March 2014

  • March 31, 2014
    Guest Post

    by Frederick Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University Law School

    In the wake of last week’s oral argument of the contraception mandate cases, numerous reporters and bloggers have suggested that the government’s defense of the mandate went badly because (roughly), “Justice Kennedy thinks Hobby Lobby is an abortion case.” The basis for this take is that Justice Kennedy’s questions linked the mandate with abortion rights, to which he has only a limited commitment: Justice Kennedy joined the joint opinion of Planned Parenthood v. Casey (1992) which upheld the “core” of Roe v. Wade (1973), but he subsequently authored the majority opinion in Gonzalez v. Carhart (2007), which upheld a federal statutory ban on late-term abortions despite the absence of health exception. (See also Stenberg v. Carhart (2000), with Kennedy dissenting to the Court’s striking down of a state ban.)

    But there’s another way of seeing Hobby Lobby. Justice Kennedy also asked questions that linked Hobby Lobby’s opposition to the mandate to the burdens a religious exemption from the mandate would impose on its employees, and he has expressed concern in past decisions about religious exemptions that shift the cost of accommodation from those who practice the accommodated religion to those who don’t. For example, Kennedy wrote in the Kiryas Joel that “a religious accommodation demands careful scrutiny to ensure that it does not so burden nonadherents or so discriminate against other religions as to become an establishment” (concurring in the judgment).

    This concern about cost-shifting religious accommodations would presumably be front and center in any case involving religious exemptions that would burden gays and lesbians. Whatever he thinks about abortion rights, there can be no question that Justice Kennedy has long been unequivocally opposed to discrimination against gays and lesbians. See United States v.  Windsor (2013); Hollingsworth v. Perry (2013); Lawrence v. Texas (2003); Romer v. Evans (1996). Indeed, it would appear from Windsor that Justice Kennedy is prepared to hold that state prohibitions and restrictions on same-sex marriage violate the both the Equal Protection and Due Process Clauses of the 14th Amendment.

    Religious Freedom Restoration Act (RFRA) exemptions for Hobby Lobby would open the door to state religious exemptions excusing for-profit businesses from serving same-sex couples or providing certain benefits to gay and lesbian employees. A religious exemption from the contraception mandate for Hobby Lobby would establish a more general principle that for-profit businesses and their owners are entitled to statutory accommodation of their religious beliefs, even when such accommodations impose significant costs on others who do not share those beliefs. Under this principle, not only could an employer claim the right not to provide services for a same-sex wedding on religious grounds, it could also claim the right not to provide mandated employee benefits like health insurance coverage for same-sex spouses, or leave under the Family and Medical Leave Act for gay employees who adopt a child.

  • March 31, 2014

    In an op-ed for The New York Times, Bruce Ackerman eloquently compares the current state of gay marriage to the struggle of the civil rights movement in order to “emphasize the link between institutionalized humiliation and the constitutional requirements of equal protection.” Indeed, as Ackerman’s analysis points out, “dignity is a constitutional principle.”
     
    Earlier this morning, the U.S. Supreme Court heard oral argument in Alice Corporation Pty. Ltd. v. CLS Bank International, a case examining whether computer software is “eligible for copyright and patent protection.” Timothy B. Lee at The Washington Post provides useful commentary on the case.
     
    At Jost on Justice, Kenneth Jost notes that death row inmates are challenging the lethal injection formula that is being used for executions. In the piece, Jost explains why “it is not too much to ask that courts make sure that lethal injections, as carried out, are the humane executions they are supposed to be.”
     
    Jeffrey Toobin at The New Yorker reports on the successes of the Affordable Care Act thus far, the fecklessness of some of its promoters and the law’s most critical hurdle.
     
    Writing for Just Security, Marty Lederman describes why Hussain v. Obama is “a habeas case to keep an eye on.”
  • March 31, 2014
     
    Last week, hundreds rallied outside of the Supreme Court as the justices prepared to hear oral arguments in Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc. Half of those present stood on the left side of the Court’s steps, the other half to the right, in a visual representation of their ideological divide.
     
    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.
     
    Among the organizations rallying in support of contraception coverage were the Alliance for Justice, Americans United for Separation of Church and State and the National Partnership for Women and Families. Representatives from these groups and others held signs that read “Women’s health is a compelling interest,” “Contraception is my business,” “Keep your religion out of my health decisions” and “This is personal.”
     
    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.”
     
  • March 28, 2014
    Guest Post
    by Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law and an ACS Faculty Advisor at the University of Chicago Law School; former Chair, ACS Board of Directors
     
    This post originally appeared at The Daily Beast.
     
    President Obama announced this morning that he will propose legislation calling for significant changes in the NSA’s telephone metadata program. This is good news, indeed.
     
    The enactment of these proposals would strike a much better balance between the interests of liberty and security. They would preserve the value of the NSA’s program in terms of protecting the national security, while at the same time providing much greater, and much needed, protection to individual privacy and civil liberties.
     
    The proposals are based on recommendations made by the president’s five-member Review Group, of which I was a member. To understand why we came up with these suggestions, it is necessary first to understand how the program operates.
     
    Under the telephone metadata program, which was created in 2006, telephone service companies like Sprint, Verizon and AT&T are required to turn over to the NSA, on an ongoing daily basis, huge quantities of telephone metadata involving the phone records of millions of Americans, none of whom are themselves suspected of anything.
     
    Even though the program to-date has functioned properly, history teaches that there is always the risk of another J. Edgar Hoover or Richard Nixon.
     
  • March 28, 2014
     
    On Wednesday, the Senate held cloture votes on four nominees, quickly followed by successful confirmation votes for all four:
     
    Christopher Cooper to the District of D.C., cloture 56-43, confirmed 100-0;
    Douglas Harpool to the W.D. of Missouri, cloture 56-43, confirmed 93-5;
    Gerald McHugh to the E.D. of Pennsylvania, cloture 56-43, confirmed 59-41;
    Edward Smith to the E.D. of Pennsylvania, cloture 75-23, confirmed 69-31.
     
    Christopher Cooper has been a long-time member of ACS. Gerald McHugh and Edward Smith are welcome additions to the Pennsylvania bench, which is overwhelmed with vacancies. Even with these confirmations, there remain five vacancies in the Eastern District (no nominees), three vacancies in the Western District (no nominees), and two 3rd Circuit Pennsylvania vacancies (1 nominee). There has been serious disagreement and concern over David Porter, thought to be under consideration for one of the Western District vacancies.
     
    Florida courts came one step closer to adding Darrin Gayles to the bench this week when Sen. Rubio (R-Fla.) returned his blue slip, allowing Gayles to have a hearing in the Senate Judiciary Committee. If confirmed, Gayles would be the first openly gay African-American man to be a federal judge. He was nominated by President Obama after Sen. Rubio blocked William Thomas’s nomination, despite Rubio’s early support.