Arizona lawmakers passed a bill that allows businesses to discriminate against gay and lesbian customers and to deny equal pay to women. GOP lawmakers are fervently defending the legislation, claiming that it protects the religious freedoms outlined in the Religious Freedom Restoration Act. MSNBC’s Adam Serwer reports on the controversial law.
Oregon officials announced that they will no longer uphold the state’s ban on same-sex marriage. Although the fate of the ban has yet to be decided in the courts, the state’s decision remains a significant victory for gay couples in Oregon. Lyle Denniston of SCOTUSBlog has the story.
Environmentalists are engaged in a legal dispute with the Environmental Protection Agency after a North Carolina energy company polluted a nearby river with hazardous coal ash. Rena Steinzor and Michael Patoka of the CPRBlog discuss the need to regulate toxic coal ash and the alleged mishandling by the state’s Office of Information and Regulatory Affairs.
Human Rights Watch explains why a deadly U.S. drone strike on a wedding procession in Yemen may have “violated the laws of war.”
Writing for Balkinization, David Gans responds to Prof. Douglas Laycock’s claim that corporations can exercise religion.
At Womenstake, Stephanie Glover provides an update on women’s enrollment in health insurance plans through the new Health Insurance Marketplaces established by the Affordable Care Act.
As same-sex marriage ascends through the judiciary, GOP lawmakers are working ardently to slow its progress. In an effort to “defend their religious liberties,” Republican legislatures across six states have introduced bills that would discriminate against gay couples. Dylan Scott of TPM’s Editor’s Bloghas the story.
The European Union’s stance against the death penalty is influencing the role of capital punishment in America. Matt Ford of The Atlantic explains how the EU’s embargo on the lethal-injection drug sodium thiopental is “changing how America
executes the men and women it sentences to death.”
Writing for The New York Times, Linda Greenhouse celebrates the life of the late Yale Law School professor Robert Dahl and his “pathbreaking study of the Supreme Court” as a legal and political institution.
The Lilly Ledbetter Fair Pay Act was the first bill signed into law by President Obama in 2009 and has been a vital tool in the battle against wage discrimination ever since. Writing for Roll Call on the anniversary of the bill’s passage, Lilly Ledbetter and the American Civil Liberties Union’s Deborah J. Vagins reflect on the legacy of the Ledbetter Act, the importance of the proposed Paycheck Fairness Act and the necessity of executive order.
Last year, the Senate eliminated its 60-vote supermajority requirement for most judicial and executive appointments after Senate Republicans chose to filibuster an egregious number of President Obama’s nominees. In an article for The Blog of Legal Times, Todd Ruger explains why it is likely that the Senate’s power to filibuster nominations will remain applicable to our nation’s highest court.
Writing for the Center for American Progress, Joshua Field examines the current state of the Voting Rights Act, post-Shelby County. In his report, Field addresses the need to combat voting-related discrimination and the role our federal courts must play going forward.
In an article for The National Law Journal, Tony Mauro examines the ACLU’s First Amendment fight against the Supreme Court’s ban on protesting on the Court’s plaza.
Senator Blumenthal noted that a woman’s right to make health care decisions, including the ability to obtain abortions, without government or public interference is presently facing an unprecedented number of threats and legal challenges. For example there are restrictions currently being enacted by state and local governments have the effect of deterring women from making fundamental reproductive choices. There should be no regulation applied to abortions that is not similarly applied to comparable medical procedures, the Senator noted.
A panel discussion featuring some of the foremost scholars and practitioners in the realm of reproductive rights preceded Senator Blumenthal’s comments and was moderated by Juliet Eilperin, White House Correspondent for the Washington Post. Roger Evans, Senior Director of Public Policy Litigation and Law at Planned Parenthood Federation of America, noted that the next major legal battle in this arena will be focused on a rising number of state laws that require abortion providers to have hospital admitting privileges.
Last November, Planned Parenthood of Greater Texas (and assorted affiliates) filed an emergency application with the Supreme Court to vacate a stay granted by the U.S. Court of Appeals for the Fifth Circuit, which temporarily blocked the permanent injunction that federal district court judge Lee Yeakel placed on Texas’ H.B. 2. The law requires that, among other anti-choice restrictions, doctors preforming abortions must have admitting privileges at a hospital within 30 miles of the abortion clinic. The Supreme Court rejected that application, but Evans stated that it was “inevitable” that the issue of admitting privileges would eventually make it before the Court.
“In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a ‘law respecting an establishment of religion’ that violates the First Amendment to the Constitution,” wrote Justice John Paul Stevens in City of Boerne v. Flores, the 1997 case that invalidated RFRA for state governments. RFRA still prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” Congress drafted RFRA to express its dissatisfaction with the Supreme Court’s important ruling in Employment Division v. Smith that all citizens must obey neutral laws. Smith rejected the argument that religious citizens are constitutionally entitled to disobey the law. In contrast, “RFRA establishes an across-the-board scheme that deliberately singles out religious practices, en masse, as a congressionally favored class of activity,” as Cardozo law professor Marci Hamilton argued in briefingBoerne.
Justice Stevens and Professor Hamilton were right. The most fundamental Establishment Clause rule is that the government may not prefer religion over irreligion or non-religion. RFRA, however, “privileges religion over all other expressions of conscience.” Unfortunately, in 1997 only Stevens and Hamilton recognized the establishment problems with RFRA, which continues to bind the federal government.
Those problems were confirmed by the Tenth Circuit’s decision in Hobby Lobby, which exempted the large arts and crafts chain store from the contraceptive mandate of the Affordable Care Act without mentioning the Establishment Clause. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Because Hobby Lobby’s Christian owners believe that contraception causes the death of a human embryo, they want to deny contraceptive insurance to their employees. The Tenth Circuit ruled that RFRA grants the employers that right.