by Georgia Center for Opportunity | Jul 6, 2015
I have to confess that I wasn’t all that surprised by the Supreme Court’s decision in Obergefell v. Hodges, which held that the 14th Amendment Due Process and Equal Protection clauses imply a right to marry (due process) and require that that right be extended to those who wish to marry same-sex partners (equal protection). Justice Anthony Kennedy, who wrote for the narrow (5-4) majority, had pretty much been telegraphing his intention since Lawrence v. Texas (2003) and Romer v. Evans (1996), and indeed since co-authoring the infamous “mystery passage” in the joint opinion in Planned Parenthood v. Casey (1992). In the former two cases, he described opposition to homosexuality as expressing only an “irrational animus,” thereby placing the letters of the Apostle Paul, not to mention millennia of both secular and religious teaching from a variety of traditions, in the same category as the most hateful inarticulate screed scrawled on a bathroom wall. Indeed, in his Lawrence dissent, Justice Antonin Scalia argued that the clear implication of the majority’s reasoning was that, its protestations to the contrary notwithstanding, there was no constitutional principle that could justify restricting marriage to opposite sex couples.[1] In Planned Parenthood, Kennedy and his co-authors laid the foundation by defining liberty in terms of what has come to be known as expressive individualism: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Now, my undergraduates understand and are even capable of reproducing Justice Kennedy’s reasoning. Of course, they state it much more simply: “I should have the right to marry whomever I please.” This straightforward combination of liberty and equality—our two American watchwords—explains why so many people exuberantly welcomed the Supreme Court’s decision.
But if they had given some thought both to the understanding of marriage and the canons of legal and judicial reasoning—as we should rightly expect of Justice Kennedy and his colleagues—my undergraduates, not to say the American people in general, might have had second thoughts.
Let me begin with the second point. The 14th Amendment Due Process clause has been used to protect our liberties against certain kinds of government encroachment. While the language of the clause is procedural—and thus applies most obviously (as does its 5th Amendment counterpart) to judicial proceedings—it has long been held also to protect substantive rights, hence the almost oxymoronic term “substantive due process.” When deciding which liberties were substantively protected by this clause, the Court, in order to discipline itself so as to leave as little room as possible for free-floating judicial creativity, has held that the 14th Amendment protects only those liberties (as Chief Justice John Roberts says in his dissent, quoting a very strong precedent) that are “’objectively, deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” I repeat: if the liberty protected by the 14th Amendment is not directly tied to history or tradition, if there are not some authoritative standards to guide and control the justices, then we run the risk of liberty being whatever a majority (in this case, a “bare majority,” which is how Justice Kennedy speaks of narrow 5-4 majorities of whose conclusions he does not approve) the Court thinks or feels it is. Absent these standards, we no longer have the rule of law or settled precedent, but rather that rule of judicial majorities, giving and withholding protection as they see fit. Many people might approve of the substantive result this time, but who knows where the next such decision will take us. That Anthony Kennedy thinks he knows what history tells us about the expanding and changing definition of liberty reveals a breathtaking (and, to my mind, entirely unwarranted) confidence in his judgment.
But, you might ask, isn’t the freedom to marry rooted in our traditions? Hasn’t the Supreme Court, in a number of cases cited by Justice Kennedy, upheld that very right? Well, yes, but the right to marry rooted in our traditions is the right to traditional marriage (that is, between a man and a woman). It isn’t the right to redefine marriage so as to encompass same-sex (and perhaps other) relationships. The problem with Justice Kennedy’s opinion is that his insistence that “the nature of marriage” involves two (and only two) people derives what force it has from the traditional understanding that “the nature of marriage” involved a man and a woman. Having jettisoned the tradition on one point in the name of an alleged individual right to marry whomever one pleases, it is hard, if not impossible, consistently to preserve it on another. Indeed, his mysterious understanding of liberty—“defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—would seem to leave more than enough room for each of us to form his or her own understanding of how and under what circumstances we wish to be related to others.
Now, as Justice Thomas points out in his dissent, the traditional understanding of liberty, by giving us a claim—albeit not an absolute claim—against government interference in our lives offers some, perhaps even much, of the freedom Kennedy has in mind. There’s a lot I can do with other consenting adults in the privacy of my own home. But as Kennedy recognizes, marriage isn’t just a freedom in this sense; there are all sorts of benefits, from tax advantages to child custody arrangements that accompany it, as well as an apparently publicly ascribed “dignity” that attends marriage, as opposed to “living in sin,” as we used, quaintly, to put it. So what’s at stake is not so much a liberty protected by the Due Process clause as equal access to benefits—leaving aside the issue of dignity, which makes for problems all its own—guaranteed by the Equal Protection clause.
Unfortunately, Justice Kennedy doesn’t undertake the kind of legal analysis that usually accompanies equal protection claims. There is no talk either of a “rational basis” for a legal distinction applied to an unprotected class of people or of the “strict scrutiny” of a distinction involving a protected class. To be sure, he has denied in past cases that laws that single out gays can have even a rational basis. Perhaps he doesn’t think he has to repeat himself here, as the irrational animus is, in his view, self-evident. But however much refusing to serve a gay in a restaurant or singling out for legal sanction expressions of gay sexuality may reflect such an animus, it is not at all self-evident that adhering to the traditional definition of marriage does so.
To be sure, there are plausible and perhaps even good arguments on both sides of the marriage issue. But those are arguments to be weighed and evaluated by a legislature, not settled conclusively by a court. By short-circuiting the political process, Justice Kennedy and his colleagues in the majority have forestalled a full and fair airing of the issues and have virtually guaranteed that those on the losing judicial side will question the legitimacy of the result so many of their fellows are celebrating. Further, those who approve of the result will be tempted to regard those who disagree with them simply as sore losers who don’t deserve any respect, which will serve only to poison still more of our public square.
There are other benefits as well that we’ve lost by not working this disagreement out legislatively. A legislature with men and women of good will on both sides might have arranged for robust guarantees of religious liberty for those who conscientiously dissented from a pro-same sex marriage outcome. And rather than opening up a Pandora’s box of different marital arrangements as Justice Kennedy’s conception of liberty does, a legislature might have carefully reworked the traditional definition of marriage to accommodate in some way the genuine personal challenges Justice Kennedy so eloquently describes at the beginning of his opinion. But feeling for the aggrieved and finding a way to help them is the work of legislators, responsible to the voters, not judges who serve for life.
That we have operationally and happily ceded so much truly legislative authority to unelected judges is, to my mind, the most troubling result of Obergefell. In my next post, I will discuss some of the religious liberty challenges that we will, in short order, face.
[1] Justice Kennedy was similarly disingenuous in Windsor v. U.S. (2013), which struck down the portion of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman. Marriage, he averred, was traditionally understood to be a state matter, which was convenient at the moment, but swept away with nary a mention in Obergefell.
by Georgia Center for Opportunity | Jul 1, 2015
Thank you to the generous donors who helped us reach our most recent fundraising goal of $80,000, unlocking an additional $80,000 in matching funds to support Georgia Center for Opportunity. These funds are already being used to promote family stability, access to quality education, and steady employment.
As we close out our fiscal year and look to the year ahead, we count our blessings for all who choose to invest in our work. With your support, GCO is influencing the key pillars to the well-being of Georgians – education, employment, and family stability. We’re focused on the “success cycle,” where these three pillars work together to dramatically increase the odds that an individual will lead a fulfilling life, avoid poverty and government dependency, and raise children who will follow the same path.
When we’re successful, fewer Georgians will be living in a condition of dependence, a higher percentage will be enjoying earned success and the fruits of their labor, more children will be ready for college and a career, and more families will have the economic and relational resources to thrive.
We look forward your continued partnership in the year ahead. You can stay informed on the impact of your gifts by subscribing to GCO email updates and following us on Facebook.
by Georgia Center for Opportunity | Jun 4, 2015
Last summer, the Obama Administration proposed a rule adding sexual orientation and gender identity (SOGI—get used to the acronym) to the list of classes protected against discrimination by federal contractors. In so doing, it built upon other anti-discrimination executive orders issued by Presidents Johnson and Nixon. The difference between the Obama Administration’s rule and those promulgated by its predecessors is that the latter explicitly provided exemptions for religious employers, who were permitted to engage in mission-sensitive hiring even if they provided goods and services to the federal government. Under the old rules, a faith-based organization could hire co-religionists to work, for example, in a federally-funded Welfare-to-Work program (and, of course, could quite rightly not discriminate in providing benefits to clients). Under the new rules, finalized in April, there is no exemption for faith-based organizations, many of whom would seem to have to abandon their historical commitments to sexual fidelity in the context of man-woman marriage if they wish to continue to be eligible for federal contracts.
And now the other (or another, perhaps the first of many) shoe is about to drop: there is word that the rule applied to federal contractors will soon be extended to grant recipients, at least in respect to one area of federal activity, humanitarian aid. As this move has not received a lot of attention (perhaps designedly so), it is not clear how far-reaching this change is. At the moment, it seems relatively safe to say that eligibility for some grants will likely be conditioned on a renunciation of traditional religious teaching (not just Christian, but also Jewish and Muslim) regarding human sexuality.
What prevents the Obama Administration from extending this requirement to additional categories of grant recipients is not at all clear. Or rather it is clear: only pushback from the friends of religious freedom will prevent the federal government from eventually conditioning all federal aid on “non-discrimination,” even at the expense of fidelity to traditional religious teaching.
How far could this eventually go? Consider, for example, the extraordinarily heavy dependence of most colleges and universities (there are a few noteworthy exceptions, among them Grove City, Hillsdale, and Wyoming Catholic) on federal aid. Suppose that colleges and universities that included behavioral expectations in their statements of faith were told that they could not hold their employees to these expectations, as doing so would constitute SOGI-based discrimination. Some might stand firm and join the proud ranks of the non-federally funded. Others, I fear, would feel compelled to assure their (merely) institutional survival by giving in. The result would likely be a much less genuinely diverse array of higher education options and a loss of a great intellectual and moral source of religious life in this country.
And that’s not the end of it. Don’t forget the brief exchange between Justice Samuel Alito and Solicitor General Donald Verrilli in the oral argument for the Obergefell v. Hodges (same-sex marriage) case. Under questioning by Justice Alito, Verrilli conceded that the tax-exempt status of religious institutions that did not recognize same-sex marriage could or would be an issue. For those who regard tax exempt status not as an acknowledgement of freedom from state interference but as an instrument of public policy, aimed at promoting the public good (as they conceive it), it’s only a few baby steps from denying government funding to revoking a tax exemption. I’d like to think that many of us will continue to give at the same level to the charities we favor regardless of whether we receive a tax break for doing so, but not all of us will. At the very least, roughly 30% of that charitable contribution would likely be taken by taxes, and that’s only from the contributor. Another chunk would be taken from the formerly tax-exempt institution. Is your favorite faith-based institution prepared to deal with the loss of a significant portion of its annual budget?
Some might argue that it’s healthy and bracing for faith-based institutions to get back to basics, to have a fresh and direct experience of what it means to be a pilgrim, sojourner, or (as Duke University theologian Stanley Hauerwas is fond of putting it) resident alien. Perhaps. Even more, it might be clarifying for the soulless Leviathan of the ever-expanding modern regulatory and administrative state that would reveal itself for the secularizing monster it really is. Perhaps.
But pardon me for continuing to harbor the hope that genuine religious pluralism that flourishes in a healthy civil society is good not only for the churches, synagogues, mosques, temples, schools, colleges, universities, and charities that inhabit it, but also for the country that plays host to them.
That is what is threatened by the Obama Administration’s narrow and crabbed vision of, if not actual disrespect for, religious liberty. We face the prospect of a secular (which is not the same as neutral) state whose reach into our lives and communities is constantly expanding, not as a partner with distinctive and diverse local institutions and organizations, but as their master, dictating the terms on which they will serve the needs of those who use and depend upon them. The genuinely distinctive—religiously and morally traditional—institutions will be treated, not as partners, but as adversaries, at best pushed to the margins, at worst run out of business.
I hope and expect all institutions will love and serve all of God’s children, but will defend their right to do so in ways that are faithful to their understanding of Scripture.
by Georgia Center for Opportunity | Jun 3, 2015
Last Friday I had the opportunity to address a subcommittee of the Governor’s Education Reform Commission. This particular subcommittee is tasked with making recommendations on how best to expand educational options in Georgia, or, more plainly, addressing the question,
“What sort of choices should parents have in how their children are educated?”
I was able to tell the subcommittee how I (along with others) lobbied back in 2007 for the passage of the Georgia Special Needs Scholarship Program, our state’s first state-funded private school choice program. We came back in 2008 and lobbied for the creation of the Tax Credit Scholarship Program, which allows individual and corporate donors to receive a tax credit for donations made to non-profits who give scholarships to kids leaving public schools for private options.
Because of these two programs, more than 16,000 students in Georgia now attend the private school their parents chose for them. Many of these children and their families share stories of lives changed because of the opportunities these scholarships provided. Kids that were struggling in the public school they were zoned for are now thriving in an environment chosen by their parents that better meets their individual needs.
But while 16,000 students have found hope in the opportunity afforded by choice, thousands more languish behind because they are either not eligible for a state-funded scholarship or because the tax credit program is capped, limiting the number of students who can participate.
The 2007/2008 legislative session was an exciting time. Georgia suddenly popped onto the national education choice scene in a big way. We may not have been a leader back then, but at least we were finally on the team.
But as I shared with the subcommittee, we haven’t done much since. As a state we had our moment on the national stage, but it was a bit of a flash and then a fizzle.*
We’ve watched year after year as other states create new educational choice programs or expand existing ones. These states are whizzing right past us to the top of the pack, leaving us in an all-too-familiar place when it comes to education: hanging near the back.
Scott Jensen, a colleague of mine in the school choice arena who serves as the Senior Policy Advisor for the American Federation for Children, explained to the committee, “You (Georgia) have the slowest growth rate of any program in the country. Because there is none.”
I’ve been through seven legislative sessions since the creating of our programs, advocating each time for “more” – more choices for families to meet the specific needs of their kids because those kids’ futures depend on them getting a good education.
It’s not as though offering educational options to families is some sort of competition between GA and other states. But it is true that our kids are competing, and not just with other states – they are competing in a global marketplace.
I bet if we allow ourselves a moment of honesty, most of us could agree on a couple of things:
1. Our kids deserve a 21st century education that actually prepares them for college, a career, and life.
2. Every child is different and has unique learning needs.
The great news is, in the 21st century, there are so many tools that previous generations of students, teachers, and parents just didn’t have at their disposal: digital classes and programs, special schools to address specific learning challenges, schools with a focus on the arts, schools with a focus on science and technology, innovative home study programs, etc.
This is actually why I’m not sure the phrase “school choice” really covers the gamut of options anymore. Often, the choices that make the most sense for a family aren’t really schools in the traditional sense. Rather, they are programs, services, therapies or other options that go well beyond the school walls.
With such a diversity of options on the market, what keeps families stuck in the same old school, or the same old rut? It’s usually one of two things:
1. State policy that prevents them from choosing a different educational path.
2. A lack of resources to afford the existing options or move to a different area of town with better educational offerings.
So, what can we do about these challenges? At Georgia Center for Opportunity, we are all about breaking down barriers to opportunity. Together, we can work to:
1. Change state policy to allow families more flexibility with regard to educational options, prioritizing the specific needs of a child over arbitrary school district boundaries.
2. Remove some of the financial obstacles by allowing families to use the money the state designated to educate their child for another school or program of their choice that better meets their child’s needs.
I am weary but hopeful that 2016 will be the end of the lack of legislative action to address the need for more educational options. I hope that the Governor’s Education Reform Commission makes thoughtful but bold recommendations to expand educational choice in Georgia. I hope the Governor and the legislature take those ideas and turn them into reality for our families. I hope, because for far too many kids, a way out, a way forward, or a new way of doing things is their only hope to receive the best education they can get.
Georgia needs to get back in the game, step up to the plate, and make sure we are doing all we can to set our students up for a WIN in this game of life.
*(Actually, we’ve done a lot of good in providing additional public school choices through charter schools, and we’ve had some exciting public school reforms, but here I am focused on what we do for families who need an option outside of the public system in which they are zoned).
by Georgia Center for Opportunity | May 27, 2015
What Returning Citizens Need to Make Successful Transitions
The fundamental building blocks for returning citizens’ successful transition back into society are, ironically, the most challenging for them to secure: steady employment, safe and affordable housing, and reliable transportation. If these three major needs are met, their chance of ending back behind bars is greatly reduced.
Employment, housing, and transportation are largely interrelated, as it is hard to have one without the other. For instance, it is difficult for a person to keep a job without having a place to live relatively nearby; it is doubtful a person can continue to pay rent without having a regular source of income; and it is challenging to find housing or commute to work without a reliable means of transportation. This catch-22 is what makes reentry so intimidating for those getting out of prison.
Won’t You Be My Neighbor?
Finding safe and affordable housing is a particularly perplexing issue for returning citizens. After leaving prison through parole, probation, or by maxing-out, their housing options are generally limited to living with family or friends, living at a transitional house, securing public housing, or renting. Each person’s circumstances determine their living situation.
For some, going to live with a family member is the best option, as it enables them to have a free place to live while trying to get back on their feet (that is, if there is another provider supporting them). For others, this is the worst place for them to go, as family members have been a poor influence on their lives and would further entrap them in a lifestyle of crime. Still, others may be in desperate circumstances and in need of public housing, while a few have the necessary means to rent an apartment or a house.
Potential Roadblocks: Affordability and Criminal Records
By far the biggest obstacle to obtaining housing is affordability. Many people leave prison owing various debts including child support arrearages, court fees, damages, restitution, etc. Faced with financial stress from multiple directions, many find it difficult to balance paying rent with any number of fees while trying to secure a job that pays a reasonable salary.
The other major hindrance that returning citizens face in obtaining housing is the impact of their criminal record. Many private leasing offices run background checks on prospective tenants, prohibiting those with a felony conviction from occupancy. Further, those who seek public housing run into the problem of Public Housing Authority’s limited capacity and multiple restrictions. Those who were evicted for drug-related criminal activity are banned from public housing for three years (unless they complete an approved rehabilitation program), while lifetime registered sex offenders and anyone convicted of manufacturing methamphetamines on public housing property are banned for life.
Housing Partnership Shows Some Success
As a means of overcoming some of these barriers, the State Board of Pardons and Paroles, the Department of Corrections, and the Department of Community of Affairs teamed up to form Reentry Partnership Housing (RPH). This program provides housing for people who have been authorized to parole but remain in prison due solely to having no residential options. For this group, the government pays approved housing providers $600 per month for three months which includes housing and food. Those who demonstrate the best outcomes receive the most parolees from the state.
The program has shown some success in alleviating the burden for hard-to-place parolees. “From 2002 to 2008, RPH placed 516 parolees, including 30% classified as special needs.” In addition, “Over 58% of participants secured employment…only 5% had their parole revoked and less than 3% absconded” (see Award-Winning Georgia Reentry Program).
While the program has had some success, one notable shortcoming is housing providers are often not located in the best cities for parolees to find jobs and establish roots. It is essential that returning citizens are placed in sufficiently resourced areas to aid in their successful transition; otherwise, the program becomes merely a short-term solution that leaves the person jobless and homeless after three months.
Identifying Housing Solutions
A potential remedy to this problem is to identify, facilitate, and fund housing providers in the cities where returning citizens are most likely to return. If people are placed in areas where they can find a job and have access to transportation, their chances of successfully transitioning into society are much higher.
The Governor’s Office of Transition, Support & Reentry (GOTSR) is making a considerate effort to identify and coordinate housing providers in the six reentry pilot sites that have been established across the state* (Albany, Atlanta, Augusta, Columbus, Macon, and Savannah).
GOTSR is in the process of implementing the new Georgia Prisoner Reentry Initiative (GA-PRI) Framework at these sites as a means of creating a seamless transition from prison to the community for those who will be released in these cities. The office is in the midst of hiring community coordinators, housing coordinators, employment coordinators, and prison in-reach specialists to aid in making this transition successful for returning citizens.
A big part of the work taking place at these sites involves identifying all of the resources in the local community that are available, assessing what resources are missing, encouraging service providers to work together and avoid duplicating efforts, and creating a database where returning citizens can easily access these resources. GOTSR launched a website earlier this year that contains the database where service providers can be found.
Undoubtedly, it will take the effort of local communities committed to meeting the needs of these men and women in order to see a tangible difference being made. However, if this sort of local involvement takes place throughout the state in conjunction with the efforts being made at the state level, who knows what sort of impact we will see in the lives of returning citizens over the next decade?
*Note: GOTSR does not provide funding for service providers in these communities but rather works to identify, coordinate, and galvanize these providers to effectively serve those returning to their communities from prison.
