David Boaz

As we await a Supreme Court decision on gay marriage, we take note that 48 years ago on June 12 the court struck down Virginia’s ban on interracial marriage.

Mildred Jeter, a black woman (though she also had a Native American heritage and may have preferred to think of herself as Indian), married Richard Loving, a white man, in the District of Columbia in 1958. When they returned to their home in Caroline County, Virginia, they were arrested under Virginia’s anti-miscegenation statute, which dated to Colonial times and had been reaffirmed in the Racial Integrity Act of 1924.

“A decade from now, will we celebrate the joint anniversary of the Loving and Obergefell decisions, both of which extended liberty and justice—and the freedom to marry—to all?”

The Lovings were indicted and pleaded guilty. They were sentenced to a year in jail: The state’s law didn’t just ban interracial marriage; it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. In his opinion, the judge stated:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Five years later, the couple filed suit to have their conviction overturned. The case eventually reached the Supreme Court, which struck down Virginia’s law unanimously. Chief Justice Earl Warren wrote for the court:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

Here’s how ABC News reported the case on June 12, 1967:

David Boies and Ted Olson, the two lawyers who led the challenge to California’s Proposition 8, which outlawed same-sex marriage in 2008, connected the Loving case to the case of Perry v. Schwarzenegger here:

In 2011, as their case proceeded through the federal courts, Boies and Olson spoke at the Cato Institute, joined by John Podesta, then president of the Center for American Progress, and Robert A. Levy, chairman of Cato. Podesta and Levy served as co-chairs of the advisory committee of the American Foundation for Equal Rights, the nonprofit group that brought the Perry case. They wrote in The Washington Post in 2010:

Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights—this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law….

Over more than two centuries, minorities in America have gradually experienced greater freedom and been subjected to fewer discriminatory laws. But that process unfolded with great difficulty.

As the country evolved, the meaning of one small word— all”—has evolved as well. Our nation’s Founders reaffirmed in the Declaration of Independence the self-evident truth that “all Men are created equal,” and our Pledge of Allegiance concludes with the simple and definitive words “liberty and justice for all.” Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.

Thanks to the genius of our Framers, who separated power among three branches of government, our courts have been able to take the lead—standing up to enforce equal protection, as demanded by the Constitution—even when the executive and legislative branches, and often the public as well, were unwilling to confront wrongful discrimination.

In his remarks at Cato, and in this newspaper column, Levy argued that it would be best to get the government out of marriage entirely—let marriage be a private contract and a religious ceremony but not a government institution, a point that I have also made. For some, that’s a libertarian argument against laws and court decisions that would extend marriage to gay couples: It would be better to privatize marriage. But Levy goes on to say:

Whenever government imposes obligations or dispenses benefits, it may not “deny to any person within its jurisdiction the equal protection of the laws.” That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

When it comes to the current marriage case of Obergefell v. Hodges—and if only the court had made the parallel case of Love v. Beshear the main case, so that the Loving decision could be followed by the Love decision—there are legitimate federalist and democratic objections.

One might say that marriage law has always been a matter for the states, and it should stay that way. Let the people of each state decide what marriage will be in their state. Leave the federal courts out of it. Federalism is an important basis for liberty, and that’s a strong argument.

There’s also the discomfiting argument that a Supreme Court decision striking down bans on gay marriage is undemocratic, that it would be better to let the political process work through the issue. Some people, even supporters of gay marriage, warn that a court decision could be another Roe v. Wade, with decades of cultural war over an imposed decision.

Those are valid objections. Not all issues have an obvious right side. In this case, I always ask critics of the federal court decisions striking down gay marriage bans, and the possibility of a Supreme Court decision confirming those decisions: How do you feel about the Loving case?

Do you think the court should have declined to strike down state bans on interracial marriage (which were still highly popular in 1967, according to a Gallup poll)? And if you do support the Loving decision, then how are these cases different? The Cato Institute has urged the court, in an amicus brief, to find that bans on same-sex marriage violate the equal protection clause of the Constitution.

Here is one more video, featuring the speakers from the Cato forum on Perry v. Schwarzenegger (plus me):

Controversial Supreme Court decisions are often handed down at the end of the court’s term, in June. A decade from now, will we celebrate the joint anniversary of the Loving and Obergefell decisions, both of which extended liberty and justice—and the freedom to marry—to all? Or will we have to explain how the court managed not to find that the principles of Loving applied to Obergefell?

As we await a Supreme Court decision on gay marriage, we take note that 48 years ago today the Court struck down Virginia’s ban on interracial marriage.

Mildred Jeter, a black woman (though she also had Native American heritage and may have preferred to think of herself as Indian), married Richard Loving, a white man, in the District of Columbia in 1958. When they returned to their home in Caroline County, Virginia, they were arrested under Virginia’s anti-miscegenation statute, which dated to colonial times and had been reaffirmed in the Racial Integrity Act of 1924. The Lovings were indicted and pled guilty. They were sentenced to a year in jail; the state’s law didn’t just ban interracial marriage, it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. In his opinion, the judge stated:

Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Five years later they filed suit to have their conviction overturned. The case eventually reached the Supreme Court, which struck down Virginia’s law unanimously. Chief Justice Earl Warren wrote for the court,

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

Here’s how ABC News reported the case on June 12, 1967:

David Boies and Ted Olson, the two lawyers who led the challenge to California’s Proposition 8, which outlawed same-sex marriage in 2008, connected the Loving case to the case of Perry v.Schwarzenegger here:

In 2011, as their case proceeded through the federal courts, Boies and Olson spoke at the Cato Institute, joined by John Podesta, then president of the Center for American Progress, and Robert A. Levy, chairman of Cato. Podesta and Levy served as co-chairs of the advisory committee of the American Foundation for Equal Rights, the nonprofit group that brought the Perry case. They wrote in the Washington Post in 2010:

Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law….

Over more than two centuries, minorities in America have gradually experienced greater freedom and been subjected to fewer discriminatory laws. But that process unfolded with great difficulty.

As the country evolved, the meaning of one small word — “all” — has evolved as well. Our nation’s Founders reaffirmed in the Declaration of Independence the self-evident truth that “all Men are created equal,” and our Pledge of Allegiance concludes with the simple and definitive words “liberty and justice for all.” Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.

Thanks to the genius of our Framers, who separated power among three branches of government, our courts have been able to take the lead — standing up to enforce equal protection, as demanded by the Constitution — even when the executive and legislative branches, and often the public as well, were unwilling to confront wrongful discrimination.

In his remarks at Cato, and in this newspaper column, Levy argued that it would be best to get the government out of marriage entirely—let marriage be a private contract and a religious ceremony, but not a government institution, a point that I have also made. For some, that’s a libertarian argument against laws and court decisions that would extend marriage to gay couples: it would be better to privatize marriage. But Levy goes on to say:

Whenever government imposes obligations or dispenses benefits, it may not “deny to any person within its jurisdiction the equal protection of the laws.” That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

When it comes to the current marriage case of Obergefell v. Hodges – and if only the Court had made the parallel case of Love v. Beshear the main case, so that the Loving decision could be followed by the Love decision – there are legitimate federalist and democratic objections. One might say that marriage law has always been a matter for the states, and it should stay that way. Let the people of each state decide what marriage will be in their state. Leave the federal courts out of it. Federalism is an important basis for liberty, and that’s a strong argument. There’s also a discomfiting argument that a Supreme Court decision striking down bans on gay marriage is undemocratic, that it would be better to let the political process work through the issue. Some people, even supporters of gay marriage, warn that a court decision could be another Roe v. Wade, with decades of cultural war over an imposed decision.

Those are valid objections. Not all issues have an obvious right side. In this case, I always ask critics of the federal court decisions striking down gay marriage bans and the possibility of a Supreme Court decision confirming those decisions, How do you feel about the Loving case? Do you think the Court should have declined to strike down state bans on interracial marriage (which were still highly popular in 1967, according to the Gallup poll)? And if you do support the Loving decision, then how are these cases different? The Cato Institute has urged the Court, in an amicus brief, to find that bans on same-sex marriage violate the equal protection clause of the Constitution.

Here is one more video, featuring the speakers from the Cato forum on Perry v. Schwarzenegger (plus me):

Controversial Supreme Court decisions are often handed down at the end of the Court’s term, in June. A decade from now, will we celebrate the joint anniversary of the Loving and Obergefell decisions, both of which extended liberty and justice—and the freedom to marry—to all? Or will we have to explain how the Court managed not to find that the principles of Loving applied to Obergefell?

Conservatives are fond of saying, usually in regard to homosexuality, “Everything not forbidden is compulsory.” At National Review recently, Kevin Williamson reminded readers of the provenance of that particular formulation:

One of the finest books ever written about politics is The Once and Future King, in which young Arthur, not yet king, is transformed by Merlin into various kinds of animals in order to learn about different kinds of political arrangements: Hawks live under martial law, geese are freewheeling practitioners of spontaneous order, badgers are scholarly isolationists, and ants live under totalitarianism, with T. H. White famously rendering their one-sentence constitution: “Everything not forbidden is compulsory.”

The District of Columbia can go the ants one better: It makes things simultaneously forbidden and compulsory. D.C. banned discrimination on the basis of sexual orientation in 1973, but didn’t repeal its sodomy law until 1993. So for 20 years you couldn’t be fired for being gay, but you could be arrested.

Now the District has extended its confusion to the mundane matter of taxicab regulation. WAMU reports that

Several Washington cab companies may miss a June 29 deadline to upgrade at least 6 percent of their fleets to wheelchair-accessible vehicles….Under the D.C. Taxi Act of 2012, the 27 cab companies with fleets of at least 20 taxis were supposed to convert or purchase accessible vehicles….After meeting the 6 percent ratio this month, D.C. cab companies will be faced with upgrading to 12 percent by the end of 2016 and 20 percent by Dec. 31, 2018. 

Disability-rights advocates are angrily demanding that the companies “give us the taxicabs we deserve.”

But meanwhile the District limits entry into the taxi business with a tag system, so that:

Because of the District’s freeze on the issuance of H-tags, independent drivers may not purchase and operate their own wheelchair-accessible taxis. Instead drivers have to rent the taxi, usually a minivan with a rear ramp for power wheelchairs or motorized scooters, off a company’s lot.

D.C. native Arika Woodson, 35, approached the D.C. Taxicab Commission with a proposal to operate her own taxi company exclusively for people in wheelchairs, but was turned away because of the H-tag freeze.

So the District government is requiring taxi companies to spend money to make their cabs wheelchair-accessible. At the same time, it’s also refusing to grant taxi licenses to entrepreneurs who want to put wheelchair-accessible cabs on the streets. It’s compulsory and forbidden all at the same time!

And one more point: Before the conversion mandate, “Two government-subsidized ride programs, Roll DC and Transport DC, provided 19 vehicles for people in wheelchairs, primarily to make doctors’ visits.” So wheelchair-accessible taxis are forbidden, compulsory, AND taxpayer-subsidized in the District of Columbia. It’s a trifecta of interventionism.

On ABC News’ This Week yesterday, Gov. Scott Walker defended his proposal to spend $250 million of taxpayers’ money to build a new arena for the Milwaukee Bucks:

“Our return on investment is three to one…” Walker said. “It’s a good deal.”

The Bucks franchise, valued at $600 million, is owned by a group of billionaire financiers in New York. But no matter what it’s worth, Walker’s statement is at wide variance with the findings of independent economists.

Economic projections for subsidized stadiums are always vastly overstated. As Dennis Coates and Brad Humphreys wrote in a 2004 Cato study criticizing the proposed D.C. stadium subsidy, “The wonder is that anyone finds such figures credible.”

And indeed the Washington Examiner reported in 2008:

Attendance at Nationals Park has fallen more than a quarter short of a consultant’s projections for the stadium’s inaugural year, cutting into the revenue needed to pay the ballpark bonds and spurring a D.C. Council member to demand the city’s money back.

Several Cato studies over the years have looked at the absurd economic claims of stadium advocates. In “Sports Pork: The Costly Relationship between Major League Sports and Government,“ Raymond Keating finds:

The lone beneficiaries of sports subsidies are team owners and players. The existence of what economists call the “substitution effect” (in terms of the stadium game, leisure dollars will be spent one way or another whether a stadium exists or not), the dubiousness of the Keynesian multiplier, the offsetting impact of a negative multiplier, the inefficiency of government, and the negatives of higher taxes all argue against government sports subsidies. Indeed, the results of studies on changes in the economy resulting from the presence of stadiums, arenas, and sports teams show no positive economic impact from professional sports — or a possible negative effect.

In Regulation magazine, (.pdf) Dennis Coates and Brad Humphreys found that the economic literature on stadium subsidies comes to consistent conclusions:

The evidence suggests that attracting a professional sports franchise to a city and building that franchise a new stadium or arena will have no effect on the growth rate of real per capita income and may reduce the level of real per capita income in that city.

And in “Caught Stealing: Debunking the Economic Case for D.C. Baseball,” Coates and Humphreys looked specifically at the economics of the new baseball stadium in Washington, D.C., and found similar results:

Our conclusion, and that of nearly all academic economists studying this issue, is that professional sports generally have little, if any, positive effect on a city’s economy. The net economic impact of professional sports in Washington, D.C., and the 36 other cities that hosted professional sports teams over nearly 30 years, was a reduction in real per capita income over the entire metropolitan area.

Stadiums, arenas, convention centers, arts centers, the story is the same. In 2011 the Washington Post reported that the financial projections for a government-funded arts center, Artisphere, in Arlington, Virginia, didn’t seem to have panned out.

A 2014 report by Don Bauder in the San Diego Reader is worth quoting at length:

Would you take advice from a gaggle of consultants whose forecasts in the past two decades have been off by 50 percent?

Of course you wouldn’t. But all around the U.S., politicians, civic planners, and particularly business executives have been following the advice of self-professed experts who invariably tell clients to build a convention center or expand an existing one.

A remarkable new book, Convention Center Follies: Politics, Power, and Public Investment in American Cities, published by the University of Pennsylvania Press, tells the amazing story of how one American city after another builds into a massive glut of convention-center space, even though the industry itself warns its centers that the resultant price-slashing will worsen current woes.

The author is Heywood Sanders, the nation’s ranking expert on convention centers, who warned of the billowing glut in a seminal study for the Brookings Institution back in 2005. In this new, heavily footnoted, 514-page book, Sanders, a professor of public administration at the University of Texas/San Antonio, exhaustively examines consultants’ forecasts in more than 50 cities….

The worst news: “These expansions will keep happening,” as long as “you have a mayor who says it is free,” says Sanders.

Or a governor:

“We would lose $419 million over the next 20 years if we did nothing, if we said, go on, move somewhere else, which the NBA said they would do,” Walker continued. “In this case, we don’t raise any taxes. There are no new taxes, only existing taxes. And we get a three to one return.”

The project will be funded by existing taxes on hotel rooms and rental cars, though the Wisconsin Center Board has the authority to raise the rate, he said.

“In this case, we take the tax, the revenues on hotels and rental cars that are currently paid for the convention center and allow those to continue to be paid for a new arena,” Walker said. “It’s not a new tax.”

This wasn’t the worst thing Scott Walker said to Jonathan Karl on ABC. He also said he wouldn’t rule out re-invading Iraq. But any presidential candidate who believes that taxpayer-subsidized stadiums are “a good deal” shouldn’t be anywhere near the federal Treasury.

An earlier version of this post relied on an erroneous quotation by ABC News in the first and last paragraphs. The post has been corrected to reflect the video with Walker’s actual language.

Ariana Eunjung Cha reports on the newest target of public shaming in China:

Long before the Internet was invented, China’s Communist Party was already skilled in the art of public shaming.

Dissidents have been known to disappear and then reappear after having published essays of self-criticism. On state-run television, business people, celebrities and editors have appeared so regularly from behind prison bars speaking about their misdeeds that the segments were like an early take on reality TV.

Now officials are using the tactic on another group that it feels has wronged the country: smokers.

Beijing has not relied just on public humiliation. It has banned smoking in indoor public places and workplaces, complete with large fines and massive propaganda campaigns. It also plans to

take more dramatic measures by posting the names of those breaking the law three times on a Web site in order to shame them.

That may not sound like a big deal, but in Asia the reaction of online citizens to inappropriate behavior can be harsh. Among the most infamous cases is one in 2005 when a woman in South Korea who refused to clean up her dog’s waste was caught in photos that were posted online. Internet users quickly discerned her identity and she was harassed so badly that she reportedly quit her university.

We expect this sort of thing in a country ruled by the Chinese Communist Party and still influenced by Maoist ideas and practices. What’s disappointing is to see such tactics spreading in a country founded on the principles of life, liberty, and the pursuit of happiness. Where once people feared harassment for giving to gay-rights groups, now we see people harassed for giving money to oppose gay marriage. Silicon Valley CEO Brendan Eich was forced to resign for having donated $1000 to the campaign for Proposition 8. A small-town pizzeria in Indiana was faced with a firestorm of media, Twitter harassment, and death threats after one of its family owners said they wouldn’t provide pizzas for a hypothetical gay wedding reception. Two gay entrepreneurs, generous contributors to gay causes, were targeted after they had dinner with anti-gay-rights senator Ted Cruz. Numerous people caught in such crosshairs, including Eich and the dinner hosts, have issued statements of self-criticism, just like during the Cultural Revolution in China. Andrew Sullivan, a pioneering crusader for gay marriage, deplored the defenestration of Eich, asking in a blog post titled “The Hounding of a Heretic”:

Will he now be forced to walk through the streets in shame? Why not the stocks? The whole episode disgusts me – as it should disgust anyone interested in a tolerant and diverse society. If this is the gay rights movement today – hounding our opponents with a fanaticism more like the religious right than anyone else – then count me out. If we are about intimidating the free speech of others, we are no better than the anti-gay bullies who came before us.

And now we have “drought shaming” in California. The state refuses to do something sensible like charging market prices for water, so it’s forced to rationing and hectoring. And bring on the shaming:

California’s drought is turning neighbor against neighbor, as everyone seems to be on the lookout for water wasters….

In this new age of social media and apps for everything, so called “droughtshaming,” can be much more public, and nastier than what Demian got a taste of.

Just look at Twitter. If you search the social media site for the hashtags #DroughtShame or #DroughtShaming,” you’ll find hundreds, if not thousands of very public reprimands of water wasters, often with pictures, video, and a lot of addresses….

And there’s more — droughtshaming apps….

There’s another, newer app devoted only to droughtshaming, and it’s called, obviously, DroughtShameApp. Creator Dan Estes, a Santa Monica real estate agent, says he made the app just a few weeks ago out of a feeling of responsibility.

“I think like a lot of Angelenos, I’m a little freaked out by the drought,” he told NPR. “It just seems like something has to be done to avoid a long-term catastrophe.” Estes’ app lets users upload geo-located photos, with captions and addresses to report water wasters.

In many of these cases, actual legal coercion goes along with the public shaming. Beijing will fine smokers and bars, florists are being forced to supply flowers for gay weddings, and California has mandatory water restrictions. But the public shaming adds a new dimension of mob behavior and chilling effects.

Technology is part of the problem here. Back in 1978, when gays and their allies feared being on a list of opponents of the antigay Briggs Initiative, the list of donors was officially public. But you had to go to the office of the secretary of state (or maybe the county clerk) to inspect such a list. By 2008, when Proposition 8 was on the ballot, donor lists could be downloaded and posted on the internet in alphabetical and searchable form. From the privacy of your own home you could find out whether your friends, neighbors, or favorite celebrities had contributed to the side you found morally reprehensible. Today Facebook, Twitter, and specialized apps make it easier than ever to point a public finger at anyone who offends you.

I’m a First Amendment absolutist. I don’t want anyone forbidden to publicly criticize others. But I don’t want to live in a Cultural Revolution either. Chinese novelist Murong Xuecon remembers his childhood:

[My] teacher summoned me before an assembly of the whole school to read a 600-word essay of self-criticism that he had made me write. I admitted I was lazy. I said I didn’t respect discipline and had let down my teachers and parents. My classmates appeared amused and my teacher satisfied. For me it was like I had been exposed naked to all.

This kind of scene is not uncommon. From primary school to university, I witnessed countless such public humiliations: for fighting, cheating or petty misdemeanors. Caught committing any of these offenses and you may have to stand before the student body, criticizing your own “moral flaws,” condemning your character defects, showing yourself no mercy, even exaggerating your faults. Only those who have endured it can know the depth of shame one feels.