ACSBlog

  • June 12, 2018
    Guest Post

    Reuben Guttman, Founding member, Guttman, Buschner & Brooks PLLC

    It might very well have been about the time that former Deputy Attorney General Sally Yates was speaking at the American Constitution Society's annual convention last Thursday night in Washington, DC that food critic and CNN commentator Anthony Bourdain was ending his life in a hotel room across the Atlantic in France.

    The mind works in strange ways; I have been thinking about Bourdain's untimely passing, and perhaps it is just human nature to recall where you were when an event of some consequence occurs. And just maybe, there is some irony here. 

    Yates stood up against a President, refusing to defend a travel ban that would have restricted - if not downright blocked - the immigration of those who are at the core of what this nation is about: an amalgam of diversity and a blending of culture.

    Of course, since Yates stood up to the President and lost her job for doing so, the rest of us – on almost a daily basis – have witnessed the erosion of the rule of law and grappled with how to make all Americans fully understand the depth of our national crisis. 

  • June 11, 2018

    by Richard N. Lorenc, Executive Vice President of the Foundation for Economic Education*

    “Our law punishes people for what they do, not who they are.” Chief Justice John Roberts articulated this core constitutional principle last year in Buck v. Davis, a case that reversed the death sentence of an African-American man because a psychologist told the jury that he was more dangerous because he was black.

    Just as the judiciary has a responsibility to address when racial prejudices poison jury deliberations, it must also act when challenged with the prospect of anti-gay bias in a capital murder trial.

    Next month, the Supreme Court is being asked to accept a case in which Charles Rhines, a gay man in South Dakota convicted of murder in 1993, received the death penalty after deliberations included statements such as “If he’s gay we’d be sending him where he wants to go if we voted for [life in prison].” 

  • June 7, 2018
    Guest Post

    by Alan Neff

    *This piece was originally posted on Crooks & Liars.

    Before the end of June, and possibly within the next week, the Supreme Court will announce its decision in the partisan-gerrymandering case of Whitford v. GillWhitford is Wisconsin’s starkly Republican contribution to the ongoing national battle over the principle that, as Justice Ginsburg has said for the Court, “...voters should choose their representatives, not the other way around.”

    (Note: All of the papers in Whitford - from the original complaint to the briefs of the parties and all the intervenors - can be found here, at the site of the Campaign Legal Center, which provides members of the plaintiffs’ legal team.)

  • June 5, 2018
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law, University of Nevada, Las Vegas William S. Boyd School of Law 

    Many of us expected the Baker, Jack Phillips, to defeat the Same-Sex Couple, Charlie Craig and Dave Mullins, in the Supreme Court of the United States. The Baker refused to bake a marriage cake for the Couple because of his religious opposition to same-sex marriage. I thought it would be a Kennedy, 5-4 opinion, on free speech grounds. Instead, the Court, in an opinion by Kennedy, unfortunately ruled 7-2 in the Baker’s favor on free exercise of religion grounds.

    The free exercise decision was surprising because the Free Exercise Clause requires everyone to obey neutral laws of general applicability. The sexual orientation anti-discrimination laws are neutral laws of general applicability. Both the Colorado Civil Rights Commission and the Colorado Court of Appeals so ruled. Nonetheless, Justice Kennedy wrote that the Commission had displayed religious hostility in its enforcement of those laws, and that the “neutral and respectful consideration to which Phillips was entitled was compromised.”

  • June 5, 2018

    by Julie A. Werner-Simon, former federal prosecutor, 1986-2015

    Just in time for June nuptials, the U.S. Supreme Court on Monday, June 4, 2018 issued the long-awaited decision in Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission. Justice Anthony Kennedy authored the 7-2 opinion, which reversed the finding of discrimination against baker Jack Phillips made by the Colorado Civil Rights Commission and the Colorado Court of Appeals. In a fractured and narrowly tailored 58-page decision, the court decided the case not on freedom of speech-what-is-art grounds, but on the free exercise clause of the First Amendment.  What stands out about the decision is how unsatisfying it is. It’s not the full meal expected after the December 5, 2017 oral argument when the justices sought to distinguish off-the-shelf cake from made-to-order confections, or the artistic merits of a made-at-the-table Mexican mole dish from that of any creation from any chef.  The decision is merely an amuse-bouche (those bite-sized hors-d'oeuvres) that does not rank as even an appetizer. 

    Kennedy’s narrow slicing in the Masterpiece Cake case is a win for the Colorado baker on procedural due process grounds but leaves to another day the question of what to do when the rights of religion and inclusion and fair treatment collide.