by James C. Nelson, Justice, Montana Supreme Court (Retired)
Congress has proclaimed that the first Thursday in May—May 1, this year—is set aside as a National Day of Prayer. There will be a National Prayer Breakfast and similar state celebrations conspicuously attended by elected officials, politicians and sectarian persona.
But should Congress and state officials be promoting prayer at all? According to the Constitution, no!
The First Amendment guarantees two things: (1) that Congress will not prohibit the free exercise of religion; and (2) that Congress will make no law respecting an establishment of religion. These two clauses embody the wall separating church and state—a wall that is supposed to keep government out of religion, period.
Why, then, did Congress create in 1952, and then codify in 1988, a “national” day of prayer? If you answered, “True to the intentions of the Constitution’s framers, America is a Christian nation,” you’d be wrong. Indeed, creating any kind of a religious nation, Christian or otherwise, is exactly what the framers were trying to avoid when they drafted the First Amendment. And for good reason.
Writing for Verdict, Michael C. Dorf compares last week’s decision in McCutcheon v. Federal Election Commission with the political philosophy of fictional House of Cards majority whip Francis Underwood to reveal “a Court with an utterly benighted view of politics.” At CAC’s Text & History Blog, Brianne Gorod notes how Chief Justice John Roberts’ ruling in McCutcheon is inconsistent with his stated beliefs as a judge on the U. S. Court of Appeals for the D.C. Circuit.
While the Affordable Care Act remains “too entrenched, among consumers and providers, either to fail on its own or be dispatched by legislative ‘repeal,’” its opponents continue to resist the law, bringing lawsuits that could “wreak havoc beyond the exchanges.” Writing for The New Republic, Simon Lazarus explains what needs to be done to counter these challenges.
The Obama administration continues to face criticism for its deportation of immigrants living in the country illegally. Ginger Thompson and Sarah Cohen of The New York Times reveal how an “examination of the administration’s record shows how the disconnect evolved between the president’s stated goal of blunting what he called the harsh edge of immigration enforcement and the reality that has played out.”
On Monday, the Supreme Court decided not to grant certiorari in a case asking whether a business can “refuse to serve gay and lesbian customers.” Lyle Denniston at SCOTUSblog breaks down Elane Photography v. Willock and other orders from the high court.
Andrew Cohen at The Atlantic reviews former Supreme Court Justice John Paul Stevens’ Six Amendments: How and Why We Should Change the Constitution, and highlights the justice’s change of heart on the constitutionality of capital punishment.
Yesterday, the Supreme Court struck down a limit on the aggregate financial contribution an individual can make to candidates and party committees in McCutcheon v. Federal Election Commission. Democracy 21 discusses the “consequences of the disastrous decision” while the Brennan Center for Justice’s David Earley explains how the case reflects the “justices’ troubling vision of democracy.” At Demos, Alex Amend notes how the “McCutcheon Money” will discourage whatever “level-playing field” was left after Citizens United v. FEC. For more coverage of McCutcheon v. FEC, please visit ACSblog.
James Clapper, the U.S. Director of National Intelligence, confirmed that “the National Security Agency has used a ‘back door’ in surveillance law to perform warrantless searches on Americans’ communications.” Writing for The Guardian, Spencer Ackerman and James Ball report on the political outcry surrounding this controversial “secret rule change.”
Last week, the Supreme Court heard oral argument for Wood v. Moss, a case asking whether Secret Service agents can be sued for treating protestors differently in a 2004 presidential visit to Oregon. At the Constitutional Law Prof Blog, Ruthann Robson—Faculty Advisor for the CUNY School of Law ACS Student Chapter—discusses how and if this case, along with the recent scandal surrounding President Obama’s personal security detail, should influence the “qualified immunity” the Supreme Court bestows on the Secret Service.
The issue in the “contraception mandate” cases is whether the Religious Freedom Restoration Act of 1993 (RFRA) allows the owners of for-profit corporations to use religious objections for denying employees health coverage of contraceptives, coverage to which employees would otherwise be entitled to by the Affordable Care Act.
Rep. Diana DeGette (D-Colo.) showed her support early on in the rally, as did Justin Nelson, the co-founder and president of the National Gay and Lesbian Chamber of Commerce. “There is not broad support for this issue in corporate America,” he stated, regarding companies’ objections to insurance coverage of contraception. “It is bad for health care, it’s bad for equality and it’s bad for America.”
Yesterday, the U.S. Court of Appeals for the Fifth Circuit stayed, pending litigation, a district court decision that had struck down parts of Texas’ controversial abortion law. The key provisions of the law, “pertaining to hospital privileges for physicians who perform abortions and protocols for abortion-inducing drugs,” have ignited ardent protest from Planned Parenthood and other pro-choice groups. Greg Botelho at CNN follows this decision.
The Obama administration has announced its plan to reform the National Security Agency’s bulk collection of phone records. Adam Serwer at MSNBC discusses how these changes will impact the NSA and the concerns that remain regarding “bulk preservation.”
Writing for Balkinization, David Gans urges the Supreme Court to “recognize that the rights of Hobby Lobby’s thousands of employees—who have deeply held beliefs and convictions of their own—are at stake here, too.”
Last year, the Supreme Court struck down the “preclearance” provision in the Voting Rights Act of 1965, “a critical tool that prevented discrimination.” At The Root, Julian Bond urges Congress to pass the Voting Rights Amendment Act to ensure that “minorities have an equal voice in our democracy.”
Josh Gerstein at Politico reports on the 13-month sentence that may await a former State Department contractor who leaked classified information to Fox News.