular columnist for various blogs. His latest book, “Loving My (LGBT) Neighbor: Being Friends in Grace and Truth,” explores how Christians should interact with gay or lesbian neighbors in a Christ-honoring way. He is also the co-writer of “Irreplaceable” a film seen in theatres nationwide, and the co-author and creator of “The Family Project,” a 12-session small group DVD curriculum produced by Focus on the Family.

Stanton earned bachelor’s degree in philosophy, communication arts and religion and a master’s degree in philosophy, history and religion from the University of West Florida.

Science, Religion and the HHS Mission Statement

The US Department of Health and Human Services recently described its mission as “serving and protecting Americans at every stage of life, beginning at conception.” A statement like this should draw cheers from every quarter.

It should not be controversial for an agency created to protect “life, liberty and the pursuit of happiness” to include all human life in its mission goals. Sadly, what shouldn’t be controversial, is.

The HHS has since revised its Mission Statement to omit the phrase “beginning at conception.” We can no longer know whether it is concerned with all Americans, or only some of them.

I don’t know what forces conspired to purge this language from the HHS Mission Statement. But I do know that some critics thought that protecting human life from the moment of conception violated “the separation of church and state.” That accusation needs to be answered.

First, a point of fact. The phrase “separation of church and state” is not found in the Constitution. Not even the idea is found in the Constitution. The Constitution was designed to allow the church, and church members to have full-throated participation in the government without having to deny their faith as the cost of doing business.

The non-establishment clause, the free exercise clause, and explicit prohibitions against a religious test for public office are all designed to let people of faith into the government, not to keep them out.

Building on this point of fact, we must make a second point. It is a highly dangerous practice to use labels in place of sound reasoning. If we allow viewpoints to be excluded from the public square just because they are “religious,” without actually considering whether they are true, we will all become idiots.

Imagine living in a society where those in power could overturn the plain truth simply by calling it “religious.” In fact, you don’t have to imagine it. We are dangerously close to this already.

Progressive ideology is in the process of dismantling and marginalizing any number of the most basic facts of human well-being, facts which were universally understood only a few years ago. If this dangerous trend is not stopped, none of us can guess which truths will be overturned next.

Let me emphasize that phrase, “none of us.” The previous paragraph was not intended to be partisan. It doesn’t matter which side of the aisle is attacking the truth. When the truth falls, both sides are hurt in unpredictable ways.

So, a third point is this: basic biology is not a distinctly religious belief. It is common knowledge which does not require any divine revelation or ecclesiastical authority to prop it up.

Believers take a lot of unjust criticism for being unscientific and gullible on points of basic knowledge. In cases where believers make moral judgments in agreement with non-believers, based on the very best modern embryology, it should call for dancing in the streets, rather than more unjust criticism.

Having made these three general points, let’s look at basic embryology to see if the HHS statement was sound.

I was recently privileged to hear Dr. Maureen Condic, associate professor of neurobiology and anatomy at the University of Utah School of Medicine. On a Saturday in September she laid out for us the amazing details of the first moments of human life.

The most fundamental fact of modern biology is that your body is continually replicating cells both to grow new tissue and to replace dying cells. From the day you were born, you have been growing and thriving through this process. Even though your cells are continually changing, you still remain you.

As we trace you back in time, we know that entire organs both come into being and mature at different points in your history. All of this is directed by the genetic code found in every one of your cells.

The science of embryology has traced this continual development all the way back to a single-cell organism called the zygote. What is most amazing about a zygote is that it is entirely self-contained and self-directed.

Just as your current body grows, matures, and repairs damage on its own – so long as you have a safe environment and adequate nutrients – so also a zygote. From the moment you came into being as a zygote, you had absolutely everything you needed to grow, mature, and repair yourself – so long as you had a source of nutrition and a safe environment.

Put another way, your mother’s body didn’t add anything to your being. All the womb does is to provide a safe environment and adequate nutrition. Otherwise, the developing embryo is completely self-sufficient.

In fact, while the womb is the usual place for the development of the child, there have been several amazing cases where a child was nurtured to full term in ectopic pregnancies. In Ogden, in 1999, a bouncing baby named Sage Dalton was delivered by C-section after developing fully to term outside her mother’s womb. There have even been four documented cases of children being brought to full term in their mothers’ livers!

Given that from the zygote stage onward, we are fully independent and self-directed organisms, let’s have a close look at the moment when the zygote comes into being.

One critic of the HHS Mission Statement claimed that “no new life is formed [when the zygote comes into being since] “the egg and the sperm were already alive.” This argument was published recently in the Las Angeles Times by Dr. Richard Paulson.

But everyone has already known since the days of Louis Pasteur that all life arises from life. Nobody would ever claim that a new life could possibly arise from non-living material. The question is this: when does a new life come into being?

The simple scientific answer to this question can be answered by comparing both the makeup and the function of the cells that come together, with the zygote that results from their coming together.

The makeup of the living sperm cell is purely the genetic material of the father. The function of the sperm cell is to move toward an egg (oocyte) and fertilize it. Once it has reached its goal, the sperm cell ceases to be. It dissolves altogether so that it no longer has its original makeup and it can no longer do what it was designed to do.

The egg, likewise, is made up totally of the genetic material of the mother. Its function is to receive fertilization from a sperm cell. Once this happens, not only does its genetic makeup change by the addition of the sperm cell’s material, but it no longer functions as an egg.

Immediately, the new cell secretes chemicals which prevent any further fertilization. It no longer acts like an egg at all. That’s why embryologists don’t call it a “fertilized egg.” There is no such thing. It is a human zygote, a new single-celled human being who will grow to maturity if fed and sheltered.

None of this is special revelation from heaven. We can see it with a microscope. Standard textbooks on embryology don’t establish “religion,” just common knowledge. Those that use the “religion” label to set aside plain truth are simultaneously attacking religion and science.

Someone at Health and Human Services wanted their Mission Statement to reflect the truth. Let’s hope that someday it will.

Cultural Renewal and the Lutheran Reformation

As the only Lutheran pastor in Evanston, I can hardly let the 500th anniversary of the Reformation pass without comment. After all, anything that lasts a half-millennium has earned some careful thought. So, I ask your indulgence (pun intended) to do so.

On October 31, 1517 Dr. Martin Luther nailed 95 “theses” to the door of the castle church in Wittenberg, Germany. This door served as the town bulletin board, and the “theses” were tightly reasoned sentences which Luther wanted to defend in a formal academic debate.

The debate was prompted by an audacious fund-raising scheme worked out between Pope Leo X, and Albert, his newly appointed Archbishop of Mainz, Germany. To make a long story short, the pope authorized Albert to sell plenary papal indulgences. This meant that “full remission of all temporal punishment due to sin,” could be obtained for money.

As a pastor, professor, and loyal son of the Church, Luther was aghast. When his own parishioners crossed over into Albert’s territory to buy indulgences, he sought to correct the abuse while clarifying the doctrine of indulgences which had already been disputed for some time.

His theses were more than an academic exercise. They struck a nerve which set all of Europe abuzz. When someone translated them into German and published them far and wide, the Reformation took on a life of its own.

Even Luther could not have guessed that, 500 years later, the entire world would be remembering the occasion. But here we are.

However, not all remember it fondly. Some lament it as the day when a hot-headed young professor smashed a once-united Christendom into a million splinters, sects, and denominations. Even though Luther himself fought tirelessly against this needless fragmentation, he is faulted for unleashing a movement which he could not control.

This viewpoint is not unreasonable when others celebrate Luther’s reforms as the opening salvo in a centuries-long rebellion against, not only papal authority, but secular authority as well. They think Luther represents the first stirrings of our modern spirit, that thumbs its nose at all authority, opinion, tradition -- even decency – whatever would hinder any individual’s self-will.

This spirit of rebellion led to the bloody French Revolution of 1789, then to its even bloodier daughter, the Bolshevik Revolution, on the 400th anniversary of the Reformation. These revolutions, in turn, spawned communism in countries throughout the world making the 20th century into the most murderous century in human history.

In our culture, the spirit of rebellion against authority has come full-circle. A large minority, disproportionately represented in academia, government, press, and the entertainment industry, is in open rebellion against the authority of the God Himself.

Is this the inevitable legacy of Luther’s Reformation? I submit to you that it is not.

Quite the opposite. Luther’s own attitude was not a rebellion against authority, but the profoundest submission to it. His famous words at Worms in 1521, summarize the entire spirit of the Lutheran Reformation: “I am bound by the Scriptures, and my conscience is captive to the Word of God. I cannot and will not recant anything, since it is neither safe nor right to go against conscience. May God help me. Amen.”

Luther did not consider his own conscience to be the final authority. He considered the Scriptures to be that. He was not seeking freedom to follow his own will, he was admitting his complete submission to God’s will. That is the Spirit of the Reformation.

As I was considering how to write about the Reformation here, my initial plan was to keep the focus on the secular legacy of the Reformation. I could talk about how Luther translated the Bible into German, thus allowing common peasants to participate in the most important conversations of the day.

I could talk about how Luther’s emphasis on giving the common citizen access to the Scriptures led inevitably to the literacy education for every man, woman, and child – not just for the elite. If you value our schools, thank Luther.

I could talk about how Luther’s Reformation placed the family at the center of the economy, replacing the central planning of both the church and state.

But as I considered these things, I realized this would leave out the most blindingly obvious part of the story. The reason for learning to read was to read the Bible. The most important conversations of the day were about the nature of God – who is He, and how are we related to Him?

Luther’s assertions about the generous nature of God, and our relation to Him as our gracious Creator, were not just an internal Church debate. It involved secular kings, academics, printers, artists, farmers, ranchers, absolutely everyone. The Reformation effected the entire culture, because it was a conversation about the most important things in life.

Ponder that! The real news of about the 500th anniversary of the Reformation is how we have been conditioned to scrub the main point out of the story. It’s as if our whole culture were being pressured to tell the story of the Civil War without mentioning slavery.

In a day when questions of God and theology are being systematically excluded from the public square, the 500th anniversary of the Reformation reminds us that these questions still are the beating heart of all life and culture. We ignore them to our own peril.

As Anthony Esolen wrote in his recent book, Out of the Ashes, “The role of religion in human life is not little. It is essential: without it there is no culture at all, because culture is a cultivation of the things that a people considers most sacred.”

Luther did not seek to reform the culture. He sought to reclaim a Biblical view of God. Benefits to the culture came in the bargain. As C. S. Lewis put it in Mere Christianity, “Aim at Heaven and you get Earth ‘thrown in.’ Aim at Earth and you will get neither.” Jesus said the same: “Seek ye first the kingdom of heaven and His righteousness and all these things shall be added unto you” (Matthew 6:33).

And what kind of benefits come to a culture that is focused on God? Those who would marginalize religion blame Christianity for repressing self-expression and absolute freedom to do whatever I please. Is this true? Hardly.

Again, Anthony Esolen reminds us of what the culture looked like before we agreed to leave God at the margins. “In that culture of ‘repression’ people were free to leave their keys in the ignition of the car, to leave their doors unlocked at night, to let their children range all over town without supervision, to have shooting clubs in the public schools, to leave bicycles outside of a store without worrying that they would be pinched, to ride in the back of a pickup truck without getting stopped by the police, to tell children to get out of the house and stay out till suppertime, to have those kids walk a mile or two to school and back every day without worrying about kidnappers or perverts, to call on their neighbors (whose names they knew) when they needed some sugar or flour or when they wanted to play cards, to send their children to a parochial school without paying any tuition, to show up at a movie theater or a bowling alley at nine years old without arousing suspicion, to belong to men’s clubs and women’s clubs (whereof there were plenty to choose from) without being accused of hate or bigotry; and so forth."

If you would like this kind of culture to return, the 500th anniversary of the Reformation reminds us of how it came to be. It was built by a people who largely understood God as our gracious Creator. It was built by a people whose “conscience was held captive to the Word of God.”

Sue and Settle: Why Regulation by Litigation Must Stop

Last Monday, October 16, the Environmental Protection Agency announced its intention to put an end to “Sue and Settle” practices which undermine the regulatory process put in place by the US Congress.

“Sue and Settle” is a little known, but disproportionally impactive practice that happens in federal bureaucracies. It skirts the normal regulatory process and shuts out the voices of millions of people with legitimate interests and useful contributions.

Since Wyoming’s economy relies so much on the energy industry and agriculture, EPA rules impact us more than a little. So, Secretary Pruitt’s announcement is welcome news for all Wyomingites. To understand its implications, we need to understand, first, how the EPA was designed to work.

The federal code that currently governs the regulatory process spells out in detail an orderly and reasonable way for citizens to have their say.

Through Congress, we, the people, have told agencies how to notify us of the proposed changes. We have told them how long they should give us to send them our comments. We dictate how seriously they must take our comments, and many other details of the process.

When any agency is making policy for more than 300 million Americans, it is a real challenge to reach a reasonable consensus on compromises needed to live together. That’s representative democracy.

But suppose some subsection of the EPA, or even its appointed secretary, wanted to skip all those rules and simply impose his will on the American people without following the law and doing the hard work of compromise and consensus.

Enter “Sue and Settle.” Here’s how it works. Some agency bureaucrat goes to have a lunch meeting with a special interest group that agrees with the regulations they want to impose. He simply tells them to file a lawsuit against the EPA. Shoot, he might even tell them exactly how to word the lawsuit.

Once the suit is filed, the lawyers of the special interest group sit down with the EPA bureaucrats, who agreed with them in the first place, and together they draw up a settlement for the lawsuit which spells out the desired regulations. They include in this settlement an accelerated timetable for implementing rules which skips over the time mandated by law.

They may even put in a clause that reimburses the environmental group for their attorney fees, or pays them directly for damages of some sort. Finally, they make it so that the regulations can’t be altered by future EPA actions, thus insulating their rule-making from future attempts to modify it.

After they have drawn all this up behind closed doors, they simply file a motion with the judge saying, “we’ve settled out of court.” The judge doesn’t have to ask if other interested parties have had their say, or have been accommodated. He doesn’t have to ask whether these regulations are the best compromise possible, or whether they express the consensus of the American people.

The judge simply declares, “by entering this consent decree the Court is only accepting the parties’ agreement to settle, not adjudicating whether EPA’s legal position is correct.” And violá, the final rule is written without all that cumbersome time and trouble to work out the details with other Americans who also have legitimate claims and valuable viewpoints.

If you don’t like the final rule, you have to sue the EPA. The lengthy process of arguing through the details happened while you were excluded from the table. Now your only remedy is to go back to the same court that rubber-stamped the settlement. Not a very promising option.

If you sometimes feel that your voice is no longer heard in Washington, there’s a good chance that it’s because of some “Sue and Settle” deal that you never heard about. In fact, the scenario I just described, is not merely hypothetical. It is roughly what happened in the EPA’s Maximum Achievable Control Technology (MACT) Rule.

The MACT rule bypassed the most significant controls which congress has placed on the EPA because it was the result of a lawsuit known as American Nurses Association v. Jackson. It went into effect in December of 2011 at an estimated cost of $9.6 billion per year.

Is the MACT Rule the best and most efficient way of achieving environmental quality while balancing our interests in jobs, energy, national security and a thousand other considerations? Who knows? We skipped all that part.

A February 25, 2014 document from the Heritage Foundation gives a sampling of ten rule changes that happened through “Sue and Settle.” Together they cost upwards of $125 billion dollars annually, and they’re only the tip of the iceberg.

The negative effects of “Sue and Settle” practices are much more than economic. There are several negative consequences which should concern all citizens no matter who is in power.

First, these practices put special interest groups in the driver’s seat. They undermine presidential control of the executive branch of government and empower activists and unelected appointees to set government priorities.

When unaccountable bureaucrats are colluding with courts and special interest groups, they are not working with you. That means your vote counts for less and less. It’s no wonder that a large segment of voters feel powerless and angry in the face of an unresponsive government.

Second, when rulemaking is rushed, laws which require public notice and a fair opportunity to comment are bypassed. This doesn’t streamline the process of taking every factor into account. It simply excludes the valuable wisdom and expertise of the people who are most knowledgeable about the day-to-day realities of the issue.

As a result, agency regulations fall prey to the most stupid and easily foreseen problems. The Soviet Politburo added arrogance to ignorance and caused unnecessary shortages and hardships throughout the USSR. Our system is designed to avoid that. Ivy-league lawyers negotiating a settlement behind closed doors simply do not have the detailed knowledge and experience necessary to avoid mistakes.

Third, when negotiations are bypassing the legal requirements, it is impossible for the people being regulated to know the rules well enough to comply. This is what happened in our own state. As the MACT rules were going into effect in early 2012, the industry leaders themselves had a whale of a time just finding anybody who knew the rules.

Fourth, when the power to make regulations is taken from the executive agency and transferred to a judge, the flexibility of that agency to respond to ever-changing realities is severely hampered.

Legally, for the EPA, or any agency, to change their policy, all they need to do is to adopt a new policy. But when the judicial branch is involved through “Sue and Settle” policy is frozen in place. Suddenly, the executive branch is barred from changing its own policy by an unelected judge. The separation of the branches is compromised.

Scott Pruitt’s move to end regulation by litigation at the EPA is a commendable goal. Let us hope that other agencies make the same commitment. As citizens in a representative democracy, we should insist on our rights to have a seat at the table. Bureaucrats in collusion with special interest groups are a threat to all Americans.

A Breath of Sanity in a Chaotic Week

There is a lot to talk about this week in our wide, wacky world.

For one thing, there is the scandal of Harvey Weinstein’s long-time and widely-known sexual assaults on women. It doesn’t reveal Hollywood’s objectification and sexualization of women – we already knew that. It does, however, shatter the myth that you can make millions of dollars exploiting of women onscreen while still respecting them in person.


Also in the news is Wednesday’s announcement that the Boy Scouts will admit girls. But this, too, is nothing new. The Boy Scouts began admitting girls on January 30, 2017, when they announced that girls who wished to be thought of as boys could join. Wednesday’s announcement only drops the requirement that they first declare their desire to be thought of as boys.

But amid all this mayhem, there was some sanity that deserves our attention. On October 6, 2017 the Justice Department issued a memorandum titled “Federal Law Protections for Religious Liberty.” This memo was released almost five months to the day after the executive order that mandated it.

Since I wrote about that order here (“Executive Order falls short,” Uinta County Herald, May 9, 2017), and was critical of its weakness, I think it only fair to eat my words in public. My concerns centered around the fact that strong language defending the Constitution and the federal laws supporting it had been stripped out of an earlier draft and reassigned to the Departments of Justice, Treasury, and Health and Human Services.

Now that some results of that move have been released, I can see that President Trump was acting on good advice. There is no way he could have been as thorough as the Attorney General’s guidelines. He would have been mercilessly criticized while the Department of Justice would have been scrambling to defend his words.

Instead, the Department of Justice has taken the necessary time and care to produce a document of sound constitutional principles and careful examination of the applicable federal laws. While the usual suspects were quick to condemn the memorandum, their criticisms merely parrot tired talking points, but cannot claim to cite either constitutional language, or federal statute.

The memorandum begins by quoting James Madison, the main author of the Constitution. Two years before penning the Constitution, he laid down our country’s foundation for religious liberty in “Memorial and Remonstrance.”

“The free exercise of religion ‘is in its nature an unalienable right’ because the duty owed to one’s
Creator ‘is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.’”

On this we should all agree: You did not create yourself, neither did the government make you. But whoever made both you and the government was prior to government, and has a more fundamental claim on your loyalty than the government itself. That’s why this right is “unalienable.” Government cannot take from you what government did not give you in the first place.

From this foundation, the memorandum articulates nine principles from the First Amendment of the Constitution. I wish there were room to print them all, but here are a few of the most important points.

First, free exercise “includes the right to act or abstain from action.” It is not only the right to believe, or the right to worship. It is the right to order your concrete, physical life in the public square according to the demands of God as you understand them.

Beginning with a 2009 speech from then Secretary of State Clinton, there has been an attempt to reinterpret the First Amendment to cover only the “freedom to worship.” This was a sleight of hand that had no grounding in the Constitution. The Justice Department has weighed it against the words of the First Amendment and plainly rejected it.

Second, your freedom to act is not limited to the privacy of your own home. It also protects you in the public square. If you want to work with others by incorporating yourselves into organizations, the government cannot deny free exercise to you. So, free exercise is for “religious denominations, schools, private associations, and even businesses.”

As a result, American citizens don’t give up their religious freedoms when they open their doors to the public – whether as a school or business. Nor do they have to stop practicing certain aspects of their religion to be appointed to government office, or participate in a government program.

This also means that the government may not make policies which penalize businesses for following religious practices, nor can it disqualify people or organizations from government benefits like welfare, or school lunches just because of their religious practices.

One of the most important principles is, “8. Government may not officially disfavor particular religious groups. Together, the Free Exercise Clause and the Establishment Clause prohibit government from officially preferring one religious group to another.” This is called the “principle of denominational neutrality.”

It is undeniable that our culture wars have revealed a gaping chasm between old mainline denominations which have modified beliefs with the cultural shifts, and conservative Evangelicals who have not. Moreover, this same divide can be seen within Catholicism and worldwide Anglicanism on issues of sexuality and the sanctity of human life. These are thoroughly denominational differences. As such, the government is not permitted to favor one side or the other.

In recent years, policies, statutes and city ordinances have been written to penalize some of these denominations while rewarding others. Laramie’s “discrimination ordinance” is a case in point. It threatens Evangelical congregations and schools with fines and jail for maintaining religious practices which all denominations held unanimously only a few years ago.

We have also seen in recent confirmation hearings in the Senate that there is a move to ban certain religious denominations from public office. Dianne Feinstein, Dick Durbin and Al Franken want to keep an “orthodox Catholic,” Amy Barrett, out of the federal judiciary, but would be pleased to have her if she were a catholic more like Dick Durbin or Nancy Pelosi.

Bernie Sanders wants to keep a conservative Evangelical out of the Office of Management and Budget, but would be happy to confirm someone who didn’t believe the Bible was inerrant. Here in Wyoming, the Commission on Judicial Conduct and Ethics has no problems with judges of many denominations expressing their religious views, but when Judge Neely of the Lutheran Church expressed hers, she was removed from her judgeship.

All of this is called out as unconstitutional by the Department of Justice. While this memorandum cannot stop the unconstitutional actions of these senators, it has the force of law to stop such injustices from continuing in hundreds of Washington bureaucracies.

These are only a few of the 20 constitutional principles that the memorandum spells out. It goes on to unpack the Religious Freedom Restoration Act of 1993 and Title VII of the Civil Rights Act of 1964. Finally, it commends “The Clinton Guidelines on Religious Exercise and Religious Expression in the Federal Workplace.”

In short, the Justice Department has done an excellent job of summarizing the actual Constitutional and bi-partisan content of our federal protections of religious liberty. I hope that you will be able to look up the document and read all of it. It is a breath of fresh air for all Americans.