Posts tagged with: supreme court

burritoBusiness, we are told, is supposed to have a conscience to survive. For instance, Chad Brooks at Fox Business says that businesses have to be “socially conscience” in order to attract customers:

Young consumers consider social responsibility most when shelling out big bucks for products such as automobiles, computers, consumer electronics and jewelry, the study found. Specifically, more than 40 percent of consumers under 30 consider social issues when buying a big-ticket item, compared to just 34 percent who factor in those issues when buying everyday items, like gasoline and food.

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no-religion_designIncreasingly, Americans who adhere to a religion are told they cannot “force their beliefs” on others. Simply stating publicly that one doesn’t believe gays have the right to marry can cost you your career. Literally hundreds of lawsuits are now in motion against the government because employers do not want to be forced to violate their religious beliefs by paying for employees’ contraception and/or abortions.

Richard W. Garnett ponders this topic in today’s Los Angeles Times. Garnett takes the reader back just 20 years, when he says the government did something right:

Lawmakers from both parties and across the political spectrum found common ground and passed, by a near-unanimous vote, the Religious Freedom Restoration Act, which firmly commits the federal government to protecting and promoting our “inalienable right” to freely exercise religion. As President Clinton remarked when he signed the legislation into law, “the power of God is such that even in the legislative process, miracles can happen.”

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baldwin

Liberal Dark Money in your wallet?

Your writer possesses well-meaning friends forever vigilant in my best interests. Most recently, one such kind soul sent an email alerting me to the dangers of so-called “dark money” in the political process. Believing himself on the side of the angels – and fully onside with activist nuns, priests and other religious – my friend sought my assistance in the fight against “evil” corporations participating in the political process.

So I got the following in my inbox. And all I had to do for America’s campaign finance salvation was sign a petition circulated by The Daily Kos and People for the American Way:

Bruce, join Daily Kos and People for the American Way in urging the SEC to require that publicly traded corporations disclose their political spending….

The Supreme Court’s Citizens United ruling was a travesty, which has opened the floodgate to corporate money in our political spending. Repealing it via a constitutional amendment will take years, but there’s something we can do in the meantime that will go a long way.

The Securities & Exchange Commission (SEC) is the federal agency with the job of protecting investors from corporate abuse. It is well within its authority to require that publicly traded corporations disclose their political spending—but it won’t happen without a fight.

End the shroud of secrecy. Join Daily Kos and People For the American Way in urging the SEC to require that publicly traded corporations disclose their political spending. (more…)

Blog author: ehilton
posted by on Wednesday, August 14, 2013

james madisonWhat do vegans, Catholics, and Starbucks have in common? According to attorney Mark Rienzi they all share the right to “decisions of conscience.”

Starbucks has ethical standards for the coffee beans it buys. Vegan stores refuse to sell animal products because they believe doing so is immoral. Some businesses refuse to invest in sweatshops or pornography companies or polluters,” Rienzi said in an Aug. 11 opinion essay for USA Today.

“You can agree or disagree with the decisions of these businesses, but they are manifestly acts of conscience, both for the companies and the people who operate them,” he said. “Our society is better because people and organizations remain free to have other values while earning a living.”
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The latest national survey by the Pew Research Center finds that a majority of Americans now believe the federal government threatens their own personal rights and freedoms:

The latest national survey by the Pew Research Center for the People & the Press, conducted Jan. 9-13 among 1,502 adults, finds that 53% think that the federal government threatens their own personal rights and freedoms while 43% disagree.

In March 2010, opinions were divided over whether the government represented a threat to personal freedom; 47% said it did while 50% disagreed. In surveys between 1995 and 2003, majorities rejected the idea that the government threatened people’s rights and freedoms.

The growing view that the federal government threatens personal rights and freedoms has been led by conservative Republicans. Currently 76% of conservative Republicans say that the federal government threatens their personal rights and freedoms and 54% describe the government as a “major” threat. Three years ago, 62% of conservative Republicans said the government was a threat to their freedom; 47% said it was a major threat.

The fact that 38% of Democrats say the government poses a threat to personal rights and freedoms and 16% view it as a major threat, shows that it’s not just a partisan issue. But while there may be agreement that the federal government threatens our rights and freedoms, there is likely to be divergence of opinion on which rights and freedoms are being threatened. Rather than just having people respond with yes or no to the question, “Federal government threatens your personal freedom?”, it would be helpful for respondents to explain what they mean.

We could, for instance, have them go down the list of rights in the Constitution’s Bill of Rights and point out which they feel are threatened. Like most Americans, I’m no legal scholar. But here is how I would respond:
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Legal scholar Orin Kerr provides excerpts from the concurring opinion today in Hettinga v. United States, in which Judge Janice Rogers Brown (joined by Judge Sentelle) argues that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations:
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The recent oral arguments presented before the Supreme Court about ObamaCare’s individual mandate have exposed a profound difference in how American’s conceive of liberty. In the the New York Times, Adam Liptak provides a revealing example:
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Should virtue be a consideration in judicial decisionmaking? Indiana Law Professor R. George Wright makes an intriguing argument for why the four cardinal virtues could be useful in interpreting constitutional cases:

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A quick news and analysis digest here on the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission ruling by the Supreme Court yesterday. Congratulations and thank you to the Becket Fund. To watch a two-hour Federalist Society panel discussion recorded in November on what is informally known as the Ministerial Exception case, visit YouTube.

Beckett Fund: Supreme Court Sides with Church 9-0 in Landmark First Amendment Ruling — Becket Fund wins greatest Supreme Court religious liberty decision in decades

The unanimous decision adopted the Becket Fund’s arguments, saying that religious groups should be free from government interference when they choose their leaders. The church, Hosanna-Tabor, was represented by The Becket Fund for Religious Liberty and Professor Douglas Laycock, University of Virginia Law School. For years, churches have relied on a “ministerial exception” which protects them from employment discrimination lawsuits by their ministers.

“The message of today’s opinion is clear: The government can’t tell a church who should be teaching its religious message,” said Luke Goodrich, Deputy National Litigation Director at The Becket Fund for Religious Liberty. “This is a huge victory for religious freedom and a rebuke to the government, which was trying to regulate how churches select their ministers.”

The Court rejected the government’s extremely narrow understanding of the constitutional protection for religious liberty, stating: “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

“This is a huge win for religious liberty,” said Professor Doug Laycock.  “The Court has unanimously confirmed the right of churches to select their own ministers and religious leaders.”

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Douglas Laycock, CNN:
Huge win for religious liberty at the Supreme Court

(CNN) – Wednesday’s Supreme Court decision holding that ministers cannot sue their churches for employment discrimination was a huge win for religious liberty. It was unanimous, it was sweeping and it was unqualified.

This decision was about separation of church and state in its most fundamental sense. Churches do not run the government, select government leaders, or set criteria for choosing government leaders.

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Emily Belz, WORLD: Church’s authority ‘alone’

The high court has never ruled on the ministerial exception before, a standard created in the lower courts, and the opinion shied away from defining who qualifies as a “minister,” saying simply that the teacher in question, a commissioned minister at the Lutheran church school, qualified.

“We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote in the decision. Kagan and Alito, in their concurring opinion, wrote that the “title” of minister “is neither necessary nor sufficient,” given the variety of religions in the United States, but rather courts must defer to the religious organization’s evaluation of the employee’s role.

The 6th U.S. Circuit Court of Appeals had ruled in favor of the teacher, saying she did not qualify as a minister because she spent more minutes of the day teaching secular subjects than religious subjects. The Supreme Court scoffed at that idea. “The issue before us … is not one that can be resolved by a stopwatch,” Roberts wrote.

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Matthew J. Franck, First Things: What Comes After Hosanna-Tabor

There may be a straw in the wind in yesterday’s ruling, with respect to the Obama administration’s determination to compel the coverage of contraceptive and abortifacient drugs in health insurance policies, even ones for religious institutions. The only “religious exception” offered so far by the Department of Health and Human Services to its contraceptive coverage mandate is an exemption so narrow, for religious organizations that employ and serve only their own co-religionists, that even the ministry of Jesus would not qualify. It is as though the Obama administration is staffed by people who have never encountered the ministry to the world that is so common among religious folk—especially but not uniquely among Christians.

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Mark L. Rienzi, National Catholic Register: Religious Liberty 9, President Obama 0

Such an emphatic rejection of the administration’s crabbed view of religious liberty is likely to have broader consequences. The administration has aggressively used its narrow view of religious liberty in other contexts. For example, when issuing recent regulations to require all employers to pay for contraceptives, sterilizations and drugs that likely cause abortions, the administration issued the narrowest conscience clause in history — one that would exclude a Catholic hospital simply because it is willing to serve Jewish patients.

When attempting to explain its historically narrow protection for conscience, the administration echoed its arguments from the Hosanna-Tabor case, saying the clause is only meant to protect a church from being forced to offer the drugs to employees in “certain religious positions.” The administration argued that its clause sought only to protect “the unique relationship between a house of worship and its employees in ministerial positions.” Given the government’s stingy view of who counts as “ministerial,” it is clear the administration does not think the First Amendment provides much protection for religion.

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Thomas Messner, Heritage Foundation: Supreme Court Decision in Hosanna-Tabor a Major Win for Religious Freedom

First, the ruling unambiguously affirms the vital constitutional doctrine known as the “ministerial exception.”

Second, the Court expressly agreed with every federal court of appeals to have considered the question that the ministerial exception “is not limited to the head of a religious congregation.”

Third, the Court clarified that the protections of the ministerial exception are not limited to cases where a religious group fires a minister only for a religious reason.

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Thomas Berg, Mirror of Justice: More on Hosanna-Tabor

… although the majority is case-specific on who counts as a minister, three justices–including Elena Kagan!–endorse a broader definition.  Thomas would defer heavily to the religious organization’s characterization of an employee as a minister.  And Alito and Kagan say that ordained or “commissioned” status isn’t crucial, that the question is about religiously-significant functions (listing several of them), and that “the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones.

What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities.” (Concurrence at 8)  I can imagine imagine teachers in many Christian schools satisfying that test, and also many employees in many religious social services who explicitly communicate religious messages along with the services they provide.  With three justices explicitly taking the broader approach, all you need is a couple more (Roberts and Scalia, most likely) for a majority.  Hosanna-Tabor doesn’t give us a full-fledged broad definition for a “minister,” but it makes the route to such a definition much easier.

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Wall Street Journal editorial: Hosannas for the Court

As in so many of its policies, the Obama Administration’s position reflected both its default preference for government control and its secular indifference to American religious sensibilities. This has become obvious in the contraceptive and surgical sterilization mandates the Administration is trying to impose on Catholic charities and hospitals. In this case the Justice Department’s opinion was so radical that it might have provoked the broad and unanimous Court ruling.

Hosanna-Tabor is an important reminder that the core religious freedoms guarded by the First Amendment were not to protect the public from religion, but to protect religion from government. The case is arguably among the most important religious liberty cases in a half century, and the concurrence of Justices across the ideological spectrum will be felt for years. Hallelujah.

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In this week’s Acton Commentary, Kevin Schmiesing looks at the exchange between Supreme Court nominee Elena Kagan and Sen. Tom Coburn over the interpretation of the Constitution’s Commerce Clause.

Elena Kagan’s Revealing Commerce Clause Evasion

by Kevin E. Schmiesing Ph.D.

Many Americans have a vague sense that the United States has drifted far from its constitutional origins. Every once in a while, something happens that prods us to recognize just how far we’ve gone.

Such was the case last week, during the Senate hearings on Supreme Court nominee Elena Kagan. One of the most widely circulated C-Span video clips was Senator Tom Coburn’s insistent question as to whether the Constitution’s commerce clause permitted Congress to pass a hypothetical law dictating that all Americans must eat a prescribed number of fruits and vegetables every day.

Kagan was clever enough to understand that what Coburn was really asking was, “Is it possible to justify the continued expansion of congressional powers—in particular recent health care reform legislation—on the basis of the authority granted by the commerce clause?” Kagan replied that the fruits and vegetables measure would be “dumb” law. She didn’t dare suggest that it would be unconstitutional, however, for she rightly recognized that she would be backing herself into a judicial corner. How many laws might she have to strike down as Supreme Court justice if she followed a “strict” interpretation of the Constitution?

Thus we’ve come to a point at which a Supreme Court nominee cannot bring herself to condemn a manifestly totalitarian law, because doing so would be utterly inconsistent with federal jurisprudence over the last 80 years. Kagan’s response shines a spotlight on the fact that the Constitution exercises little restraint upon the activities of our national government. This is dangerous territory.

There are rearguard actions from time to time. The Court invalidated campaign finance reform early this year, judging it to be a violation of first amendment rights—for which the justices were upbraided by President Obama on national television during a State of the Union Address. Yet, by and large, Congress acts with impunity to intervene in our economic affairs, usually justifying itself (in those rare cases when it feels the need to do so) by recourse to the commerce clause.

Perhaps it’s worth revisiting that passage from our founding document, on which millions of pages of federal regulation have been piled. Can it support such weight?

Congress shall have power, it says, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” That’s it. The original purpose of this directive with respect to commerce “among the several States” was to ensure that there would be no interstate trade barriers. The formation of a vibrant national economy, the framers correctly understood, could not very well proceed when Ohio and Michigan erected tariffs against each other. So, the intent of the commerce clause was to protect the principle of free trade within the United States, leaving other financial and mercantile regulatory authority to each state.

Taking the Constitution seriously is important because the document forms the basis for the rule of law in this country. By ratifying it, the states and the citizens thereof affirmed the truth of a great paradox: Enacting limitations on ourselves is the only way to guarantee lasting and genuine freedom. It was a profoundly moral endeavor. The Christian notion of sin lay at the heart of many Americans’ belief that the tendency toward corruption and aggrandizement in government officials—and the potentially destructive whims of democratic majorities themselves—must be guarded against not only by promotion of personal virtue but also by legal instruments such as constitutional separation of powers and checks and balances.

For the most part, the Supreme Court honored the intent of the commerce clause until the 1930s, when the force of public sentiment and political pressure stemming from the Great Depression began to pry the lid off, loosing its potential as a Pandora’s box of federal government programs reaching into every corner of American life. In 1942, the Court defended a production quota on wheat set by the Department of Agriculture, upholding the prosecution of an Ohio farmer for growing too much. When he used his excess, the decision explained, he wouldn’t be buying that amount on the market. His flouting of the law thus affected interstate commerce.

Quod erat demonstrandum: The government can tell you what and how much to grow. Why can it not also tell you that you must purchase health insurance (and therefore what kind, and from which approved vendors)? And why can’t it tell you what and how much you may eat?

Our hope lies in our belief that, when a law is “dumb” enough, nine fellow Americans on the Supreme Court will have the good sense to strike it down. But we will be dependent on their sense alone. Although they will invoke the Constitution as a fig leaf for whatever judgment they render, we know the truth: Its value as a curb on government action—and therefore as a safeguard of freedom—was all-but-destroyed long ago.