Category: reason

Just down the street from the Reason offices in D.C., protesters recently built a guillotine. No necks were harmed that night; it wasn’t fully functional. But they did it in front of Amazon founder Jeff Bezos’ house, and the message was clear: While we aren’t going to do violence to you personally right now, we want you to know that we think capitalist billionaires like you are so terrible that some violence may, in fact, be justified. Another iteration of the guillotine had popped up a couple of weeks earlier in front of the White House, with similar implications for the president and his allies.

The question, which has taken on increasing importance as Election Day draws near, is how seriously (or literally) to take such threats.

The best-case scenario is that what we are seeing in the streets is essentially LARPing. If you don’t know what LARPing is: Congratulations. I bet the parties you got invited to in high school were fun! It stands for “live action role playing,” and the most common manifestation is a small group of costumed nerds staging some form of simulated combat, often in a campus quadrangle or public park.

Like the guillotinesmiths of Kalorama, the lefty protesters of Seattle and Portland—dressed in activist goth chic and ostentatiously practicing maneuvers with shields—are looking to trigger disgust and panic in those who disagree with their aims or tactics, and boy is it working. The same is true of the Unite the Right marchers who turned up in Charlottesville three years ago and later in the Pacific Northwest to provoke fear and intimidate their opponents while wearing matching polo shirts and wielding tiki torches.

“So far, this revolutionary playacting has been more annoying than terrifying,” Cathy Young writes in this month’s cover story, an account of the events leading up to France’s Reign of Terror with an eye toward the parallels to the present day (page 18). “It’s about trolling, not killing, the enemy. But it still signals an embrace of bloodthirsty rhetoric—and of ideological homage to one of history’s bloodier leftist dictatorships.”

There are reasons to believe the situation in American cities could take a more deadly turn, however. For one thing, it did in Charlottesville, when counterprotester Heather Heyer was killed. And it already has in Portland, where Reason contributor Nancy Rommelmann has covered the monthslong conflict between the antifa “black bloc” and the various right-leaning factions that oppose it. The activists in Portland have been busy attempting, mostly without success, to set fire to various government buildings downtown. Failing that, they settle for dumpsters. They had their own guillotines there, of course, one of which conscripted a teddy bear to stand in for reviled Democratic Mayor Ted Wheeler.

But there have been repeated clashes, not only between the protesters and law enforcement but also between rival activist factions, including the now-infamous right-wing Proud Boys. At the end of August, those tensions culminated in the killing of Aaron “Jay” Danielson by a deeply troubled man who identified as antifa.

The actions of the shooter, writes Rommelmann, are “a symptom of what happens when a movement gets such a glow that it attracts people ready to take things to the next level. For most people, fatal violence causes an instinct to recoil, to take a step back and reconsider. But not for everyone.”

This is the very definition of a vicious cycle. As the less committed folks step back because they sense that things have gone too far, only the most hardcore remain in the field, ready to rumble. “That things will get worse before they get better seems inevitable,” writes Rommelmann. “A movement that justifies intimidation and violence moves in only one direction, and anyone who says they did not see this coming to the streets of Portland has not been paying attention.”

There are signs that ordinary people are becoming more likely to support this kind of violence, if not engage in it themselves. In October, a group of researchers published a disheartening set of survey responses in Politico. They found that 36 percent of Republicans and 33 percent of Democrats said it is at least “a little” justified for their side “to use violence in advancing political goals.” Those numbers are slightly higher if you specify the loss of an election as the trigger for violence.

The more extreme someone’s political views, the more likely they are to believe violence is justified to achieve them. Among those who identify as “very liberal,” 26 percent said there would be “a great deal” of justification for violence if the Democratic candidate loses the presidency. Among the “very conservative,” that figure is 16 percent if the Republican candidate loses.

These numbers are up significantly from June, but the trend begins much earlier. This is neither a left nor a right phenomenon, no matter how desperately each side would like that to be the case. No one “started it.” No one side is picking the fight. This is a change in views about political violence across the board.

The new survey builds on a longstanding body of work by two of the authors, Nathan P. Kalmoe and Lilliana Mason, who have also found that polarization seems to be directly connected to dehumanization, with 20 percent of Republicans and 15 percent of Democrats agreeing in 2018 that members of the other party “lack the traits to be considered fully human—they behave like animals.”

A 2019 report from the Carnegie Endowment for International Peace put a finer point on the ways in which this electoral cycle may be particularly ripe for conflict, declaring that “experimental evidence shows inducing expectations of electoral victory give strong partisans more confidence to endorse violence against their partisan opponents.”

Recall that one of this spring’s most outrageous instances of cancel culture at work was indirectly about the question of tolerance for political violence as well: A Civis Analytics researcher lost his job after tweeting out an academic study by Princeton’s Omar Wasow about how violent protesters may undermine the electoral goals of their allies. He was accused of “concern trolling” and “minimizing black grief and rage” and subsequently fired in what appeared to be a direct response to the tweet. Not only are people more willing to condone violence across the board, but at the extremes some are also less willing to even entertain talk about why such violence might be a bad idea.

There is one additional complicating factor here: The meaning of the word violence is in flux. Speech is increasingly described as violence. Sometimes silence is also violence, especially in conversations about race. In certain circles, conversely, it’s now up for debate whether property destruction counts as violence, with activists pushing back on the idea that the damage to homes and businesses in the wake of this summer’s Black Lives Matter protests should be taken into consideration at all.

It’s a mistake to conflate bad tweets with revolutionary violence, but it is worth pointing out that in the waning days of the election season, Bhaskar Sunkara, a co-founder of the aptly named Jacobin magazine, tweeted: “I think killing little Romanov children was justified. But it’s not surprising why these views are controversial given most people’s ethical and moral frameworks.”

Sunkara ultimately took down the tweet. But the thing he may have been most wrong about was the notion that most people’s moral and ethical frameworks can’t accommodate violence in the name of political change. Increasing numbers of Americans see those who disagree with them as subhuman and view politics as a worthy cause for violence, even if they’re not ready or willing to do violence themselves. For these new Jacobins, the romance of the guillotine persists.

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The furniture was sitting on the lawn, his work van was parked outside, and Roy Stucker was inside a Louisville, Kentucky, home, painting it for a new tenant. That’s when 10 Louisville police officers broke out the windows, stormed into the house, and handcuffed Stucker and his girlfriend at gunpoint. They held them for about 20 minutes before realizing that Stucker wasn’t the man they were looking for. Stucker’s attorney says that man had been arrested by Louisville police 10 days earlier and was still in custody at the time cops raided the house. Stucker and his girlfriend have filed a lawsuit against the city, claiming unlawful imprisonment.

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Historically, Texas has permitted some forms of curbside voting. With this accommodation, poll workers would hand a tablet inside the vehicle, so people could vote without walking into the precinct. Under Texas law, curbside voting was permissible if the voter is “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.” Tex. Elec. Code § 64.009(a).

In the run-up to early voting, several Texas counties considered expanding curbside voting to all registered voters. In light of COVID, the thinking went, all registered voters could claim that entering a polling place would likely “injur[e] the voter’s health.” At the time, the Texas Attorney General warned that such an expansion of curbside voting would be “unlawful and could result in legal liability for political subdivisions and their officials.” He explained that “Fear of COVID-19 does not render a voter physically unable to cast a ballot inside a polling place without assistance.”

Despite this warning, the Harris County clerk permitted curbside voting for all registered voters. Over 100,00 curbside ballots were cast. (I reside in Harris County, but did not cast a curbside ballot). No other county in Texas took this risk.

Now, several Republicans candidates and voters in Harris County challenged the legality of this procedure. They filed suit in federal district court, as well as in the Texas Supreme Court. Today, the latter denied a writ of mandamus. This unsigned order was not a ruling on the merits. Rather, there may be certain procedural reasons why mandamus was denied. The Texas Supreme Court may yet issue a ruling on the merits. And the federal district court scheduled a hearing for Monday.

For purpose of this post, I will assume that the Attorney General is correct, and the Clerk violated Texas law. What is the remedy? I can see three possible options.

• Option #1: A court could acknowledge that the clerk violated Texas law, but decide not to punish the voters. Therefore, all the curbside votes should be counted as if they were cast in the precinct.
• Option #2: The Plaintiffs have argued that all the curbside ballots cast by those ineligible to vote curbside should be thrown out.
• Option #3: Since such a large share of votes were thrown out, the entire election could be deemed invalid. The court could decide to order a do-over of the entire county election. This remedy was recently used in Patterson, New Jersey.

Let’s consider each options in detail.

Option #1 sounds in estoppel. Registered voters relied on the clerk’s interpretation of the law to their detriment. Thus, it would be unfair to punish the voters who did nothing wrong. At this point, it is impossible to notify everyone who cast a vote curbside that their votes were invalid, and they would need to vote in person on Tuesday. Of the 100,000-odd curbside ballots, at least some of them would be valid, even under the Attorney General’s opinion. But the bulk–cast based on COVID concerns–would be tossed out. Here, the voters who relied on the Clerk’s services would be punished. This remedy would not be limited to Harris County. First, there are statewide federal and state positions on the ballot. Excluding 100,000 votes from Harris County would directly impact the popular vote for the Presidency and the Senate. Second, seats in the Texas House may decide which party has a majority. And, the Legislature will have to take up redistricting soon. If a few Harris County seats flip, the map may look very different over the next decade.

Option #2 would be the most severe remedy, by far. Candidates could argue that Harris county clerk accepted illegal ballots. They would argue that the only way to remedy this violation, given the strict election calendar, would be to simply disqualify the curbside votes. If such a remedy was issued by Monday, in theory at least, voters could cast provisional ballots in person on Tuesday. But we all know that this outcome is unlikely. People who cast curbside votes will likely have their votes nullified.

Option #3 is at once fair and severe. Fair, in the sense that no votes would be nullified. Harsh in the sense that Harris County voters would likely have no say in who is elected President. To qualify for the so-called “Safe Harbor,” the Governor would have to certify that there is a contested election by December 8. And the electors would vote on December 14. Then, certificates must be delivered to Washington by December 23. (This CRS report explains the various deadlines).I am very, very skeptical, that Harris County could schedule, organize, and conduct a do-over election in such a short period of time. For sure, there would not be sufficient time for early voting. With Option #3, far more presidential votes would be nullified than with Option #2. And, for practical purposes, if Harris County is excluded, the odds of Biden winning Texas are very, very low.

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This situation is different from the traditional election litigation. Usually, parties fight over voter errors. For example, did a voter properly punch a chad? Or did a voter cast two ballots? Or vote in the wrong precinct? Or fail to show ID? Or fail to match a signature? Etc. In my hypothetical, the voters reasonably relied on a promise by a duly elected official–albeit one who established an illegal voter program.

Consider a hypothetical. Let’s say that Texas law only permits people to march in foot on a parade route. People have a First Amendment right to peaceably protest. But the government can restrict the time, place, and manner of those protests. Vehicular parade are dangerous. Especially on the Garden State Parkway. It is reasonable to require protestors to be on foot, rather than in their vehicles. Texas’s law is valid.

Despite this law, a county clerk decides that, due to COVID, it is dangerous to have people conduct a parade on foot. So he announces a policy in which people can apply for parade permits, in which members would stay in their vehicles. A community organizer announces that the wants to hold a massive vehicular parade on election day. The clerk issues a new policy: rather than having one person request permits for thousands of marchers, each resident in Harris County is asked to submit an individualized request for a permit for their vehicle. And those requests would be granted automatically.

The day before election day, the Texas Attorney General sues the County Clerk, and argues that the issued permits are invalid under state law. The trial court agrees that the Clerk violated state law. What about the remedy? The clerk argues that the vehicle parade permits (which are illegal) should be converted into pedestrian parade permits. That way, people could still exercise their constitutional rights, consistent with state law. In other words, the people should not be punished for the clerk’s error. And, there is simply no time to apply for new permits. The parade is designed for election day, and we all know that the results of the election are certified exactly at midnight. (Lord help us all come Wednesday).

The Attorney General argues that the permits were void ab initio, and should be treated as nullities. And, even though there is a constitutional right to protest, the march must be performed in accordance with state law. If the people relied on a rogue county clerk, the remedy is at the ballot box. The voters should hold accountable a well-intentioned, but reckless local official.

I think this hypothetical captures, reasonably well, the situation in Harris County. Option #1 would, in effect, convert an illegal curbside ballot into a legal in-person ballot. The fact that they were cast in a vehicle, rather than in a precinct become irrelevant. And option #2 would, in effect, treat the illegally cast votes as nullities.

I am still thinking this issue through. It is tough. Please email me with any thoughts you may have. This litigation may fizzle out quickly. Or it may blow up quickly.

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Odds are you’ve heard about the nontraditional presidential candidacy of a certain Kanye West. Chances are decent, too, that you may recall the late-breaking run last time around by independent ex-CIA agent Evan McMullin.

But what if I told you that there was a 2020 candidate on more ballots than either the rapper or the Mormon, who also happened to be a fiscally hawkish cryptocurrency entrepreneur whose policy page begins with “Re-legalizing cannabis” and ends with “Your body is yours“?

Meet Brock Pierce, one of the more unusual characters to ever make it on the presidential ballot of 16 states. Pierce in his four decades on the planet has been a child actor (The Mighty Ducks), teenaged dot-com cautionary tale (at the notorious Digital Entertainment Network), online gaming pioneer, and founder of the cryptocurrency Tether. Controversy has followed him at every step, including during his 17 weeks as White House aspirant. (See this July interview with Forbes for Pierce’s responses to several of the accusations.)

“I obviously identify with and resonate with and connect with my libertarian brothers and sisters on so many levels,” Pierce told me in a phone interview Saturday. And yet, like Unity 2020‘s Bret Weinstein (with whom Pierce says he’s had several conversations), the independent believes that our current political crisis is grave enough (“we’re probably going to have another wave of riots, potentially civil war, economic sort of carnage,” he says) that all pre-existing third parties, as well as millions of disgruntled Democrats and Republicans, should assemble into a cross-partisan movement based more on values and integrity than tribal loyalty and narrow ideology.

Pierce, to be sure, also favors policies libertarians might find less congenial, such as a Universal Earned Income, and re-writing Section 230 of the Communications Decency Act.

Regardless, he vows, this is only the beginning: “I think by November 5th, I’m going to announce that I’ve already got 35 to 40 states [ballot access] already done” for 2024, he says. This may be the first time you’ve heard of Brock Pierce, but he swears it won’t be the last.

The following is an edited version of our conversation.

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Reason: Why the hell are you running for president, Brock Pierce?

Pierce: I can summarize it in one word: Love.

Reason: Wow.

Pierce: Love for this country. Love for the American people at a time where we need love and unity. These United States feel very much like the divided states right now. We’re divided politically, economically, racially. We face very real existential threats environmentally, technologically, arguably pandemically. Conflicts potentially with other nation-states. We have to find a path to unity, we need visionary leadership that has their finger on the pulse regarding things like technology, fiscal policy, the list goes on.

Reason: You joined us in July, right? Why so kind of late in the scheme of things, or what was…the triggering mechanism that caused you to jump in in July, as opposed to July of the previous year?

Pierce: Well, I’m an independent candidate, and so July 4th is the day that I announced. An auspicious day for an independent candidate!

I turn 40 in two weeks, and so I am laying the foundation and the groundwork for a presidential run in 2024. I’ll have been running for essentially four and a half years.

Reason: I see. So look, I write for a libertarian magazine, we’re really disproportionately into stuff like blockchains, like ending the war on drugs, legalizing marijuana, balancing the budget. You’ve got all of those things checked off, and in fact, they are prominent in your emphases. Why not take a run at the Libertarian Party, which actually has ballot access in 50 states?

Pierce: I obviously identify with and resonate with and connect with my libertarian brothers and sisters on so many levels. The thing that I think needs to happen though is, we have to find a way of uniting the third parties. The last third party candidate to be elected president was Abraham Lincoln. And Abraham Lincoln was able to unite the third parties by creating a government of rivals, you know, divided we fall, united we stand. Clearly we need to bring on the libertarian community. We gotta like Voltron with all of these groups, because we are bigger, the independents are bigger, than the Republicans, the independents are bigger than the Democrats. But we’re consistently divided. And so I clearly intend to speak to and connect with libertarians.

In terms of 50-state ballot access, I’ve got that solved already. I was able to do 16 states, and could have done 25 at least, and that’s starting on July 4th. It took the Libertarian Party probably a couple of decades to figure out how to do it; I’ve got it figured out in six months. It’s not that hard.

Reason: What are the big priorities, or things that you think need to be changed, that your independent candidacy or presidency is uniquely poised to address or affect?

Pierce: Well, I think part of it is how we measure and define our success. What is our aim as a nation? If you don’t have an aim or a vision, you’re going to wander aimlessly. And so, how do we create a unified vision as a country?

One of the things I like to talk about is, the way that we’ve been measuring our success historically as a nation has been by growth, or GDP. The problem with growth is it assumes that we have infinite resources, which we’ve known for quite a while we don’t have. It also doesn’t differentiate between positive and negative growth, and we also have a lot of crony capitalism, right? And so I think how we measure and define our success is a conversation that needs to be had.

The founders of this country had a wonderful intention for us, which was “Life, liberty, and the pursuit of happiness.” And so here’s an idea that I propose: What if we started to measure our success by life expectancy? Did you know that life expectancy in this country has been in decline the last few years despite all the advancements in medicine, science, and technology? What if we started to measure our success by life? Policy and everything would start to change, and we’d start to have real wealth, which is our individual health.

What if we started to define and measure our success as a nation by our liberty? We are supposed to be the Land of the Free, after all. But we have more people in prison than any other country in the world, in total and per capita. It doesn’t sound like liberty is the goal. I believe in law and order; I think it’s a foundation of a well-functioning society. But it’s meant to protect and serve. Our police departments are arresting more people to get a bigger budget to hire more cops to arrest more people to get a bigger budget to hire….It’s growth, it’s just infinite growth, it’s blind growth, it’s not mindful growth, it’s not thoughtful growth. And so, what if we started to measure our success by liberty?

And then, of course, happiness. There’s already countries around the world that are measuring their success by happiness. So how do we upgrade the operating system of the United States? How do we define and measure our success? Because growth is not going to work anymore. So that’s just one concept.

Another thing is, let’s talk about the U.S. dollar. The U.S. dollar is the foundation of this nation, the foundation of this nation’s economy. If something negative were to happen to the dollar, it would have very material adverse effects on all of our lives, all of our businesses, and all of our institutions. And it is at risk because of our national debt, because of our fiscal policy. Did you know that 22 percent of all dollars in existence were created this year?

Reason: Wow, I did not.

Pierce: I mean, that’s a frightening number, isn’t it? [The dollar] is at risk because of the things that we’re doing here domestically that are eroding faith, trust, and confidence in it. And it’s also at risk because of external threats.

One of the things I did is I created the U.S. digital dollar in 2014, which is doing $10 trillion a year in transactional volume. Governments around the world are using that framework to enhance their currency with technology. The Chinese government is years ahead of everyone else with their new Chinese digital Wuan. We don’t even talk about fiscal policy in our election. I mean, these things matter, and they’re not being discussed.

Technology itself beyond just the dollar is also…We know technology is changing the world, and it’s doing so at an accelerated pace. Our technology leaders [just] testified before our elected officials, I mean, the questions they’re asking are embarrassing. At a time where the impact of technology is very real and technology is a tool, it is not good or bad, it’s how we use it will determine the impact it has. I mean, look at The Social Dilemma on Netflix, and how technology is impacting our democracy. The potential risks to free speech and the censorship that’s starting to happen. Which is not new, it just is becoming visible, and the whole country at least…is starting to see it.

Now with artificial intelligence, automation, robotics—I mean, the landscape of work is going to be changing rapidly. There are three and a half million truck drivers in this country, then add [the drivers for] Uber, Lyft, and taxis. This is not science fiction: Driverless cars, driverless trucks, they’re on the road already over the course of the next four to eight years. Then we’re talking about tens of millions of jobs that are going to disappear because they’ve been replaced by technology. We need leadership, visionary leadership with the foresight to navigate the road ahead with their finger on the pulse.

I continue back to the war on drugs: Yes, we need to end that. Let’s re-legalize nature. When did we outlaw nature to begin with and why? Oh yeah, it was for plastic, cotton, and paper. So, we outlawed nature because our new products couldn’t compete with hemp. I think it’s important to do that. Let’s end this war on drugs, let’s end locking people up in prison for victimless crimes, for cannabis-related things, and so forth. The answer for drug addiction isn’t locking people up in cages at great expense to the American people. This is a social issue, a mental health issue. Let’s actually help people help themselves to live a more prosperous life.

Reason: Silicon Valley companies [are] being hauled in front of Congress. It’s now kind of a bipartisan agreement, which is usually a scary moment, to rewrite Section 230 of the Communications Decency Act. Where do you stand on that narrow question of, should that be rewritten in some way to affect the behavior of the Silicon Valley giants?

Pierce: I think the answer is yes. You’re either a platform or a publisher. As a platform, you don’t have liability because you are permitting free speech. The moment you choose to be a publisher and censor, then you become liable. You can’t have your cake and eat it, too, and define what you are. If you want to be a platform, be a platform; if you want to be a publisher, be a publisher. These are companies that have that choice. You just can’t have both.

Reason: We have a comments section. Are we liable for every damn fool thing our commenters say, under your vision?

Pierce: Now, yeah, we’re getting further narrow…I mean, this is back to publisher or platform.

Reason: I mean, we’re a publisher that allows people—

Pierce: That’s tier two of the question. Tier one is, are you censoring speech as a social media platform? Or as a publisher, do you have comments sections? I think that’s a secondary issue. I think the primary issue is as the platforms, are they censoring major speech? When we’re getting into the nitty-gritty details of your comments section, I think that’s a lesser issue, but I see the point that you’re making.

Reason: It’s just that the platform-publisher distinction can be a gray area and when you increase the legal—

Pierce: Agreed, and I think they’re two very different issues. One is the comment sections and what your users are saying. Another is literally manipulating what an entire world, the nation, sees. I don’t know if you saw the leaked Google video where you had the senior Google executives saying that, “We’re just going to make it so that conservative opinions are not seen by anyone.” I mean, they’re very different issues but they fall into the same vein.

Reason: Talking about the truckers who are going to be replaced by automated driving…this gets into some Andrew Yangi-sm. He had the Universal Basic Income idea. You have the Universal Earned Income. Talk about that a little bit.

Pierce: So if we have tens of millions of jobs that are going to be disappearing because of technology—which doesn’t need to be a bad thing; I get up and I live to work, I live to serve. But a lot of people work to live or to survive….We can’t have tens of millions of people desperate. If tens of millions of people are desperate to survive, the pitchforks come out, so we have to find a solution to give people the necessary safety net to become re-skilled, to retrain, to find other ways to be productive members of society.

I think Universal Earned Income is the answer, similar to Universal Basic Income, except for there’s an earned component. How do you earn it? Is it by voting? Is it by being an American citizen? Is it you make your first dollar and then you just proceed the rest? These are the questions in the conversation that I wish to continue to have with all those parties that are interested in doing it.

Reason: So you are talking about unity, and getting people on the same page. Do you think in these times when we have a lot of polarized, tribal rhetorical warfare with one another, in which, for instance, Hollywood and Silicon Valley are seen as being definitely on one side of this issue—that’s kind of where you come from! Are you the person to convince people who are skeptical of those major centers of power to rally around an independent flag?

Pierce: I hope so. I mean, my message resonates with people on the far left and the far right, because I think I’m like a majority of Americans: people that want to live and let live, to take responsibility for our actions. I think the majority of us are in the middle. We’ve just been divided through these very polarized two limited choices that we have. You’re like, “Well, I don’t like that, I’m against that. Therefore, I’m going to vote for this.” I think as a nation, it’s less about what we’re against. We have to get out of that mindset and start to think about what we’re for. What do we stand for?

And I think that’s a big part of the problem. I mean like 70 percent of Democrats and Republicans are unhappy with their choices. So I think this country is going to stay in this perpetual loop until we start to act according to our conscience, to vote our conscience, not to vote out of fear, but to vote for what we believe in. I think that we need more choices. Hence, I’m presenting another one here now.

Reason: You started this conversation with the word “love.” On your website, one of your five major areas is “Regeneration.” Am I wrong to detect a little bit of overlap with Marianne Williamson here? There’s a spiritual component of yours that people might associate with a more kind of New Age uplift.

Pierce: You could call it “spirituality,” if that’s what resonates with you. I’m a very spiritual person. But it’s also all very logical. It’s based upon common sense, very logical sensible ideas. I’m a fan of Marianne Williamson and Andrew Yang. And if the things that I’m doing trigger in a positive way those associations, I’m glad to hear it. You’re the first person to have said that.

Reason: Speaking of weird associations, or associations regardless of what one thinks about them, according to the very well-informed website Wikipedia, you did business with Steve Bannon at one point, 12, 13 years ago.

Pierce: Steve worked for me in my mid-20s.

Reason: What is your reflection on his role in the American political conversation since?

Pierce: Well, when he worked for me, he was still an investment banker. And so, he was my deal guy that executed my financings and things of that nature. So, his foray into the political realm occurred after his tenure of working for me. It’s been interesting to see—I guess inspiring in the sense that I saw someone basically jump into politics and fairly quickly ascend all the way through the ranks almost as far as one could go. But Steve and I are obviously very different people.

Reason: Building on that, you’re running against Donald Trump and Joe Biden in the year 2020. What is your biggest criticism of each?

Pierce: I tend not to get into criticisms of others. I mean, there’s so much of that happening right now. If you turn on your television, you open up anything, it’s pretty much all negative sort of messaging towards the two major-party candidates. So I don’t really spend time on that.

I’d say that the big difference is that I’ve got a strong technology background. I’ve been on the forefront of innovation for a very long time. I’m half of Joe Biden’s age, like, exactly: I’m 39, he’s 78. And so I think that we’re going to need younger leadership over the course of this next decade. Most of our leadership historically have been in their 40s and 50s; typically, our presidents are not in their 60s, certainly not in their 70s, ever. The oldest president ever elected in U.S. history in their first term was Donald Trump at 70. This is all new territory, at a time where I think we need people that are more in touch with the present reality.

Reason: What do you worry is going to happen in the next four years regardless of who wins?

Pierce: It’s going to be a rough road. I wish I could say otherwise. The ripple effects of shutting down the U.S. economy, the impact on the American Dream, unemployment, the 22 percent more dollars—and that’s going to be a lot more over the next year. We’re in for a lot of trouble and a lot of polarization. Just the next week alone—I mean, we’re probably going to have another wave of riots, potentially civil war, economic sort of carnage.

That’s why I’m running for office. I think we’re doomed if we don’t do something different, and I’m not the type of person that just sits on the sidelines; I’m going to do everything I can to fix it. That just means delivering a message and sharing vision and ideas. I don’t care who implements it. If these things get implemented and everybody wins, that’s good enough for me.

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On Wednesday, the Supreme Court will hear oral arguments in  an important religious liberty case, Fulton v. City of Philadelphia. Because it is coming the day after election day, Fulton isn’t getting as much public attention as it deserves. But the case is a very significant one, for multiple reasons. In this post, I focus on a key angle that makes this case very different from most other prominent religious-liberties claims in recent years: the fact that a win for the plaintiffs could cause serious harm to innocent third parties who have no way to avoid it.

Fulton is a challenge by  Catholic Social Services (CSS) and others, to the City of Philadelphia’s policy of refusing to place foster children with private service agencies that reject same-sex couples as potential foster parents. CSS refuses to do so for religious reasons, due to the Catholic Church’s opposition to gay marriage and same-sex sexual relationships more generally.

CSS contends that the City is discriminating against them based on religious beliefs, and that the Free Exercise Clause of the First Amendment entitles them to an exemption from even a neutral antidiscrimination policy. To prevail on the latter point, CSS would need to persuade the Supreme Court to overrule or at least substantially limit the scope of its 1990 decision in Employment Division v. Smith, which held that, as a general rule, there is no constitutional religious-liberty exemption from neutral, generally applicable laws.

Smith was written by conservative Supreme Court Justice Antonin Scalia. At the time, it was heavily criticized by many liberals, while most conservatives supported it. Since then, the culture wars have shifted, and overruling Smith has become a major objective of social conservatives, while most liberals would prefer to keep it in place.

The fate of Smith is the main reason why this case has caught the eye of legal commentators understandably so. But there is another crucial angle that deserves greater consideration.

In most prominent religious-liberty cases, the the issue at stake is either the government discriminating on the basis of religion (as in the travel ban case and the recent Espinoza Blaine Amendment case),  or the state requiring private businesses to provide services that violate their religious beliefs, to willing customers or employees (as in the 2014 Hobby Lobby case and various cases involving photographers and bakers unwilling to serve same-sex marriages). The 2018 Masterpiece Cakeshop case raised both issues.

In cases like Hobby Lobby and Masterpiece Cakeshop, the workers and consumers involved had the option of going elsewhere. While Hobby Lobby’s religious commitments led them to refuse to provide contraception benefits to employees, the vast majority of employers (like the vast majority of Americans generally), have no such objections. Employees who value those benefits, accordingly, have many alternatives to working at Hobby Lobby. Indeed, workers as a class  benefit from allowing diversity in benefits, as some might prefer an employer who—instead of providing contraception benefits—offers higher pay or better benefits of some other kind. Similarly, same-sex couples have many alternatives to going to bakers or photographers who object to their wedding. Indeed, most such couples are likely to be better off choosing contractors who don’t have any such objections. Those who do object are unlikely to do a good job of helping to celebrate an event they abhor.

The situation in Fulton is very different: orphans and children in the foster care system—especially younger ones—generally do not have much choice when it comes to deciding which social service organizations will handle their cases. If they end up with CSS or another organization with similar views, they will lose the chance to be placed with a same-sex couple, even if that family is actually the best available home for the child in question. In that event, the child could be placed in a foster home less well-suited to her needs, or even none at all. Unlike people in search of a baker or a photographer,  children in the foster-care system generally don’t have the option of simply taking their “business” somewhere else.

This might not matter if you believe that religious-liberty claims are entitled to an absolute exemption from generally applicable laws. But most advocates of overruling Smith do not take any such absolutist position. Instead, they  generally support something like the “compelling interest” test that Smith overruled, which would allow restrictions on religious freedom so long as they are necessary to promote a compelling government interest. For example, virtually no one claims that religiously-motivated killers are entitled to an exemption from laws against murder and terrorism.

Placing foster children with the best available caregivers is pretty clearly a compelling interest, if anything is. And in this instance, unlike Hobby Lobby or Masterpiece Cakeshop, there may be no other way to ensure that the people in question can get the services they need. Unlike most customers and workers, the children are a captive market whose fate largely depends on decisions by government officials.

It’s also worth noting that the argument put forward by the plaintiffs in Fulton could just as easily be used by service organizations who have religious objections to placing children with interracial or interfaith couples. A few religious groups still condemn the former, and many more object to the latter. In that scenario, few would contend that the state must make use of these agencies without requiring them to consider potential foster parents irrespective of the  latter’s race or religion.

The issue of third-party harm may not be dispositive in the case. It obviously may not matter if the Supreme Court chooses to reaffirm Smith.

Furthmore, in addition to arguing for overruling or cutting back on Smith, the plaintiffs also contend that city officials discriminated against them based on “animus” towards their religious beliefs. My George Mason University colleague Helen Alvare—a prominent expert in this field—has a good defense of the latter argument here.

If she’s right, the Court could rule in favor of CSS without concluding that religious organizations are generally entitled to exemptions from this type of antidiscrimination policy.  While Helen makes good points, I remain skeptical that the City would have treated CSS differently if only the latter’s objections to same-sex couples were secular in nature or based on non-Catholic religious commitments. But I will not try to analyze the discrimination issue in detail here. It is enough to note that it potentially provides an alternative basis for CSS to win the case, one that would not require overruling or modifying Smith.

As a matter of policy, it might sometimes be better to place foster children with agencies that have discriminatory policies, if the available alternatives are even worse (e.g.—the children cannot be placed at all). But the issue at stake in Fulton is not whether the Constitution forbids such placements, but only whether the state should be allowed to avoid them.

When it comes to religious freedom cases, I am no slouch about the need to place tight limits on government power. I supported the plaintiffs in Hobby Lobby, the travel ban case, the Blaine Amendment case, Masterpiece Cakeshop, and various other cases on related issues. And I have done so even when I find the plaintiffs’ religious beliefs abhorrent, as with religious opposition to contraception (Hobby Lobby) and same-sex marriage (Masterpiece Cakeshop). I have criticized those on both right and left whose stances on these types of cases tends to vary based on whose ox is being gored.

But the issue in Fulton is very different from most other cases. And that difference might justify a ruling in favor of the government, even from a standpoint that is highly supportive of religious liberty claims in other contexts.

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