ACSBlog

  • July 14, 2014
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, The University of Chicago

    *This piece is cross-posted at Huffington Post

    A recent Washington Post article reported that the state constitutions of eight states -- Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas -- expressly prohibit individuals who do not believe in God from holding public office.

    The Arkansas constitution, for example, provides that "no person who denies the being of a God shall hold any office in... this State," the Mississippi constitution stipulates that "no person who denies the existence of a Supreme Being shall hold any office in this State," the Tennessee constitution states that "no person who denies the being of God, or a future state of rewards and punishment, shall hold any office in... this state," and so on.

    Are such provisions constitutional? The history of such laws goes back to the very founding of our nation, for a central question facing the Framers of our Constitution concerned the appropriate role of religion in government. For more than a thousand years, it had been the norm for Christian societies to have an established religion. At the time of the American Revolution, nine of the 13 colonies still had an established church, and most colonies expressly limited the right to hold public office to members of their established church. Over the next decade, though, Americans increasingly questioned the appropriate role of religion in the affairs of government.

    A critical debate occurred in Virginia, where a lengthy struggle culminated in the adoption in 1785 of Thomas Jefferson's Statute for Religious Freedom. The preamble of Jefferson's bill condemned those "legislators and rulers" who have "assumed dominion over the faith of others, setting up their own opinions and modes of thinking as... true and infallible," and then "endeavored to impose them on others."

  • July 14, 2014

    by Nicholas Alexiou

    Katie McDonough discusses, at Salon, the first arrest under Tennessee’s SB 1391, which allows prosecutors to charge a woman with criminal assault if she used narcotics during her pregnancy and such consumption is believed to harm the fetus or newborn. The Tennessee law is the first of its kind in the nation and is widely condemned by medical organizations and addiction specialists for deterring pregnant women from seeking medical treatment.

    At Slate, Ian Thompson talks about the history of abusive surveillance in the U.S. against the LGBTQ community and how current bans on racial profiling federal law-enforcement agencies must be updated to prohibit profiling on the basis of religions, sexual orientation, gender identity and national origin.

    Paul Caron details the drop in June LSAT takers at the TaxProf Blog. The number of test takers in June fell 9.1% from the previous year, the lowest figure in 14 years.

    At Hamilton and Griffin on Rights, Leslie Griffin asks if there is a divide on the Supreme Court between the Catholic and Jewish justices.

  • July 14, 2014
    BookTalk
    The Wrong Carlos
    Anatomy of a Wrongful Execution
    By: 
    James S. Liebman

    by James S. Liebman, Simon H. Rifkind Professor of Law, Columbia Law School, and Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky

    Do states with the death penalty execute innocent people? That is the fundamental question at the heart of The Wrong Carlos, a book I recently published with student coauthors.

    It is also the question facing the American public following a series of devastating developments for death penalty supporters. March brought news of the 144th death row exoneration. In April, we learned that Oklahoma had botched Clayton Lockett’s execution, leaving him awake during a massive drug-induced heart attack. The Supreme Court found in May that Florida remains hell bent on executing defendants too mentally disabled to be condemned. And in June—for the first time—a majority of Americans indicated in a poll that they prefer life without parole to capital punishment.

    Death penalty supporters are left clinging to a single promise often made but never substantiated—a promise repeated by Justice Scalia in a 2006 opinion: Whatever else we do, we don’t execute the innocent.

    I began thinking about this question between 2000 and 2003, when colleagues and I issued our Broken System studies documenting judicial findings of accuracy-impugning error in two-thirds of all U.S. capital cases reviewed between 1973 and 1995.

    Our studies sparked a heated debate over two competing interpretations. Did the courts’ discovery of so many errors prove the system worked? Or do high error rates mean it is almost certain that courts miss other errors, allowing the innocent to be executed?

  • July 11, 2014
    Guest Post

    by Catherine Fisk, Chancellor’s Professor of Law, University of California Irvine School of Law

    As I have argued elsewhere, in striking down an Illinois law authorizing the state to require unionized home care workers to pay their fair share of the cost of union representation, the Supreme Court in Harris v. Quinn disregarded its longstanding rule that it does not decide questions of state law and failed to reconcile the result with the First Amendment rights of government workers or the Court’s other cases on when compulsory fees constitute compelled speech. 

    First, under Illinois law, government-paid and government-regulated home health-care workers are state employees. Justice Alito’s majority opinion in Harris disregarded state law when it invented a vague new category of non-“full-fledged” government employees who have greater First Amendment rights than other workers to refuse to pay the costs of union representation.

    Second, if under Garcetti v. Ceballos, and United States Civil Service Commission v. National Association of Letter Carriers, government employees have no First Amendment rights to speak on the job on matters of public concern or to engage in political activity on their own time, why do some government employees have a First Amendment right to refuse to pay for services that their union is legally required to provide them?

    Third, the Court failed to explain why fair share fees differ from compulsory payment of lawyers’ bar dues, which the Court approved in Keller v. California State Bar.  To quote Keller, substituting only “home care workers” for “legal profession,” Illinois has an “interest in regulating [home health-care workers] and improving the quality of [home health-care] services.”

    Yet there is a way forward. As I argue with Ben Sachs, where unions are unable to require objecting workers to pay fees – whether it’s in right-to-work states or in work situations that fall under Harris v. Quinn – we should get rid of the rule of exclusive representation. Non-fee payers wouldn’t be subject to the terms of the collective bargaining agreement, they wouldn’t have to interact with their employer through a collective agent, and they wouldn’t be required to pay anything to a union they didn’t vote for. Unions, for their part, would be required to represent only those workers who actually want representation.  Another possibility is that governments wishing to bargain with a single representative on behalf of their workers could agree to pay the cost of the representational services on behalf of all workers. No worker would then be compelled to pay anything to a union and the dissenting workers’ First Amendment rights would not be violated.

  • July 11, 2014
    Guest Post

    by Caroline Mala Corbin, Professor of Law, University of Miami School of Law

    There is much to lament in the Supreme Court’s Burwell v. Hobby Lobby decision, which held that first, closely held for-profit corporations like Hobby Lobby may bring religious liberty claims under the Religious Freedom Restoration Act (RFRA), and second, that the contraception mandate – the requirement that health insurance plans provide contraception at no additional cost – violated Hobby Lobby’s RFRA rights. Thanks to the decision, owners who are religiously opposed to contraception may exclude it from their employees’ health plan.  For several reasons, the winners are corporate owners, and the losers are all the men and women who must work for them. 

    First,  Hobby Lobby allows owners of for-profit corporations to have their cake and eat it too. One of the main reasons people incorporate their businesses is to gain the protection of limited liability, which shields owners from the liabilities of their corporation. For example, the debts of the corporation are not the debts of the owners. After Hobby Lobby, owners are considered separate and distinct from their corporations for purposes of limited liability, but one and the same for the purposes of religious rights. In other words, the owners and corporations are alter-egos when it is convenient, and not when it is not. That is not how the law is supposed to work.

    Second, at the same time, Hobby Lobby virtually ignores the rights of employees. The Justices could barely bring themselves to acknowledge that a religious exemption created any kind of burden on the thousands of workers who just lost their contraception coverage. Instead, in a footnote (a placement in keeping with the Court’s marginalization of employees), the Court characterized the contraception mandate as a burden but a potential religious exemption as merely the loss of a benefit. Apparently, only corporate owners are burdened. The bottom line is that the owners’ rights are privileged over their workers’ rights. Never mind that health insurance is part of employees’ compensation, and owners should not be able to dictate how employees spend their own earnings. And never mind that sincere religious obligations can point towards contraception use as well as away from it, as people may have faith-based reasons for limiting their family size.