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From:
rabiera <rabiera1Normally I would simply post a link to something like this, but there
isn't one yet & I didn't want to wait.
Some of you may be aware of the Log Cabin Republicans, who are having
their convention in Dallas.
One of the guests is Bob Barr, who gave a speech today - the text of
which I received by email from LCR. I am posting this speech here so
you can judge for yourself what impact it might have on the whole
marriage debate. Note that it is prefaced by a quote from Ayn Rand.
BTW, I have mixed feelings about the speech myself, but I want to give
it a more thorough reading before I say anything about it.
Rob Abiera
Speech to the Log Cabin Republicans
National Convention & Liberty Education Forum Symposium
April 30, 2011
Dallas, Texas
by Congressman Bob Barr
"The greatest dangers to liberty lurk in the insidious encroachment by
men of zeal, well-meaning but without understanding."
– Justice Louis Brandeis
"We are fast approaching the stage of the ultimate inversion: the
stage where the government is free to do anything it pleases, while
the citizens may act only by permission; which is the stage of the
darkest periods of human history, the stage of rule by brute force."
-- Ayn Rand
"If I hear 'not allowed' much oftener," said Sam, "I'm going to get
angry."
– J.R.R. Tolkien, "Lord of the Rings"
Ladies and gentlemen, thank you for having me here today. While some
folks might express surprise that I stand here today to speak at the
Log Cabin Republicans National Convention, the common ground on which
Republicans, Democrats, Libertarians, and other civil libertarians
find themselves with increasing frequency standing against government
encroachments on liberty, should surprise no one here. I am delighted
and honored to be with you, and to encourage you to continue in your
work to refresh and restore America's promise of a society in which
individual freedom is maximized, and in which the countervailing and
often heavy hand of government power is minimized.
I am here to speak with you about the most important topics of our
time in history – individual liberty and the role of government in our
lives. The marriage debate is an important element of this fundamental
debate of the 21st Century (but certainly not the only one) – have we
reached the tipping point in the balance between government power and
individual freedom, such that the former has completely overwhelmed
the latter?
As Ludwig von Mises wrote, "Government is essentially the negation of
liberty." Certainly, some degree of government is necessary to
safeguard our unalienable rights to life, liberty, and property. Any
degree of government that is more than necessary itself, intrudes on
these rights, and should (must) be opposed. This includes those laws
limiting personal choices and relationships that do not harm others.
Just how bad has it become? We lawyers learn and can cite many of the
more than 4,400 criminal laws limiting and defining behavior under
federal law. All of us likewise are familiar in our professional and
community lives with the many thousands more state and local laws and
ordinances. What many people tend to overlook, however, are the many
licensing requirements that define so many activities in our lives.
A license is a control mechanism; also a means to raise revenue. To
license is to grant permission. To license is to control. Which brings
us to the real question when discussing whether same-sex marriage
should be legal – why do individuals need the government's permission
to marry? The real issue here is not marriage – it is control. Control
– the Big C of 21st Century public policy. The important question is
whether the government has the proper authority to dictate which
individuals can enter into a binding legal agreement. The very nature
and history of government action since our nation's founding reveals
it is all about power and control. The effort to define marriage
directly or indirectly is but another of many examples of this
universal truth.
But how we frame the debate is often times as important as how we
actually fight the fight. The perspective we bring to discussion of
issues involving personal liberty will largely determine our chances
for success in such endeavors. If we define the question narrowly –
"the Second Amendment simply protects the carrying of a firearm" –
rather than as an element of a fundamental struggle between individual
liberty and government power, we make it easier for government to
succeed in its efforts to control. Defining the debate narrowly makes
it easier for government to divide and conquer, or to trivialize the
individual effort. In other words, when defending one's Second
Amendment rights against government intrusion, the question should be
framed thus: "the Second Amendment is not simply a mechanism to
protect gun owners from having their right to possess a firearm taken
away; but rather a means of protecting the fundamental liberty and
freedom that comes with being a human being in a free society."
The same applies to First Amendment freedoms. It is not simply about
being able to read a particular newspaper or attend a particular
church. Rather it is the fundamental freedom to possess and act on
one's own, private beliefs and desires; to live one's life as one
wishes. This reflects the fundamental right to privacy; the most
important of all rights as noted by Ayn Rand in her 1943 novel "The
Fountainhead." Justice Louis Brandeis concluded similarly 15 years
earlier when, in 1928, he penned a famous dissent in the Olmstead
case; in which he noted, "they [the makers of the Constitution]
conferred, as against the government, the right to be let alone – the
most comprehensive of rights and the right most valued by civilized
men."
Brandeis was right. Our Founders did understand this principle. As
James Madison noted in Federalist No. 51, it is every bit as important
that government "control itself" as it is to have government control
the governed.
Clearly, however, in recent decades we have not done a nearly adequate
job of controlling government. In fact, we have permitted the sphere
of government control to expand exponentially, with a corresponding
shrinkage of the sphere of personal liberty. In modern times, we have
done a pitiful job of using government to control government.
Government and our Constitution are now used almost exclusively to
expand, not limit, the power of government. Marriage is but one
example.
With the massive expansion of the regulatory state has come a vast
increase in the power of the government to control personal behavior
in every aspect of life; from who can marry and how one can defend
one's life or property, to what type of light bulbs illuminate our
homes and how much water can flow through our commodes. This is the
slippery slope of regulatory creep or incrementalism. A prime example
of this slippery slope of using government regulation to tighten the
noose of control and restricting liberty can be seen in how the
marriage issue has evolved throughout history. What was once a private
contract between consenting individuals is now a complex web of laws
and regulations affecting with more than 1,100 rights, duties, and
entitlements granted only with the state's permission.
Historically, marriage was considered and recognized simply as "a
civil contract to which the consent of the parties is required."
Marriage was for procreation as well as building financial, social
and, in some cases, political alliances. Marriage licenses, however,
were established to exert control and raise revenues when the state-
run Church of England decided it wanted to have a say in approving
marriage partnerships. This practice spread to the American colonies,
where both the church and states allowed marriage by publication of
"banns." A "bann" was a "public notice that was written, published or
orally announced for three consecutive meetings at the churches of the
bride and groom."
Marriage licenses themselves, however, were not issued in America
until the mid-1800s. Initially these licenses served a negative
function -- to prohibit interracial marriages. In the intervening
century and a half, such licenses have been employed to establish and
enforce myriad prohibitions and benefits. By 1929 every state had
adopted marriage license laws. One of the last refuges of individual
liberty – common-law marriage – is being rapidly destroyed. Common-law
marriage can no longer be contracted in 26 states (including in my
home state of Georgia), thus forcing individuals who want to marry to
seek and receive permission from the state.
What was once seen as a contract between two individuals, which the
state may be called upon to enforce (and which under Article I,
Section 10 of the U.S. Constitution, should be protected against
impairment by state actions!), became an institution for the state to
regulate and control; simply another way for government to dictate how
individuals may live. What was once a contract between two consenting
individuals, perhaps their God, and possibly even after the groom
obtained the father of the bride's permission, is now a mandated pact
between those individuals, their God, and the state; with the state
essentially "giving away" the bride and the groom with its grant of
permission to marry.
As libertarian David Boaz, Executive Vice-president of the CATO
Institute, has pointed out, "privatizing marriage, would,
incidentally, solve the gay-marriage problem. It would put gay
relationships on the same footing as straight ones, without implying
official government sanction. No one's private life would have the
official government sanction – which is how it should be." By getting
government out of the marriage business, or at least limiting its
involvement by bifurcating civil marriages from religious unions with
perhaps differing definitions, individuals seeking to marry would be
treated as equals in the eyes of the law, a result much more in line
with the principles and concepts of federalism, individual liberty,
and limited government powers underlying our republic.
As far as regulating is concerned, the Supreme Court has repeatedly
held that "marriage" is a fundamental right. In Loving v. Virginia,
the seminal Supreme Court decision that struck down bans on
interracial marriage, the Court stated, "marriage is one of the 'basic
civil rights of man,' fundamental to our very existence and
survival . . . " 388 U.S. 1 (1967). In Turner v. Safley, 482 U.S. 78
(1987), the Court upheld a regulation that prohibited inmates at one
prison from corresponding with those at another, but struck down
another regulation that prohibited inmates from marrying without the
permission of the warden. On the latter decision, the Court held that
prisoners have the right to marry. In Zablocki v. Redhail, 434 U.S.
374 (1978) the Court said:
"[T]he right to marry is of fundamental importance for all
individuals. It is not surprising that the decision to marry has been
placed on the same level of importance as decisions relating to
procreation, childbirth, child rearing, and family relationships. As
the facts of this case illustrate, it would make little sense to
recognize a right of privacy with respect to other matters of family
life and not with respect to the decision to enter the relationship
that is the foundation of the family in our society."
A federal law that burdens a fundamental right is – should – be deemed
in violation of the principle of equal protection. When viewed as a
fundamental personal decision on the right to associate, it clearly
falls within the ambit of the XIV Amendment's notion of "privileges or
immunities." Prohibitions against same-sex marriage violate the equal
protection clause by placing more than a burden on this right – an
outright prohibition for one group of individuals to exercise that
right legally and to have their contracts enforced by the courts.
DOMA (Defense of Marriage Act)
Like most people, my views on many such public policy and legal issues
have evolved over time, particularly after the tragic events of
September 11th when government greatly intensified the pattern of
increasing infringements of our civil liberties. Since that time, the
government has become so powerful that it has virtually limitless
ability to control people. This brave new world of virtually unlimited
government power has caused me, and many others, to reevaluate a
number of areas of government influence where we might previously have
consented to or supported government encroachment, because there
remained a robust sphere of personal liberty. Yet now, in our post-911
world in which the power of government threatens to envelop virtually
every aspect of personal freedom, we can no longer accept such
balancing.
Moreover, in the case of DOMA, the power granted in that law to the
federal government to define marriage as between a man and a woman
only, but just for purposes of federal laws, has in fact and
unfortunately, become the tail wagging the dog, and is being employed
as a hammer with which the federal government and federal officials
force states to define marriage similarly (under threat of losing
federal benefits). This hardly comports with notions of conservative
government or of federalism as understood by our Founders.
It also is – or should be considered – a fundamental and encouraged
exhibition of conservative governance, to never be afraid to
reevaluate a power once granted the government, in light of changed
circumstances and abuse in its execution.
What many so-called conservatives fail to realize also is that
defending traditional notions of morality (if consistency is to be a
component also of our political philosophy) ought to include keeping
the government as much out of our personal lives as possible and
limiting its power as much as possible. And, speaking of morality,
using the collective power of the state to do what individuals cannot
do – impose the will of one group of people on another set of people –
is truly immoral. We each were endowed by our Creator with one life
and we should be free to live it as we see fit, so long as we do not
harm another.
DON'T ASK /DON'T TELL
Speaking of getting government as much out of our personal lives as
possible, there is no intellectually honest reason for the government
to restrict people from serving in the armed forces based arbitrarily
on whether others know the details of their personal, private sexual
orientation. There is one important caveat, however, and that is, that
personal behavior or sexual orientation should not be a barrier to
military service so long as it does not interfere with the good order
and discipline of the military. Any disruption of that good order and
discipline for any reason – whether it be due to an individual's
sexual acts, acts of violence, or acts of dishonesty in any sphere, or
any other manifestation of personal behavior – should be treated as
any other disciplinary matter under the Uniform Code of Military
Justice. The decision on Don't Ask/Don't Tell should be that it be
fully rescinded and such behavior as was covered by the policy be
judged by the one objective criteria governing other activities of men
and women in uniform – only those acts adversely affecting the good
order and discipline of the military should subject an individual to
adverse action.
CONCLUSION
Until we as a nation decide to begin dismantling the regulatory state
we have allowed to be built up around us and which now controls
everything from what we can eat to how we illuminate our homes and
flush our toilets, and from who treats our illnesses to who we can
marry, then we will be doomed to live in a dystopian society. Writers
from Jeremy Bentham to Ayn Rand identified to us the dangers of taking
away man's privacy as a prerequisite to controlling him. But modern
societies appear blissfully ignorant of such warnings.
The marriage issue, if continued to be viewed as nothing more than a
tax problem or in terms of sexual preferences, will continue to serve
as a political football for those advocating for state power. Its
debate must be centered on fundamental individual liberty. You
understand this. After all, this is the clear and fundamental mission
of Log Cabin Republicans.
This is a vitally important goal -- fully consistent with the goals of
our Founders and many great leaders the GOP has fielded over the
decades; but which, sadly often are lost now in debates over minutia,
personalities and partisanship. In promoting equal treatment under the
law, the Log Cabin Republicans must not allow its adversaries to
define and pigeonhole it as only a gay rights group. It is more than
that – its fundamental mission is committed to the core values of this
country – limited government and individual liberty in all their
myriad manifestations.
--
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