At The Daily Beast, Geoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, discusses his experience on the President’s Review Group on Intelligence and Communications Technologies and why “constant, rigorous, and independent review is essential if we are to strike the proper balance between liberty and security in a changing world.”
The Supreme Court heard oral argument yesterday in a case involving an “Ohio law that criminalizes the spreading of false information about a political candidate during a campaign.” The challenge comes after an anti-abortion rights group mischaracterized former Rep. Steve Driehaus’ (D-Ohio) stance on abortion during his 2010 reelection campaign. Robert Barnes at The Washington Post has the story.
Peter Hardin at GavelGrab notes that if New Jersey Gov. Chris Christie chooses not to reappoint Chief Justice Stuart Rabner it could “give rise to the perception that Christie was attempting to intimidate judges working without tenure.”
At The New Yorker’s Daily CommentHendrik Hertzberg explains New York Gov. Andrew Cuomo’s decision to join the National Popular Vote (NPV) interstate compact.
by Frederick Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young UniversityLaw School
In the wake of last week’s oral argument of the contraception mandate cases, numerous reporters and bloggers have suggested that the government’s defense of the mandate went badly because (roughly), “Justice Kennedy thinks Hobby Lobby is an abortion case.” The basis for this take is that Justice Kennedy’s questions linked the mandate with abortion rights, to which he has only a limited commitment: Justice Kennedy joined the joint opinion of Planned Parenthood v. Casey (1992) which upheld the “core” of Roe v. Wade (1973), but he subsequently authored the majority opinion in Gonzalez v. Carhart (2007), which upheld a federal statutory ban on late-term abortions despite the absence of health exception. (See also Stenberg v. Carhart (2000), with Kennedy dissenting to the Court’s striking down of a state ban.)
But there’s another way of seeing Hobby Lobby. Justice Kennedy also asked questions that linked Hobby Lobby’s opposition to the mandate to the burdens a religious exemption from the mandate would impose on its employees, and he has expressed concern in past decisions about religious exemptions that shift the cost of accommodation from those who practice the accommodated religion to those who don’t. For example, Kennedy wrote in the Kiryas Joel that “a religious accommodation demands careful scrutiny to ensure that it does not so burden nonadherents or so discriminate against other religions as to become an establishment” (concurring in the judgment).
This concern about cost-shifting religious accommodations would presumably be front and center in any case involving religious exemptions that would burden gays and lesbians. Whatever he thinks about abortion rights, there can be no question that Justice Kennedy has long been unequivocally opposed to discrimination against gays and lesbians. See United States v. Windsor(2013); Hollingsworth v. Perry (2013); Lawrence v. Texas (2003); Romer v. Evans (1996). Indeed, it would appear from Windsor that Justice Kennedy is prepared to hold that state prohibitions and restrictions on same-sex marriage violate the both the Equal Protection and Due Process Clauses of the 14th Amendment.
Religious Freedom Restoration Act (RFRA) exemptions for Hobby Lobby would open the door to state religious exemptions excusing for-profit businesses from serving same-sex couples or providing certain benefits to gay and lesbian employees. A religious exemption from the contraception mandate for Hobby Lobby would establish a more general principle that for-profit businesses and their owners are entitled to statutory accommodation of their religious beliefs, even when such accommodations impose significant costs on others who do not share those beliefs. Under this principle, not only could an employer claim the right not to provide services for a same-sex wedding on religious grounds, it could also claim the right not to provide mandated employee benefits like health insurance coverage for same-sex spouses, or leave under the Family and Medical Leave Act for gay employees who adopt a child.
Beyond providing victory for equality, today’s Supreme Court opinion striking an integral provision of the so-called Defense of Marriage Act sent Justice Antonin Scalia into a fitful and contradictory rage.
Though Scalia joined the majority opinion of Shelby County v. Holder, which invalidated a congressional action, usurping Congress’ constitutional authority to enforce the 14th and 15th Amendments, today he railed against the majority for invalidating Sec. 3 of DOMA, which unlike the Voting Rights Act, worked to discriminate against a certain group of people -- lesbians and gay men. So yesterday, Scalia joined his right-wing colleagues in gutting a landmark federal law aimed at preventing discrimination, while today he lodged an over-the-top dissent against striking down a provision of a blatantly discriminatory federal law. And he did so, as TPM’s Sahil Kapur notes, in fiery fashion – rather like he did in dissenting in Lawrence v. Texas issued 10 years ago today invalidating a state law discriminating against lesbians and gay men.
According to Scalia, the majority in U.S. v. Windsor led by Justice Anthony Kennedy provided a “jaw-dropping” expansion of judicial review. “It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where ‘primary’ in its role,” Scalia fumed.
He didn’t stop there, adding the Constitution’s framers would not recognize the “black-robed supremacy that today’s majority finds so attractive.”
Scalia, after grousing at great length, that the majority should not have decided the case, went on to provide his “view of the merits.”
And his views on lesbians and gay men and laws that discriminate against them have not moved in 10 years.
A majority of the U.S. Supreme Court found a way to come together to advance equality. It comes on the ten-year anniversary of the high court’s landmark Lawrence v. Texas decision that invalidated state anti-sodomy laws targeting gay people.
In U.S. v. Windsor, the majority led by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, concluded that the federal government’s refusal to recognize legally married same-sex couples is unconstitutional.
In a 5-4 opinion in Hollingsworth v. Perry, the court dismissed on procedural grounds the challenge to court rulings that invalidated California's Proposition 8, meaning that couples in the Golden State can resume obtaining marriage licenses. The high court majority in Perry was made up of Chief Justice John Roberts Jr. and Justices Ginsburg, Breyer, Antonin Scalia and Kagan. The majority found that the supporters of Proposition 8, which yanked the right to marry from same-sex couples in California, did not have standing to challenge the law. As David Savage reports for the Los Angeles Times, state officials won’t defend the law, which they view as a violation of equal protection, so it essentially clears “the way … for same-sex marriages to resume in California.”
But both actions, however, follow the conservative majority’s decision to gut the Voting Rights Act, and a ruling potentially limiting the use of race-conscious admissions policies in higher education. Moreover, the high court also issued opinions this week making it significantly more difficult for workers to sue employers over harassment allegations. So while today’s demise of DOMA is certainly news worthy of great celebration, it hardly changes the fact that the Roberts Court is bent on advancing a right-wing, pro-corporate agenda.
In the DOMA case the majority did not find that there is constitutional right to same-sex marriage. The majority opinion was narrow, striking a provision of DOMA that it saw as infringing on due process and equality promises of the federal government. Noting the states’ historic and “significant responsibilities” for defining marriage, Kennedy said DOMA “departs” from the tradition with its sweeping scope. Citing Romer v. Evans, Kennedy wrote that discriminations “‘of an usual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’” In this instance DOMA did not survive that type of scrutiny.
In this instance DOMA was denying the dignity of a same-sex marriage that had been recognized by the state of New York. The opinion authored by Kennedy included lofty language of the Fifth Amendment’s due process clause and DOMA’s purpose to deprive an “unpopular group” of liberty. Not surprisingly Kennedy’s opinion provoked a sharp dissent from Justice Scalia, who joined yesterday’s majority opinion usurping Congress’ constitutional authority to enforce the promises of the 14th and 15th Amendments through “appropriate legislation.”
“DOMA seeks to injure the very class New York seeks to protect,” Kennedy wrote. “By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Citing precedent, he continued, that the “Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”
In an opinion not touching precedent the U.S. Supreme Court avoided invalidating on constitutional grounds the use of race-conscious admissions policies in higher education.
In Fisher v. University of Texas at Austin, the high court led by Justice Anthony Kennedy reaffirmed precedent that race-conscious admissions policies are not inherently unconstitutional. Instead, Kennedy found that the lower court, the U.S. Court of Appeals for the Fifth Circuit, failed to apply heightened judicial review to the university’s admissions policy, which takes race into account. The university’s admissions policy was challenged by a white woman, Abigail Fisher, after she was denied admissions. Fisher lodged the lawsuit against university officials arguing that its race-conscious policy violated the Constitution’s Equal Protection Clause.
Kennedy (pictured) was joined by Chief Justice John Roberts and Justices Antonin Scalia, Stephen Breyer, Samuel Alito and Sonia Sotomayor. Justice Elena Kagan recused herself in the case and Justice Ruth Bader Ginsburg lodged a dissent.
In a brief majority opinion, Kennedy reaffirmed the high court’s precedent on the use of race in higher education admissions policies. Admissions policies that consider race must be reviewed “under the Fourteenth Amendment” and subject to “strict scrutiny, for when government decisions ‘touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling government interest.’” Citing the same opinion, in Regents of the University of California v. Bakke, Kennedy noted that the high court had “identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body.”
Nevertheless, the majority punted the case back to the Fifth Circuit, finding that it failed to properly apply a heightened judicial review. Instead the Fifth Circuit, Kennedy wrote, did not subject the university’s admissions policy to rigorous review as called for in the 2003 high court opinion, Grutter v. Bollinger, which upheld the University of Michigan law school’s race-conscious admissions policy.
“Strict scrutiny does not permit a court of appeals to accept a school’s assertion that its admissions process uses race in a permissible way without giving close analysis to the evidence of how the process works in practice,” Kennedy wrote.