David Boaz

This Friday afternoon the Federalist Society of Chapman University Law School in Orange, California, will present a seminar (.pdf) on property rights, eminent domain, and California's Proposition 90. The leadoff speaker will be Timothy Sandefur, author of the new Cato book Cornerstone of Liberty: Property Rights in the 21st Century. Here you can also find information about upcoming speaking events by Sandefur in Los Angeles, San Francisco, and Berkeley.

I've just seen an interesting new book, The Choice Principle: The Biblical Case for Legal Toleration, by Andy G. Olree, who is a graduate of the University of Chicago Law School, where he studied under Richard Epstein and Michael McConnell, and now teaches law at Faulkner University's Jones School of Law. The book presents an evangelical Christian argument for a legal framework that tolerates most "sinful" choices by individuals. Olree writes, "The Choice Principle posits that Christians are called to influence law and government in ways that maximize opportunities for human freedom of choice--that is, for individual autonomy." And he applies that principle in ways that might surprise critics of the religious right, to issues ranging from prostitution and homosexuality to Social Security. He criticizes Roy Moore, Jerry Falwell, Pat Robertson, and James Dobson as "fearmongers" who "simplistically reduce complex societal problems to...the age-old struggle of good versus evil." But he also takes on more academically serious defenses of enforced morality, devoting an entire chapter to a critique of Princeton professor Robert George's book Making Men Moral. Christians and libertarians could learn a lot about each other from reading this book. Or to be more careful with my language: Christian libertarians will find this book an effective presentation of a principle they likely agree with. Non-Christian libertarians and non-libertarian evangelical Christians will find it a provocative challenge.

The lead headline in the Washington Post on Tuesday reads "53% of Voters Say They Back Va. Same-Sex Marriage Ban." Slate's "Today's Papers," reporting on that story, says it shows that "Virginia voters [are] supporting a ban on gay marriage." Washington's public-radio WAMU refers to the upcoming vote as "the proposed ...

The lead headline in the Washington Post on Tuesday reads "53% of Voters Say They Back Va. Same-Sex Marriage Ban." Slate's "Today's Papers," reporting on that story, says it shows that "Virginia voters [are] supporting a ban on gay marriage." Washington's public-radio WAMU refers to the upcoming vote as "the proposed ban on gay marriage." All these journalists are doing the supporters' work for them. Bans on gay marriage have passed everywhere they've been placed on the ballot. That's what the supporters of the Virginia amendment want voters to think they're voting on. But that's not what the Virginia amendment really does. Same-sex marriage is already prohibited in Virginia, and there's no prospect of legislative or judicial change in that fact. So this amendment is touted as banning something that is already banned. The real impact of the amendment can be seen in its second sentence:

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. [emphasis added]

It's not just about same-sex couples, and it's not just about marriage. The law firm of Arnold & Porter analyzed [pdf] the amendment and concluded:

the [proposed Virginia] Amendment could be interpreted by Virginia courts to have the following effects:

• Invalidate rights and protections currently provided to unmarried couples under Virginia's domestic violence laws;
• Undermine private employers' efforts to attract top employees to Virginia by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits; and
• Prevent the courts from enforcing --

-- private agreements between unmarried couples, -- child custody and visitation rights, and -- end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: "This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state." Journalists should not call this "the proposed amendment to ban same-sex marriage." Rather, they should give readers and listeners a more accurate summary, along the lines of "the proposed amendment to restrict gay rights" or "the amendment on unmarried couples."

Just how far is the Republican grip on the libertarian vote slipping

The 2004 initiative to ban same-sex marriage in Ohio "helped cause a surge in turnout of 'values voters,' who helped deliver this pivotal state to President Bush's successful reelection effort," the Washington Post proclaims on the front page today. That's been the story line since 2004: 11 state votes on ...

The 2004 initiative to ban same-sex marriage in Ohio "helped cause a surge in turnout of 'values voters,' who helped deliver this pivotal state to President Bush's successful reelection effort," the Washington Post proclaims on the front page today. That's been the story line since 2004: 11 state votes on banning gay marriage turned out religious and conservative voters, and that helped Bush win his narrow reelection, especially in Ohio, where a Kerry win would have given Kerry an electoral vote majority. But is it right? There's good evidence that it isn't. It’s true that states with such initiatives voted for Bush at higher rates than other states, but that’s mostly because the bans were proposed in conservative states. In fact, Bush’s share of the vote rose just slightly less in the marriage-ban states than in the other states: up 2.6 percent in the states with marriage bans on the ballot, up 2.9 percent in the other states. Political scientist Simon Jackman of Stanford has more here (pdf). He concludes that the marriage referenda tended to increase turnout but not to increase Bush's share of the vote. And in a county-by-county analysis of Ohio, he found no clear relationship between increased turnout, support for the marriage ban, and increased support for Bush. A broader claim grew out of the 2004 exit polls showing that more voters chose “moral values” than anything else as their most important issue. “Ethics and moral values were ascendant last night—on voters’ minds, in Americans’ hearts,” William J. Bennett wrote the next morning on National Review Online. But that claim also fails careful analysis. In the exit poll 22 percent of voters said that "moral values" were most important to them, larger than any other single choice. But if you combined Iraq and terrorism, and economy/jobs and taxes, then both foreign policy and economic policy were most important to more voters. In addition, of course, it’s not clear what “moral values” means. The Los Angeles Times exit poll, which asks the question a different way, found that 40 percent of voters surveyed selected “moral/ethical values” as one of their two most important issues in 2004--the same percentage as in 1996, when they reelected Bill Clinton. Some voters may think that poverty, the environment, war, individual freedom, or any number of other things are "moral issues." Some people say the Republicans got more votes from regular church-goers. But in Ohio, the share of the electorate represented by frequent churchgoers actually declined from 45 percent in 2000 to 40 percent in 2004. I think the Republicans had already done a thorough job of getting regular churchgoers to the polls. Their great accomplishment in 2004 was combing the country to find un-organized voters who would vote Republican if you got them to the polls. So then why did Bush win? It’s terrorism, stupid. The most important number in the exit polls was this: 58 percent of respondents said they trusted Bush to handle terrorism, while only 40 percent trusted Kerry. You can’t win a post-9/11 election if only 40 percent of voters trust you to protect them against terrorists; people may not be happy with the war in Iraq, but they thought terrorism was the bigger issue. There were strong swings to Bush in Rhode Island, New Jersey, Connecticut, and New York, stronger than in all but one of the 11 marriage-ban states. Those are states that felt the threat of terrorism most directly after 9/11. And then, of course, there was the freedom issue. Bush told voters, “My opponent is against personal retirement accounts, against giving patients more control over their medical decisions through health savings accounts, against providing parents more choices over education for their children, against tax relief for all Americans. He seems to be against every idea that gives Americans more authority and more choices and more control over their own lives.” If it hadn't been for the war in Iraq -- which tended to cut in a different direction from the war on terror -- and the loss of libertarian voters who no longer believed his rhetoric about freedom, Bush might have actually won the big victory that economic models of the election predicted. But it's time to lay to rest the idea that Bush won Ohio and the presidency on the strength of anti-gay-marriage votes.

Notes from the Business section of Tuesday's Washington Post: There's some evidence in the lead story that both politicians and journalists do learn economics. Writing about the award of the Nobel Prize in economics to Edmund Phelps, reporter Nell Henderson writes: In a series of papers in the late 1960s and ...

A few years ago "soccer moms" were all the rage among political consultants. Then it was "NASCAR dads." But only 4-5 percent of voters really fit the "soccer mom" profile, and only 2 percent were "NASCAR dads." Tomorrow Cato will release a study showing that there are far more libertarian ...

A few years ago "soccer moms" were all the rage among political consultants. Then it was "NASCAR dads." But only 4-5 percent of voters really fit the "soccer mom" profile, and only 2 percent were "NASCAR dads." Tomorrow Cato will release a study showing that there are far more libertarian voters than soccer moms or NASCAR dads. Maybe politicos should pay attention to them. My former colleague David Kirby, now executive director of America's Future Foundation, obtained data sets from Gallup, Pew Research Center, and the American National Election Studies. He did some original calculations to find libertarians in those polls, and then he and I wrote up the results. Without scooping our own story, I'll just say that we found that a substantial percentage of voters are libertarian -- not libertarians who can compare and contrast Hayek and Rand, but people whose views on broad issues distinguish them from both liberals and conservatives. We think our data undermine the whole idea these days that the electorate is polarized, that everybody's either red or blue, that there's no more swing vote. Indeed, one of the most interesting things we found is that libertarians are a swing vote. They voted very differently in 2004 from most previous years. How? Check our homepage Thursday.