Monday, February 15, 2016

An End To Faux Originalism

The Supreme Court's faux "originalist" has died. Last week, Justice Antonin Scalia, 79, passed while on a hunting vacation at a West Texas ranch. (Contrary to rumors, he wasn't shot by Dick Chaney.)


Justice Scalia has as been eulogized as a great intellect and mastermind of the conservative wing of the Supreme Court.

In my view, Justice Scalia failed on both counts. Rather than being a great intellect, he was an ideolog who used the "what did our Founders intend" mantra to cherry pick less relevant evidence to support his personal views. He did what a good debater has to do when the law doesn't support their position -- throw up a lot of detail in the hope that some of it sticks. Altho conservative acolytes found a lot to their liking, (true) constitutionalists were rarely convinced.

In the end, Scalia's so-called conservative leadership never garnered a solid majority -- largely because his views were often inconsistent with the Constitution.  For example, Justice Scalia, in his dissenting opinion in McCreary County v. ACLU of Kentucky (2005), opined that government may "favor religion over irreligion" notwithstanding the First Amendment prohibition "respecting an establishment of religion."

And contrary to the plain text of the Second Amendment that the right to bear arms is linked to being in the militia, Justice Scalia was only able to eke out 5-4 majority for his ideologically motivated individual gun rights position (D.C. v. Heller (2008)).  So much for looking to the text of the Constitution.

Justice Scalia was a flip-flop too. In his majority opinion in  Employment Division v. Smith (1990), the Court held that a government need only demonstrate a rational basis for a neutral law of general applicability but burdened a person's free exercise of religion. The Justice Scalia did an about face in joining opinions support Religious Freedom Restoration Act (RFRA) which gives religion a preference by requiring government to show a compelling interest in order to burden a person's free exercise of religion.

May Justice Scalia and America rest in peace.

Thursday, September 24, 2015

Senator Ted Cruz is a faux constitutionalist



Senator Ted Cruz is a faux constitutionalist. That’s a person who alleges allegiance to a constitution as they imagine or wish it to be, rather than as it actually is. Cruz’s constitutional argument against gay marriage is proof.

The logic of Cruz’s argument against the Supreme Court ’s  gay marriage decision in Obergefell v. Hodges goes like this: 

First premise: The U.S. Constitution established a federal government with limited powers and that powers not delegated to the federal government are reserved to the states under the Tenth Amendment. 

This is largely true, but not completely. Under the Tenth Amendment, “powers not delegated to the United States . . . are reserved to the States respectively, or to the people.” (Emphasis added.)  This being said, I would agree with Cruz to the extent that marriage in 1791, when the Bill of Rights was ratified by the states, was a state prerogative with the following caveat. The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”—leaving open the issue of whether gay marriage is an unenumerated right.

Cruz’s second premise goes something like this:

The Supreme Court  exceeded its Article III authority in Obergefell by acting like a legislative body in deciding that state laws limiting marriage to one man and one woman were unconstitutional and that same-sex couples have the right to marry.

And Cruz’s third premise is that:

Under the Tenth Amendment, only the states have the power to determine who can marry. 

Accordingly, Cruz concludes that:

The Supreme Court erred in its Obergefell decision.

As a Harvard law grad who clerked for Chief Justice William Rehnquist, Cruz knows he’s wrong.

First, Article III of the Constitution expressly grants the judicial power of the United States to “one supreme Court, and in such inferior courts as the Congress” may establish. The 1803 landmark decision of Marbury v. Madison established the principle of judicial review in the United States. The essence of judicial review is that the judicial power includes the power of courts to determine whether laws—either federal or state—are consistent with or contrary to the Constitution. Laws which are contrary to the Constitution are unconstitutional and invalid. Politicians and judge-want-a-bees may disagree with specific Supreme Court rulings but Marbury is “settled law.” In other words, the Constitution itself—as part of the balance of powers—granted the courts the power of determining the validity of a law. Therefore, the exercise of that power by the courts is not a form of tyranny.

And second, Senator Cruz conveniently ignores Fourteenth Amendment which was ratified by the states in 1868. Among other things, the amendment prohibits states from depriving “any person of . . . liberty . . . without due process of law” or “equal protection of the laws.” The Supreme Court simply held the obvious in Obergefell that state laws prohibiting same-sex marriages while permitting opposite-sex marriages denied the plaintiffs both due process of law and equal protection of the law. [I wonder whether Senator Cruz would argue that the Supreme Court’s 1967 decision in Loving v. Virginia was wrong. The Loving decision held that Virginia’s law prohibiting mixed-race couples from marrying violated the Equal Protection Clause of the Fourteenth Amendment.]

There is nothing to debate—the Fourteenth Amendment superseded the Tenth Amendment with respect to marriage. Marriage is a fundamental right which the states cannot prohibit without a “compelling interest” and the states have not asserted any compelling interest to either limit marriage to one man and one woman or to deny same-sex couples the right to marry.

It is my hope that Senator Cruz will bring his understanding of constitutional law up to date and quit demagoging to his political base. Otherwise, if Cruz were to be elected president, we could not expect him to “preserve, protect and defend the Constitution of the United States.”

Friday, June 26, 2015

The Chief Justice skinks with the ship

The Supreme Court today held that gay marriage is a fundamental right that states cannot deny. Sadly, the Chief Justice and three other justices decided to sink with the Christian Right ship rather than affirm America's core value of equality.

Justice Anthony Kennedy wrote the majority decision in Obergefell v. Hodges, (Sup. Ct., June 26, 2015) and was joined by Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Helen Kagan. Kennedy gave four reasons why gay marriage was a fundamental right (Slip Opinion, pp. 12-17). The bottom line is that the majority held that the due process and equal protection clauses of the Constitution "[do] not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex." (P. 27)

The dissenters were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito -- all conservative Roman Catholics.

This reminds me of the 1960 presidential election in which some voters worried that if John F. Kennedy were elected president, he would take orders from the Pope. Then senator, Kennedy responded to this concern in an address to the Greater Houston Ministerial Association on September 12, 1960:

 I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.
The Chief Justice, Scalia, Thomas and Alito obviously cannot say the same--for they voted to deny gays the right to marry just as the Catholic Church would want them to.

The Chief Justice sadly tells those who support the decision: "Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it." (P. 29)
This ridiculous statement is consistent with a justice who lacks fidelity to the Constitution, specifically its due process and equal protection clauses.

Like the seemingly unsinkable Titanic, the Christian Right has sunk.

As a final comment, Justice Alito worries that those who oppose gay marriage will be called bigots. He should be worried. Quite frankly, they are bigots because there is no rational basis for their discriminatory belief. Their religion is no excuse. But they are free to be wrong.

Friday, May 1, 2015

Gay Marriage -- The Supreme Court Will Rule "It's Time Has Come"



I had the privilege of attending Tuesday’s oral arguments at the Supreme Court involving gay marriage.  Eventho I got to the Court more than 3 hours before the arguments began a little after 10 a.m., I was number 83 in the bar line and had to listen to the arguments from the attorney’s lounge. Four cases have been consolidated and are collectively go by Obergefell v. Hodges.

The arguments by the states’ attorney—John J. Bursch—were terrible. Perhaps his misfortune was the result of the states not having a rationale (i.e., valid) justification for denying same sex couples the right to marry and he was forced pick a lame excuse out of a bag.

What was the “rationale” Bursch offered as a justification for denying gays the right to marry? He argued that the states have a right to limit marriage to heterosexual couples because the primary purpose of marriage is to ensure that children grow up with their biological parents! Of course, if that was real reason, then states presumably could deny marriage licenses to any man-woman couple who do not intend to have children or could not have children because of infertility. Could a state annul marriages which don’t produce offspring in 3, 5 or 10 years? I suppose the argument could also support outlawing divorce (even in domestic violence situations) because, in the states’ view, the best interests of the child is to keep the child with his or her biological parents. And adoptions? Forget them. Any exceptions? (Gee, your Honors, please ask another question.) Thus, the states one-man, one-woman “class” was over inclusive.

Bursch conceded that a same sex couple could provide a child with a nurturing home environment. Isn’t that the primary consideration for the best interests of the child? In fact, Bursch failed to provide any evidence that a gay parents were inferior to straight couples in meeting the needs of their children. So I felt the state’s case was a big ZERO. On a positive note, Bursch didn’t argue that the 14th Amendment—which was adopted during the Reconstruction period in 1868—only applied to discrimination based on race.

Justice Kennedy, who is widely believed to be the swing vote, raised the “tradition” card—that marriage has been defined as being between a man and a woman for over a millennia. Sounds a lot like Newton’s First Theory of Motion: an object in motion will stay in motion unless acted on by an external force. In other words, it’s permissible to ignore the rights of gays because we have denied them their rights for a very long time. That’s a sham legal purpose if I ever saw one. Indeed, nowhere in the Constitution does it say that tradition trumps due process. The good news is that the Kennedy recovered later in the argument—perhaps remembering that he wrote the majority opinion supporting the rights of gays in United States v. Windsor (2013) (holding DOMA unconstitutional), Lawrence v. Texas (2003) (holding Texas’s anti-sodomy statute unconstitutional) and  Romer v. Evans (1996) (invalidated Colorado’s Amendment 2 targeting homosexuals). Bottom line, count Kennedy in on holding state laws limiting marriage to a man and a woman.

I was particularly disappointed that Solicitor General Donald B. Verrelli, Jr., didn’t argue that the right of gays to marry is a “fundamental” right.  It would have been an easy argument to make, inasmuch as, the Supreme Court has held fourteen times since 1888 that marriage is a fundamental right. (For a list of the cases, visit http://www.afer.org/blog/14-supreme-court-cases-marriage-is-a-fundamental-right/.) (I suspect that Verrrelli was trying to tone down the government’s position in an attempt to make the case for gay marriage more palatable for justices sitting on the fence.)  Instead, the United States took the position that gays have a right to marry under the Equal Protection Clause—which is reviewed under the lower standard rational basis test.  While the outcome in this instance may ultimately be the same, I believe that Verrelli cheapened gay rights by not arguing both. I would note, for example, that the Court in Loving v. Virginia (1967) held that Virginia’s anti-miscegenation statute violated both the Due Process and Equal Protection Clauses of the 14th Amendment.

I anticipate that the Court in late June will avoid the fundamental right issue and rule narrowly that denial of marriage licenses to gay and lesbian couples violates the Equal Protection Clause. However, I also anticipate that one or more justices will write a concurring opinion voicing the fundamental right position. Less clear is whether Chief Justice Roberts will join Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan—particularly if he wants to leave a legacy as being an eminent chief justice supporting the core American value of equality.

Friday, April 3, 2015

Are Arkansas Christians bad at math and history?

I don't get it: Are Christians in Arkansas bad at math and history? Or is it just their legislators?

Here's the deal. I was reading a blog post today at Religion Clause in which Howard Friedman informed us that the Arkansas legislature had passed S.B. 939. The bill, called The  Ten Commandments Monument Display Act (full text), directs the secretary of state to arrange for private groups to erect a 10C monument on the State Capitol grounds.The text of its commandments would read (I've added numbers for clarity):
  1. Thou shalt have no other gods before me.
  2. Thou shalt not make to thyself any graven images.
  3. Thou shalt not take the Name of the Lord thy God in vain.
  4. Remember the Sabbath day, to keep it holy.
  5. Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.
  6. Thou shalt not kill.
  7. Thou shalt not commit adultery.
  8. Thou shalt not steal.
  9. Thou shalt not bear false witness against thy neighbor.
  10. Thou shalt not covet thy neighbor's house.
  11. Thou shalt not covet thy neighbor's wife, nor his manservant, nor his 34 maidservant, nor his cattle, nor anything that is thy neighbor's.
As you can clearly see, there are eleven commandments not ten. I feel sad for Arkansas students who are taught this kind of crazy math.

But, you know, it's not just Arkansas. The Fraternal Order of Eagles had a similar problem on some of its Ten (or Eleven) Commandments monuments that it erected in public parks, state capital grounds, courthouses, libraries and public schools.

Even more troubling is the Arkansas legislature's revisionist American history. Our founders did not believe that "God" ordained our government. Our founding document--the Constitution of the United States of America--explicitly says in the Preamble: "We the People of the United States ... do ordain and establish this Constitution of the United States of America."

While I'm quibbling, the bill also states: "The Ten Commandments ... are an important component of the moral foundation of the laws and legal system of the United States ..." What? Commandments 1, 2, 3, 4, 5, 7, 10 and 11 (above) are not part of our legal system. Moreover, commandments 6 (not kill), 8 (not steal) and 9 (not bear false witness) are secular in nature and are common in non-Judeo-Christian societies.

And did you know that the words "Ten (or Eleven) Commandments)", "Creator", "God", "Supreme Being", "Jesus" and "Christianity" are not mentioned in the Constitution?  Not once.

The conclusion is unmistakeable, neither the Biblical Ten Commandments nor Arkansas' Eleven Commandments had little or no influence in the founding of our system of governance in the United States.






Sunday, January 11, 2015

The Answer to Christian Preference is "Blowin' In The Wind"

This afternoon I was listening to Bob Dylan's 1962 song Blowin' In The Wind. One part of the lyrics hit a particular chord for me:

   How many years can some people exist
   Before they're allowed to be free?

   Yes, and how many times can a man turn his head
   And pretend that he just doesn't see.
   The answer, my friend, is blowin' in the wind,
   The answer is blowin' in the wind.

Dylan thought the answer to our peace, war and freedom problems were simple, yet hard to grasp -- like a piece of paper blowing in the wind.

Similarly, the answer to discrimination against LGBTs and Atheists in America is quite simple -- end discrimination.  After all, equality is a core American value.

Unfortunately, the realization of equality is incredibly elusive; it is blowing in the wind. People talk equality, but many have a psychological need to feel superior to others and manifest this thru discrimination and domination.

On a positive note, 2014 was a banner year for progress in support of gay marriage with 37 states and the District of Columbia now issuing marriage licenses to gay couples.

Atheists continue to suffer the indignity of Christian preference throughout the nation -- from "In god We Trust" on our coins and currency to oaths with "so help me god" to the Pledge of Allegiance with "under god" -- all not withstanding the First and Fourteenth Amendments prohibiting preference of one religion over another, or religion over nonbelief.

53 years after Dylan's Blowin' In The Wind, heads are still turned and the answer to discrimination blowin' in the wind.

Judge O'Scannlain on the Wrong Side of Gay Marriage

Judge O’Scannlain of the 9th Circuit has fallen out of the boat in declaring “we have ignored another circuit’s reasoned contribution to the [gay marriage] debate.”  Latta v. Otter (9th Cir., pet. for rehearing en banc denied, January 9, 2015) (Scanlon, J., dissenting).  Rather, it is the 6th Circuit and Judge O’Scannlain that have ignored the clear mandate of the U.S. Constitution.

First, I would disagree with Judge O’Scannlain’s characterization that the 6th Circuit’s decision in DeBoer v. Snyder (6th Cir. 2014) is a “reasoned contribution” to the debate.  Here’s why.  Equality is the quintessential core America – “all men are created equal.”  Admittedly, the Declaration of Independence is not our charter of government and equality was not firmly embedded in the original test of the Constitution.  It took the Civil War and the 14th Amendment to steer us back to the legal mandate of equality: “nor shall any State deprive . . . any person . . . equal protection of the law.”

Second, Judge O’Scannlain apparently believes that minority rights are subject to vote and equal protection of the law does not apply to gay persons.  He and Christian Dominionists are wrong.  The purpose of the Bill of Rights and a number of other amendments was to protect minority rights by removing them to popular vote.

Third Judge O’Scannlain’s characterization of a “clear circuit split” is stretched.  The 6th Circuit’s decision is an outlier among the circuits.  There is nothing to be gained at this point by the 9th Circuit hearing Latta v. Otter and companion cases en banc.  Moreover, gay marriage cases are already pending before the Supreme Court.  Thus there is no need at this point for circuit courts to expend further judicial energy considering gay marriage.

And as a final point, Judge O’Scannlain’s parsing of the Supreme Court’s decision in United States v. Windsor, 570 U.S. __ (2013) (Docket No. 12-307) to argue that the Court has not decided the gay marriage issue is underwhelming.  While O’Scannlain is literally correct, Justice Kennedy writing for the majority in Windsor said of the Defense of Marriage Act (DOMA): “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” 

Even Justice Scalia, dissenting in Windsor, recognized “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”  It's time for Judge O’Scannlain to climb in the life boat and raise the white flag of equality.

Sunday, December 14, 2014

Congress Blesses Mt. Soledad Christian Cross By Sham Land Sale

Sadly, the Senate ignored the FIRST RIGHT protected by the Bill of Rights -- freedom from government sponsored religion (a.k.a. the Establishment Clause) when it passed the National Defense Authorization Bill on Friday, December 12.

Section 2852 of the bill requires the Secretary of Defense to sell the Mt. Soledad Veteran's Memorial to the privately incorporated Mount Soledad Memorial Association. What is significant about the memorial is that its principal component is a 29-foot Christian cross on top of a 14-foot base for a total height of 43 feet. That's a powerful religious endorsement of Christianity telling persons of minority faiths and nonbelief that they are unwelcome or second class citizens.

The Mount Soledad Cross has been the subject of litigation for over 20 years. The City of San Diego and the U.S. government have lost at every step of the way, including a 2013 federal judge ruling from the bench upholding the Ninth Circuit's ruling and ordering that the cross must come down.

Time and again Christian dominionists have used the instruments of government to protect Christian crosses and Ten Commandments monuments on public lands by sham land sales where the religious symbol remains in place within the larger public park or other public property. Only the "donut hole" becomes private property!

A sham land transfer was also used by Congress to "save" the Sunrise Cross in the Mojave National Preserve in California. (I authored an amicus brief in opposition to the sham land transfer in Salazar v. Buono, Sup. Ct. No. 08-472, on behalf of the American Humanist Association, et al.)

Similar sham land transfers were also used by local governments to prevent the removal of Eagles-donated Ten Commandment monuments on public property in La Crosse (Cameron Park), Wisconsin, Hanover, Pennsylvania (Wirt Park), Frederick, Maryland (Memorial Park) and Nebraska City, Nebraska (Otoe County Courthouse).

These governmental acts demonstrate complete disrespect for, if not violation of, the First Amendment. Passage of the National Defense Authorization Bill is a sad day for religious freedom in America.

In concluding this post, I would like to take this opportunity to rebuke my Virginia Senators Mark Warner and Tim Kaine for their vote supporting this egregious violation of religious freedom and remind them that Congress has no authority under the Constitution to prefer one religion over another, or religion over nonbelief.)

Monday, October 6, 2014

Supreme Court takes a pass and lets gay marriages procede



This morning the Supreme Court denied certiorari in seven cases involving gay marriage—letting stand the decisions of the appellate courts which had all held that state bands against gay marriage violate the Equal Protection Clause of the 14th Amendment.  The cases involved five states: Virginia (4th Cir.), my home state, Indiana (7th Cir.), Oklahoma (10th Cir.), Utah (10th Cir.) and Wisconsin (7th Cir.). 

The Court’s order immediately ends delay on marriage in those states. In addition, because the case settles the issue of gay marriage in the circuits of the aforementioned states, the states of Colorado (10th Cir.), Kansas (10th Cir.), North Carolina (4th Cir.), South Carolina (4th Cir.), West Virginia (4th Cir.) and Wyoming (10th Cir.) are also affected. By early afternoon, several states had already started issuing marriage licenses to gay couples. With these eleven states, gay marriage is now legal in thirty states and the District of Columbia.

The Supreme Court’s order comes as a surprise to experts and advocates of gay marriage, including myself, who believed that the Court would agree to hear at least one of the cases in order to definitively rule on such an issue of national importance. It takes at least four justices to agree to hear a case before it is docketed for oral argument. There being five justices on the Court regarded as conservative and presumed to be supportive of the conservative agenda—one would have thought that there would have been at least the four votes necessary to hear the case.  What happened?

I offer four reasons. First, Justice Kennedy, often regarded as a swing vote, wrote the majority decision United States v. Windsor (2013) that held the Defense of Marriage Act (DOMA) unconstitutional holding that DOMA was unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment.” So the Court is probably down to a maximum of four votes to hear the case With Kennedy, Ginsburg, Breyer, Sotomayor and Kagan probably voting no.

Second, the same reasoning in Windsor (noted above) would apply to the gay marriage cases. In fact, Justice Scalia said as much in his dissenting opinion in Windsor.  Thus, indirectly, the Supreme Court had essentially already ruled that gay marriage is a protected fundamental right.

Third, there is no split among the circuit courts—the most common reason for the Supreme Court to take a case.

And fourth, perhaps Chief Justice Roberts is concerned about his legacy and did not wish to write an opinion on the wrong side of the national tide strongly in favor gay marriage.

In short, gay marriage's time has come.

The cases are:

     Herbert v. Kitchen (Docket No. 14-124) (Utah)
     Smith v. Bishop (Docket No. 14-136) (Oklahoma)
     Rainey v. Bostic (Docket No. 14-153) (Virginia)
     Schaefer v. Bostic (Docket No. 14-225) (Virginia)
     McQuigg v. Bostic (Docket No. 14-251) (Virginia)
     Bogan v. Baskin (Docket No. 14-277) (Indiana)
     Walker v. Wolf (14-278) (Wisconsin)

Wednesday, September 10, 2014

7th Circuit Hears Oral Arguments in Housing Allowance Case

Religion Clause blog reports today that the 7th Circuit U.S. Court of Appeals heard oral arguments (audio of full arguments) yesterday in Freedom From Religion Foundation v. Lew, No. 14-1152. FFRF is challenging Section 107 of the Internal Revenue Code which allows "ministers of the gospel" to exempt from their income taxes income designated as a housing allowance. The exemption is just one more example of mythical equal justice under law and the government's favoritism of belief (and Christianity in particular) over non-belief.

The benefit can be quite substantial. For example, Rick Warren, pastor of Saddlebrook Church in California, has been able to exempt a Section 107 housing allowance of hundreds of thousands of dollars per year from his income tax liability -- just one more reason why every man, woman and child share of the nation debt is $55,000.

As an aside, I am jealous of FFRF because Michael Gompertz and Robert Baty requested that I take this case a number of years ago.  FFRF beat me to the courthouse.