Revisiting the EPA Endangerment Finding

Ross McKitrick

Environmental Protection Agency administrator Scott Pruitt is
mulling over how, or whether, to respond to demands
from climate skeptics that he reexamine the science that obligates
the EPA to issue costly carbon-emission regulations. While he has
recently acknowledged that agency staff
short-circuited the science review early in the regulatory process,
he may not realize that the EPA inspector general’s office flagged
this problem years ago, and the agency staff blew him off by means
of a preposterous legal fiction that has long been in need of

In 2009 the EPA issued the Endangerment Finding, which created a
statutory obligation to regulate carbon emissions. In the lead-up
to this decision the EPA had published its Technical Support
Document. Numerous petitions for reconsideration were subsequently
filed with the administrator citing evidence of bias and
cherry-picking in this report, but all of them fell on deaf

In April 2010, Senator James Inhofe (R., Okla.) asked the EPA’s
Office of the Inspector General to review the adequacy of the
peer-review process behind the Technical Support Document. The EPA
was not happy with what he unearthed.

It turns out that the federal government has rules in place
governing how the scientific basis for regulations should be
reviewed. Guidelines from the Office of Management and
Budget issued under the Information Quality Act impose varying
requirements depending on the uses to which a scientific assessment
will be put. The most rigorous process is for so-called Highly
Influential Scientific Assessments (HISA). These are scientific
assessments that will, among other things, lead to rules that have
an annual economic impact exceeding $500 million.

The inspector general issued a lengthy report in 2011 concluding (pp. 15-22)
that the EPA’s science assessment for the Endangerment Finding was
highly influential, but the peer-review process fell short of the
required standard. It even violated internal EPA guidelines, by
failing to publicly report the review results and cutting corners
in ways that potentially hindered the work of reviewers.

The EPA argued back, rather brazenly, that their report was not
an assessment at all, merely a summary of previous findings by the
U.N. Intergovernmental Panel on Climate Change, the National
Climate Assessment, and other reports, and these documents —
not any original research by the EPA — underpinned the
Endangerment Finding.

The inspector general rejected this argument for several
reasons. First, the EPA study clearly was an assessment, since it
selected certain lines of evidence for emphasis or exclusion and
used data not found in the underlying reports. Second, the
guidelines do not allow an agency such as the EPA to rely on peer
reviews conducted by outside groups such as the IPCC or the
National Climate Assessment team. Third, the inspector general
noted (p. 53) numerous occasions when the EPA cited the Technical
Support Document as the basis of its Endangerment Finding.

The EPA then argued that even if it was an assessment, it was
not “highly influential.” Since the Endangerment Finding was being
issued on a “stand-alone” basis with no specific regulations
attached, the investigation ended without resolution.

Thereafter the EPA proceeded to issue rules like the Clean Power
Plan with impacts far exceeding $500 million annually. By declining
to designate its science assessment as highly influential, the EPA
skirted the need to conduct the required peer review, but in so
doing it thwarted the intent of the statutory guidelines and
undermined the ethical basis of its actions.

While the courts may not demand that this situation be
rectified, Pruitt himself should. Administrative honesty demands
it, especially since the determination has large potential economic
ramifications. Specifically Pruitt needs to declare that the
Technical Support Document was a Highly Influential Scientific
Assessment that should have been reviewed as such in the first
place, and he should see to it that such a review now takes

While climate activists may object, they have also spent years
insisting that the science is settled, so if they are right, they
have no reason to worry about the outcome. And if they are unhappy
that this might delay the next round of rule-making, they should
direct their ire at Pruitt’s predecessor, who ought to have
undertaken the review back in 2011 rather than playing semantic
games to justify evading statutory peer-review requirements.

Regardless of Pruitt’s views on climate science, he should agree
that the regulatory process needs to be honest and procedurally
sound. This alone gives him sufficient grounds to initiate the
review that was supposed to have been done years ago.

is a professor of economics at the University of
Guelph and an adjunct scholar of the Cato Institute.

Gambling Away Federalism

Trevor Burrus

Pennsylvania legalized online gambling in late October,
becoming the fourth state to allow online betting. Some lawmakers
in Washington, however, would like the federal government to
override those states’ laws and prohibit online gambling
nationwide. The Restoration of America’s Wire Act(RAWA),
which has been floating around Congress since 2015 but is receiving
renewed attention, is an attempt to assert federal control over
states that have legalized online gambling. Just as states have
been allowed to experiment with marijuana legalization, Congress
should resist attempts to override state experiments in online

The story goes back to a 2011 Department of Justice memo that
clarified the interpretation of the 1961 Federal Wire Act, which
was passed to give federal officials the authority to go after the
mafia. When asked by the states of New York and Illinois whether
intrastate online lotteries would violate the Federal Wire Act, the
DOJ clarified that the 1961 law applied only to sports betting and
not to other forms of online gambling, freeing states to legalize
online gambling, as Pennsylvania and others have. Since that time
various lawmakers have been trying to either convince the DOJ to
revisit that interpretation or to amend the Federal Wire
Act-“restore” it, as the bill’s title says-to
cover online gambling.

Congress should resist
attempts to override state experiments in online

Seemingly spurred along by Pennsylvania’s law, in November
Senators Feinstein (D-CA) and Graham (R-SC) wrote a letter to the DOJ asking for reconsideration of the
2011 interpretation of the Federal Wire Act. They cite the usual
concerns: the children, society’s most vulnerable, and
organized crime as a reason to revisit the interpretation. Yet,
even if such concerns were valid, the Federal Wire Act clearly does
not apply to non-sports related gambling, as CEI’s Michelle
Minton has conclusively shown.

All of this arises as New Jersey is at the Supreme Court challenging a federal law,
the Professional and Amateur Sports Protection Act (PASPA), which
prohibits states from authorizing “a lottery, sweepstakes, or
other betting, gambling, or wagering scheme based” “on
one or more competitive games in which amateur or professional
athletes participate.” The law, which was passed in 1992,
carved out exceptions for four states-Delaware, Montana, Nevada,
and Oregon-and gave New Jersey the option to legalize sports
betting at casinos as long as it did so within a year after the law
went into effect. New Jersey didn’t do so at the time but now
it would like to. It tried twice to legalize sports betting, but
each time federal courts have said that PASPA prohibits it. Now at
the Supreme Court (the case was argued December 4th), the state is
arguing that such a prohibition violates the Tenth Amendment by
“commandeering” states to enforce federal law. The Cato
Institute has filed multiple briefs in the case, arguing that PASPA’s
prohibition violates the Tenth Amendment.

More broadly, as a voluntary activity between consenting adults,
gambling should of course be legal. Ironically, gambling is legal
in nearly every state in the form of state
lotteries. This is an absurd paradox that doesn’t get enough
attention: if the government can profit from it, then apparently
it’s not gambling. In 2014, Americans spent $70 billion on lotteries, more than their
spending on sports tickets, books, video games, movie tickets, and
recorded music sales combined. What’s more, the
poorest third of American households purchase half of all lottery

Prohibitions on gambling demonstrate a deep disconnect between
our laws and the behavior of most people. Millions of Americans
participate in annual NCAA March Madness office pools, to the tune
of over $10 billion per year. According to the American Gaming
Association, only 3 percent of that betting is legal. Certain types of home poker
games, which have greatly increased in popularity in the past 20
years, may be illegal in your state. And approximately 75
million people play fantasy football every year, often for money,
and daily fantasy sports leagues are of uncertain legal status in over a dozen

There is now a danger that RAWA may be surreptitiously inserted
into an appropriations bill, as has been tried before. The bill has received heavy
support from billionaire casino owner Sheldon Adelson, who has said he’s “willing to spend
whatever it takes” to stop online gambling. It’s odd
that a man who has made billions off of gambling would call online gambling “a societal train
wreck waiting to happen.” Perhaps his concerns are genuine,
but a cynic might think he’s trying to eliminate

Either way, the bill’s co-sponsors are almost all Republicans,
purportedly the party of federalism. As we’ve seen many
times, however, federalism has many fair-weather fans. Like many
political ideals, commitments to federalism are often abandoned
when given the opportunity to use the federal government to combat
disfavored state policies. Yet anyone who has lauded the trend of
“marijuana federalism” that is moving through the
states, should support “gambling federalism” for the
same reasons.

is a Research Fellow in the Cato Institute’s Center for
Constitutional Studies.

“Hey California, Stop Telling Us What to Say at Work!”

Ilya Shapiro

Based on opposition to “crisis pregnancy centers”
— which provide pregnancy-related services with the goal of
helping women make choices other than abortion — the
California legislature passed a law that burdens the centers’
speech. Specifically, the new law requires licensed clinics
“whose primary purpose is providing family planning or
pregnancy-related services” to deliver to each of their
clients the following message: “California has public
programs that provide immediate free or low-cost access to
comprehensive family planning services (including all FDA-approved
methods of contraception), prenatal care, and abortion for eligible

The law has an exception for clinics that actually enroll
clients in these public programs, so it targets only businesses
that decline to participate in what is supposed to be a voluntary
state program.

Several crisis pregnancy centers sued to block the law, arguing
that it violates their First Amendment rights by forcing them to
express a message to which they are opposed. But the U.S. Court of
Appeals for the 9th Circuit rejected their challenge, holding that
the statute regulates only “professional speech” and
therefore should be reviewed under intermediate First Amendment
scrutiny, a relatively deferential standard.

California’s law burdens speakers’ consciences by forcing them to
promote programs that they morally oppose.

That lower level of scrutiny may well have been
outcome-determinative. The 9th Circuit didn’t reach the
factual question of whether California could have distributed this
message itself, but admitted that “even if it were true that
the state could disseminate this information through other means,
it need not prove that the Act is the least restrictive means
possible” in order to satisfy intermediate scrutiny. Yet
First Amendment restrictions are typically evaluated under the more
rigorous “strict scrutiny” standard of review, with
only certain narrow (and controversial) exceptions, such as for
“commercial” speech.

Accordingly, in National Institute of Family and Life Advocates v.
, the Supreme Court will decide whether licensed
professionals can have their speech “commandeered” to
advertise services that the government wishes to promote. The
definition of professional speech that the lower court applied so
it wouldn’t have to hold California’s feet to the full
constitutional fire is dangerously overbroad and requires the
court’s correction.

No one disputes that the speech of licensed professionals can be
legitimately regulated in some circumstances. As relevant here,
regulation of patient-physician speech is justified by the notion
that when doctors speak to their patients, they assume a special
obligation to communicate their expertise fully and truthfully.
These regulations protect patients, who can’t be expected to
have the same specialized knowledge as their medical providers.
Medical doctors can be liable for malpractice if they fail to
convey a diagnosis to a patient, for example, or if they fail to
obtain informed consent before performing surgery. But such
regulations can’t be extended beyond that bright line of
specialized knowledge: If a state can require its doctors to read a
pre-written advertisement to their patients, it can force them to
say anything the state wants.

Some courts and scholars have argued that speech regulations of
this type deserve their own doctrinal category — applicable
to professional speech — and that a lower level of scrutiny
should be applied to such regulations. Others have argued that no
new doctrinal tier is necessary, because the compelling need for
malpractice enforcement and informed-consent laws means that laws
regulating professional speech would pass strict scrutiny. Rodney
A. Smolla, the former dean of the University of Richmond and
Washington and Lee Law Schools, argued in the West Virginia Law Review
last year that “properly applied First Amendment principles
would sustain the power of regulators to regulate professional
speech in these instances. These are the very regulations that
would typically be upheld even under application of the
‘strict scrutiny’ test.”

I tend to agree with Smolla, but that doctrinal debate need not
be resolved to decide this case. That’s because the quality
of true professional speech that justifies those limited
regulations — namely, an asymmetry of expert knowledge as to
diagnosis, treatment and risks — is entirely absent here. For
that reason, the compulsory speech that California has mandated
neither qualifies for intermediate scrutiny nor overcomes strict

Translated from legalese to English: (1) There’s nothing
particularly “professional,” in the sense of
“special-knowledge-demanding,” about the
“California offers family-planning programs that include
abortion” message that justifies the government’s
forcing people to communicate it, and (2) even if the message is
really, really important, there are other ways of conveying it.

Moreover, the 9th Circuit’s test ignores the threat posed
by compulsory transmission of government-selected facts. Under that
test, a state can compel unwilling physicians to recite any fact
that may be relevant to “the health of [the state’s]
citizens,” a definition broad enough to encompass essentially
any statement the government chooses. If left to stand, the
decision below would allow states to force professionals of all
kinds to promote products and services they morally oppose. And, of
course, the list of “professionals” would expand over
time so that eventually states could claim power to compel any
employer (or employee) to say anything in their employment

Compelling people to speak the government’s message at
work is dangerous for precisely the reasons that compelled speech
is always dangerous. Most importantly, it allows the government to
put its thumb on the scale in a social debate, by conscripting
individuals to help spread a particular message. (Tellingly,
California has no equivalent law forcing clinics to advertise
adoption agencies or other options for pregnant women.)

Lower courts have struggled for guidance in formulating the
boundaries and definitions of true professional speech. This is the
Supreme Court’s opportunity to prevent those definitions from
being dangerously expanded to the point at which doctors
effectively lose their First Amendment rights the moment they walk
into their clinics.

Fundamentally, California’s law burdens speakers’
consciences by forcing them to promote programs that they morally
oppose. That’s precisely the invasion of “the sphere of
intellect and spirit” that Justice Robert Jackson warned of
nearly 75 years ago in the first Supreme Court case to strike down
a compelled-speech law, West Virginia Board of Education v. Barnette. The
Supreme Court should reject the 9th Circuit’s dangerous
professional speech doctrine and apply Barnette’s
lesson to strike down this noxious law.

Ilya Shapiro
is a senior fellow in constitutional studies at the Cato Institute
and editor-in-chief of the Cato Supreme Court Review. He filed
an amicus brief supporting the cert petition in
NIFLA v. Becerra, on which this essay is based, and will
be doing so again at the merits stage.

An Aluminum Lining in a Darkening U.S.-China Trade Cloud

Daniel J. Ikenson

Late last month, the Trump administration
“self-initiated” antidumping and countervailing duty
investigations of imports of aluminum sheet from China. Reactions
from media, social media, and the Chinese government seem to
suggest these measures are especially provocative, pushing
Washington and Beijing even closer to the brink of a trade war.

But there is a less dire interpretation to consider. That is, by
self-initiating these so-called unfair trade cases, the
administration may be signaling that it intends to back away from
its ill-considered and far more fraught investigation (under
Section 232 of the Trade Expansion Act of 1962) into whether U.S.
dependence on imported aluminum represents a threat to national
security. That would be a welcomed change of focus for those
looking to reduce tensions in the U.S.-China economic relationship
and spare the global trading system a devastating blow.

Make no mistake: The antidumping and countervailing duty laws
are riddled with problems, both theoretical and practical.
Proceedings are tilted in favor of domestic producers and they tend
to generate egregiously hefty penalties that inflict
disproportionate collateral damage on innocent entities along the
supply chain.

Yet as diplomatically grating and commercially disruptive as
these measures can be, they are not unfamiliar to governments
operating within the trading system. In fact, these laws are
frequently rationalized as expedients to overcome political
pressure for more sweeping protectionism and are expressly
permitted within the World Trade Organization to redress what has
been deemed by members to be “unfair” trade. Though it
was hoped that members would resort to these remedies less
frequently, since the WTO was established in 1995 governments have
imposed over 3,500 AD/CVD measures.

Rather than lament the
self-initiated antidumping and countervailing duty cases against
Chinese aluminum, better to note that they could provide an escape
route from a far more precarious showdown over national security
and trade.

In the United States, the process of obtaining protection under
these laws is effectively on statutory autopilot. To initiate
cases, domestic industries—through their lawyers—file
petitions with the Department of Commerce and the U.S.
International Trade Commission and can obtain relief by presenting
evidence that meets certain statutory thresholds. To get
antidumping duties imposed, the domestic industry must demonstrate
that it is materially injured or threatened with material injury by
reason of less than fair value imports. To obtain duties under the
countervailing duty law, the industry must demonstrate that foreign
government subsidized imports are causing or threatening

Even though the Trump administration—like the Obama and
Bush administrations before it—likes to point to these
measures as evidence that it is being especially effective in its
trade enforcement efforts, the president doesn’t get involved
and generally has no clue about the specifics of any of the cases
being prosecuted. Thus, duties imposed under these laws should not
be considered a reflection of the sitting president’s trade
policy because industry itself decides if, when, and how to pursue
these remedies.

This is why the aluminum sheet cases have raised some eyebrows.
They are the first to be self-initiated by the U.S. government on
behalf of a domestic industry in 32 years. Rather than passively
administering the laws, the Trump administration has proactively
thrown its support behind prosecution of the aluminum sheet
cases—an action that may win the administration some
political points with certain domestic constituencies.

But optics aside, there is nothing here to suggest that the
outcomes will be unusually tilted against Chinese aluminum
exporters. Procedurally, there are no substantive differences
between industry-initiated and government-initiated cases. It
certainly doesn’t require self-initiation to motivate the
analysts in the Commerce Department’s “Enforcement and
Compliance” division—where the mission is to
“safeguard and enhance the competitive strength of U.S.
industries against unfair trade through the enforcement of U.S.
antidumping duty (AD) and countervailing duty (CVD) trade
laws”—to find large, affirmative margins of dumping or
subsidization in their investigations. Commerce already
“conducts AD/CVD investigations and administrative reviews to
determine if imports are being sold at less than fair value or
benefitting from unfair subsidization” while also
“counseling U.S. industries on how to petition the U.S.
government to seek relief from injurious and unfairly traded

Self-initiation or not, the Commerce Department serves as judge,
jury, and executioner—with the less political, quasi-judicial
International Trade Commission providing a modicum of restraint in
that it can block measures from going into effect by finding the
domestic industry not to be materially injured by subject

So, where’s the good news in all of this? The
self-initiations present an alternative to the far more volatile
outcome of aluminum import restrictions being imposed on national
security grounds. Earlier this year, the president initiated an
investigation that could lead to that outcome if it is determined
that U.S. dependence on foreign sources of aluminum represents a
threat to national security. U.S. invocation of national security
to justify protectionism would be provocative in the extreme and
would generate some undesirable consequences for U.S.-China
relations, as well as for the global trading system.

Since the founding of the General Agreement on Tariffs and Trade
(GATT) in 1947, governments have acknowledged the importance of
trade liberalization to the goals of creating and sustaining
conditions for economic growth and peaceful relations. Yet, most
governments—then and now—remain unwilling to dispense
with protectionism entirely. Hence, the trade rules permit
governments to deviate and raise tariffs in response to conditions
such as “unfair” trade practices, unexpected and
injurious import surges, public health or safety concerns, and
national security threats.

Article XXI of the GATT, known as the “National Security
Exception,” permits members to impose trade restrictions for
purposes of national security without obligating them to
demonstrate that their rationale conforms with some agreed
definition of national security or national security threats. The
key to this loophole not being abused is recognition by all parties
that prudence—not political expediency—must inform any
government’s decision to invoke national security as its
reason for raising trade barriers.

The argument that national security is so threatened by an
abundance of foreign produced aluminum to warrant restrictions
under an emergency U.S. statute is laughable in the extreme. What
is less funny is that if U.S. measures were imposed and then
formally challenged by China or any other government at the WTO,
the Dispute Settlement Body would accord great deference to the
U.S. action. It is simply implausible that a dispute panel or the
WTO Appellate Body would seriously question a member
government’s interpretation of a threat to its own national
security. Accordingly, other governments likely would follow suit
by invoking national security to bestow protectionist favors on
their own favored domestic interests. And the trading system would
soon unravel.

It bears mention that the United States currently is conducting
a potentially explosive investigation into alleged Chinese
practices of forced technology transfer and other forms of
intellectual property theft under Section 301 of the Trade Act of
1974. It should not strain the imagination to consider that China
very well could invoke its own national security rationale to
justify some of its aggressive technology practices, especially if
the United States were to blaze that trail first with respect to
aluminum. Who knows what would come next?

Rather than lament the self-initiated antidumping and
countervailing duty cases against Chinese aluminum, better to note
that they could provide an escape route from a far more precarious
showdown over national security and trade.

Daniel J.
is the director of Cato Institute’s Herbert A. Stiefel
Center for Trade Policy Studies.

The Pundits Were Wrong about Assad and the Islamic State. As Usual, They’re Not Willing to Admit It

Max Abrahms and John Glaser

The Islamic State is a shadow of its former self. In 2014, the
extremist group seemed to make substantial inroads in achieving its
stated goal of a caliphate. It boasted tens of thousands of fighters and
territorial control over an area roughly the size of South Korea.
By almost every metric, Islamic State has collapsed in its Syria
stronghold, as well as in Iraq. As a former foreign fighter recently admitted,
“It’s over: there is no more Daesh left,” using
an Arabic acronym for Islamic State.

The rollback of Islamic State must come as a shock to the chorus
of journalists and analysts who spent years insisting that such
progress would never happen without toppling the regime of Bashar
Assad — which is, of course, still standing. A cavalcade of
opinion makers long averred that Islamic State would thrive in
Syria so long as Assad ruled because the Syrian Arab Army was part
of the same disease.

John Bolton, former United Nations ambassador under George W.
Bush, insisted in the New York Times that “defeating
the Islamic State” is “neither feasible nor
desirable” if Assad remains in power. Writing in the Wall Street Journal, Sens. John
McCain and Lindsey Graham asserted that “defeating Islamic
State also requires defeating Bashar Assad.” Kenneth Pollack
of the Brookings Institution prescribed a policy of “building a new
Syrian opposition army capable of defeating both President Bashar
al-Assad and the more militant Islamists.” Similarly, Max
Boot, a contributing writer to this newspaper, argued that
vanquishing Islamic State was futile unless the U.S. also moved to
depose the “Alawite regime in Damascus.” Like other
regime-change salesmen, he pitched a no-fly zone across the country to
facilitate airstrikes against the Assad government, while boosting
aid to the so-called moderate rebels.

The case for regime
change in Damascus was reminiscent of the one cooked up for Baghdad
in 2003.

Prominent Syria analysts also claimed that Assad supported, even
sponsored Islamic State. CNN’s Michael Weiss pushed the line
that Assad and Russian President Vladimir Putin would not fight
Islamic State and that Syria and Russia were the group’s
“unacknowledged air force.” His
co-author, Hassan Hassan, contended that the Syrian regime
must go because “Assad has never fought [Islamic State]

For a while, everywhere one looked, the media was peddling the
same narrative. The Daily Beast described Islamic State
fighters as “Assad’s henchmen.” The New York Times promoted the idea
that “Assad’s forces” have been
“aiding” Islamic State by “not only
avoiding” the group “but actively seeking to bolster
their position.” Time parroted the pro-regime-change line that
“Bashar Assad won’t fight” Islamic State.

But these popular arguments were, to put it mildly, empirically

The case for regime change in Damascus was reminiscent of the
one cooked up for Baghdad in 2003: Interventionists played on
American fears by pretending that the strongmen were in direct
cahoots with Salafi jihadists (the ultra-conservative movement
within Sunni Islam). The evidence of Assad sponsoring Islamic
State, however, was about as strong as for Saddam Hussein
sponsoring Al Qaeda.

As the Syria expert Aymenn Jawad Al-Tamimi noted in February 2014,
Islamic State “has a record of fighting the regime on
multiple fronts, including the Sheikh Said area of Aleppo province, Kwiris military
airbase (where an offensive is ongoing under the leadership of
muhajireen battalion Suqur al-Izz, in coordination with the Green
Battalion, [Islamic State] and Jabhat al-Nusra), Nubl and Zahara, Brigade 17 airbase in Raqqa
province, Tabqa military airport, Qalamoun, Sayyida Zainab, Sakhna in Homs
desert, the Qamishli area, and Latakia province. Besides these
locations, one should also remember [Islamic State’s]
leading role in the capture of Mannagh

The notion that Assad “won’t fight” Islamic
State was always wrong. The notion that “defeating Islamic
State also requires defeating Bashar Assad” was, likewise,
always wrong. By now it should be obvious that the Syrian Arab Army
has played a role in degrading Islamic State in Syria — not
alone, of course, but with Russian and Iranian partners, not to
mention the impressive U.S.-led coalition. In marked contrast to
pundit expectations, the group’s demise was inversely related
to Assad’s power. Islamic State’s fortunes decreased as
his influence in the country increased.

Equally contrary to analyst predictions, the group imploded
right after external support for the
“moderate” rebels dried up. The weakening of the rebels
was a major setback for Islamic State because Assad could finally
focus his firepower on the group. Fewer weapon shipments into the
theater, moreover, meant fewer arms fell into the hands of Salafi

How strange, then, that we haven’t heard many pundits
acknowledge their mistakes; they’re not itching to atone for
having almost forced another regime-change mission based on
discredited analysis.

The now-defunct conventional wisdom was not only stubbornly
anti-empirical, but unmoored from the political science literature.
With few exceptions, international relations scholars seemed
content to stand back and watch think tank pundits do the
day-to-day Syria analysis while ignoring the red flags dotting the
research landscape.

Some of the best political science research over the past
couple of decades finds that militants are less
likely to emerge in response to political grievances than from
propitious conditions for them to organize. For Islamic State, the
opportunity model” of terrorism was
always a better fit than the “grievance model.” After
all, this is a group that set up shop in the desert, far away from
the Syrian military; preyed on soft targets like the Yazidis who
never oppressed the Sunni population; and
planted affiliates in countries known not for their anti-Sunni
government, but the lack of a functioning one.

As in Iraq a decade earlier, regime change in Syria would have
created the ultimate power vacuum for Islamic State to

Moreover, the notion that pumping arms and fighters into Syria
would mitigate the unrest is actually the opposite of what study
after study has established. The conflict literature makes clear that external support for the opposition
tends to exacerbate and extend civil wars, which usually peter out not through
power-sharing agreements among fighting equals, but when one side
— typically, the incumbent — achieves dominance.

The Realist paradigm reminds us that the U.S. need
not share the same ideology of a nasty international actor to
countenance working with him against a mutual foe. With its
sensitivity to overspending and blowback, Realism also emphasizes the dangers of
militarily picking foreign governments around the world.

Although the Islamic State’s caliphate is dead,
Assad’s war on terrorists in Syria is very much alive.
Let’s hope future analysis of this conflict avoids the kind
of anti-empirical ideological advocacy that helped give rise to Al
Qaeda in Iraq and then Islamic State in the first place.

Max Abrahms is a professor of political science at Northeastern
University and a term member of the Council on Foreign Relations.
John Glaser is
director of foreign policy studies at the Cato Institute.

A Wedding Cake with a Message Comes before the Court

Roger Pilon

Is it possible to preserve religious liberty alongside modern
anti-discrimination law? The Supreme Court took up that question
yesterday in one of its most-watched cases this term,
Masterpiece Cakeshop v. Colorado Civil Rights

The case arose when Charlie Craig and David Mullins, a gay
couple, sought to buy a custom-made wedding cake at Masterpiece
Cakeshop, owned and operated by Jack Phillips, a devout Christian.
Phillips had no problem with selling the couple any of his
ready-made goods, but declined, for religious reasons, to make the
custom-made cake the couple requested. Still, he was willing to
direct the couple to nearby bakers who had no such reservations, as
he had done with others.

Unsatisfied, Craig and Mullins filed a complaint with the
Colorado Civil Rights Commission alleging that Phillips had
violated the Colorado Anti-Discrimination Act. The commission found
in their favor, as did the Colorado Court of Appeals. Worse still
for Phillips, after supporters of Craig and Mullins picketed the
bakery, he lost 40 percent of his business and most of his
employees. To avoid the problem, he’s no longer making
wedding cakes.

Is it possible to
preserve religious liberty alongside modern anti-discrimination

This won’t be an easy case for the Court to decide,
because the two principles at issue, religious liberty and
anti-discrimination, conflict. In a free society, individuals are
free to associate with others, or not, as they wish. They’re
free to discriminate, that is, for whatever reason they choose. And
we do it all the time, not only in religious contexts but in many
others as well.

But it gets a bit more complicated in the business context, as
here. Merchants like Phillips hold themselves out as “open to
the public.” That doesn’t mean they give up all rights
to discriminate. They can order unruly customers out of their
store, for example. But can they discriminate in other ways?
That’s where the difficulties arise, and they’re
complicated by our history of slavery and Jim Crow segregation in
the South.

With the Civil Rights Act of 1964, we began the process of
banning “invidious discrimination” over a wide range of
contexts and on a growing list of grounds that today includes
“sexual orientation” in many jurisdictions. But
Phillips wasn’t discriminating on any of those grounds. He
was perfectly willing to sell his ready-made goods to anyone,
straight and gay alike, and he did.

It’s the next step where the problem arose. Craig and
Mullins wanted a custom-made cake. In fact, they bought a
“rainbow” cake nearby, a cake that symbolized the
gay-rights movement. Had Phillips been forced to make such a cake,
not only his religious but his speech rights would have been
implicated as well. He would have been compelled to make a cake
that supported — indeed, promoted — views that he found
abhorrent. Imagine if Craig and Mullins had asked for a cake with
writing that said “Gay Marriage Is God’s Will.”
Would we force a devout Christian like Phillips to make such a

The old judge-made common law had a way of dealing with issues
like this. Monopolies, common carriers and public utilities had to
serve all at reasonable rates. So, too, isolated inns and taverns.
But with merchants in competitive markets, where customers had
options, judges adjudicating disputes invoked what was called an
“invitation to treat,” which described the process by
which private parties negotiated the terms of their association
and, if they could not agree, simply walked away, no harm done.
Merchants held themselves out as “open to the public,”
but they were not bound to provide members of the public whatever
they might demand. Meanwhile, merchants who engaged in
“invidious discrimination” would soon find that they
paid a price for it — but it wasn’t because the law
came down upon them.

Like so many hot-button cases before the Court, this one may be
decided by Justice Anthony Kennedy, whose vote two years ago in
Obergefell v. Hodges removed state barriers to same-sex marriage.
If so, Phillips may be in good hands since Kennedy wrote in that
opinion that “it must be emphasized that religions, and those
who adhere to religious doctrines, may continue to advocate with
utmost, sincere conviction that, by divine precepts, same-sex
marriage should not be condoned.” If Phillips were forced to
advocate just the opposite, through his chosen profession, far more
than speech would be chilled.

Roger Pilon is
vice president for legal affairs at the Cato Institute, which filed
an amicus brief supporting the appellants in the Masterpiece
Cakeshop case.

Hayden, NSA, and the Road to 9/11

Patrick G. Eddington

etired Gen. Michael Hayden, former director of the NSA and CIA
(and now, a national security analyst at CNN), has recently emerged
as a leading critic of the Trump administration, but not so long
ago, he was widely criticized for his role in the post-9/11
surveillance abuses. With the publication of his memoir, Playing to the Edge: American Intelligence in
the Age of Terror
, Hayden launched his
reputational rehab campaign.

Like most such memoirs by high-level Washington insiders,
Hayden’s tends to be heavy on self-justification and light on
genuine introspection and accountability. Also, when a memoir is
written by someone who spent their professional life in the
classified world of the American Intelligence Community, an
additional caveat is in order: The claims made by the author are
often impossible for the lay reader to verify. This is certainly
the case for Playing to The Edge, an account of
Hayden’s time as director of the NSA, and subsequently, the

Fortunately, with respect to at least one episode Hayden
describes, litigation I initiated under the Freedom of Information
Act (FOIA) has produced documentary evidence of Hayden’s role
in the 9/11 intelligence failure and subsequent civil liberties
violations. The consequences of Hayden’s misconduct during
this time continue to be felt today. First, some background.

The War Inside NSA, 1996 to 2001

By the mid-1990s, a group of analysts, cryptographers, and
computer specialists at NSA realized that the growing volume of
digital data on global communications circuits was both a potential
gold mine of information on drug traffickers and terrorist
organizations, as well as a problem for NSA’s largely analog
signals intelligence (SIGINT) collection, processing, and
dissemination systems. As recounted in the documentary A Good
, three NSA veterans—Bill Binney, Ed Loomis,
and Kirk Wiebe—set out to solve the problem of handling an
ever-increasing stream of digital data while protecting the 4th
Amendment rights of Americans against warrantless searches and

Through their Signals Intelligence Automation Research Center
(SARC), they had, by 1999, developed a working prototype system,
nicknamed THINTHREAD. A senior Republican House Permanent Select
Committee on Intelligence (HPSCI) staffer, Diane Roark, was so
impressed with what Binney, Loomis, and Wiebe had developed, that
she helped steer approximately $3 million to the THINTHREAD project
to further its development. But by April 2000, Roark and the SARC
team had run into the ultimate bureaucratic roadblock for their
plan: Hayden, who had recently been installed as NSA director.

He had his own, preferred solution to the same problem the SARC
team had been trying to solve. As Hayden noted in his memoir:

Our answer was Trailblazer. This much-maligned (not altogether
unfairly) effort was more a venture capital fund than a single
program, with our investing in a variety of initiatives across a
whole host of needs. What we wanted was an architecture that was
common across our mission elements, interoperable, and expandable.
It was about ingesting signals, identifying and sorting them,
storing what was important, and then quickly retrieving data in
response to queries.

It was, of course, a description that fit THINTHREAD
perfectly—except for the collection and storage of terabytes
of digital junk. THINTHREAD’s focus on metadata mining and
link analysis was designed to help analysts pinpoint the truly
important leads to follow while discarding irrelevant data.
Hayden’s concept mirrored that of his successor, Keith
Alexander, who also had a “collect it all” mentality.

In his memoir, Hayden spoke of the need to “engage
industry” (p. 20) in the effort to help NSA conquer the
challenge of sorting through the mind-numbing quantity of digital
data, but even Hayden admitted that “When we went to them for
things nobody had done yet, we found that at best they
weren’t much better or faster than we were” (page

That should’ve been Hayden’s clue that NSA would be
better off pursuing full deployment of THINTHREAD, a proven
capability. But Hayden chose to pursue his industry-centric
approach instead, and he tolerated no opposition or second-guessing
of the decision he’d made.

In April 2000, Hayden’s message to the NSA workforce made it clear that
any NSA employees who went to Congress to suggest a better way for
the NSA to do business would face his wrath. Even so, the
THINTHREAD team pressed on, managing to get their system deployed
to at least one NSA site in a test bed status, working against a
real-world target. Meanwhile, Roark continued to push NSA to make
the program fully operational, but Hayden refused, and just three
weeks before Sept. 11, 2001, further development of THINTHREAD was
terminated in favor of the still hypothetical TRAILBLAZER

DoD IG Investigation vs. Hayden’s

As Loomis noted in his own account of the THINTHREAD-TRAILBLAZER saga,
within days after the 9/11 attacks, NSA management ordered key
components of THINTHREAD—the system Hayden had
rejected—to be integrated (without the inclusion of 4th
Amendment compliance software) into what would become known as the
STELLAR WIND warrantless surveillance program. Terrified that the
technology they’d originally developed to fight foreign
threats was being turned on the American people, Loomis, Binney,
and Wiebe retired from the NSA at the end of October 2001.

Over the next several months, they would attempt to get the
Congressional Joint Inquiry to listen to their
story, but to no avail. By September 2002, the trio of retired NSA
employees, along with Roark, decided to file a Defense Department
Inspector General (DoD IG) hotline complaint, in which they alleged
waste, fraud, and abuse in the TRAILBLAZER program. Inside NSA,
they still had an ally—a senior executive service manager
named Tom Drake, who had become responsible for the remnants of
THINTHREAD after the SARC team had resigned. Drake became the key
source for the subsequent DoD IG investigation, which resulted in a
scathing, classified report completed in December 2004.

The TRAILBLAZER-THINTHREAD controversy subsequently surfaced in
the press, and I followed the reporting on it while
working as a senior staffer for then-Representative Rush Holt
(D-N.J.), a HPSCI member at the time. Once Holt was appointed to
the National Commission on Research and Development in the
Intelligence Community, I asked for and received copies of the
published DoD IG reports dealing with the THINTHREAD and

The 2004 report remains the most damning IG report I’ve
ever read, and after Holt announced his departure from Congress in
2014, I decided to continue my own investigation into this episode
as an analyst at the Cato Institute. In March 2015, I filed a FOIA
request seeking not only the original 2004 DoD IG report, but all
other documents relevant to the investigation.

After being stonewalled by DoD and NSA for nearly two years,
Cato retained the services of Loevy and Loevy of Chicago to
prosecute a FOIA lawsuit to help get the documents I sought. In
July 2017, the Pentagon released to me a still heavily redacted
version of the 2004 DoD IG report. But there
are fewer redactions in my copy than there were in the version
provided to the Project on Government Oversight (POGO) in 2011, and it provides the clearest
evidence yet that Hayden’s account of the
THINTHREAD-TRAILBLAZER episode in his memoir is simply not to be

On The IG Investigation Itself

On page 26 of his memoir, Hayden’s only mention of the IG
investigation is a single sentence: “Thin Thread’s
advocates filed an IG (inspector general) complaint against
Trailblazer in 2002.”

Hayden makes no mention of the efforts he and his staff made to
downplay THINTHREAD to the IG, or the climate of fear that Hayden
and his subordinates created among those who worried TRAILBLAZER
was a programmatic train wreck, and that THINTHREAD could, in fact,
provide NSA with exactly the critical “finding the needle in
the haystack” capability it needed in the digital age.

In its Executive Summary (page ii), the DoD IG report agreed
THINTHREAD was the better solution and should be deployed:

And the DoD IG made it clear that NSA management—meaning
Hayden—had deliberately excluded THINTHREAD as an alternative
to TRAILBLAZER at a clear cost to taxpayers:

On Defying Congress

Hayden’s fury at the SARC team keeping HPSCI staffer Roark in
the loop about their progress was palpable, as he made clear on
page 22 of his book:

The alliance with HPSCI staffer Roark created some unusual
dynamics. I essentially had several of the agency’s technicians
going outside the chain of command to aggressively lobby a
congressional staffer to overturn programmatic and budget decisions
that had gone against them internally. That ran counter to my
military experience—to put it mildly.

But Binney, Loomis, and Wiebe didn’t owe their allegiance to
Hayden—they owed it to the Constitution and the American
people. And to be clear, Roark was the driver behind briefing and
information requests, performing her mandated oversight role, a
fact Hayden clearly resented—to the point that he was willing
to defy her requests, as the IG report noted on page 2:

That defiance of a congressional request went further, as the
DoD IG noted on page 99 of their report:

Hayden didn’t just stiff-arm Roark, he stiff-armed the entire

On Incompetent Program Management and

Hayden makes clear in his memoir (page 20) that he wanted an
orderly approach to the digital traffic problem, even if it meant
taking a lot of time to do it:

Our program office had a logical progression in mind: begin with
a concept definition phase, then move to a technology demonstration
platform to show some initial capability and to identify and reduce
technological risk. Limited production and then phased deployment
would follow.

The DoD IG investigators viewed Hayden’s approach as
ill-considered (p. 4):

In other words, Hayden had learned nothing from his mistake in
sand-bagging THINTHREAD prior to 9/11, and he kept the original,
full program on ice even after the loss of nearly 3,000 American
lives and daily concerns in the months after the terrorist attacks
about possible “sleeper cells” and follow-on

On THINTHREAD’s scalability

Hayden argues in his memoir (page 22) that THINTHREAD was not
deployable across all NSA elements:

The best summary I got from my best technical minds was that
aspects of Thin Thread were elegant, but it just wouldn’t
scale. NSA has many weaknesses, but rejecting smart technical
solutions is not one of them.

The DoD IG investigators disagreed, as this response to
Hayden’s team at the time makes clear (p. 106):

On THINTHREAD’s effectiveness

On page 21 of his book, Hayden gives the reader the impression
that THINTHREAD was not that good at actually finding real,
actionable intelligence:

We gave it a try and deployed a prototype to Yakima, a foreign
satellite (FORNSAT) collection site in central Washington State.
Training the system on only one target (among potentially
thousands) took several months, and then it did not perform much
better than a human would have done. There were too many false
positives, indications of something of intelligence value when that
wasn’t really true. A lot of human intervention was required.

An analyst who had actually used THINTHREAD after its initial
prototype deployment in November 2000 had a very different view (p.

The second to last sentence is worth repeating: “The
analyst received intelligence data that he was not able to receive
before using THINTHREAD.” “Not able to
receive” from any other NSA system or program
. Had
THINTHREAD been deployed broadly across NSA and focused on
al-Qaeda, it could have helped prevent the 9/11 attacks, as the
SARC team and Roark have repeatedly claimed.

On THINTHREAD’s legality

Hayden claims in his memoir (page 24) that NSA’s lawyers
viewed THINTHREAD as illegal:

Sometime before 9/11, the Thin Thread advocates approached
NSA’s lawyers. The lawyers told them that no system could
legally do with US data what Thin Thread was designed to do. Thin
Thread was based on the broad collection of metadata that would of
necessity include foreign-to-foreign, foreign-to-US, and
US-to-foreign communications. In other words, lots of US person
data swept up in routine NSA collection.

In fact, as the SARC team noted in A Good American,
THINTHREAD’s operational concept was just the opposite: scan
the traffic for evidence of foreign bad actors communicating with
Americans, segregate and encrypt that traffic, and let the rest go
by. No massive data storage problem, no mass spying on

And the account the DoD IG investigators got from NSA’s
Office of General Counsel (page 20) flatly contradicts
Hayden’s memoir:

The “Directive 18” in question is United States Signals Intelligence Directive
, which governs NSA’s legal obligations regarding the
acquisition, storage, and dissemination of data on U.S.

As you can probably imagine, I could cite many other instances
of Hayden’s rewriting of the history of the
THINTHREAD-TRAILBLAZER episode, but if you want as much of the
story as is currently available, I suggest you read the entire
(though still heavily redacted) version of the DoD IG report I obtained in July.

The Story Goes On

What’s remarkable is that Congress was well aware of
Hayden’s misconduct and mismanagement while at NSA, but it
still allowed him to become the head of my former employer, the
CIA. Meanwhile, Roark’s personal example of integrity and
fidelity to congressional oversight were rendered meaningless by
her then-boss, House Intelligence Committee Chairman (and former
CIA operations officer) Porter Goss’s (R-FL) failure to fully
investigate the THINTHREAD-TRAILBLAZER disaster, and by his Senate
colleagues who elected to confirm Hayden to head the CIA by a vote
of 78-15. Hayden definitely got one thing very
right: He knew he could snow House and Senate members and get away
with it.

My FOIA lawsuit is ongoing, and additional document productions
are—hopefully—just a few months away. To date, DoD is
continuing to invoke the NSA Act of 1959 to keep many details of this
saga—especially the amount of money squandered on
TRAILBLAZER—from public view. For me, that’s actually a
key issue in this case—testing the proposition as to whether
NSA, utilizing the 1959 law, can conceal indefinitely waste, fraud,
abuse, or even criminal conduct from public disclosure.

But the larger policy issue for me is laying bare, using a
real-world case study, a prime example of a hugely consequential
congressional oversight failure. The SARC team and Roark continue
to argue that had THINTHREAD been fully deployed by early 2001, the
9/11 attacks could’ve been prevented. Drake asserts in A
Good American
that post-attack testing of THINTHREAD against
NSA’s PINWALE database uncovered not only the attacks
that happened, but ones that didn’t for various reasons.

And the SARC team and Roark maintain that THINTHREAD could have
accomplished NSA’s digital surveillance and early warning
mission without the kinds of constitutional violations seen or
alleged with programs like the PATRIOT Act’s Sec. 215 telephone metadata program or the FISA
Amendments Act Sec. 702 program, the latter currently set to
expire at the end of this month and the subject of multiple
legislative reform proposals.

None of this was examined by either the Congressional Joint
Inquiry or the 9/11 Commission, which means the real history of how
the 9/11 attacks happened has yet to be written.

Also pending are two Office of Special Counsel investigations
into aspects of this episode—one involving Drake, and the
other looking at former Assistant DoD IG John Crane, as I’ve
written previously on this site. I’ll have more
to say on all of this as documents become available or as events

is a Policy Analyst in Homeland Security and Civil
Liberties at the Cato Institute.

Libertarians Should Celebrate Emancipation as Much as They Do the End of Prohibition

Jonathan Blanks

Every year on December 5, many libertarians and libertarian organizations
hold events celebrating the anniversaryof
Prohibition’s repeal by the Twenty-First Amendment. This
observance serves as an opportunity to socialize over a few drinks,
but also to remember that there was a time in our nation’s
history when we could collectively realize we’ve made a
massive policy mistake by banning a popular intoxicant and, in our
present day, reminding us that we should likewise end the Drug War.
Repeal Day is, in short, a celebration of personal freedom and a
call for more of it.

Yet libertarians seem less eager to celebrate December 6, the
anniversary of the Thirteenth Amendment’s ratification, which
legally banned chattel slavery in the United States. Emancipation
was the greatest single advancement of liberty in American history
and yet the people whose political identity evokes liberation
rarely celebrate the Thirteenth’s anniversary.

Emancipation provides an opportunity to contemplate the legal
and social subversion of human freedom. And just as the lessons
from Prohibition apply to our Drug War, our national tolerance for
the caging of so many of our fellow citizens—a
disproportionate number of whom descend directly from slaves freed
over 150 years ago—should give self-proclaimed proponents of
human liberty great pause.

The Thirteenth Amendment reads:

Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.

It is ironic that the most liberating constitutional amendment
provides an exception that helped lead to mass incarceration. Most
other nations on the planet have found ways to punish and
rehabilitate criminal offenders without caging them for decades on
end and exposing them to mental and physical horrors as a matter of

Many American jails and prisons are overcrowded and fail to
provide adequate mental and physical health care for inmates. Among
the incarcerated, the rates of infectious diseases—such as tuberculosis, hepatitis, and
—are far higher than the general public, and
prison conditions often exacerbate and spread those illnesses. In
particular, prison rape that can spread these infections and
inflict horrific psychological damage is so common it is a
well-worn trope in American culture, to our great shame.

Americans like to think of our country as enlightened and
intolerant of the barbarity of slavery, despite housing more than
two million people in these dangerous cages. We abhor racism as an
abstract concept, but far too few are troubled with the endless
lines of black boys and young black men in orange jumpsuits and
shackles in courthouses throughout the nation. We pay for these
atrocities under the guises of law, order, and safety. We excuse
the damage the government inflicts with “do the crime, do the
time” canards, over-punishing acts that may or may not
warrant sanction at all, with callous disregard for the personal
costs to the offenders, their families, or their (often
impoverished, racially segregated) communities.
“Accountability” and the “Rule of Law” have
become rubber stamps for whatever sentence the prosecutors feel
appropriate to offer in the plea agreement. Without irony, we call
these carceral mechanisms our “justice” system.

Such cruelty in the name of higher virtue and civil order is not

The Twenty-First and
Thirteenth Amendments should be celebrated as great victories for
freedom, but they also serve as stark reminders of the many ways
the United States fails to live up to its founding

Not quite 160 years ago, Vice President of the Confederacy
Alexander Stephens said the institution of racial slavery was based on a
“moral truth”
and that the South would reap
“a full recognition of this principle throughout the
civilized and enlightened world.” The Confederacy, after all,
claimed it was fighting for its
to enslave others—many of whom were
the progeny of slavers’ rapes themselves—and that the
Republican platform to halt the expansion of slavery into new
American territories was, in fact, tyranny.

After Reconstruction, the South seized upon the “except as
a punishment for crime” language of the Thirteenth Amendment.
As Douglas A. Blackmon laid bare in his book, Slavery by Another Name, authorities
throughout the former Confederacy criminalized all sorts of minor
transgressions and behaviors to put African Americans in cages and
then impress them into service through the convict-lease system.
Although these laws were not explicitly racist—no mention of
race typically appeared in their texts—they were primarily
used against freedmen and their descendants, rather than
impoverished whites guilty of the same alleged

This system was added on top of the already exploitative
sharecropping that tied many ex-slaves to the lands and former
slavers without much realistic hope for prosperity or economic
freedom. If a sharecropper quit and had trouble finding work on
another farm or in another job, he could be jailed for loitering or
vagrancy and leased out to a company by the local sheriff when he
couldn’t make bail. The South effectively criminalized being
poor and black.

The more things changed, the more they stayed the same.

Although today’s inmates still labor without livable
wages for private companies
, the convict-lease system has
ended. And while many activists attack the private prison industry,
most jails and prisons are run by county or state governments, and
duly elected public prosecutors are responsible for filling them
up. Removing the profit motive from the carceral state makes the
system only marginally more just, while its effects on black communities particularly are sometimes
hard to distinguish from the racist policies of a
century ago

The United States has greatly expanded its promises of freedom
to millions of people in ways the Founders never intended. But it
still is not as free as it could or should be. The Twenty-First and
Thirteenth Amendments should be celebrated as great victories for
freedom, but they also serve as stark reminders of the many ways
the United States fails to live up to its founding ideals.

Too many people remain in chains.

is a Research Associate in Cato’s Project on Criminal
Justice and a Writer in Residence at Harvard University’s Fair
Punishment Project.

A Wedding Cake Won’t Heal Religious Differences

Trevor Burrus

This week the Supreme Court heard arguments in Masterpiece Cakeshop v. Colorado Civil Rights
, a case about a baker who refused to design a cake
for a gay wedding. Jack Phillips, the owner of Masterpiece
Cakeshop, had served gay customers for years, but he feels serving
a same-sex wedding will violate his religious convictions. The
Colorado Civil Rights Commission has allowed black cake-makers to
refuse to make cakes for the Aryan Nation and secular cake-makers
to refuse to make cakes opposing same-sex marriage, but Mr.
Phillips’s refusal apparently went too far.

We live in a pluralistic society, and not everyone’s convictions
fit together easily. Folks with religious convictions don’t change
their minds over a Supreme Court case, and they certainly don’t
change their minds because the government forces them to serve
same-sex weddings. In fact, they’re likely to retrench in their
beliefs — Jack Phillips has said the five-year legal battle has “really
helped my faith to grow.”

But this case is bigger than Jack Phillips. It’s about, let’s
say, your uncle, a good man who is intensely religious with deep

Tolerance needs to be
mutual, not one-sided.

It was probably hard enough coming out to your parents, but you
let your mom tell your uncle first that you’re gay because you
didn’t want to hear his first reaction. The next few interactions
were a little strained, but the connection you always had with your
uncle endured. Eventually, everything seemed okay again —
that is, until you invited him to your wedding.

There was some shouting and some praying on both sides. Your
uncle thought long and hard on the matter, consulted with clergy
and read scripture. In the end, he told you what his conscience
required: While he couldn’t attend the ceremony, he would be glad
to celebrate with you at the reception.

So you did what any decent person would do: You asked the
Colorado Civil Rights Commission to force your uncle to go to your
wedding. Right? Of course not.

Some might say that scenario isn’t analogous to the situation
facing Jack Phillips. Your relationship with your uncle is private,
whereas Masterpiece Cakeshop opens itself to the public as a
business. In America, when you open yourself to the public, you lose certain rights and privileges.

It’s true that the two scenarios are different as a matter of
law, but we can use the analogy between them to ask two deeper
questions: First, is this a decent thing to do to another human
being — to force them to serve or attend a wedding that they
feel violates their deeply held religious convictions? Second, is
forcing religious people to serve same-sex weddings how we create a
more tolerant society?

In Obergefell v. Hodges, the Supreme Court extended
constitutional protections to same-sex marriage and created one of
those cultural moments that feels like part of a Hollywood
production. People wept on the steps of the Court and I, having
contributed to a brief in the case arguing
against marriage discrimination, wept with them. I later had the
stirring pleasure of attending a same-sex wedding in the National
Cathedral and wept while watching two good friends celebrate both
their love and their civil rights. I’ve been fighting for gay
rights since seventh grade.

After the Obergefell celebrating was over, my next thought was
this: please don’t immediately start forcing Christians to serve
same-sex weddings. Please. This is the greatest civil rights
victory of my lifetime, please don’t spoil it by attacking the
rights of religious conscience. Please don’t treat 21st-century
America, where 89% of Fortune 500 companies prohibit
discrimination on sexual orientation even though they aren’t
required to by federal law, as if it were the Jim Crow South.

Please don’t act as if not getting a cake made by a single baker
is a commensurate harm to the pervasive and systematic
discrimination faced by African-Americans under Jim Crow, when
traveling through required using the Negro Motorist Green Book to figure out which
businesses would serve them and which towns would run them out at

Please allow some time for adjustment, and allow those who are
conflicted on these issues some space and understanding. Tolerance
needs to be mutual, not one-sided.

In the courtroom yesterday were Jack Phillips, the religious
cake-maker, and Charlie Craig and David Mullins, the gay couple who
were denied service. It was a poignant moment, and a deeply sad
one. There was no conversation, no attempt to reach mutual
understanding and respect. There was just the cold, hard courtroom,
the impersonal apparatus of the state, ostensibly seeking to solve
the conflict between them but in reality driving them apart. Maybe
Jack Phillips will lose his case and maybe religious cake-makers
everywhere will be forced to serve same-sex weddings. I don’t know
what to call that, but, whatever it is, it’s not tolerance.

is a Research Fellow in the Cato Institute’s Center for
Constitutional Studies.

The Oral Argument in the Supreme Court’s Masterpiece Cakeshop Same-Sex Marriage Case Is Heartening

Walter Olson

“Justice Kagan: Why is there no speech in — in
creating a wonderful hairdo? … The makeup artist. It’s
called the *artist*.”

With those examples Justice Elena Kagan summed up the central
issue the Supreme Court grappled with yesterday when it heard oral
argument in Masterpiece Cakeshop v. Colorado Civil Rights
Commission. Which trades or occupations can claim speech, artistry
or expression for purposes of the First Amendment?

It’s not an easy question. Jack Phillips says the
amendment protects his refusal to bake a cake for Charlie Craig and
David Mullins’ wedding. Are Phillips’ creations —
each custom, and one-of-a-kind — more a standard commodity
like chair rentals? Or something more expressive and artistic, like
painting an oil portrait of the newlywed couple or composing a song
for them?

As usual, it will be up
to Justice Kennedy, who holds the result in his hands.

The conventional split between the Supreme Court’s liberal
and conservative wings came through in yesterday’s lively
argument. Justice Sonia Sotomayor hammered the baker’s
position, while the conservative trio of Samuel Alito, Neil Gorsuch
and Chief Justice John Roberts did the same to

And yet on another level the Justices share a good deal of
common ground. None were gunning for any major turnabout in Court

In conservative circles, some yearn for a sweeping new right to
ignore discrimination laws in the name of religious liberty or
freedom of association.

That’s a non-starter, even (or especially) with
today’s conservative Court. The Court shows no signs of
wavering from its 1990 ruling in Employment Division v. Smith that
the Constitution affords no general right to a religious exemption
from otherwise applicable laws.

On the Left, some pine for a hard-line opinion that claims of
religious liberty or free speech can never, ever provide an excuse
for discrimination.

But it’s not just the Alitos and Clarence Thomases who would
oppose that outcome. All four liberal justices yesterday gave
indications that even if they would not draw the line on compelled
speech here, they would draw it somewhere.

Justice Ruth Bader Ginsburg, for example, suggested that one
logical place to search for a line would be when cakes had words on
them. Several Justices on both sides proposed that cakes bearing
particular symbols, such as a cross or rainbow, might convey a
message. Even Sotomayor jumped in at one point to suggest that
Colorado was going too far with its aggressive legal stance, under
which it might sometimes compel a baker to inscribe a particular
Bible verse demanded by a customer. (The state also seemed to
suggest that it would punish a lesbian graphic designer who turned
down a poster commission for the Westboro Baptist Church, and maybe
even an African-American sculptor who refused to craft a cross for
the KKK. Despite pat assertions that offers of goods or services to
the public must be #OpenToAll with no exceptions, it’s rarely
that simple, especially when it comes to personal services.)

In short, the Justices yesterday were not going for a knockout
in the culture wars; they were intelligently disputing the
dimensions of a fairly narrow strip of legal territory. Despite
what you heard on social media, neither side was trying to gut
discrimination laws on the one side, or require rainbow loyalty
oaths on the other. And no, no one’s marriage is at risk
either way.

In the middle, as usual, is Justice Anthony Kennedy, famous as
the author of the Court’s gay rights decisions but also as a
strong First Amendment proponent. Kennedy yesterday did not seem to
warm to a couple of the theories offered on behalf of Phillips,
including one from the U.S. Department of Justice that would
recognize participation in ceremony as a legal category of its

But he did show an unexpected interest in what had been regarded
as a side issue in the case, namely bits of evidence that the
Colorado commission, or some of its personnel, had taken a
dismissive view of Phillips’ religious scruples
(“freedom of religion used to justify discrimination is a
despicable piece of rhetoric,” one commissioner had

“Tolerance is essential in a free society,” Kennedy
pronounced from the bench. “And tolerance is most meaningful
when it’s mutual. It seems to me that the state in its
position here has been neither tolerant nor respectful of Mr.
Phillips’ religious beliefs.”

If he so chooses, the theme that the commission acted badly in
this particular case might give Kennedy a narrow way to let
Phillips off the hook or send the case back without creating any
particular carve-out to discrimination laws.

As usual, that will be up to Justice Kennedy, who holds the
result in his hands.

Walter Olson
is senior fellow at the Cato Institute.