Guest Post

  • October 8, 2014
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director, Americans United for Separation of Church and State

    The Supreme Court this week heard arguments in Holt v. Hobbs, a challenge to a prison’s refusal to let an inmate grow a half-inch beard to comply with his Islamic religious beliefs. Most church-state cases that reach the Court are deeply divisive. In Holt, on the other hand, there appears to be a broad consensus among religious-freedom advocacy groups, as well as the justices themselves, that the prisoner should prevail.

    Groups that are typically at odds in church-state cases, such as my organization Americans United for Separation of Church and State and the Becket Fund for Religious Liberty, supported the prisoner’s claims. And from the questions posed by the justices, it appears that the prisoner will win unanimously or nearly so.

    The prisoner, Gregory Holt (who now goes by the name Abdul Maalik Muhammad), brought his claim under the Religious Land Use and Institutionalized Persons Act, which is known by the difficult-to-pronounce acronym RLUIPA. RLUIPA prohibits a prison from substantially burdening an inmate’s religious exercise unless the prison is furthering a compelling governmental interest through the least restrictive means of doing so.       

    More than forty states, as well as the federal prison system, allow beards of the length that inmate Holt requested. Yet the defendant Arkansas prison system advanced two justifications for its denial of the beard: First, Arkansas argued, prisoners could hide contraband even in short beards.  Second, according to Arkansas, allowing prisoners to have facial hair could make it difficult to identify inmates within the prison.

    Justices who often hold diametrically opposing views on church-state and other hot-button issues were united in being deeply skeptical of these assertions.

    Justices Ruth Bader Ginsburg and Samuel A. Alito noted that it would be much easier to hide objects in a head of hair, pointing out that Arkansas prisons allow inmates to have voluminous locks. Justice Alito also pointed out that even if it were possible to hide contraband in a half-inch beard, prison guards could easily expose such contraband by simply making the inmates comb their beards so that anything hidden falls out.

  • October 3, 2014
    Guest Post

    by Rob Boston, the Director of Communications at Americans United for Separation of Church and State

    Supreme Court Justice Antonin Scalia captured headlines recently by declaring that nothing in the Constitution prevents the government from favoring religion over non-religion.

    “I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion,” Scalia told a crowd at Colorado Christian University Oct. 1.

    “We do Him [God] honor in our Pledge of Allegiance, in all our public ceremonies,” he added. “There’s nothing wrong with that. It is in the best of American traditions, and don’t let anybody tell you otherwise. I think we have to fight that tendency of the secularists to impose it on all of us through the Constitution.”

    It’s not the first time Scalia has made such comments. In 2009, he told an Orthodox Jewish newspaper published in Brooklyn, “It has not been our American constitutional tradition, nor our social or legal tradition, to exclude religion from the public sphere. Whatever the Establishment Clause means, it certainly does not mean that government cannot accommodate religion, and indeed favor religion. My court has a series of opinions that say that the Constitution requires neutrality on the part of the government, not just between denominations, not just between Protestants, Jews and Catholics, but neutrality between religion and non-religion. I do not believe that. That is not the American tradition.”

    The “American tradition” that Scalia refers to doesn’t have much of a history. “Under God” was slipped into the Pledge in 1954 as a slap at godless Communism. “In God We Trust” wasn’t codified for use on paper money until 1956 – again, it was a Cold War-era slam at the Soviets. (The use of the phrase on coins is older. It was a desperate ploy by the North to curry favor with the deity during the early months of the Civil War.)

  • October 2, 2014
    Guest Post

    by Kareem U. Crayton, associate professor of law, the University of North Carolina School of Law

    Voting has been described by the Supreme Court as “preservative of other basic civil and political rights.” So when law and policy leave voting insecure, the core project of governance itself faces grave risk. 

    During oral arguments preceding the June 2013 decision to invalidate a key feature of the Voting Rights Act in Shelby County v. Holder, Justice Anthony Kennedy dismissed concerns that voting would become less secure for racial minorities. Even absent Section 5’s preclearance oversight for states with egregious histories of discrimination, Kennedy asserted, Section 2 of the law would allow citizens to use traditional litigation to block discriminatory laws. A year into the post-Shelby County era, we have initial evidence of how this litigation has fared in practice.

    One test of Section 2 is playing out in North Carolina, where this week the 4th Circuit Court of Appeals ruled in favor of the North Carolina NAACP and allied groups in their challenge of a state law that is widely recognized as the nation’s most restrictive. The Court’s decision ordered a preliminary injunction for two provisions of the law – the elimination of same-day registration, and the prohibition of out-of-precinct ballots from being counted. The decision means that these rules will not apply in the November election, contrary to an earlier decision by a U.S. District Court to deny this preliminary injunction. A full trial regarding the merits of the law will go to court next July.

    According to the 4th Circuit, “The district court got the law plainly wrong in several crucial respects" in assessing whether North Carolina’s measure, known as H.B. 589, was likely in violation of Section 2. They continued, "When the applicable law is properly understood and applied to the facts as the district court portrayed them, it becomes clear that the district court abused its discretion in denying plaintiffs a preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect while the parties fight over the bill's legality."

    North Carolina’s H.B. 589 enacts multiple changes to the state’s election system. It eliminates same-day voter registration, prohibits out-of-precinct ballots from being counted, shortens the early voting period by a week, eliminates a successful pre-registration program for 16- and 17-year-olds, prohibits counties from extending Election Day poll hours to account extraordinary circumstances (such as long lines), permits poll observers to challenge voters, and implements a strict photo ID requirement.

  • September 29, 2014
    Guest Post

    by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    Watching Congress utterly fail to discharge its duty as President Obama boldly exceeds the limits of his power by unilaterally authorizing military action against ISIS reminds me of the old philosophical question: if a tree falls in the forest and no one’s there to hear it, does it makes a sound?  In this case, the question is: if the President violates the Constitution and Congress does nothing, are there any consequences for the constitutional violation?

    The answer is almost certain to be “no”. The Constitution is not self-enforcing.  It only works when each branch of government resists and rejects overreach by the others—and, when it comes to checking executive overreach in the context of national security, the key actor is Congress. As Justice Robert H. Jackson observed in the 1952 Youngstown Sheet decision, “I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress…We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”

    What we’re seeing right now is Congress letting power slip right through its fingers and become more concentrated in the hands of the President.  Congress has gone into recess without weighing in on the President’s decision to authorize military action against ISIS in Iraq and Syria (the vote to arm Syrian rebels addressed a separate matter).  President Obama has claimed he has authority to order military action based on the 2001 Authorization for the Use of Military Force against Al Qaeda and the Taliban.  But that legislation cannot plausibly provide authority to act against ISIS, a rival of Al Qaeda’s that did not even exist when the 2001 AUMF was enacted.  As Harvard Law professor Jack Goldsmith put it, President Obama’s decision to order military action against ISIS in Syria “is, at bottom, presidential unilateralism masquerading as implausible statutory interpretation.”

  • September 29, 2014
    Guest Post

    by Judy Appelbaum, Visiting Professor of Law, Georgetown University Law Center; Acting Assistant Attorney General and Deputy Assistant Attorney General for Legislative Affairs, 2009-2013.

    When Eric Holder testified before the Senate Judiciary Committee in January 2009 on his nomination to serve as Attorney General, he pledged to faithfully execute his duties by adhering to the precepts and principles of the Constitution, and to do so in a fair, just and independent manner. He also promised to reinvigorate the traditional missions of the Department of Justice and emphasized that one of his top priorities would be to safeguard what he called our precious civil rights.  He has lived up to those commitments, and he will leave office with an extraordinary record of accomplishment. 

    I was privileged to have a close-up view of Attorney General Holder’s stewardship of the Department when I helped lead DOJ’s office of legislative affairs for the first four years of his tenure. Right at the beginning, I saw the determination and energy he put into passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which gave the Department new tools to address violent hate crimes and for the first time enabled DOJ to protect LGBT victims.  After the bill became law, he made sure that the Department aggressively investigated and pursued such crimes wherever warranted by the facts and the law. 

    Demonstrating his commitment to fairness in the criminal justice system, early in his term Attorney General Holder also pressed Congress to pass the Fair Sentencing Act to reduce crack-powder sentencing disparities that disproportionately penalized African American offenders.  He didn’t rest on that legislative success, either. He then launched the Smart on Crime Initiative, which led to a series of path-breaking reforms. These include a change in the Department’s charging policies to avoid triggering excessive mandatory minimum penalties for low-level, non-violent drug offenders, and measures to reduce barriers faced by ex-offenders as they re-enter society. Under Holder’s innovative Access to Justice Initiative, the Department has found ways to help ensure that indigent criminal defendants receive adequate legal representation.