Homes on the range

Society of Professional Journalists Award
Society of Professional Journalists Second Place award for Political Reporting and Feature Writing to Scott Weiser for his Boulder Weekly article “Homes on the Range, June 27, 2002

by Scott Weiser

Jim Guercio is accustomed to fawning fans. As a record producer who helped make the Beach Boys one of music’s most legendary pop bands, Guercio learned how to give the fans what they want. These days, it’s county officials he’s trying to please, and critics say the Boulder County Commissioners are acting like obsessed groupies. “You could almost hear the ‘POP’ from the commissioner’s lips as they detached from Guercio’s buttocks when he left the room,” said one observer of the public hearing before the County Commissioners on Tuesday, March 27.

Guercio, who has already profited from land sales to Boulder County for open space to the tune of more than $15 million, has applied to build 23 luxury estate homes, a horse barn, a 5,000-square-foot “fishing cabin,” three back-country “cabins” larger than many mountain homes, and nearly 10 acres of trout-fishing ponds on his Caribou Ranch property northwest of Nederland.

More than 30 years ago, Guercio bought the Caribou Ranch, consisting of more than 4,000 acres, including a subdivision platted and approved by the county in 1963 called “Caribou City.” During the ’70s and ’80s, he made a mecca for recording by building a state-of-the-art recording studio at the Caribou Ranch homestead (see sidebar).

Guercio has rights to build 136 homes on the property. Starting in 1996, he sold 2,180 acres to Boulder County and the City of Boulder, and put another 460 acres under conservation easement. His new project would add another 1,029 acres to the total of preserved open space.

The commissioners are eager, some say overeager, to grant Guercio his request. They want to eliminate the possibility that the old subdivision could be developed-something the county cannot prevent because the subdivision was approved by their predecessors nearly 40 years ago. People familiar with the county’s “Byzantine” and “Machiavellian” land use regulations are concerned about the apparent ease with which Guercio’s project is being approved by county officials.

Critics suspect Guercio’s money and his political support of Commissioners Ron Stewart and Paul Danish in the last election helped to grease the skids for his development plans. He donated $1,000 to each politician’s campaign. They are upset that the county isn’t giving the same sort of intense, nit-picking scrutiny and micromanagement to Guercio’s project that they say it commonly dishes out to Joe Average Citizen when he applies for a building permit for a single-family home.

But the criticism isn’t being leveled at Guercio himself. Nobody, including members of the Land Use Coalition-a private property advocacy group that’s critical of the county’s land use process-seems to have any major objections to Guercio’s project. “It’s a great project. I think (Guercio) has done a very professional job,” Kevin Probst says. “It will be an exclusive development, there’s no question about that, but it is a good change to amend the process from building a hundred smaller homes to building 20 or so larger homes.” Probst, who ran against Danish in the last election-losing by some 17,000 votes-is the president of the Land Use Coalition and heads Boulder County Watchdog, an organization he started after the election to scrutinize county government.

“What I have a problem with is the hypocrisy,” he says, “He’s getting special treatment, and the commissioners are bending over backwards, to put it mildly, to grease the process for him, whereas Liz Weed and others have been put through years of abuse and torture.”

County Commissioners Jana Mendez and Paul Danish categorically deny that Guercio is getting special treatment. “It hasn’t been easy by any stretch of the imagination. He has compromised a lot,” Mendez says. “I think we bend over backwards to treat everyone the same.” Danish agrees with Mendez. “The negotiations at Caribou have been going on for months, so it’s not like he’s been put on a fast track,” he says.

Critics maintain that the county is obstructionist and extremely hostile to development, especially in the mountains, and that it commonly places onerous, restrictive conditions on property owners-such as limiting house sizes to less than 2,000 square feet of floor space. Some owners then abandon their plans; others simply bite their tongues and capitulate, hoping to salvage some value from their land. “The county sets it up to create conflict, and in fact encourages conflict. It’s a very divisive process, and it doesn’t need to be,” Probst says.

While the county and Guercio have been working on his plan for several years, the public took little notice, possibly because public hearings were not held during the negotiations. While some applicants suffer through multiple public hearings before the various commissions-in one case, more than a dozen-to build a home, Guercio has had just one public hearing before the Boulder County Planning Commission and one before the County Commissioners. His project, up for final action on Thursday, April 5, will almost certainly be approved at his second commissioner’s hearing, largely because if the county delays the decision it will jeopardize the finalization of the open space conservation easement sale, which is scheduled for closing on April 10. Probst, with some admiration, says Guercio is being a canny businessman and is holding the open space dedication hostage to the development approval, something few homeowners have the luxury of doing.

Jim Burrus, media information officer for Boulder County, disagrees. “Everybody is equal in terms of how the county deals with them,” Burrus says. “They take an application, they look at it and they say ‘what’s the best outcome that can happen with this application?’ In the case of Caribou Ranch, we’re faced with a proposal where, by right, this gentleman can build more than a hundred homes which would have a much greater impact than the alternative, which is to build 27 homes and donate many acres to open space. In the county’s eyes, we definitely want the lesser of the impacts.

However, complaints about the county’s abusive tactics are not unfounded. County critics say an egregious example is Liz Weed, who wanted to build a modest, environmentally friendly house on her 12-acre Sunshine Canyon mining claim. When she tried to get approval to build a road to the house site, the county staff recommended against it. After three public hearings with the commissioners, she was convinced that her application would be denied and that it was fruitless to proceed.

“She wanted to build a modest house at the end of an anything-but-modest road,” Danish says. “We said that we would approve a lot, but much closer to Sunshine Canyon. We’d approve a home site at the end of the road that goes in there now, which is a couple of hundred yards in, rather than one way out another thousand yards on down where she wanted to do it.”

But Boulder Weekly’s review of Weed’s application shows that her property doesn’t extend to the end of the existing road, or anywhere near it. It’s a long, narrow mining claim that begins nearly a mile from the county road and several hundred yards beyond the end of the existing road. There are several intervening private parcels between her property and the road, as well as Bureau of Land Management parcels. The location of the proposed road was the only possible place it could be built. There is no alternate access. More puzzling is the staff recommendation that the house site be approved, with conditions, near the end of the parcel farthest from the existing road, but that the road be denied. For fire and health safety reasons, county land use regulations require vehicular access to residences. This raises the question of whether or not the staff recommendations violated the county’s own land use code. Guercio, on the other hand, will be building several new roads, and abandoning some existing ones, to serve his estate subdivision.

A house cleaner by trade, Weed exhausted her meager finances and her emotional health in the process; she put the project on hold, afraid she would be drawn into an expensive lawsuit if she sought final approval and the road was formally denied. Unfamiliar with the process, unable to afford a staff of expensive professional planners like Guercio’s, and getting no help from the county, she asked that the application be tabled indefinitely rather than proceeding with the final public hearing for a decision by the commissioners. And that’s where it ended. “I’ve moved on. I had to. I don’t like to fight, and it wasn’t worth it anymore,” she said. “I don’t even care anymore, I’ve just let it go.” She plans to sell the land and move out of state. “It was meant to be for me, you know. I could not live up there now, and I guess it was all meant to happen this way.”

This treatment of citizens infuriates members of the Land Use Coalition, and it’s reason the group was formed. “The only difference between Liz Weed and Jim Guercio is about 40 million bucks,” says Boulder attorney and LUC member Ann Mygatt, who has had her own battles with the county. The coalition, made up of a sociopolitical cross-section of Boulder County, includes members of just about every political stripe. Mygatt describes herself as a dyed-in-the-wool “tax and spend Democrat.” “I think 90 percent of the people in this county are in favor of open space and would approve of whatever it takes to prevent any new development,” she says. “It never even crosses their minds that somebody else bears the costs. They don’t know about it, they don’t think about it. I was one of those people up until two years ago. As far as I was concerned, whatever the commissioners had to do, even if that meant crushing a few landowners, if that’s what it took, okay, fine. What changed my mind was finding myself in the process. It felt to me like someone was going to take my 401k and turn it over to the county.”

Probst concurs. He describes his encounter with the Land Use Department as “a humiliating, degrading experience.”

LUC members say that many citizens are flatly afraid to speak out or criticize the county out of fear of retaliation. Several sources refused to speak to Boulder Weekly on the record for that reason. “I’m sorry that anybody would feel that way,” Burrus says. “I can only assure the public that the county does not go out and retaliate against people. If somebody has a concern, and if they want to voice that concern, there’s a woman that works in the commissioner’s office who functions as an ombudsman. She’s our constituent services liason, Marianne Reichert. She deals with people who have a problem with any department: health department, land use, open space, whatever.”

The LUC claims that unlike Guercio’s self-admittedly pleasant experience, negative experiences with the land use department are hardly unusual. In 1999, the coalition commissioned a survey of more than 1,100 people who had been through the county’s site plan review process. Of the 163 people who responded, 79 percent of them made “only negative comments,” 9 percent made “only positive comments,” and 10 percent “made mixed negative and positive comments,” according to the LUC’s website (landusecoalition.org).

“Over 100 people (nearly two-thirds of respondents) took extra time to write additional comments,” coalition literature says, “The numbers generated from answers to the questions reveal only part of the story. Those who were moved to write additional comments present a more intense picture. Some who rated the process fairly well made additional comments that were harsh and negative.”

The county dismisses the LUC’s study as unscientific and not reflective of the true feelings of the majority of applicants, noting that the response rate to the LUC’s questionnaires was only 16 percent. The county believes that most people are treated like Jim Guercio and that acceptable compromises are reached in most cases. While it’s not possible to draw any precise or universal conclusions from either side’s claims, there do appear to be some significant issues about the county’s land use regulation processes that need scrutiny.

Burrus doesn’t entirely disagree. “There’s a very, very, very small minority of people who deal with the county in a site plan review that have not been happy with the outcome,” Burrus says. “Could it be better? Possibly. Certainly. I think that every organization can improve and do a better job. Are we actively pursuing that? Yes, yes we are. We are working on getting feedback from people who go through the process and we want to make that a continually improving and better process for the public, in general.”

But Burrus isn’t so charitable in his opinions of the Land Use Coalition and its examples of abuse. “Personally, I think it’s bogus grasping at straws. They have taken basically three or four people who are upset with the outcome that they had in the site plan review process and made them all poster children for some fabricated larger problem that does not exist,” he says, “We don’t screw-over dozens of people a year in our site plan review process. That’s not the case.”

Probst is amused by Burrus’ derision. “Years ago, before the Land Use Coalition, I think that there was encouraged in the staff a confrontational attitude that ‘we know better than you, and we’re going to get you to do what we tell you to do,'” he says, “Since the LUC, and other folks too, have been taking a stronger position, the staff is very much trying to work to solve problems rather than create problems.”

One of the major complaints critics have is the degree of deference that the county-in particular the county commissioners-give to complaints by the neighbors of planned projects.

“I think personally, it’s really politics,” Probst says. “It’s putting politics before people. They try and do things that will engender the most support from their base, which, as we’ve seen from the election, is here in the City of Boulder. It’s the folks who live in the City of Boulder but want to be able to see pristine mountains, and lots of open space. Well, I understand that’s who gets them elected, and they are doing what they can to do the things that will make those people want to re-elect them.”

Burrus doesn’t deny that neighbors have a significant impact on the decisions made by the commissioners. In fact, he sees it as a positive feature of the process. “It’s not so much the county’s vision necessarily, it’s the neighbor’s,” he says, “What somebody builds on a mountain piece of property has a huge impact.” “Neighbors have rights too.” Danish says in response to complaints that neighbors have too much say in the review process.

But this begs the question of what rights, exactly, neighbors have when it comes to controlling activities on property they don’t own. Few would suggest that a neighbor has a right to dictate what color someone’s house can be, or whether it can be built in front of his view of the mountains, or that he has a right to deny someone the right to build a house at all merely because it would be a “visual blight” to him. Such interference by one neighbor upon the other’s right to use and enjoy his property has little foundation in law. Yet that’s precisely what the county routinely does during site plan review, as factotum for neighborhood objectors. This raises the philosophical question of where the county’s authority to regulate such matters comes from.

“If the neighbors don’t have that right, how can that power be granted to the county?” Mygatt asks.

Both Probst and Mygatt concede that neighbors do have some rights over neighboring uses. They don’t deny that neighbors have a right to expect no direct harm will be done to their property by adjacent landowners. One isn’t allowed to pollute the groundwater or create landslide hazards which would export harm onto someone else’s land. The county can properly exercise its authority to regulate uses to prevent such harms. But even those rights have limits, say county critics, particularly where potential harms can be mitigated through good engineering and construction practices. Where engineering can mitigate the potential harm, the use shouldn’t be denied, they say.

For example, both the state and the county seek to support traditional agriculture, and have adopted so-called “Right to Farm” policies, which deny to agricultural neighbors the right to prevent annoyances that occur during ordinary agricultural practice, including dust, odors, insects and noise. Mygatt and Probst want this concept extended to residential uses, which they feel have certain impacts that are a natural, ordinary consequence of development which should be non-controversial and not subject to the veto power of the neighborhood… or the county, including the mere visible presence of a home.

“The neighbors don’t own the view,” Mygatt says. “The property owner does.”

But in Boulder County, aesthetic and visual “impacts” are often given enormous, and some say inordinate, highly-subjective weight in approving or denying projects. The county’s failure to distinguish between objective, fact-based regulations such as “thou shalt not dump polluted water into a stream,” and subjective aesthetic judgements such as “thy house is ugly, remove it from sight,” is where Boulder County seems to get into trouble with its citizens and the LUC.

“There’s no question that the primary conflict area and the primary motivation is aesthetics,” Probst says.

County officials disagree that there is any agenda to deny people their right to build a home. “People who are applying don’t always initially want the same things that the land use and parks departments are looking for, but we find compromise and we find ways to make it a win/win situation,” says Mendez. “There are people who come in here who want to build 20,000-square-foot homes,” says Burrus. “The commissioners leave them with ‘nope, you can’t go build that home, it has to be this big and over here, so it doesn’t impact all your neighbors.'” But not in Guercio’s case, says Probst. The Caribou City project will include the right to build homes as large as 10,000 square feet in size.

Propst finds the exceptions being granted to Guercio galling and hypocritical in the face of the county’s usual draconian restrictions on building footprints in the mountains.

“If Jim Guercio’s subdivision was limited to 1,200-square-feet per lot, he would never build it,” Propst says.

Critics question whether the county’s, or the neighbor’s vision should prevail over the vision of the landowner. They point out that the people who are complaining were most often exempt from such regulations because they got here first. It’s unfair and hypocritical, says Probst, for people to object to new development if their own development hasn’t been subjected to the same degree of scrutiny.

There is also an argument that the kinds of specific, detail- and design-oriented scrutiny the county typically engages in is a violation of the First Amendment. The argument says that architecture is art, and that art is “expressive speech,” both of which are protected by law. “Oh, absolutely!” says Probst. “I think that for most people in this country, their private residence is the largest investment and the number-one expression of themselves, and therefore should be protected as an artistic expression.”

Danish says that the commissioners understand this concern, and that they try hard not to dictate architectural decisions except as necessary to achieve what they feel are legitimate concerns that have a rational basis in the law. But critics argue that the standards which must be used are much higher than a simple “rational basis” test, which applies to most zoning law. The test, they suggest, is a “strict scrutiny” test which requires that the county have a “compelling interest” in regulating the protected activity.

But to what extent does the county have a compelling public interest in controlling the aesthetics of private homes?

The discipline of architecture traditionally includes not just the design of the structure, but the building’s relationship with the land. This brings into question the qualifications of the commissioners, and even the LUD planning staff, to make such decisions, since they are not trained architects. Probst and Mygatt, among others, argue that a landowner’s right to expression through architecture ought to generally supercede any objections by neighbors or the county based only on the visual impacts of the development.

“There is a point where the community’s interest begins to exist, but that should be decided in the courts, by those who feel their rights are being harmed and the individual doing the building,” Probst says. “Let the courts sort it out rather than getting government into defining what is acceptable architecture.” Burrus poo-poos this argument.

“The Supreme Court has upheld decisions that say governments are right in taking those elements into consideration when making land use decisions,” he says. Probst sharply disagrees that the aesthetic concerns of the neighbors should be given credence. “(The Constitution) sets a pretty high standard. The reason it’s the First Amendment is because it’s the number-one source of our freedom. Without the right of free speech, all the other rights are in peril. For the county to claim the right to infringe on that is, I think, very serious.”

Guercio doesn’t have to worry about it though, because the county is quite pleased with his Caribou Ranch design guidelines.

Northwest of Nederland, far from the madding crowds of Los Angeles, Jim Guercio built a recording studio that became the object of desire for some of the ’70s most famous musicians. He had already established himself as one of the industry’s long ball players, with an extensive history of playing and production credits extending back to the Buckinghams in the mid-’60s, including the Beach Boys, Frank Zappa and especially Chicago, whom Guercio managed from their days as an obscure L.A. club band to mega-stardom through the ’70s. Although he is rightly regarded in the rock annals as a top flight producer, successful manager and owner of one of the best recording facilities in America during this period, he is still cheerfully remembered in the press as “ex-Beach Boy Jim Guercio,” having filled in on a few early-’70s Beach Boy tours.

Funny, sometimes, the things that stick…

Caribou Ranch was as much spa and mountain retreat for rock superstars during the seventies as it was a place to work. Several comfortably attended cabins dotted the grounds around the studio, which Guercio built inside a renovated barn. The relative proximity of the posh guest cabins-as well as the gated privacy-led inevitably to wave after wave of rumored substance-inspired madness.

Guercio brought the creme of rock super-stardom not just to Caribou, but to Nederland and Boulder as well. You could be walking down Pearl Street one day and pass Mick Jagger or Don Henley or Joni Mitchell or Bernie Taupin, and that was only because Caribou was just up the hill.

The lasting legacy of Caribou, of course, is some of the best-recorded work from some of the best rock players in the ’70s. Chicago cut several of its biggest early hits there. Stephan Stills recorded his timeless and still-fresh first solo album at Caribou, and Elton John recorded three massive-selling albums there. When you hear Joe Walsh’s immortal “Rocky Mountain Way,” guess what his view was.

Lesser known artists also worked there, like George Duke, the German prog outfit Lake, Jan Hammer and Supertramp- who’s arguably best LP Even In The Quietest Moments features a picture of a snow-draped piano outside Caribou. Lead singer Roger Hodgson, in search of that perfect vocal take, actually recorded part of one song in a freight elevator.

Rumor has it that Caribou had more platinum albums hanging on its walls than any other studio in America. When the studio, along with many irreplaceable master tapes, burned in 1985, a piece of rock history danced skyward on its fading embers. Caribou, the Legend had passed into history as one of rock and roll’s greatest places, surrounded by one of the greatest places on earth.

Originally published in the Boulder Weekly April 5, 2001

Harden the targets

By Scott Weiser

Two teenage middle-school students from Sabin Middle School in District 11 have been arrested for allegedly planning an armed attack on the school based on a “kill list” they discussed on social media. Police spokesperson Lt. Howard Black said in a press conference that the suspects “had the ability to control, potentially, some of these weapons.”

On April 20, 1999, at Columbine High School in Jefferson County, two armed high school students walked in through unsecured doors while the School Resource Officer was absent and killed 13 people.

Thirteen years after Columbine, on December 14th, 2012, a killer shot his way into Sandy Hook Elementary School in Newtown, Connecticut, killing 20 children and six adults. While the school kept the front doors locked during the school day to control access, the foyer was not constructed entirely of bulletproof glass, which allowed the killer to shoot out a tempered-glass side panel window and gain entry.

The only person in the school with a gun was the killer, and it took 14 minutes before police entered the building, some five minutes after the shooting stopped with the suicide of the killer.

Failures in security planning, protocols, response and physical hardening all contributed to the deaths in these incidents.

Outrage over such violence is to be expected, but effective solutions are hard to come by.

One of the most effective solutions is the willingness of the public, parents and school kids to report suspicious activities. That’s what stopped this potentially deadly attack at Sabin Middle School. Vigilance is the best way to intervene, before a plan can be put into action. This incident is proof positive that a well-planned systematic approach to detecting, evaluating and responding to threats quickly is absolutely necessary and highly effective.

Physical hardening is more difficult but just as necessary. It is expensive to replace regular classroom doors with bulletproof doors that can be secured from the inside. It’s expensive to install automatic gates or doors on hallways that can be closed remotely to compartmentalize the school. It’s expensive to install systems that monitor entrances to the school to ensure that doors are not propped open. It’s expensive to armor the front desk to give employees cover. It’s expensive to install a bulletproof foyer that can be locked remotely to prevent entry and trap an intruder until the police arrive.

But these measures could have saved lives at Columbine and Sandy Hook. District 11 has taken these threats seriously, but budget issues have compromised student safety.

Devra Ashby, Public Information Officer for District 11 says, “In District 11 we’ve installed locked doors with intercom/camera-only access at the front doors of all elementary and middle schools. All exterior doors at elementary and middle schools in the District are locked. At high schools, visitors must enter through the main entrance and receive the appropriate badge.”

“Students and staff at each D11 facility must practice monthly lockdown, shelter in place and evacuation drills,” She says, “Also, the District has a partnership with the El Paso County Sheriff’s Office called Operation Safety where a plain clothed deputy will try to access the school. If they are able to get in without someone stopping to ask why they are there, actions to strengthen the schools security points are taken. We have updated our security camera systems in all of our schools but seven. The remaining seven will be completed this year.”

She goes on to say “All Middle School SRO’s were reduced during the 2010-2011 school year. This reduction was a result of the CSPD’s budget cuts. District 11 has five SRO’s funded from our general fund totaling $310,000. There is a sixth SRO position that is grant funded.”

While no teachers or school staff are presently armed, Ashby says, “Currently in District 11, only security personnel are armed, and only on a voluntary basis. They have to take law enforcement’s test to carry a weapon, and currently 32 security staff members are armed.”

While physical hardening and armed first responders may be expensive, can that possibly be a rational excuse for not making every possible effort to physically secure the safety of our children while they are at school?





School vouchers can pay for religious schooling

By Scott Weiser

One of the most often heard complaints about school vouchers is that they will be used to unconstitutionally “fund religious education.” Anti-religious and pro-public school objectors to vouchers claim this is a violation of the Establishment Clause of the First Amendment. But this is merely a stalking-horse for their real agenda, which is to preserve the monopoly of public schools receiving the lion’s share of state education funding.

Objectors don’t like vouchers because they threaten the jobs of public school teachers and administrators and they threaten to shut down ineffective public schools that cannot get the job done. The entrenched bureaucracy of our public school system doesn’t like the notion of having to compete with charter, private and religious schools for student dollars. They want to keep their jobs secure by controlling where the state education funds can go regardless of whether they are providing students with the best possible education at the lowest price, which is what free-market competition for voucher funds will produce.

With state money being given directly to the student to use at any accredited school they choose, including a religious school, public schools will be on the hot seat and will have to up their game if they hope to keep students who will be able to pick the school that best suits their educational needs.

When Douglas County instituted a voucher program in 2011 that did not explicitly exclude voucher funds from being used by parents to pay for their kid’s education in a religious school, the program was immediately challenged. The Colorado Supreme Court ruled in 2015 that the program violated the anti-religion Blaine Amendment language of the Colorado Constitution that flatly prohibits any public money going to religious schools.

While the case was on appeal to the United States Supreme Court, the Court ruled in Trinity Lutheran v. Comer that a church could not be denied benefits from a government program that provided recycled rubber playground surfacing to protect children against injury. The Court said that denying a generally available public benefit to a religious entity only because of the entity’s religious status is “odious to our Constitution.” The Court then sent the Douglas County case back to the Colorado Supreme Court for reconsideration consistent with the Trinity Lutheran decision. The Colorado Court has yet to rule.

The question of the constitutionality of public money being directed to religious schools by the recipients is settled law that completely repudiates the complaints of voucher opponents. In 2002 the U.S. Supreme Court in Zellman v. Simmons-Harris wrote “Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.”

The Court’s reasoning is simple. The First Amendment says that government itself is prohibited from advancing religion because to do so threatens an “establishment” of a state religion by favoring or disfavoring one or another religion. But the Court has repeatedly held as constitutional that the choice of where to spend aid once granted lies with the beneficiaries and their private choice of where to spend it. The Court says “We have repeatedly recognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement.” This has been the case for at least 15 years.

The ruling in Trinity Lutheran serves to invalidate Colorado’s Blaine Amendment language, upon which the Colorado Supreme Court relied for its original ruling. Trinity Lutheran, combined with Zellman, stands for the proposition that because Douglas County’s voucher program provides a general public benefit to all eligible students, Colorado cannot discriminate against the private use of voucher funds to pay for education at a religious school.

This repudiation of the Blaine Amendment language by the U.S. Supreme Court is a strong move away from the bigoted anti-religious beliefs and practices of the past that have facilitated educational and religious discrimination for a century and a half.



The right to discriminate keeps the peace

By Scott Weiser

Some incidental impacts on religious belief such as paying income tax are permissible. But when the law forces people to relinquish their religious belief in order to participate in public life, it is repugnant to the foundations of the nation and our laws.

Gay marriage has been held to be something that government cannot and should not forbid for reasons of equal protection under the law and mandatory government religious neutrality. There remains a fundamental divide between those who believe that gay marriage is morally acceptable and those who have firm religious and moral convictions that marriage is a sacred covenant handed down by God as between one man and one woman that cannot be extended to gays. Those who hold this belief cannot be forced into associating with gay marriages any more than gays can be forced into association with religions that do not support their beliefs.

The First Amendment protects the right of both groups to hold these disparate beliefs. Each is required peaceably tolerate the exercise of those beliefs by the other. Each group is to keep to itself and refrain from interfering with the beliefs and practices of the other.

That’s what “discrimination” actually means with respect to the First Amendment rights of freedom of association, freedom of speech and freedom of religion. We all have the right to peaceably refuse association with others and decline to speak on their behalf. This includes the right not to be compelled to serve others in violation of our religious beliefs.

One person may discriminate against Christians by refusing to associate with them. Another may discriminate against outlaw biker gangs by refusing to associate with them. Someone else may discriminate against Broncos fans by associating only with Steelers fans. Yet others may discriminate against gays by refusing to associate with them.

The permutations of constitutionally protected discrimination are literally endless. Refusing to force people into unwilling association with others by government mandate has for most of our history been one of the bulwarks of our liberties and perhaps one of the most important safety valves in preserving public peace and order.

The protection of the right to discriminate is and must be jealously guarded because forcing people into unwanted associations is a prime cause of conflict and violence in any society. Any attempt to force associations carries with it a clear and present danger of fracturing the delicate balance of mutual tolerance and producing conflict and violence. Therefore great care must be exercised when infringing on the right to discriminate.

Like every other right the right to discriminate is not absolute, but only the most compelling need on the part of government to force such associations can be countenanced, and then only when the forced association constitutes the least intrusive way of achieving a legitimate, necessary governmental purpose.

The effects of forcing people into unwanted association are particularly notable today, where intolerance for diversity of opinion and demands for forcible association have manifested in social and political polarization that is spiraling down into precisely the sort of public disorder and violence that our pluralistic and mutually tolerant society was created to prevent. The need is one of careful legislative and judicial balancing the various interests involved in order to protect the tolerant plurality of belief our nation is founded upon.

Religion most often consists of a set of beliefs about the nature of the universe combined with a moral code to guide believers in their associations with one another. But that’s not the only definition of religion. Religion is also defined as “something one believes in and follows devotedly; a point or matter of ethics or conscience.” This non-theistic definition perhaps better describes the important place that individual moral beliefs hold in our society than do the usual theistic references to the commandments of a deity.

That which people follow devotedly as a matter of ethics or conscience can easily become an ideological battleground. When diversity of opinion and belief are no longer mutually and peaceably tolerated, all too often people become willing to lay down their lives, their fortunes and their sacred honor on an actual battleground littered with the casualties of ideological intolerance.



The roots of our social discord

By Scott Weiser

America is suffering through a paroxysm of social and political discord unlike anything seen since the Vietnam War protests. Ideological polarization has led to increasing levels of violence in the streets and to the division of our society into two distinct and seemingly intractable hostile camps. This pattern is often seen as a prelude to social collapse. We need look no further than Venezuela to see the terrible results of unhealed social division.

To understand what is happening and have any hope of correcting it, we need to examine the root causes of our present social divide.

There are two predominant forms of social organization seen in the world today: Individualism and Collectivism. Both derive primarily from a third: monarchy. The historic condition of humanity for many thousands of years has been the unquestioned rule of a monarch over his people.

Individualism and Collectivism are the natural opponents of monarchy. Both express the general objective of societal self-determination over rule by an individual. The difference between the two however is in who takes the place of the monarch when it comes to the governing of society and to whom the individual owes fealty.

Collectivism replaces the monarch with, as Karl Marx puts it, the “dictatorship of the proletariat,” which is to say majoritarian totalitarianism. Individualism replaces the monarch with the individual as sovereign.

But as the Declaration of Independence says, governments are instituted among men to secure the fruits of liberty. Government is a necessity in human culture. Anarchy isn’t a useful model of social organization. The question becomes one of social participation and how it is viewed and regulated.

If you place the philosophical goals of Collectivists such as Socialists, Liberals and Progressives side by side on a list with those of Individualists such as Libertarians, Republicans and Conservatives they are practically identical, at least insofar as the goals of securing the life, liberty and happiness of the average citizen is concerned. In this we are not so far apart. But there are some important fundamental differences.

We as Americans do not substantially differ in our desire for peace, prosperity, justice, health, welfare, liberty, community and safety for all. But today we differ radically in how we believe those goals can best be achieved.

The difference can be simply stated as the polar opposite individual internal beliefs of “I owe” versus “I am owed.”

Collectivists have an “I am owed” internal belief that society owes them what they need. They believe that compulsion is the only way to obtain what they need and to achieve fairness and equality in society. Collectivists take the jaundiced view of human nature that it cannot be trusted to act altruistically or charitably. Therefore everyone must be forced by the collective to fulfill the “I am owed” needs of others. This is exemplified by Karl Marx’s creed “From each according to his ability, to each according to his need.”

Individualists on the other hand have an “I owe” internal belief and a desire for fairness and equality created and served by natural human instincts that manifest as voluntary social cooperation and contribution to the common good. This is exemplified by President John F. Kennedy’s quote “Ask not what your country can do for you, ask what you can do for your country.”

Collectivists also believe that social equality and prosperity are a zero-sum game; that the success of one person requires the failure of another. If one person has more wealth or higher social standing than another it must have been stolen. This is seen in the present “social justice” demands for redistribution of wealth to achieve equality of outcomes.

Individualists believe in the unlimited nature of both wealth and social standing and that equal opportunity means the opportunity for anyone to strive for social and economic advancement and success without social or legal barriers being deliberately erected to frustrate the attempt.

True equality is not created by the equally penurious outcomes that are the inevitable consequence of Collectivist conceits. True equality comes through individual effort, voluntary cooperation and mutual support spurred by the natural human attributes of charity, altruism, compassion and rational self-interest.


EMP attack by North Korea is a grave danger

By Scott Weiser

North Korea now has the technology to bring America to its knees. It has already launched intercontinental ballistic missiles capable of reaching the United States. The most recent launch flew directly over Japan. Now Kim Jong Un evidently possesses a working thermonuclear warhead.

According to a source in Asia it is believed that the primary obstacle to a targeted, precision, low-altitude nuclear attack on a city has been the lack of heat shielding to protect the warhead on its reentry into the atmosphere. Observations of recent North Korean missile tests indicate that this may no longer be a problem.

Worse is that North Korea has almost certainly achieved the ability to destroy most of America’s technology in an instant without needing re-entry heat shielding. The Wall Street Journal reported on Sept. 2nd that North Korea has for the first time openly threatened to use an EMP weapon. This threat would be consistent with Kim Jong Un’s repeated rhetoric that he can perpetrate a crippling nuclear catastrophe in America. With North Korea’s lack of missiles and warheads a surface strike on the US, while certainly a catastrophe, would hardly cripple the United States.

But an EMP warhead doesn’t have to reenter the atmosphere to deliver a devastating blow. Detonated 200 to 300 miles over the central U.S., a single device has the capacity to wipe out the entire electrical grid and most computer infrastructure.

Nuclear weapons produce an electromagnetic pulse (EMP) when detonated. This pulse is strong enough fry the huge high-voltage transformers that serve our electrical grid, which would shut it down instantly. It could take years to restore the electrical grid alone.

These transformers are custom-manufactured and take years to build. There are no backups waiting to be installed. Government reports on the EMP threat have for decades been reporting that we are woefully unprepared to deal with an EMP event, which includes not just an attack but also includes a massive solar flare that can have the same sort of effects.

Such an attack would destroy computers, cell phone systems, emergency services radio systems, modern automobiles and trucks, industrial computer control systems and even emergency back-up generators.

Without power to operate water systems and damage to pumps and control systems that filter and deliver drinking water to cities nationwide, deaths from lack of water are certain and large cities will become uninhabitable. Destruction of food harvesting, processing, distribution and transportation systems would create widespread famine and starvation within months.

In the early 2000s, during a brief thaw in relations with Russia, the U.S. Government’s EMP Commission went to Moscow and was told that not only had the Soviet Union handed over a design for a super-EMP weapon to North Korea, but also that two of the scientists in charge of the Soviet Union’s EMP research were themselves in North Korea. It is therefore reasonable to conclude that Kim Jong Un has been working to perfect an EMP weapon.

In an interview at the Western Conservative Summit with Frank Gaffney, President of the Center for Security Policy he said, “What we were told were failures in terms of the five nuclear tests that the North Koreans have done, because they were relatively low yield or at least low seismic signature, could well be explained by what is a low-blast, high gamma-ray design which is exactly what a super-EMP weapon is.”

A few days ago a much larger seismic signature was detected in North Korea that likely confirms Kim Jong Un’s claim to an operative high-power thermonuclear device.

The United States can no longer ignore this threat, something it’s been doing for more than a decade now. In the short term our anti-ballistic missile defense systems must be deployed and enhanced to provide the best chance of intercepting and destroying an incoming missile and diplomatic efforts to force China to put a leash on North Korea or face a trade embargo are needed.

In the long term, Congress needs to squarely face the EMP issue and begin a program of hardening our electrical grid and critical infrastructure against EMP damage caused by a bomb or by the sun.



Facing the hard truths of medical care

By Scott Weiser

The most difficult issue we face in discussing health care is the often-ignored truth that no person’s exercise of their rights can impose on others any obligation other than benign tolerance of the peaceable exercise of those rights.

When someone proclaims that there is a “right to health care” they are mostly correct. We have the right to seek out health care. Government cannot prohibit this quest nor can it prohibit us from obtaining it…if it is available. But that does not give anyone the power to compel anyone else to provide or to pay for it.

Liberals love to trot out the hoary old canard that because we socialize the costs of military, fire and police protection we can and must therefore socialize the cost of everything else, including health care. The truth is that we collectivize funding for military, fire and police protection because they combat common enemies that if left unchecked damage the whole community. Short of communicable diseases however, health problems directly affect only the individual and the indirect effects on others do not make one person’s poor health a common enemy like fire, crime or invasion.

Your health care needs are largely dictated by your exercises of freedom and by the slings and arrows of outrageous fortune. You may sit at home and eat Cheesy Poofs and get as fat as Eric Cartman and have a heart attack or a stroke, or you may not. You may break your spine bicycling and require expensive care for the rest of your life, or you may not. You may suffer from a genetic defect that can’t be blamed on anyone, or you may simply be unlucky. All are unfortunate consequences of living that society is not obliged to indemnify you against.

There is a good reason for this. Granting society the power to indemnify your exercise of individual liberty is granting it the power to infringe upon that liberty. If taxpayers are compelled to pay for the medical consequences of your choices or random chance, then taxpayers justifiably must have the power to compel you not to make lousy lifestyle choices that might end up costing them money. Fair is fair, after all.

Do we really want to grant government the power to tell us that we cannot go rock climbing or motorcycle racing or that we cannot smoke or eat a greasy cheeseburger? Real liberty is your right to choose to take risks and to live in freedom. You get to take risks because our system burdens only you with consequences of your life.

We have the right to life, liberty and the pursuit of happiness, but we do not have the right to burden others through the exercise of those rights. We are free to live our lives as we please but that requires us to accept the consequences of freedom without complaint. It also requires us to respect the equal rights of others to live their lives in freedom without being compelled to serve our economic needs.

We all have our own economic burdens to deal with, and what each of us works to earn is ours and ours alone. The socialist notion that we owe our lives, our labor and our money to others “according to our ability” and that others may compel us to labor and sacrifice on their behalf “according to their need” has no place in our culture or society.

But that doesn’t mean that the poor, the ill and the unfortunate are unworthy of compassion or assistance. Americans are the most generous people on earth when it comes to giving to help the needy. We are champions of compassion, altruism, charity and rational self-interest and unstinting in our desire to help others. But that charity and altruism cannot be constitutionally made compulsory. Doing so destroys our right to liberty and binds us into involuntary servitude to others, which is prohibited by the 14th Amendment.

Those who need help can ask for it and we will respond to that need, but they cannot be allowed to use the inherent force of government to compel us against our will to do so.

Anti-gun academics are liars

By Scott Weiser

The mendacity of anti-gun academics apparently knows no bounds. A couple of weeks ago notorious anti-gun academic and law professor John Donohue of Stanford University produced another in a long list of self-serving screeds disparaging the rights and lives of law-abiding citizens who choose to carry concealed weapons. Donohue has published numerous anti-gun articles and op-eds in years past, and ups the ante with a “synthetic control” working paper that claims that his newest speculations have eliminated “any suggestion of benign effects on crime from the adoption of RTC laws and consistently shown evidence that RTC [Right to Carry] laws increase murder and/or overall violent crime.”

In the conclusion the paper states, “There is not even the slightest hint in the data that RTC laws reduce violent crime. Indeed, the weight of the evidence from the panel data estimates as well as the synthetic controls analysis best supports the view that the adoption of RTC laws substantially raises overall violent crime in the ten years after adoption.” (Emphasis added)

That is a flatly false statements and Donohue knows it. This is the fake news message being propagated by liberal anti-gun press organs like Vice Media, which trumpets a headline about the report saying “The Good Guy with a Gun Theory, Debunked.”

Donohue’s research does not show that RTC laws “increase murder and/or overall violent crime” at all. The actual data, which includes seminal research by RTC advocate John Lott, and Donohue’s own graphs continue to show precisely the opposite: more guns, less crime. What Donohue claims is nothing more than his opinion that factual reduction in violent crime rates since 1996 would have been perhaps 15 percent greater if RTC laws had not been enacted. To avoid a charge of plain academic fraud Donohue admits this, saying “our analysis suggests that Texas would have experienced a more sizable violent crime decline if it had not passed a RTC law.” (Emphasis added)

But after burying that weasel-worded disclaimer deep in the statistical wonk, he flatly states that violent crime increased after RTC laws were passed when in fact they continued to decrease, just not as much as his statistical analysis suggests it would have absent RTC laws. That’s a deliberately deceptive and mendacious claim disparaging the actual fact that more citizens carrying guns for self-defense reduce violent crime rates. Donohue’s research is synthetic speculation masquerading as truth under the typical liberal anti-gun theory that if you repeat a lie long enough and loud enough it will become the perceived truth.

It should be painfully obvious that a “more sizable” decline in a pre-existing overall decline is not at all the same thing as his bald-faced and demonstrably false claim that “the adoption of RTC laws substantially raises overall violent crime.” Thus a charge of mendacity and that he and his team have engaged in blatant and intentional politicized academic misconduct (if not fraud) would seem pretty obvious to any reasonable person.

Such a conclusion is strongly bolstered by the paper’s descent into political pandering and gun-banning advocacy that follows the conclusion. Not satisfied to let his supposedly-scholarly work stand on it’s own scientific feet, he goes on at length, saying for example that “the statistical evidence shows us that whatever beneficial effects RTC laws have in reducing violence, they are outweighed by greater harmful effects.” To support this specious and unscientific political opinion he cites a very small number of incidents where in his opinion concealed carry permit holders committed a crime. The paper states, “The most obvious mechanism is that the RTC permit holder may commit a crime that he or she would not have committed without the permit.”

The stupidity of this statement is fairly obvious. If a person is inclined to misbehave and use a deadly weapon improperly it’s highly unlikely that having or not having a carry permit is going to change anything, and if such a thing happens then others who might be harmed by such misconduct, be it from a permit holder or a criminal have a greater need to be armed for self-defense. Yes, there may be examples, some of which Donohue cites, where permit holders have done bad things with their guns, but he completely ignores the fact that there are perhaps 12 million permit holders in the United States who, according to all the evidence, do not do so, and there are perhaps 2.5 million people who lawfully use their concealed weapons to prevent and thwart violent crime every year. His argument is the very essence of throwing out the baby with the bathwater after boiling the baby in a hot pot.

Donohue firmly believes, and has argued in the past that all citizens must be disarmed in order to decrease crime rates, and this is another pseudo-scientific attempt to support his anti-constitutional agenda of disparaging the 2nd Amendment and our right to keep and bear arms.

Donohue and people like him simply refuse to accept that the right to armed self-defense is not subject to being statistically apportioned. The individual’s right to keep and bear arms for self-defense is not dependent on the amount of crime in their vicinity or anywhere else for that matter. It cannot be conditioned upon their statistical chance of victimization. It cannot be infringed because someone thinks carrying a gun in public is unsettling. The right is complete, whole and indivisible.

Disarming citizens turns them into helpless victims without any evidence that doing so will protect them from being victimized and in the face of undeniable proof that an armed citizenry in fact makes society safer, something that Donohue knows but attempted (badly) to conceal in his recent screed. His statistical argument ignores the reality that it is real people who are victimized, each of whom has a constitutional right to be armed against victimization. Government cannot constitutionally conclude that a law-abiding person being armed somehow increases the overall abstract risk of violent crime in society and use that as an excuse to revoke gun rights.

No right is subject to apportionment in such a manner. Government cannot say, “Your exercise of your right to free speech must be prohibited because it creates a 15 percent greater chance that someone else might abuse theirs.” Nor can it say, “Your right to keep and bear arms in public is revoked because otherwise some criminal somewhere might become more violent.”

It should be obvious that Donohue’s agenda and speculation is a call for inherently unconstitutional legislative response by government. This must not be permitted or tolerated. You either have rights that are complete or you do not have rights at all, and in this country we have a right to keep and bear arms for self-defense, as the United States Supreme Court has pointed out on several occasions recently.