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  • July 1, 2014

    by Paul Guequierre

    As LGBT Americans continue on the path to equality, the community celebrated two major victories this week. Today, U.S. District Judge John G. Heyburn II ruled that same-sex couples have a right to marry in Kentucky, saying, "In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted."

    Heyburn ruled in February that Kentucky must recognize gay marriages performed in other states. Heyburn immediately stayed his ruling today.

    According the Louisville Courier-Journal, Heyburn rejected the only justification offered by lawyers for Kentucky Gov. Steve Beshear—that traditional marriages contribute to a stable birth rate and the state's long-term economic stability.

    "These arguments are not those of serious people," he said.

    Today’s victory for marriage equality is one in a string of many.  Just last week, U.S. District Judge Richard L. Young ruled Indiana’s ban on marriages by gay and lesbian couples unconstitutional and the U.S. Court of Appeals for the Tenth Circuit upheld an earlier ruling that Utah’s same-sex marriage ban is unconstitutional. The Utah ruling affects all states in the Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. And earlier in June, U.S. District Court Judge Barbara Crabb ruled Wisconsin’s marriage ban unconstitutional. Hundreds of marriages took place in the Badger state before Crabb stayed her ruling. Just a week before Crabb’s ruling, the U.S. Supreme Court refused to block marriages of same-sex couples in Oregon.

    In other equality-related news, yesterday at the White House LGBT Pride Reception, President Obama announced he would be issuing an executive order to protect transgender federal employees from workplace discrimination, according to the Human Rights Campaign. The executive order will expand upon an executive order from President Bill Clinton, which banned workplace discrimination among federal employees on the basis of sexual orientation.

  • July 1, 2014

    by Nicholas Alexiou

    Laurence Tribe notes in Slate that “[j]ust as Knox portended Harris, Harris could well portend a far broader decision in a future case.”

    Joey Fishkin argues at Balkinization that the Supreme Court’s decision in Hobby Lobby is not about health policy, but rather, “is about the politics of recognition.”

    At the Text & History Blog, Doug Kendall discusses the great success that both the U.S. Chamber of Commerce and the broader business community had before the Court this term.

    Writing for Salon, Elias Isquith argues that Chief Justice John Roberts’ stated goal of strengthening the institutional legitimacy of the Supreme Court has failed.

  • July 1, 2014
    Guest Post

    by Nicole G. Berner, Associate General Counsel, Service Employees International Union

    In a narrowly divided opinion, the conservative majority of the Supreme Court in Harris v. Quinn ruled against homecare workers who provide crucial care to people with disabilities and the elderly and to the consumers who rely upon that care to live independently and with dignity in their homes. Harris v. Quinn was brought by the National Right to Work Legal Defense Foundation, an extreme anti-worker group funded by the likes of the Koch brothers and the Walton family. The case is part of a broader concerted attack on working people and women in this country. Although the June 30 ruling is a setback for homecare workers, our members are more determined than ever to ensure quality care for people with disabilities and seniors, all of whom want nothing more than to enable this population to live independently and with dignity at home.

    The petitioners asked the Court to disregard one of the bedrock principles of Supreme Court jurisprudence (stare decisis) and to overrule Abood v. Detroit Board of Education, 431 U. S. 209 (1977), a case relied on and reaffirmed in myriad cases since it was decided nearly four decades ago. In Abood, the Court held that a government entity may, consistent with the First Amendment, require public service employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. While the Court declined the invitation to overrule Abood – a decision that would have radically restructured public sector labor relations in this country – the majority instead ruled that Abood’s protections do not extend to home care workers in the State of Illinois.

    The Court’s narrow ruling leaves intact the right of most public service workers such as teachers, fire fighters, and police officers to join together in a union and to negotiate for fair share arrangements. The ruling also leaves intact the rights of the Illinois homecare workers to form a union and to bargain collectively through an exclusive bargaining representative. But the conservative five-justice majority carved out an exception to Abood for the tens of thousands of homecare workers in Illinois, thereby weakening the ability of this majority female workforce to advocate collectively for improved working conditions and quality care.

  • June 30, 2014
    Guest Post

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

    Two things stand out to me about this morning’s 5-4 decision in Burwell v. Hobby Lobby Stores that the Religious Freedom Restoration Act (RFRA) grants “religious” for-profit corporations an exemption from regulations requiring businesses to include coverage for contraceptives in their health insurance plans:

    First, the majority opinion attempts to hold itself out as a limited, cautious one. A closer look, however, shows that it is no such thing.

    Second, even though Justice Kennedy joined the five-justice majority opinion, his separate concurring opinion indicates that he disagrees with the majority in important respects. In such circumstances, a Justice normally joins a colleague’s opinion only in part, at most. Justice Kennedy’s imprudent joinder of the majority’s entire opinion will likely lead to mischief and confusion in the lower courts.

    Applicability to for-profit corporations

    The majority’s analysis begins with the conclusion that RFRA protects the religious “beliefs” of for-profit corporations, even though it is quite doubtful that the senators and representatives who voted for RFRA expected it to extend that far.

    The majority attempts to “limit” its ruling on this issue by stating that it is addressing only closely-held for-profit corporations here, and that it is not deciding whether RFRA also covers publicly-traded corporations.  But a reading of the majority’s reasoning on this issue — including its explanation that the word “person,” as used in RFRA, is defined as covering all corporations by a law called “the Dictionary Act” — leaves no doubt that the same result will ensue in the case of publicly-traded entities.

    The majority’s real attempt to answer concerns about extending the coverage of RFRA to all for-profit entities is to say: “don’t worry about it,” it’s unlikely that a publicly-traded corporation will attempt to impose religious requirements on its employers because it probably won’t be able to agree internally on any particular religious belief. This should not be of comfort to employees.

    Perhaps smaller, minority religions will not be able to impose their religious views on employees through publicly-traded corporations. But there is no reason to be confident that the religious views held by the majority of persons wealthy enough to own stock, at least in a particular industry or field, won’t give rise to RFRA claims by large, publicly-traded entities. In other words, employees need only worry about being subjected to majority religious views, of the better-off.

  • June 30, 2014
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    In earlier posts on this case, I pointed out the potential that the decision could knock out the pillars of a carefully designed labor relations system. This decision did not do so, but it is clear that Justice Alito is planting the seeds for such destruction. There is no doubt that the National Right to Work Legal Defense Foundation will accept the invitation with future, or even currently pending litigation designed for such a purpose. 

    Although the decision was narrower than it might have been, it was not a victory for the union or the health care workers it represents. The predictable majority in the 5 to 4 decision noted that the workers at issue are not exclusively state employees. They are also employed by the disabled individuals who hired them to provide home care. Therefore, these partial government employees are not covered by the Court’s 37-year old precedent that allows states to enter into agreements with unions that require all employees that the union is mandated by law to represent to pay the costs of such representation. As a result, the state cannot choose to require these employees to pay the cost of union representation, despite its decision that collective bargaining is an effective way to accomplish its interests as an employer.

    Justice Alito spent pages questioning the 1977 Abood decision, which found such agreements do not violate the First Amendment so long as they do not require objecting workers to pay for the union’s political or other nonrepresentational activities. Abood was decided without a dissent by a Court with such notable conservatives as Justices Rehnquist and Powell, demonstrating just how far the Court has moved in recent years.  Justice Alito’s discussion of Abood mirrored and expanded his 2012 opinion in Knox v. SEIU, in which he similarly questioned Abood in dicta, expounding on an issue not raised by the parties in the case. Anyone who doubts that conservative justices engage in judicial activism should read both opinions. At one point Justice Alito supports the proposition that avoiding the problem of free riders, nonmembers who accept the benefits of union representation without paying the cost, does not justify the constitutional harm to the nonmembers who must pay those costs by citing as persuasive authority his own dicta in Knox.