Fair and Unbalanced

Mike Littwin

"The pump don't work 'cause the vandals took the handles."

Littwin: DougCo’s dodgy voucher plan boosts religious recruitment – not public education

Does anyone really think that this voucher plan is meant to improve public schools? Does anyone really think that, as public policy, this plan is meant to provide “choice” so that children can attend “better” schools?


The Douglas County School Board might be unhappy with the state Supreme Court ruling knocking down its dodgy voucher plan.

Religious schools throughout Douglas County might be unhappy with the state Supreme Court ruling knocking down the dodgy DougCo voucher plan.

But the national voucher-movement people who are pushing the lawsuit must be thrilled with the ruling against them. The way for them to win is by losing, at least in this round. Winning in Colorado would be small stakes. Winning at the U.S. Supreme Court level, which is where this case may be headed, could be transformational.

Yes, the state constitution seems to plainly say that this voucher plan would be, well, un-state-constitutional. But the language plainly cited – prohibiting public funding for “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school … controlled by any church or sectarian denomination” — derives from a so-called Blaine Amendment, a piece of 19th-century anti-Catholic bigotry by which states found a way not to fund Catholic schools.

And yet the court decided, with a notable dissent from Justice Allison Eid, that the origin of the amendment meant little in this case, that the separation of church and state, as reconfirmed in this amendment, was what mattered. And so the court found: “This stark constitutional provision makes one thing clear: A school district may not aid religious schools. Yet aiding religious schools is exactly what the (Choice Scholarship Program) does.”

The 19th-century bigotry is both despicable and disturbing, but, in a 21st-century reading, the language in the amendment seems entirely neutral. What to do? Should one base an important ruling on a poisoned amendment? Or is it fair to say that if the amendment were being read today as anti-Catholic, it would have been easily, and long ago, overturned?

We know how the state Supreme Court read it, if in a split decision. But that doesn’t mean the U.S. Supreme Court would see it that way, if, in fact, the school board appeals and the Court agrees to hear the case. The Supreme Court has already ruled that some vouchers that are neutral on religion and not paid directly to religious schools can be used in any way that parents see fit. The question, then, would be whether the dodgy Douglas County-style vouchers qualify?

Let’s be honest. If the Blaine Amendment was born of anti-Catholic bigotry, the Douglas County vouchers were based, in large part, on finding a way to allow public funds to be used for religious school tuition.

Does anyone really think that this voucher plan is meant to improve public schools? Does anyone really think that, as public policy, this plan is meant to provide “choice” so that children can attend “better” schools?

Or is it all just a dodge?

In Douglas County, the choice for students seems to be basically a choice among religious schools. When the vouchers were put in place in 2011, 93 percent of eligible students chose religious schools. According to the numbers from the District Court trial, which found that the vouchers were unconstitutional (an appeals court ruled otherwise), 119 of 120 high school students chose a religious school.

And to be clear what we’re talking about, the state Supreme Court opinion noted that the voucher program plainly states that it permits eligible schools to make their admissions based on … religious beliefs.

Can we get any clearer?

Well, yes. Here’s how the system was to have worked, and see if my use of dodgy is unfair. To be eligible to receive the voucher, the student must enroll in the Choice Scholarship Charter School, which, it turns out, is not a school at all. It has no teachers. It has no building. It has no books. It has no readin’ or writin’ or ‘rithmetic. It has, let’s say it together, no students.

It has nothing but a name and a claim that the student is enrolled in the district so that the state will have to fork over money for the student. The state’s money goes to the parents, who get to choose which school to send their kids to attend. If the student were to enroll directly in a religious school, Douglas County couldn’t pay for it. But because the student enrolls in a phony-baloney not-really-charter charter school, the plan would mean for your tax dollars to be used to pay for someone to go to a religious school that wouldn’t have to admit your children if they were of a different religion.

In its editorial lamenting the state Supreme Court decision, the Denver Post wrote that the DougCo vouchers were “a modest, limited effort that expanded choice without undermining public schools.”

But Chief Justice Nancy Rice, in her opinion, didn’t agree. She said the Choice Scholarship Program was basically a “recruitment program” in which DougCo teamed with mostly religious partner schools to offer students and their parents “inducements” in the form of scholarships – which, it seems, are not necessarily limited to scholarly endeavors.

If the Colorado Supreme Court is right, the program doesn’t seem modest or limited. But the question now isn’t only whether the state court is right — it seems to me it must be — but whether it will get the last word.


Photo credit: Waiting for the World, Creative Commons, Flickr.

Littwin: Ask a hippie: Strange ways to celebrate marriage equality

The timeless truth is that the world changes. Not all the change is good. But when it advances the cause of equality, that’s a time for celebration.


It was a 5-4 decision for same-sex marriage, but don’t be fooled by the close vote. This is not a country divided. This is a country evolving.

You could look at any poll as evidence for that. But this ruling is not about polls. It’s about human rights, about civil rights, about fundamental rights, about the right (which couldn’t be more fundamental) to marry the person you love.

This is the ruling for which Justice Anthony Kennedy, the hero of the day, will be long remembered, the finding that gays have the same right to marry as straight people. When you see a change that dramatic, you shouldn’t be surprised that the dissents from the holdouts are so angry.

It is pretty much a given that no social issue has ever turned so quickly, or so unexpectedly, as gay rights and the trail to same-sex marriage. And if how this came to be remains up for debate — and will no doubt be studied for years — the fact of it is not. It happened, and the Supreme Court had no choice but to catch up. If the same vote were taken 10 years from now, it would likely be unanimous. If the same vote were taken 10 years ago, well, it wouldn’t have been taken. In 2008, there was too much political risk for Barack Obama to even say he favored same-sex marriage. Instead, he had to suggest he was “evolving.”

So, don’t worry about Mike Huckabee’s talk of “tyranny.” Or Scott Walker’s pandering call for a constitutional amendment to overturn the court’s ruling. Huckabee says that only the “Supreme Being” — not the Supreme Court — can decide these things. Well, so far, corporations are people, but Supreme Beings can’t register to vote.

It’s about human rights, about civil rights, about fundamental rights, about the right (which couldn’t be more fundamental) to marry the person you love.

John Roberts, the man who saved Obamacare, said it may be a great day for gay rights but it was a terrible day for the Constitution. I don’t know if there’s a constitutional right to dignity. But I know something about equal treatment under the law and about the protection of the rights of minorities.

Roberts said that this right, unlike so many others, should be a matter of popular vote. Antonin Scalia, because he’s Antonin Scalia, went so far as to say that a decision by the Court’s “select, patrician, highly unrepresentative panel of nine” violates “a principle even more fundamental than no taxation without representation: no social transformation without representation.”

How far off can this be? How out of touch can this be? Well, you’ll see just how out of touch.

Kennedy’s role as the swing vote has been central to every advance by the Court on gay rights. You know this because he was held up for particular ridicule by Scalia in his dissent. But just who was the joke on?

To figure it out, all you had to do was read Scalia’s unintentionally hilarious line in which he mocked the constitutional reading of a freedom of spirituality by writing “Ask a hippie.” As the resident long-haired columnist (see photo above), I can attest that Scalia is about 40 years out of touch, sort of like my hairstyle. Maybe Scalia should ask a hipster.

Of course, Scalia also wrote about putting a bag over his head, and, I guess, it wouldn’t be a bad idea to put that up for a vote.

For the next months, or at least until the end of the GOP primary season, you’ll hear a lot about protecting the rights of those who object to same-sex marriage for religious reasons. In Alabama, a few counties have decided not to do any marriages so they don’t have to comply with the law. Which is why it’s Alabama. In Texas, the attorney general said “no law” would change the fundamentals of marriage. Which is why it’s Texas.

And while I certainly have sympathy for arguments of conscience, I’m a little skeptical of this one. Most of the same people who oppose gay marriage also argued against gays serving openly in the military and serving as Boy Scout leaders and, for that matter, living in civil unions. Is this really about marriage or is it about, say, Ken Buck once comparing gays to alcoholics?

Here’s a test. Ask yourself if county clerks should really be permitted to deny gay couples a marriage license as a matter of conscience. Then ask yourself if it’s OK for a public school teacher to recuse himself from teaching gay students as a matter of conscience.

The old argument that same-sex marriage will destroy the institution of marriage is a tired one that doesn’t hold up to scrutiny. The argument that marriage is somehow an unchanging institution has been refuted. If anything, conservatives should be encouraged that so many people are suddenly discussing the value of marriage.

The timeless truth is that the world changes. Not all the change is good. But when it advances the cause of equality, that’s a time for celebration.

Of course, it’s entirely up to each person to celebrate as you please. You can read Scalia. Or you can check out the Tweeted celebratory wedding photo of George Harris, 82, and Jack Evans, 85, the first same-sex couple to be married in Dallas. They’ve been together for 54 years. And now, and only now, is it legal for them to get, well, legal.


Photo credit: Purple Sherbet Equality, Creative Commons, Flickr.

Littwin: Obamacare marches on, and healthcare will never be the same

The problem with King v. Burwell is that it was never about Obamacare. It was only about winning and losing.

Supreme Court

The problem with King v. Burwell was not that it was wrong-headed (although it was) or that it was based, as Chief Justice John Roberts put it, on a tortured reading of “the ultimate ancillary provision: a sub-sub-sub section of the Tax Code (although it is).

The problem with King v. Burwell is that it was never about Obamacare. It was only about winning and losing.

It was, as everyone knows, the ultimate find-the-poison-pill-in-the-bill game, in which a group of elite conservative lawyers scoured the many thousand pages of the bill to find something – anything – that might gut the law. They found four words, four ambiguously written words. The four words got them to the Supreme Court, which must have surprised even them. The four words – taken out of context – would have basically destroyed the law and sent it down the dreaded death-spiral (not death-panel) course.

The four words suggested that the law did not intend for people covered by the federal exchanges, as opposed to state exchanges, to be eligible for subsidies, something that no one — as in no one – actually believes.

No one was arguing the law. They were arguing whether these four words meant to bring out the lethal injection package.

Let’s be honest. The experts had dismissed the case until the arguments began and they watched, with some dismay, as light briefly turned to dark and theories were put forth about Congressional intent that were contradicted by the actual words said in Congress at the time. If you’re looking for the real Orwellian thing, this was it.

In these four words, we had nothing more than a continuation of the 50-odd futile votes to repeal Obamacare that had been taken in the House. As more than one observer has noted, the Republicans must actually be happy they lost this case because, if they’d won, they’d have had to do something about health care reform. Now they can just continue complaining about Obama rather than coming up with an alternative. Hey, it’s a living.

For Republican opponents of the law, winning is being able to continue to fight the law. In which case everyone – with the possible exception of a truly angry Antonin Scalia – gets a victory. That includes Obama, Obama’s legacy, the dozens of people running for the GOP nomination, the 16 million or so now benefiting from being insured, Harry Reid and Nancy Pelosi, and every need-a-column pundit I know.

How sick is that?

Obamacare survived King because John Roberts and Anthony Kennedy refused to play the game, which, now that we know the ending, or, more accurately, the ending of this particular round, allows us to laugh when Scalia says we should change Obamacare to SCOTUScare or that the majority opinion is “interpretive jiggery-pokery.” My favorite is “pure applesauce,” which Scalia apparently borrowed from Will Rogers, who (just sayin’) probably would have favored Obamacare.

If you ask your favorite law professor – it’s convenient to have one in the family, as I do — Roberts made the conservative call, the anti-judicial-activism call. The only reason anyone thought this case had a chance was that conservative justices had given up on the idea of judicial restraint, so long as they had the 5-4 advantage. And Roberts had gone along.

But, in both Obamacare cases, Roberts must have been embarrassed by how far the activists on his side had gone. And so, he didn’t make law this time. He looked at the law and saw clearly what it said — that, in Roberts’ words, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”

Scalia said that the court will be remembered for going out of its way to support laws it “favors.” But Scalia is wrong. What will be remembered is that the court wisely refused to be drawn into the fight.

In ordinary times, the fact that two conservatives joined four liberals on the court would put it all to rest. But these are not ordinary times.

In ordinary times, Republican 2016 candidates, knowing that great majorities of people favor large portions of the law, would come up with plans to, you know, improve it. But in these times, the only way to get nominated in the GOP is to oppose any law named for, or favored by, Obama. Check Ted Cruz’s tortured path on the trade bill as just one example.

So, what’s next? Well, we can start with what Cruz said back when the repeal efforts began – you remember, it was tied to the threat of a government shutdown – as he told Fox News: “If we’re going to repeal it, we’ve got to do so now or it will remain with us forever.”

Once the exchanges and subsidies start working, Cruz said, people will get “hooked on Obamacare so that it can never be unwound.”

People are getting hooked. And thanks to the Court, nothing can happen now so long as Obama is president. If the Democrats win in 2016, the game is over, and Obamacare will become, as Obama suggested, as accepted as Social Security and Medicare. If Republicans win, the fight starts all over again, but the fight will be based on what works in Obamacare. No one’s going back to a time when insurance was denied for pre-existing conditions. No one, in fact, is going back to a time where the goal was not to make sure everyone has insurance.

The fight will continue. That’s the point. But the ending, which we thought was clear, now almost certainly is. Applesauce, indeed.


Photo credit: Mark Fischer, Creative Commons, Flickr.

Littwin: Taking down the Confederate flag and racist pride, too

It’s not the end of racism, any more that electing and re-electing Barack Obama was the end of racism. But it might just be the end of pretending that racism doesn’t exist.

Confederate flag graveyard

When the governor of South Carolina called for the Confederate battle flag to be removed from the State House grounds, it felt as if the world had stopped, if just for moment, to give itself time to adjust.

Yes, the moment was that big.

It’s not the end of racism, any more that electing and re-electing Barack Obama was the end of racism. But it might just be the end of pretending that racism doesn’t exist, the end of pretending that somehow talking about race is the real racism, the end of the idea that all we have to do to end racial discrimination is just announce that we’ll stop discriminating.

In the age of #blacklivesmatter, the horror of the murders at Emanuel AME church seemed almost inevitable. And so Gov. Nikki Haley had no choice. There was nothing to be done to bring back the dead, but the longstanding controversy over the Confederate flag would have to be addressed. She would be joined by Sen. Tim Scott, a Republican African-American, and Sen. Lindsey Graham, a Republican presidential candidate, in saying that the flag belongs in a museum, not flying over their state.

It isn’t really in dispute that the flag is a symbol of a war fought to defend slavery. It’s in the history books, or most of them. It’s in the South Carolina declaration of secession. You could look it up.

It isn’t really in dispute that the flag is a symbol of a war fought to defend slavery.

And yet, it was because it was so obvious that the story became so compelling. You just had to watch Haley’s speech to see the rare thing – hard truths being spoken by a politician. Haley, who has dodged the issue for years, talked briefly about the flag and “heritage,” but then came to the real point, that for many the flag was a “deeply offensive symbol of a brutally offensive past.”

And yet here might have been a way out. If only the city of Charleston had rioted. Or if only the families of the victims hadn’t been so generous as to say they forgave Dylann Roof for his grievous sin. Or if only Roof hadn’t identified a hate crime so closely with the Confederate flag and the most vile racist libels.

It was all too obvious. It was so obvious that Mississippi’s Speaker of the House Philip Gunn said that the Mississippi state flag – which incorporates the Confederate battle flag – needs to be replaced. The Jackson Clarion-Ledger said that it was the first time a Republican politician in Mississippi had ever made that call.

It was so obvious that Obama, who is coming to Charleston to eulogize Clementa Pinckney, used the N-word – to make the point that you don’t erase hundreds of years of history by no longer saying the word “nigger” in polite society.

For a time, it seemed the flag controversy was being used to give cover to those who didn’t want to talk about gun violence. And if you doubted how hard it is to deal with the issue of guns, it now seems that even race is an easier subject to confront.

But as we watched a parade of Republican presidential candidates refuse to take a stand on the flag, it was obvious, too, where we stood. What could be easier than simply speaking the truth — to just say that whatever South Carolina chooses to do, it’s wrong to fly that flag? Instead, Marco Rubio said all but nothing. Ted Cruz said he saw “both sides.”

Then Mitt Romney, the Republican nominee from another campaign, said the flag had to go. And Democrats were saying the flag had to go. And the party of Lincoln was in a bind, in such a bind that behind the scenes leading Republicans were begging Haley to get them off the hook.

We know this history, too. John McCain had admitted that he had failed himself, and his conscience, when he ran in 2000 and said it was up to South Carolina what to do with the Confederate flag. He did it, he said, because he thought he couldn’t win the GOP primary otherwise. At that point, it still flew from the State House dome. Then it was moved to a Confederate memorial on the grounds. And now Haley is ready to call a special session of the legislature if she can’t get the two-thirds vote to remove the flag altogether.

The flag, after all, has little to do with heritage and pride, unless it’s white heritage and white pride. The flag is not about culture. It’s about glorifying a war to defend the greatest stain on our nation’s history.

The flag took its place atop the South Carolina dome in 1961. They didn’t just rediscover the Civil War in the ’60s. This was about desegregation and Brown v. the Board of Education and the federal government’s right to enforce its laws. It was about Southern identity in the time of Jim Crow.

It was about bumper stickers popular in my youth featuring a gray-bearded Confederate soldier hoisting a Confederate flag and shouting, “Forget? Hell!” or “Forget? Hell No!”

What do you think all the hell-noing was about?

You can make a list. A war that nearly split our country. Jim Crow. A hundred years of apartheid. A hundred years and more of lynchings. The riots at Ole Miss. George Wallace. The firebombing of the children in Birmingham. Schwerner-Chaney-Goodman. Medgar Evers. Bull Connor. Little Rock. Selma.

The list goes on. But the flag, 150 years after the end of the Civil War, might finally be coming down.


Photo credit: Mr.Tin.D.C., Creative Commons, Flickr.

Littwin: Secrecy and self-destruction in Colorado’s GOP

State Republican Chairman Steve House accused Tom Tancredo, Cynthia Coffman and Becky Mizel of blackmail and bullying. Somebody’s lying and needs to fess up and step down.


Before we dig too far into the details of the Colorado GOP’s dance with extortion and dysfunction, I think we can first all agree that Attorney General Cynthia Coffman has undoubtedly learned some valuable political lessons along the way. Unfortunately, we can also all agree that she learned them at the same time she was destroying her political career.

Life, huh?

Coffman has just confirmed to the National Review that she had already decided she wouldn’t be running for U.S. Senate against Michael Bennet, but she might as well have told them that if she’s ever seen running again, it would only be for cover.

Oh, the lessons are plentiful, starting with the one that it’s never wise to find yourself on the same side of the barricade as Tom Tancredo. Tancredo loves The Godfather, and he must love the Barzini/Tessio references flying around the Internet. And the attempted coup of Steve House — a move so like Tancredo — is his best since he found himself on a park bench in a quit-or-else meeting with Dan Maes.

I’m going to tell you something I thought I’d never say. This story is almost as good as Dan Maes. If we find out that someone was riding a United Nations-approved bike, we may have a new leader.

“They have to reveal the charges. It’s time to put up or shut up.”

What we do have, though, is the unofficial record for the fastest time in blowing up your career while also being accused by your state party’s leader of blackmail or extortion or whatever the legal term is. Congratulations to Coffman, who should be able to help us with the legal terminology. She’s the lawyer. (Just wondering, but how long before we get a special prosecutor, and how special would this prosecutor have to be to untangle this mess?)

Putting it in the best light for Coffman, she engineered a coup three months ago to replace former GOP chairman Ryan Call even though state Republicans had enjoyed their best electoral year in a decade. And now she has demanded Steve House, whom she picked to replace Call, resign because, well, she won’t say. Except that it’s serious. Tancredo says gravely serious. So serious that it’s too serious for the rest of us to know anything about.

OK, that’s the best light. She’s the AG who thinks her job is to run the state party. She’s the AG who backtracked on her protege in embarrassingly record time. She’s the AG who is accused by House of threatening him with lawsuits and threatening to spread rumors — ones he denies — of infidelity if he didn’t quit, which sounds like it could be illegal.

And now for the worst light. Oh, it’s exactly the same.

If you read the national political sites, you see one unnamed Republican operative saying the Colorado GOP is a “third-world backwater” (via Politico Pro) that may have to be cut off by the national party and another quoted (via Roll Call) saying he’s glad both Coffmans are not running because “I think behind the scenes this is sort of a scary public display of what the rumors had been; it’s pretty troubling that the attorney general is going around threatening people.”

Or you can read ace reporter Lynn Bartels quoting Dick Wadhams – the state GOP chair before Ryan Call – calling out Coffman and Tancredo for refusing to reveal just what exactly led to their attempted coup.

“They have to reveal the charges,” Wadhams said. “It’s time to put up or shut up.”

Shut-up time has passed, so we’re left with a reveal. It can’t be because House (wisely) refused to give Ted Harvey the job of GOP Executive Director, can it? I mean, can it? Who goes all Barzini over Ted Harvey?

Here’s what Tancredo said in one of his many interviews (this one with CBS4) about the ambush/meeting: “Did we confront him with what we were concerned about? Yes. Did we absolutely suggest he should resign? Yes. We did not extort him.”

But Tancredo has conceded to several reporters that infidelity did come up in the conversation. He has been advised, he said, not to say more, which is basically impossible for Tancredo, who did take the time to say that Cynthia Coffman was the ringleader of the coup and that many legislators were behind them.

My favorite Tancredo moment, though, comes in his quote to Bartels about first backing House and then stabbing him in the back (my words, not Bartels’) just months later: “My bad,” he said.

Well, it’s not just his bad, although why anyone would follow Tancredo, the ultimate back-benching bomb thrower, I have no idea, except that the bomb-throwers have taken over the state GOP. I had never put Coffman in that group, but now? …

Coffman and Tancredo were joined by Pueblo GOP chair Becky Mizel in the meeting/ambush, but this is really all on Coffman.

She has denied making “threats.” Of course, she first said she wouldn’t comment on “rumors and lies.”

Yes, someone has lied about the meeting/ambush. It’s either Coffman or Steve House, who first quit the job after the coup attempt and then un-quit. Maybe it’s both. What we know for sure is that it was the House manifesto – reprinted everywhere now in all its glory – that blew everything up. The charges that he put out there are serious. Gravely serious. And they must be answered.

Coffman said she had no choice but to confront – if not threaten – House. Now, she’s got no choice but to tell us what she knew and when she knew it. Otherwise, how can we know exactly who should be resigning from which job?


Photo credit: Airwolfhound, Creative Commons, Flickr.