OBERGEFELL AND THE RIGHT TO DIGNITY

Supreme Court Below is my column today in the Washington Post on the ruling in Obergefell on the basis for the Court’s ruling in favor of same-sex marriage. Due to limitations on space, I could not go into great depth in the opinion which primarily dealt with the notion of the “right to dignity.” The Court did not pursue an equal protection analysis beyond the following highly generalized statement:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.

Since the Court did not substantially address whether homosexuals are a protected class or the other Equal Protection line of cases, the opinion appears to craft a right around the inherent right of self-expression and dignity in intimate affairs. That is very appealing to many in the expansion of due process concepts, but the column explores what it portends for future rights.

Here is the Sunday column:

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Good Day For Election Reformists; Bad Day For Environmentalists

Supreme CourtI am doing some coverage at CNN but, in addition to the predictable rejection of the lethal injection challenge, the Court handed down two major decisions. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court ruled 5-4 that states could effectively take away redistricting decisions from state legislatures — a key move to try to end the scourge of gerrymandering. In Michigan v. EPA, the Court again split 5-4 in ruling that the EPA must consider the costs to industry in setting environmental limitations — in the case involving arsenic emissions — under the Clean Air Act.

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Obamacare Spared Through “Jiggery-Pokery”?

scaliaSupreme CourtI spent most of the day opining in front of the Supreme Court and in studies on the 6-3 ruling in favor of the Obama Administration in King v. Burwell. I will not subject you to more of that analysis. I have previously indicated that I found the opposing view of the Halbig decision against the Administration to be compelling, though I have always viewed this to be a difficult question upon which people of good-faith could disagree. Yet, in both my prior congressional testimony and my columns, I have never accused the Administration of “jiggery-pokery” — largely because I was not sure what jiggery-pokery is. However, Associate Justice Antonin Scalia has written a stinging dissent to King that contains the memorable accusation that the majority was engaging in “interpretive jiggery-pokery.”

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FEDERAL COURT TO HEAR HISTORIC CHALLENGE OVER SEPARATION OF POWERS

220px-Meade_and_Prettyman_CourthouseAt 10 a.m. tomorrow morning, Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia will hear argument on the motion to dismiss filed by the defendants in U.S. House of Representatives v. Burwell, et al., No. 1:14-cv-01967 (D.D.C.). The defendants are the Departments of Health and Human Services and Treasury, and the secretaries of those two executive branch agencies. The Administration is seeking to prevent the Court from reaching the merits of this historic case, which was authorized by an affirmative vote of the entire House of Representatives on July 30, 2014, and which the House filed for the purpose of protecting our constitutional structure.

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What is the Cost to Purchase a State Supreme Court?

Chief Justice Roberts

Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor

The answer to the question posed in the title, in the state of Wisconsin, is $8 Million dollars.  For those of us who think Judges are not and should not be politicians, the situation in Wisconsin is especially disturbing.  However, Wisconsin is not alone in this dilemma.  Thirty nine states elect their judges and the money flowing into those campaigns is increasing the concerns of special interests “purchasing” justice. Professor Turley has also commented in the past about the alarming amounts of money flowing into judicial elections.

In a recent United States Supreme Court decision, Chief Justice Roberts weighed in on money and politics in judicial elections.  “Last week, the United States Supreme Court upheld a Florida judicial rule that prohibits candidates for election to state judgeships from personally soliciting money for their campaigns. ‘ “Judges are not politicians,” Chief Justice John G. Roberts, Jr., wrote in the majority opinion in the 5-4 decision, “even when they come to the bench by way of the ballot.” He went on, “Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.” ‘ New Yorker Continue reading

What RFRA Hath Wrought-Part 2

By Mike Appleton, Weekend Contributor

“Those situations in which the Court may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area.”

-Sherbert v. Verner, 374 U.S. 398, 423 (1963) (Harlan, J., dissenting)

Were Maurice Bessinger still alive, he would undoubtedly be a strong supporter of the Religious Freedom Restoration Act. Had that law been available in 1964, history might well read differently.

Mr. Bessinger owned a small chain of barbecue restaurants in South Carolina known as “Piggie Park.” As a matter of company policy, African Americans were prohibited from consuming food on the premises of his restaurants and were required to place and pick up orders from the kitchen window.

When a class action was filed against Mr. Bessinger under the public accommodations provisions of the Civil Rights Act of 1964, among his defenses was the claim that the Act violated the First Amendment because “his religious beliefs compel him to oppose any integration of the races whatsoever.” Newman v. Piggy Park Enterprises, Inc., 256 F. Supp. 941 (1966). The court had no sympathy for his defense. “Undoubtedly,” it said, “defendant Bessinger has a constitutional right to espouse religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence and support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” 256 F. Supp. at 945.

Mr. Bessinger partially prevailed at the trial court on interstate commerce grounds, but lost on appeal and was assessed attorney’s fees for his trouble, the Fourth Circuit finding that in view of a prior Supreme Court ruling upholding the constitutionality of the Civil Rights Act of 1964, the assertion that he was not bound because the law “contravenes the will of God” and constituted interference with “the free exercise of the Defendant’s religion” was legally frivolous. Newman v. Piggy Park Enterprises, Inc., 377 F.2d 433 (4th Cir. 1967), aff’d, 390 U.S. 400 (1968).

Had the Religious Freedom Restoration Act been in effect when Mr. Bessinger was sued, might he have prevailed? Perhaps.

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What RFRA Hath Wrought

By Mike Appleton, Weekend Contributor

“Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.”

-Munn v. Illinois, 94 U.S. 113, 126 (1876)

The events in Indiana and Arkansas during the past week contain at least two lessons. The first is that hypocrisy is like teeth; most of us have some and exposure usually produces a nasty bite. Second, interminable debates on the topic of comparative victimology are, well, interminable. Neither lesson is useful. So perhaps it is time to take a deep breath and engage in a bit of dispassionate reflection on the scope and application of the Religious Freedom Restoration Act.

Let us begin with the oft repeated claim that a person operating a business ought to have the right to refuse service to anyone at any time for any reason (or no reason at all). Whatever merits this claim may have as a philosophical position, it has never found approval as a principle of law. The reason is that historically the common law has recognized that there are categories of commercial enterprise of sufficient importance to the general welfare to mandate their availability to all members of the public on equal terms. Continue reading