by James C. Nelson, Justice, Montana Supreme Court (Retired)
There is gathering national support acknowledging that lesbian, gay, bisexual and transgender (LGBT) citizens are simply that—citizens—with the same rights, privileges and obligations as other citizens. In response, some States, along with various fundamentalist religious and conservative organizations are fighting for a legally protected right to discriminate. This right to discriminate is grounded in the First Amendment’s “Free Exercise” clause. As the theory goes, being able to discriminate against LGBT citizens is necessary to preserve the First Amendment right to the free exercise of religion for these States’ fundamentalist religious heterosexuals and conservative organizations.
This stratagem is not only patently specious; it is legally insupportable.
Contrary to the homophobic fear-mongering by religious fundamentalists and conservatives, there is no legal support for the notion that a State which has recognized the equal rights of LGBT citizens can force a religious organization to adopt those same views. If Religion X condemns gay people, the State cannot, require Religion X to perform a gay or lesbian marriage or change its doctrinal beliefs against homosexuality under threat of governmental penalty. Indeed, if the State attempted to do that, it would violate the free exercise clause of the First Amendment. And, of course, for that reason, no State has made any such demands on any sectarian organization.
Yet, in Arizona, Idaho, Kansas, Nevada, Oregon, South Dakota, Tennessee, Oklahoma, Mississippi, Ohio and Utah religious and conservative organizations and, in some cases, their supporters in the state legislatures are actively promoting the adoption of laws that would permit any individual or group to discriminate in a variety of contexts based on religious beliefs. Such laws would allow business owners, for example, to discriminate against LGBT customers in much the same fashion that businesses run by racists once discriminated with impunity against people of color. A government official could deny same-sex couples basic services and benefits based solely on that official’s religious beliefs. Indeed, Arizona has even proposed to allow the denial of equal pay to women and the abrogation of contractual rights in the name of religion. In other words, one’s personal religious beliefs trump legal obligations imposed generally upon and for the benefit of all.
The Supreme Court held yesterday that an Alabama death row inmate had “constitutionally deficient” counsel at trial. The Court agreed that Anthony Hinton, who was convicted of two 1985 murders, “is entitled to a new trial if he was prejudiced by his lawyer's deficient performance.” The Equal Justice Initiative reports on the case and includes the per curiam opinion.
The New York Times editorial board calls on the Obama administration to address the lack of due process for federal immigrant detainees who are being held without bond hearings. The paper cites a plethora of cases involving the detention of immigrants without hearings or formal charges—evidence of a broken immigration system.
The United Automobile Workers filed a formal objection with the National Labor Relations Board after Volkswagen workers at a Chattanooga, Tennessee plant decided not to join the UAW. Lydia DePillis at The Washington Post considers the possibility that the UAW “get a do-over in Chattanooga.”
In an article for The New Yorker, Jeffrey Toobin argues why Clarence Thomas’ behavior on the bench is “demeaning the Court.”
by Mary Beth Tinker, Petitioner, Tinker v. Des Moines
* Editor’s Note: Ms. Tinker is currently traveling the United States to promote youth voices, free speech and a free press as part of the Tinker Tour. For updates, follow the Tour on Twitter and read its February 2014 newsletter. You can support the Tour at startsomegood. The Tour ends on March 7.
The smiling face of a seventh-grader named Jake is on my laptop screen. Jake is explaining why he wrote “We will never forget you, Newtown... 12/14/12” on the front of his shirt last year after the Newtown Elementary School shooting. On the back of the shirt, he wrote the name of every person who had been killed there. He explains that he did it because “I felt very emotional. That school was close to mine.”
When Jake wore the shirt to school the day after the shooting, the principal asked him to remove it, a possibility that Jake’s parents had prepared him for. He refused, and was sent home. Later, the parents heard that school administrators were worried that students would be upset by the shirt, and that a parent had complained.
Jake went back to school, but the experience inspired a new interest: students’ rights. Now, he’s doing a documentary for National History Day on “rights and responsibilities” that will feature the Supreme Court case, Tinker v Des Moines, in which I was a plaintiff.
Jake is asking why I wore an armband to school when I was in eighth grade back in 1965, knowing—like him—that I would get in trouble. He’d also like to know how the case led to the Supreme Court and a landmark victory for students’ rights on February 24, 1969.
Federal District Court Judge William J. Martini dismissed a case against the New York Police Department for “engaging in blanket surveillance” of Arab Muslim communities after September 11, 2001. Adam Serwer of MSNBC exposes why the court’s decision shows that “religious profiling is okay, as long as you have a really good reason.”
Christopher Sprigman of Just Security examines the public relations effort by the National Security Agency’s Director of Compliance John DeLong and the agency’s General Counsel Rajesh De concerning the NSA’s controversial surveillance activities. In the article, Sprigman reveals why these efforts “create the appearance but not the reality of lawfulness.”
Today, the U.S. Supreme Court will hear arguments regarding the regulation of greenhouse gas emissions by the Environmental Protection Agency. Robert Barnes at The Washington Post breaks down Utility Air Regulator Group v. Environmental Protection Agency. For more on this case, please visit the ACSblog.
Writing for the Brennan Center for Justice, Andrew Cohen comments on the lack of media coverage on states’ secrecy laws concerning the types of lethal injections used in executions. Cohen discusses the implications of the media’s inaction.
At ACLU’s Blog of Rights, Nusrat Choudhury deconstructs Lee Daniels' The Butler and how its depiction of the arduous legal battles of the 1960s Civil Rights movement reminds viewers that “considerable distance remains on the path to true racial equality.”
The U.S. Supreme Court will hear argument today in a case addressing EPA’s application of the Clean Air Act to greenhouse gases (“GHGs”). This will mark the third time the Court has dealt with a case related to climate change. Like its predecessors, this case has generated lots of attention, both from regulated parties and the media.
Despite the attention, one of the most significant features of the case is, perhaps surprisingly, what is not at stake. This case had the potential to call into question the foundations of the Obama Administration’s efforts to address climate change. Before the D.C. Circuit, industry groups and a coalition of states opposed to federal regulation of GHGs, challenged an array of EPA regulatory decisions. These challengers sought to overturn: (1) EPA’s determination that GHGs endanger public health and welfare; (2) EPA’s further determination that GHGs from cars and trucks contribute to the danger; (3) EPA’s regulation of tailpipe emissions of GHGs from cars and trucks; (4) EPA’s reaffirmation of its long-held view that once an air pollutant is regulated, new and modified major stationary sources of that pollutant are regulated under the Prevention of Significant Deterioration Program (“PSD”); and (5) EPA’s decision to phase-in the applicability of PSD and exempt, at least in the short-term, sources that would plainly be covered by the statutory text. The D.C. Circuit ruled in favor of EPA on all counts, and the challengers sought Supreme Court review of all of those issues and also asked the Court to overrule its earlier decision in Massachusetts v. EPA, which held that GHGs are an air pollutant. The Court declined the vast majority of that invitation, deciding instead to consider only the fourth issue described above, whether EPA properly interpreted the statute to automatically trigger regulation under PSD once a pollutant is otherwise regulated.
The limited grant is important for a couple of reasons. It suggests that the Court has little appetite to revisit the question of whether GHGs are air pollutants. It further indicates that the Court is willing to leave undisturbed, at least for the time being, EPA’s decision that GHGs endanger public health and welfare. Those two determinations underlie virtually any regulatory action under the Clean Air Act, and the Court’s denial of certiorari on those points leaves the agency in a strong position to continue regulating GHGs. Practically speaking, the limited grant means that any decision will have little consequence beyond the PSD Program itself, and that program was never likely to be the centerpiece of an EPA climate strategy under the Clean Air Act.
Nonetheless, the Supreme Court’s decision in this case will likely be invested with significant symbolic import. Some conservative commentators, legislators, and advocacy groups have repeatedly accused the Obama Administration of overreaching when it comes to addressing climate change, and a victory for the challengers will fuel that criticism. Progressive and liberal commentators, legislators, and advocacy groups have taken the opposite position and argued that the Administration has ample existing authority to tackle one of the biggest public policy challenges of our time. A victory for EPA will be heralded in those circles as a vindication for the broader climate strategy.