Last week the U.S. Supreme Court issued perhaps its most important opinion of this term in a case called Masterpiece Cakeshop v. Colorado Civil Rights Commission. The ruling struck a blow for tolerance in America.

That last sentence will come as a surprise to my liberal friends.

A little background if you haven’t heard of the case: In Masterpiece, the plaintiff was Jack Phillips, an expert cake baker and devout Christian. For years Jack ran his store, Masterpiece Cakeshop, and made elaborate, beautiful cakes for weddings and other special occasions. His cakes are works of art. If you don’t believe me, visit his website, masterpiececakes.com, to see for yourself.

In 2012, two gay customers entered Jack’s store and asked Jack to design and bake a cake for their same-sex wedding. Jack said he would gladly bake a cake for the two of them for any other reason, but his religious convictions prevented him from baking a cake for a gay wedding. The couple then filed a discrimination complaint against Jack, claiming he violated a Colorado law which bans discrimination based on sexual orientation. Jack showed that he had happily served gay customers before, and that he did not refuse to serve people based on their sexual orientation, but instead simply refused to participate in a ceremony that conflicted with his faith.

The State of Colorado found Jack in violation of the statute. During the hearing on the matter, Colorado officials compared Jack’s arguments to arguments for slavery and the Holocaust. The government ruled Jack had to reverse his store’s policy, and store employees had to undergo reeducation about the harm they had allegedly caused.

Jack decided he would not be steamrolled, though. He took the matter to court, arguing that Colorado had taken away his First Amendment rights. He endured years of public criticism for standing up for himself and his store. His case eventually wound its way to the Supreme Court, which ruled in Jack’s favor, 7 to 2.

The Court said Colorado acted in a hostile way during Jack’s hearing. They said Colorado was inconsistent, too. Colorado allowed gay cake bakers, for instance, to deny service to customers who wanted a message on a cake that was hostile to same-sex marriage. But when it came to Jack, Colorado insisted that he make cakes for gay weddings.

The Court made the right call when it ruled in Jack’s favor. The Court prevented a world where a black wedding photographer could be forced to take photos at the wedding of a white supremacist, or a Jewish cake baker could be forced to work for an anti-Semite. Artists shouldn’t be forced to speak messages that conflict with their views.

The case has a long list of other consequences, too, and some of them are local. Mississippi passed a bill not long ago called HB 1523, which protects the religious liberty rights of Mississippians who oppose same-sex marriage. HB 1523 already led to one lawsuit, which was thrown out, and I predict it will generate more litigation. While the Court in Masterpiece did not speak directly to a statute like ours, its statement that “religious and philosophical objections to gay marriage are protected views” could help the state defend HB 1523.

The far more important consequence, though, is the signal this ruling sends to society. To be sure, Masterpiece involves an emotional issue for many. America is still a nation divided on the question of gay marriage. I have many close friends and even family who disagree with my views on the matter. Those disagreements have taken on an ugly form in the last few years. People of faith who have a particular understanding of marriage are called bigots and publicly shamed.

This volatile disagreement is just as much a product of a cultural divide as it is an ideological one. People feel that entertainers, media personalities, giant corporations (Bud Light even tells me to believe in gay marriage now), and others located in a few, elite zip codes enforce a code of beliefs, and if you violate the code on this issue, you may as well be a defender of Jim Crow. In short, people feel bulldozed over what they believe.

It can be hard to be a person of faith in such an environment. We must show others that a person can believe in traditional marriage and also believe all human beings have dignity and worth. But if you cannot convince them of that, you have to be willing to fight for your views.

For those of us willing to fight, we found help from an unexpected source this week: nine lawyers in robes in Washington, DC.

This column appeared in the Clarion Ledger on June 12, 2018. 

Like individual rights, the family as an institution preceded the institution of government.  History has shown that the type of family that is most beneficial to society—and to children—is the two-parent family that begins with marriage between a man and a woman.  An indispensable component of ordered societies, the family is where children are best taught character, honor, the importance of hard work, virtue, citizenship, and respect for authority. As the fundamental building block of society, the family’s prosperity is essential to the development, advancement, and continuation of society. When families are healthy, communities are healthy; when families deteriorate, communities deteriorate.  

All levels of government should protect this foundational unit.

Welfare programs initiated in the 1960s had the unintended consequence of devaluing the contribution of a father to the family—resulting in a sharp increase in female headed single-parent households. (For more on this, see Principle #6.) Those programs still favor unmarried couples over married ones. Another example of harmful policy is the “marriage penalty” in the federal tax code, which causes married couples to pay more in federal taxes than they would if they were single. (Fortunately, Mississippi no longer has a marriage penalty in our state’s tax code; exemptions and deductions for married couples are double those for singles. Still, married couples in Mississippi are affected by the federal penalty.)

Marriage is a relationship unlike any other between humans. Far more than a mere "contractual" arrangement, marriage is a covenant between a man and a woman. Because of its unique position, and because the stability of society is so indissolubly bonded to the stability of the institution of marriage, government does have a responsibility to protect it.

When it comes to raising children, government should not substitute its judgment on what constitutes the “best interest” of a child. Parents know their children best and can best understand what their family needs.  How can a bureaucrat or politician judge better than parents?  Only in unambiguous cases of habitual abuse or neglect should government step in. In cases that are so dangerous that a child must be removed from the home, the child should not be returned unless there is clear evidence the parents have radically changed their behavior.

Perhaps the most consistent way government interferes with the decisions of parents—especially in low and middle-income families—is by taking so much of their money that both parents are forced to work, even if they believe their children would be better served by having one parent at home. Ironically, the money taken by government is justified many times as being spent "for the children."

It is imperative that the type of family to be esteemed and taught as the ideal is the one based on traditional marriage. Government officials must carefully consider the long-term impact policies will have on the family and should do nothing that undermines or harms the traditional, marriage-based, two-parent family. When government officials understand this role, they will govern with humility and restraint.

This is an excerpt from Governing By Principle, MCPP's ten principles to guide public policy. 

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Many free-market think tanks believe it is counter-productive for think tanks to engage in the culture wars. They think our time should be focused exclusively on policy research, legislative outreach, and legal action. And while those activities are important for limiting government and encouraging individual flourishing, we should also be engaged in the war taking place in our culture.

The reason culture wars are important is, while policy, political, and legal actions tend to be lagging indicators of what is happening in our society, culture is a leading indicator. Culture signals what people believe and what they value. Want to know where our world is headed? Don't look to the halls of Congress or the Mississippi Legislature. Politicians follow the lead of the masses. Instead, look to the most popular TV shows, movies, and sports stars. They are shaping how people think about what is morally right and fair.

Presently, the progressives (opponents of free markets and limited government) dominate discussion in the culture wars. If conservatives and libertarians fail to engage on culture, we will lose when it comes to policymaking and litigation down the road. The fight begins in the culture.

Fighting progressives in the culture wars is akin to weeding your garden. If you want to grow a beautiful flower, you need to feed it sun, water, and nutrients, but you also need to remove weeds. If left unattended, invasive weeds can grow stronger. If not pulled early, they can take root in the soil and begin to compete with your flower. Over time, weeds can steal the water, sunlight, and nutrients. They can become bigger, taller, and stronger than your precious flower. While we focus on nurturing the fragile flower of liberty, we also must fight the weeds of collectivism, liberalism, and progressivism.

I'm encouraged by the culture debate that took place in NFL stadiums about national anthems last year. While progressives have infected the arts, higher education, Hollywood, and news, we still have a chance to keep sports inoculated from the disease. Until recently, sports have maintained their status as a great unifier of people from different backgrounds. No matter our race, color, sex, age, country of origin, or political interests, we share a love for our teams. As NFL owners, players, ESPN, and ESPN's parent company, Disney, learned the hard way, sports consumers want their sports delivered free of social commentary and political opinion. If a consumer wants political analysis, there are plenty of other channels.

The NFL controversy was just a small skirmish in the larger culture war. There will continue to be social justice warriors who are constantly in search of a victim to protect. There will still be virtue signalers who want to show how compassionate they are but ignore the broader consequences of their actions. Folks will continue to do things like sit for a national anthem, for instance, even if it erodes a unifying, patriotic gesture that should be used to bring us together. But the NFL skirmish showed those with traditional values could win. There is a time and a place for rigorous debate about social policies. That time is not during the national anthem of our nation's sporting events. If nothing else, perhaps we preserved the joy of watching live sports delivered to our devices without political interruption. It remains to be seen how long the defense will hold, though. We must keep fighting.

Ron Matis, Gov. Phil Bryant and MCPP VP for Policy Dr. Jameson Taylor

Lotteries tend to be popular with the public because they conjure up dreams of easy money and the good life. Indeed, Mississippi voters approved the concept of a state lottery in 1992 when they repealed a constitutional ban on lotteries. That same year, Mississippi’s first dockside casino opened. While many forms of gambling are now legal in Mississippi, state law still prohibits the operation of a lottery and the in-state purchase of lottery tickets. 

In evaluating whether Mississippi should legalize the lottery, lawmakers should realize, first and foremost, that the lottery is a kind of tax – and that, in particular, it is a regressive, or unfair, tax that has negative social impacts.

The Lottery is a New Tax

The primary purpose of a state-monopolized lottery is to generate revenue for the state. This reality is not well understood. There are essentially two types of lotteries: those operated by private vendors; and those controlled by government. Because private lotteries have historically been plagued by corrupt practices (and not infrequently government-run lotteries as well), states have sought to control their own lotteries.

Currently, all but a handful of states have state-controlled lottery monopolies. These monopolies are unique insofar as they are not “natural monopolies.” Road building, sewerage provision, and until recently, mail delivery, are examples of natural monopolies typically presumed to be properly controlled by government. In the case of the lottery no overriding financial or logistical reason justifies a government monopoly.

The state’s monopoly over the lottery allows it to charge a price for the lottery ticket that is well above what a private lottery might charge. This excess charge is essentially a tax. The tax is around 27 percent, but it varies in every state. This 27 percent surcharge is what in gambling parlance is called “the vig.” It’s what “the House” gets regardless of the outcome. In the case of the lottery, the House is the state – and it has a big edge. After the government gets its take, the rest of the money generated by the lottery will go toward winnings and administration. Then, the actual winner has to pay state and federal income taxes on top of that.

It might seem strange to think of the lottery as a tax. The Tax Foundation explains:

Lottery revenue meets all three tests for defining a tax. Current U.S. Supreme Court Justice Stephen Breyer laid out the criteria for defining a tax when he decided the San Juan Cellular case for the First Circuit Court of Appeals in 1992. Breyer argued that a judge should consider who imposes the assessment, who pays the assessment, and what the revenue is spent on.

In the case of a lottery, the Mississippi legislature would be imposing the assessment – just like any other tax, as opposed to a targeted fee imposed by a state agency. Likewise, lottery ticket buyers represent “a broad swath of the public,” rather than a “narrow group that benefits from a particular government service.” In its application, the lottery thus functions like a tax, rather than a fine or fee. Finally, lottery revenue is generally fungible, or at least spent on a “broadly defined benefit.” In short, the lottery meets all three legal tests for defining a tax.

The following statements by lottery proponents confirm this conclusion:

“The Legislature is not passing any revenue (tax increase). That (lottery revenue) is money available for education – should be spent on education.” – Mississippi Attorney General Jim Hood

“When you’re looking at some of the challenges that we’re having and you see a revenue bill that would generate somewhere between 50 and 60 million dollars – just an estimate – I think that's something that needs to be taken seriously by the members of both the House and the Senate.” – Mississippi Governor Phil Bryant

“I think it should go to education. But in as much as when we earmark money, sometimes we take that money from that department, so with that in mind, the best thing would be to just put it in the general fund.” – State Rep. Alyce Clarke

In summary, the lottery is a “revenue bill” that will be passed with the intention of generating money for the General Fund, or at least, for a broadly defined purpose, such as education. In other words, it meets the legal definition of a tax.

Lottery proponents often balk at defining the lottery as a tax, asserting that buying a lottery ticket is voluntary. Because the state would hold a monopoly over the lottery, however, the tax is not voluntary at all. In order to purchase a lottery ticket, consumers must pay the lottery tax. True, participating in the lottery is not mandatory, but neither is purchasing a car, earning income, or doing all manner of things that are taxed. As long as the primary purpose of the lottery is to generate revenue, and as long as a significant portion of lottery profits are collected as revenue, the lottery is a tax.

Under Mississippi’s joint legislative rules (rule 18), all bills generally related to revenue must be accorded a 3/5 vote by the legislature. Because the lottery is a tax (and, at a minimum, related to raising revenue) any bill that would create a state-controlled lottery must pass by a 3/5 vote in the Mississippi legislature. Otherwise, the lottery will be challenged in state court.

Because the lottery is a tax, its fiscal impact must also be evaluated in light of other forms of taxation. While all taxes influence behavior in some way, economists generally agree taxes should have low compliance costs, be fairly applied and minimize negative social impacts.

The Lottery is a Bad Tax

In comparison to other taxes, the lottery is particularly bad policy. To begin with, the lottery is an inefficient tax with high administrative costs. Observes economist Dr. Roy Cordato: “To raise a dollar’s worth of state revenue through a lottery could cost anywhere from 20 to over 50 times more than it would cost to raise the same dollar through other forms of taxation.” These administrative costs are thought to range between 15 percent and 20 percent and go toward advertising and paying retailers who sell lottery tickets.

In addition, the lottery is an unfair, or “regressive” tax. Generally speaking, “a regressive tax imposes a greater burden (relative to resources) on the poor than on the rich.”

In 2015, Americans spent $73 billion on lottery tickets. That’s about $630 for every household in the United States. It’s also about the same amount spent on the SNAP (Food Stamps) program annually. According to the Associated Press, Americans spend more on the lottery than on “movies, video games, books, music and sports tickets combined.” 

Every American household, however, is not spending $630 on the lottery. Generally, the poorest one-third of Americans buy more than half of all lottery tickets. Even the North American Association of State and Provincial Lotteries, an industry association group, acknowledges 25 percent of lottery players earn less than $25,000 annually.

A report from Harvard’s Shorenstein Center on Media, Politics and Public Policy reviews some of the academic literature demonstrating the regressivity of the lottery tax:

A 2012 report in the Journal of Gambling Studies finds that “those in the lowest fifth in terms of socioeconomic status (SES) had the ‘highest rate of lottery gambling (61%) and the highest mean level of days gambled in the past year (26.1 days).’”

A 2011 study, also in the Journal of Gambling Studies, concludes the “poor are still the leading patron of the lottery.”

A 2010 report in the Journal of Community Psychology observes that “lottery outlets are often clustered in neighborhoods with large numbers of minorities, who are at greatest risk for developing gambling addictions.”

Likewise, a 2009 survey commissioned by the South Carolina lottery found that those earning less than $40,000 a year constitute the majority of lottery players, even though they make up less than one-third of the state’s population. Another 10-year study that looked at lottery sales data in 39 states found “a strong and positive relationship between sales and poverty rates” (but not a similar relation between poverty and movie ticket sales, movies being an alternative form of inexpensive entertainment). The authors, however, conclude that “the poor are relatively more likely to see the lottery as a financial investment, and relatively less likely to play for entertainment.” Similarly, other research suggests lottery ticket purchases are financed by forgoing basic necessities. Generally, the breakdown is a 3 percent reduction of spending on food; and a 7 percent reduction on rent and other items.

Again, all this is to say that the lottery is a regressive tax disproportionately paid by low-income people.

In terms of tax policy, it’s also helpful to consider what kind of behavior a lottery tax encourages or discourages. The real question here is whether a state lottery would encourage more gambling or whether it would merely capture gambling that is already occurring via other lotteries in neighboring states.

The answer is complex. Clearly, Mississippi is hoping to both capture a market that exists (and is being diverted to other states) and also develop a new market. The strongest argument for a state lottery is that the state is losing lottery tax revenue to other states when Mississippi residents buy lottery tickets in other states. Interestingly enough, the two states immune to this dynamic – Alaska and Hawaii – do not have state lotteries.

Clearly, for many Mississippi residents, travelling to another state to buy a lottery ticket constitutes an investment of time and money – what economists call an “opportunity cost.” Some evidence suggests that, all things being equal, large jackpots are necessary to attract middle-class and out-of-state customers to buy out-of-state lottery tickets. When the jackpot is high enough, people will drive to another state to buy a lottery ticket. These same customers are more likely to play the lottery as a form of entertainment.

By contrast, low-income players disproportionately favor scratch-off (instant win) lottery cards; and the largest segment of lottery revenue (as high as 80 percent) comes from scratch-off games. For this reason, scratch-off cards represent the worst, and most regressive, form of lottery taxation. While the state is likely “losing” some revenue to players who cross the border to play scratch-offs, the spontaneous nature of such play suggests the loss is minimal. No doubt, a legalized lottery will see targeted advertising aimed at creating new players for these games. As in other states, much of this advertising will appear in low-income neighborhoods. As in other states, every year will see new marketing plans aimed at attracting new players. As in other states, new and more games will be developed with the hope of increasing frequency of play. In order to keep generating revenue from the lottery tax, the government will become the foremost proponent of gambling in Mississippi.

Some readers will note that this brief is silent about the ethics of a lottery. From an economic perspective, a lottery is destructive because it is a nonproductive activity. As stated above, the lottery, at best, is a form of entertainment; at worst, it is encouraging poor financial decisions by those who can least afford to gamble away their resources. In terms of tax policy, the lottery constitutes a high new tax with a regressive impact on the majority of players.

Protecting Freedom of Conscience
from Government Discrimination

Why is the "Protecting Freedom of Conscience from Government Discrimination Act" (HB 1523) needed today?

Before the Supreme Court case regarding same-sex marriage (Obergefell v. Hodges), we saw states discriminate against people who believe in one man/one woman marriage. For instance:

• California judges were barred from joining organizations that affirm one man/one woman marriage.

• A Washington state judge was admonished by the state judicial commission for saying he was "uncomfortable" with performing same-sex marriages due to his religious beliefs. He was ordered to not make such statements in the future.

• Governments in Illinois, Mass., and D.C. cancelled contracts to Christian-run adoption agencies because they only place a child with a married mother and father, even though the agencies referred other couples elsewhere.

Then, during oral arguments in Obergefell, the U.S. Solicitor General admitted that the tax-exempt status of private universities and colleges (and, by implication, all religious organizations) that define marriage as the union of one man/one woman would "be an issue" if the Supreme Court found a constitutional right to same-sex marriage -- which it did.

Following the Obergefell ruling, the pressure to approve of same-sex marriage has only increased for religious schools, nonprofits, public employees, small business owners and others. All of these individuals and organizations should be protected from government coercion that would force people with sincerely held beliefs about one man/one woman marriage to violate their conscience.

What does HB 1523 do?

The Protecting Freedom of Conscience from Government Discrimination Act (HB 1523):

• Protects individuals and entities from being penalized by the state or local governments for their moral or religious beliefs that marriage is the union of one man and one woman.

• Protects individuals and entities who believe that sexual relationships are properly reserved to such marriages -- such as a religious school that requires students and faculty to refrain from engaging in sexual activity outside of marriage.

• Protects individuals and entities from being penalized for believing that "male" and "female" are biologically based.

• Is supported by a majority (63 percent) of Miss. voters from both parties and every major demographic.

What does HB 1523 NOT do?

The Protecting Freedom of Conscience from Government Discrimination Act does NOT:

• Change the legal definition of marriage.

• Hinder or slow the process for providing marriage licenses to same-sex couples.

• Prevent the government from providing benefits or services authorized under state law.

• Create a "license to discriminate."

The Protecting Freedom of Conscience from Government Discrimination Act is focused on preventing government discrimination. States should not be in the business of forcing pastors, business owners and public employees to affirm conduct or practices that violate their sincerely held beliefs. Our government should never discriminate against, punish, or penalize people based on their sincerely held belief that marriage is the union of one man and one woman.