Law

The Kentucky Clerk Refusing to Issue Marriage Certificates to Gay Couples Is…

…Mistaken About Her Rights.

Feel free to play this while you read:

I would recommend that, anytime someone argues that they have the right to violate someone else’s rights in the name of religion, that you refer them to the First Continental Congress and the drafting of the Constitution. The revisions from those sessions show, pretty affirmatively, that the founding fathers of this great country resoundingly rejected the idea that religion has any power to interfere with public or private rights. Short of allowing you to decide how to live your life, so long as your decisions do not directly affect others, your religion grants you exactly zero powers. This is for our protection: Christians, Jews, Muslims, atheists, Hindus, Buddhists, etc.

What usually gets mixed up in this whole discussion is the notion that we are a Christian nation. That is both true and false, because it is such a broad, meaningless statement. What is true is that most of our founders practiced some strand of Christianity; however, very few of them actually agreed on anything, from the divinity of Jesus to the afterlife to how to live here on Earth. This is significant, because when someone says we are a “Christian” nation, whose “Christianity” do they mean? Usually it’s their own, but not a single founding father practiced anything remotely resembling the more mainstream strands of Christianity in existence today. Further, that entire line of thought negates the fact (not opinion–I mean fact) that all references to religious law were intentionally removed from the documents drafted.

But this is not to say that we are an “atheist” nation or that we were founded on a-religious ideals. There is a special place for religion in this country. Even a cursory review of the revisions at the First Continental Congress show clearly that the founders struggled with how to protect religion from the State. Weaker language was thrown out in favor of stronger language seeking to prevent the State from being able to curb religion, even fringe religion. The Moors are even alluded to, which is a reference to Islam, as something to be protected. But when push comes to shove, rights granted to the public at large were set up to win out against private religious rights. Period.

You can refrain from attending gay weddings based on your personal beliefs all you want, but you cannot prevent others from marrying. It took a long time to get here, but thankfully we’ve done it. Sadly, though, we’re seeing other problems spring up. Fining or jailing a baker for refusing to bake a cake for a gay wedding is absurd and flies in the face of religious freedom. The baker is not infringing on the gay couple’s rights; the gay couple (or more pointedly, the State) is infringing on the baker’s rights.

Of course, the issue of the baker refusing to bake a cake conjures analogies to civil rights issues surrounding race, but these things are not accurate analogies. First, race does not exist, whereas homosexuality does. Second, even if race did exist, it would be something that someone “is” but not something that someone “does,” whereas homosexuality is either (a) both something that a person “is” and “does,” or (b) only something that a person “does” but not something that a person “is.” The reason that I offer this distinction is because the scientific community has no answer for whether homosexuality is genetic or whether it is a choice, and I don’t pretend to know. I’ve heard arguments for both positions, from hetero- and homosexual persons, so I’ll leave it at that for now. Feel free to educate me if you see fit, but this digression ends here.

These distinctions are important, because discriminating against someone for something over which they cannot control (race, being something that you simply “are” — or not, since it is man-made concept) is different than discriminating against someone for something they can control (the act of gay marriage). I’m not arguing that either form of discrimination is more or less ugly and foolish; I’m just pointing out that there is a distinction. And this distinction should be recognized when considering the balance of rights between private citizens seeking to live how they please.


Also, there is another, more pragmatic approach, which exists separate from the academic musings about the debate surrounding the power struggle between religion and State. This pragmatic approach says that, because forcing the baker to bake the cake causes the baker to suffer more than allowing the baker to refuse to bake the cake causes the gay couple to suffer, the lesser of evil approaches dictates that the baker should be allowed to refuse to bake the cake. This is true because the gay couple can find someone else to bake the cake, no problem. And who wants someone to bake you a cake for your wedding when they really, really don’t want to? Isn’t that weirdly spiteful and like a bad omen or something?

At this point, you might wonder how far from the title topic I plan to traverse. But aha! I’ve not gone far at all. Because the point of the baker discussion is to juxtapose it against the situation with the clerk. The difference, here, is the State’s involvement. The baker was acting in a private, for-profit capacity; this is an arena where personal religious freedom has strong game. The clerk, however, was acting in a public, non-profit government capacity; this is the number one arena for weakness of religious freedom.


So, in conclusion, the Kentucky Clerk is mistaken about her right to refuse to issue marriage certificates at her government job. Religious freedom does not trump Constitutionally-guaranteed rights in any sphere, much less the sphere involving State actions. The reason we know this is because (a) the courts say so, and (b) our founding documents and the processes by which they were drafted show us that such was not contemplated when our great nation was created.

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Understanding the National Security Administration and Edward Snowden’s Leaks

According to John Oliver on Last Week Tonight, there are many Americans who still do not understand the National Security Administration (“NSA”) programs that Edward Snowden revealed in 2013. Many Americans don’t know who Snowden is, what he did, that he’s not the Wikileaks guy (that’s Julian Assange), or why his revelations about the state of national security matters.

Regardless of how you feel about Snowden, the NSA, and surveillance generally, it’s likely that, unless you’re a huge computer or political nerd, you don’t fully understand PRISM, MUSCULAR, X-KEYSCORE, or the Foreign Intelligence Surveillance Act (FISA) court charged with overseeing these programs. The problem is that this issue involves a lot of highly technical jargon and acronyms that most people don’t understand.

If you want to know more, John Oliver has got you covered. In his infinite wisdom, he found a way to bring this topic down to a level we can all understand: dick pics. To learn more, click this link. It’ll be worth your time. Also, click here to go to CanTheySeeMyDick.com. Yes, that’s it’s real name.

But if you hate clicking cool links to learn cool things, just keep reading.

Who is Edward Snowden?

Snowden was a former NSA subcontractor who became disillusioned with what he saw as overreaching by the U.S. government in spying on American citizens and foreigners. He had access to a lot of sensitive information (data) that the NSA collected, as it claims, for the purpose of building intelligence to combat terrorism. Snowden disagreed with the lengths the NSA went to gain this data, believing that it was violating people’s privacy rights.

Because he disagreed with the NSA’s programs (discussed below), Snowden “blew the whistle” on them, which means that he brought their existence and methods to the public’s attention. As he says, he simply wanted the U.S. public to know about these programs so that we could have a meaningful discussion about whether we want to live in a society where the government effectively spies on most everything we do. It’s very Orwellian.

What are the NSA Programs PRISM, MUSCULAR, and X-KEYSCORE?

These are programs run by the NSA that Snowden blew the whistle on. To put simply, they’re like defensive football plays, kind of, with different players performing different functions and running different routes to achieve one major goal. In football, the defense tries to keep the other team from gaining yards and scoring. In the fight against terrorism, the NSA and other agencies try to prevent terrorists from blowing things up. The defensive linemen block the quarterback and running backs from running up the middle. The NSA intercepts information (data) sent via email or phone and reviews it for incriminating terrorism-related evidence to keep terrorists from exploding you. At least in theory.

PRISM is the most famous of these programs, so we’ll focus on it. The Washington Post has pictures, but I’ll just put it into words. Big internet companies (e.g. Yahoo, Google, Facebook, etc.) have servers that store information sent and received to those sites. So, when you write an email or a Facebook post, that information travels to a server where it’s stored and sent to the intended recipient. Think of it like snail mail. You write a letter (email), drive your car (internet highway) to the post office (Google’s server) and drop it off, and then the post office (Google) sends it to the intended recipient (grandma, because who else would you hand write a letter to in 2015). While the Google post office server has it, the NSA snatches it up. This is called “bulk data collection,” because they grab up just about everything.

Supporters of these NSA programs argue that bulk data collection doesn’t really tread on privacy rights, because it doesn’t collect the content of the calls and messages sent; instead, PRISM just shows the NSA when, how, and who sent what type of information (e.g. phone call, email, text) to whom. So they can see your envelope, the return address, and the intended recipient, but not the contents inside. However, that’s not quite true. Through all of the NSA’s programs combined, they can paint a pretty solid picture of what you’re doing, because we’re connected to so much communicating technology that it’s easy to track our moves. The NSA can see that I sent some emails from work this morning to other places in the city and, with relative ease, can figure out to whom exactly I sent them, then they can see that I did it again from home, and they can tell I got on Facebook and can draw a pretty good picture of which websites I visited. So they can see a good chunk of my day, and they’ve got that much without overreaching just slightly beyond the law, which requires that they only dive into the contents of my emails and phone calls (e.g. reading messages and listening to calls) if there’s a connection to terrorism.

While those limits sound pretty protective, in reality just about anybody can be on the “terror watch list.” This means that dubious connections can lead to you being watched closely by the NSA. Or as John Oliver puts it, they can see your dick pics.

So, at the end of the day, the NSA collects a lot of information about U.S. citizens and foreign persons here and abroad, and Edward Snowden tried to bring this issue to the attention of the public at large so that we could have a somewhat intelligent debate about it.

Corporate Rights to Free Speech in the Political Arena

“The State need not permit its own creation to consume it.”

Lately for one of my law school classes, The Law of Democracy, I have been studying various aspects of our democracy, including redistricting and reapportionment (more commonly known as “gerrymandering”) and, more recently, the law surrounding campaign finance.

I have always been skeptical of the flimsy notion that a corporation is a “person,” because this legal fiction, originally intended to serve strictly commercial purposes, has been expanded into a behemoth of confusing legal theories regarding what such a corporate “person” can/not do. One of the biggest questions swirling around this issue is whether corporations are entitled to speech protection under the First Amendment, which provides that “Congress shall make no law…abridging the freedom of speech, or of the press.”

For a long time, I strongly believed that corporations should not be allowed rights of free speech; however, the Supreme Court’s 2010 ruling in Citizens United v. FEC made me question this belief. There, the Court stated that “the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections,” and although they “may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads.”

This weakened my staunch opposition to corporate political speech, because it made me realize that, when we try to delineate where to draw the line on what constitutes “speech,” the waters get muddy and it becomes less clear when a corporation is impermissibly “speaking” on a political matter, impermissibly supporting a political candidate, or just doing business as usual. For example, what if a local grocery store features a local political candidate in a television advertisement promoting the store? What if the candidate is identified as a candidate for office? What if the candidate doesn’t say anything about his campaign, but just promotes the store? What if the grocery store doesn’t feature the candidate, but instead promotes its own interests regarding an issue with which the candidate is easily identified (i.e. the store promotes lowering taxes on small businesses, and the candidate is widely known as the “small business” candidate)? What if, instead of a television ad, the grocery store buys ad space on the candidate’s website? Or what if the store buys ad space on a news or political website where the editor has spoken out in favor of the candidate?

As you can see, the line starts to blur when you change up the facts, and it becomes harder to tell when the corporation is speaking on political matters, and this leaves me wondering how (im)practical it is for the legislature to try to prohibit this kind of corporate speech.

Putting that issue aside, there is another current running through the Citizens United case, which deals with the idea that, in a democracy, the public should have access to as much information as possible in order to inform individual voters about issues relevant to their interests. According to the majority opinion in Citizens United, public discourse is richer when it includes any and all inputs. At first glance, I tend to agree with this sentiment, and I recognize the risks of allowing the government to make determinations about who and what makes permissible contributions to debates over public matters (like ballot initiatives). However, after reading Justice White’s dissenting opinion in the 1978 case of First National Bank of Boston v. Bellotti, I have settled (at least for now) on the position that prohibiting corporations from speaking on matters of public concern does not diminish public conversations. There, Justice White, in what I believe to be a brilliant dissent against the majority (which held, essentially, that the First Amendment protects corporate speech over matters of public concern), railed against the notion that corporations’ “speech” rights should be protected. Says Justice White:

“Corporations are artificial entities created by law for the purpose of furthering certain economic goals. In order to facilitate the achievement of such ends, special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets are normally applied to them. …It has long been recognized however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process.”

He continues, explaining that the State’s interest in restricting corporate political activity “is not one of equalizing the resources of opposing candidates or opposing positions, but rather of preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process, especially where…the issue involved has no material connection with the business of the corporation.”

Here, I believe that Justice White hits the proverbial nail on the proverbial head. The State giveth, and the State taketh away. Individual, real persons are not subject to this kind of State regulation of speech, because the State did not give us the right to speak; we were born with it, and it was transcribed on our hearts in the First Amendment to the US Constitution. But corporations are not born; they are created. And if the Frankenstein State can create such wealth-accumulating monsters without being able to prevent the beast from descending back upon and consuming the State by using its State-given wealth to dominate conversations that intimately impact the State and, therefore, the people, then we have not enriched our country. Instead, I believe that we have served the nation up on a silver platter to be eaten by these “persons,” these “persons” which are not persons at all, but monsters.