Amendment 2

In November of 1992, Colorado voters passed Amendment 2 to the Colorado Constitution by a margin of 53% to 47%. This amendment sought to prevent any “…city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class.” According to Wikipedia, the voters of the state of Colorado strongly opposed both discrimination and affirmative action based upon sexual preference. In other words, Amendment 2 did not deprive any groups or individuals of any rights, it sought to prevent a specific group of people from receiving special rights.

On election night, a mob of angry LGBT activists gathered at the Denver City and County building to protest the newly approved amendment. The recently re-elected governor, Roy Romer, and Denver Mayor Wellington Webb went before the crowd and vowed that they would not uphold or enforce this amendment, which had just been duly voted upon by the voters of the state of Colorado. Whether or not they personally agreed with the law, they were bound by their oaths of office to uphold it.

The amendment never took effect, and in May of 1996, the U.S. Supreme Court, in Romer v. Evans, found by a 6-3 margin that it was unconstitutional.

Cover of The Blueprint by Adam Schrager and Rob Witwer

As is chronicled in the book The Blueprint: How the Democrats Won Colorado (and Why Republicans Everywhere Should Care), this event galvanized gay activist Tim Gill and other like-minded individuals who went on to form the “Gang of Four” and turn Colorado into a blue state and a progressive playground. In hindsight, it is clear that Amendment 2 was a bad idea and we are still paying the price for it today.

What it meant for the rule of law, however, was that elected officials – Romer and Webb – publicly announced that they were not going to enforce laws they did not agree with.

Fast Forward to 2014

In 2009, without a single vote in support from the opposition party, the Democrats, who temporarily had control of the federal government, passed the Affordable Care and Patient Protection Act, commonly known as the “ACA” or “Obamacare”. This law, over 2,000 pages long, was not fully read or understood by the very lawmakers who voted to pass it, and was signed into law by President Obama on March 23, 2010. As Vice-President Joe Biden said at the time, “This is a big f*cking deal”. And it is, if for nothing else to prove progressive contempt for the rule of law.

Since Obamacare was enacted, over 42 exemptions and exceptions have been issued to various groups, mostly Democrat constituencies that allow them to disregard, ignore, or bypass certain or all of the provisions of the ACA.

In late 2013, prior to the off-year elections, President Obama announced that the “individual mandate” which required individuals to purchase health insurance or face tax penalties, was not going to be enforced. He did not have the legal authority to do this. Throughout 2014, as people and companies are learning more about the perverse incentives and disincentives written into the law, the public outcry over this law has grown. Millions of people have lost their health insurance plans because they were not “ACA-compliant”. Millions more have seen substantial increases in their health-care premiums, a direct contradiction of the law’s “Affordable” title. Thanks to Obamacare, women can now be denied coverage of abortifacient drugs and devices by small closely held companies.

As these difficulties have mounted, the President and his administration continue to issue illegal postponements, delays and evasions to try to mitigate the political damage this law has and will continue to cause. In the most notable exception, the so-called “employer mandate” which was due to take effect just prior to the November elections, has now been put off until after the election.

Senator Ted Cruz has compiled a list of 76 violations of law by the Obama administration that includes the categories of:

Governing by Executive Fiat (“I’ve got a pen and I’ve got a phone”)
National Security
Obamacare
Economy
Executive Nominees and Personnel
Free Speech and Privacy
Other Abuses of Power

Congress applauding President Obama during 2014 State of the Union speech

In no fewer than 20 unanimous decisions, the United States Supreme Court has ruled against the Obama administration on issues from raisins (Horne v. Department of Agriculture) to property rights and EPA overreach (Sackett v. Environmental Protection Agency) to searching cell phones (Riley v. California). The administration lost another significant legal battle in Burwell v. Hobby Lobby, which upheld the religious freedom of owners of closely held businesses.

Through his actions and those of his administration, President Obama has clearly shown his contempt for the rule of law, and this is representative of the progressive movement as a whole.

Same-sex Marriage Licenses

In Boulder, CO, the city clerk started issuing marriage licenses to same-sex couples in violation of Colorado law after the U.S. 10^th Circuit Court ruled that Utah’s gay marriage ban was unconstitutional. The city clerks in Denver and Pueblo counties started doing the same. They were emboldened by the recent court rulings striking down bans on same-sex marriage, and the growing consensus in the United States that same sex marriage should be legal, a stance which I support.

Unfortunately, the constitution of the state of Colorado prohibits same sex marriage. It was duly voted upon by voters and became part of the fundamental law of this state. As such, it is ILLEGAL for clerks to issue marriage licenses to same sex couples and the Attorney General is upholding his oath to enforce the law when he seeks injunctions against the issuance of these licenses. If the Supreme Court declines to rule, then the 10^th Circuit decision striking down gay marriage bans will stand, same-sex marriage will become legal in Colorado. I hope that happens soon.

Gun Control Overreach

In Colorado’s 2013 legislative session, during a time when one party had temporary control of the state government, several gun control bills were presented, heard, debated, passed and signed into law. During these debates, thousands of gun-rights supporters showed up at the capital to (try) to have their voices heard.

Despite fierce opposition by citizens and Republican lawmakers, these ineffective, unconstitutional laws were passed. Now that they are law, progressives everywhere are clamoring that everybody obey them. “Nobody’s coming for your guns”, they say. “Who needs more than 10 rounds?”, others ask. My personal favorite: “The government has bigger guns so what’s the point?”. Whenever another unfortunate incident of gun violence occurs (at the hands of a mentally disturbed individual), the Democrats and their progressive base cry for ever more and more restrictive “gun safety” laws. They demand unconditional compliance with these laws.

In Connecticut, there is evidence of massive noncompliance with the recently enacted law to register “assault weapons”. Are progressives OK with this? I don’t think so.

You can rest assured that if there were a national magazine or “assault weapons” ban that progressive Democrats would loudly demand instant and unconditional compliance with the law. I’m sure there would be no exceptions (except police and military, of course). In this case, progressives would be all in favor of “law and order”. But when it comes to same-sex marriage, anything goes.

Disregard of the Law Breeds Contempt For the Law

When society, through duly elected legislatures, enacts laws, people are expected to obey them or face penalties, with the more severe penalties (in theory) being reserved for worse crimes. When a law is passed that violates the constitution (unconstitutional laws) or that is unenforceable, people not only have incentive to not obey the law, they may actually a duty not to do so.

Similarly, when a law is passed but it does not apply equally to every citizen, as is the case with certain provisions of Obamacare, it encourages others to disregard and disobey the law; to skirt or evade it.

When laws are not enforced because of political expediency, it breeds cynicism on the part of the public. When laws are selectively enforced, it violates the principle of equal protection under the law.

Contempt for and disregard of the law is bad for society because it leads to lawlessness and anarchy. While I, as a libertarian, distrust concentrated power in the hands of large organizations (especially governments, because they have the legal monopoly on the use of force), I also do not want anarchy. As Matthew White has written in “The Great Big Book of Horrible Things“, more people have died because of anarchy than at the hands of tyrannical governments (but not by much).

Enacted laws should be based on natural law and reason, they should be simple and easily understood, and they should be enforced fairly and vigorously. There should be no exceptions for sub-classes, groups, political constituencies, or others except in pre-defined and agreed upon circumstances and should apply equally to all.

Progressivism is sowing the seeds of its own eventual defeat and consignment to the dustbin of history through its disregard and contempt for the law. The bottom line is progressives are all in favor of the rule of law when they agree with it. But when presented with laws they don’t like – such as restrictions on same-sex marriage – or laws they’ve enacted that are not working or are politically unpopular, they egregiously disregard the law, displaying contempt for the rule of law and undermining the very fabric of society. It is dangerous hypocrisy of immense proportions.

By Richard D. Turnquist

August 10, 2014

Other links about progressives and the rule of law:

The “Progressive view of The Proper Role of Government – and your subservience to it.” – a collection of sayings of progressive Democrats

The Progressive Struggle with Courts: A Problematic Asymmetry by Brian Z. Tamanaha

Kevin Williamson “growls” about “A Thought on Progressivism and the Rule of Law”

The Progressive Disdain for the Rule of Law by Andrew Thomas

Learn more about how progressives reached cultural and political dominance in my review of Barry Rubin’s Silent Revolution: How the Left Rose to Political Power and Cultural Dominance