Month: May 2017

Categories
Law New York City

Manhattan woman can be evicted for subletting rent-stabilized apartment through Airbnb

A woman who subleased her rent-stabilized apartment in Manhattan’s West Village via Airbnb can be evicted for the arrangement, a state appeals court has ruled in a decision that limits the reach of the company in the country’s most populous city.

Linda Lipetz, who has lived in the two-bedroom apartment since 1973, sublet the unit through the Airbnb website to 93 different customers for 338 days over a period of 18 months beginning in March 2011, at nightly rates of $95 for one person or $120 for two. Though the city’s law governing rent stabilized apartments permits a tenant to charge a 10% premium for an otherwise lawful sublet of a furnishers rent-stabilized apartment, Lipetz, 69, took in nearly twice the lawful charge, the Appellate Division’s First Department found.

Though the court noted Lipetz’ age and health (she was diagnosed with cancer in 2010), the majority rejected her characterization of the guests whom she recruited through Airbnb as roommates and her contention that she received permission from the building’s management to sublet the unit at 39 Fifth Avenue.

Lipetz “exploited the governmentally-conferred privilege of her rent-stabilized tenancy to take finance profits unavailable to the landlord, well in excess of the permissible 10% premium for a furnished apartment,” Justice Peter Tom wrote on behalf of three of his colleagues. “Moreover, [Lipetz’] exploitation of her rent-stabilized leasehold disregarded, not only the right so her landlord, but also the rights of all her fellow permanent residents of the building, whether shareholders or lessees.”

“The other residents did not bargain to share the building where they made their homes with a continuous stream of transient strangers… of unknown character and reputation, drawn to the building from all over the world by Internet advertising,” he added.

Lipetz told The New York Post she is “absolutely devastated” by the ruling, which she plans to appeal.

Eviction premature, says dissent

In a dissent, Justice Ellen Gesmer noted that Lipetz turned to Airbnb to find roommates who might help pay the rent after losing job and undergoing six operations prevented her from working for more than a year.

Noting that Lipetz sublet her apartment through Airbnb for a short time relative to the length of her tenancy, Gesmer urged her colleagues to return the decision to the lower court for resolution of a series of issues, including whether Lipetz notified the building’s management had consented to the arrangement and whether Lipetz’ conduct “rises to the level of profiteering requiring termination of her 43-year tenancy.”

An Airbnb spokesman said the law should “prevent profiteering off rent stabilized units while allowing New Yorkers to share their own homes to pay their rent or medical bills and age in place.”

Categories
Law

Most Americans do not support Trump’s stance on immigration

President Trump is losing his battle over immigration in the courts of law and in the court of public opinion.

Six-in-ten Americans say immigrants strengthen the country because of their hard work and talents, compared with 27% who say immigrants are a burden because they take jobs, housing and health care, a survey published in December by the Pew Research Center shows.

The share of Americans who regard immigrants as more of a strength than a burden reached its highest level in more than 20 years, the survey found.

Support for immigrants among Americans runs counter to policies pursued by the president, who wants to build a wall along the southern border, round up and deport people who are in the country without documentation, and ban travel to the U.S. from six predominantly Muslim countries. A series of federal courts have blocked the White House from enforcing the ban after concluding that it disfavors Islam in violation of the the First Amendment.

Still, attitudes toward immigration differ along party lines, which may explain why Trump returns repeatedly to the topic. Though 82% of Democrats think immigrants strengthen the country (13% say they’re a burden), 44% of Republicans say immigrants are a burden, compared with 39% of Republicans who say immigrants strengthen the country, Pew found.

Immigration also divides the GOP along demographic lines. More than half (51%) of Republicans with a college education say immigrants strengthen the country, compared with 34% who say they’re a burden. In the 2016 election, two-thirds (67%) of white voters without a college degree backed Trump, compared with 28% who supported Hillary Clinton – the largest margin among whites without a college degree in exit polls since 1980.

Among Democrats, wide majorities of all groups within the party say immigrants strengthen the country.

Categories
Life

‘Your station in life does not define you’ and other wisdom from this year’s commencement speeches

Commencement speeches, with their mix of sage advice and celebration, mark a rite of passage and a chance to catch up with wisdom from people who have accomplished a thing or two in their fields. Plus the speeches are fun to read. Here are a few that I sampled.

Hold our country to its promise: Sally Yates

Sally Yates, the former acting attorney general whom President Trump fired for refusing to carry out a travel ban that violates the First Amendment, delivered remarks for Class Day at Harvard Law School.

Regardless of whether you go into private practice, or the corporate world, whether you become a public defender, a prosecutor or a public interest advocate, you are now a lawyer. And that means that you have not only a unique opportunity and ability that non-lawyers don’t have, but also the attendant responsibility to foster justice in this world. To reveal truth. To stand up for the voiceless. To hold our country to its promise of equal justice for all.

The people of this country care deeply about these values. They care about the rule of law, and our constitution, and the principles and freedoms on which our country was founded. And they are counting on you, the lawyers, to, in Bobby Kennedy’s words, ‘breathe life and force’ into the ‘promise of liberty and justice.’

A sense of purpose: Mark Zuckerberg

On Thursday, Mark Zuckerberg, Facebook’s chief executive, addressed the graduates of Harvard University.

Today I want to talk about purpose. But I’m not here to give you the standard commencement about finding your purpose. We’re millennials. We’ll try to do that instinctively. Instead, I’m here to tell you finding your purpose isn’t enough. The challenge for our generation is creating a world where everyone has a sense of purpose.

Defend truth: Hillary Clinton

On Friday, Hillary Clinton addressed graduates of Wellesley College, her alma mater:

Don’t be afraid of your ambition, of your dreams, or even your anger. Those are powerful forces. But harness them to make a difference in the world. Stand up for truth and reason. Do it in private, in conversations with your family, your friends, your workplace, your neighborhoods, and do it in public. In media posts, on social media, or grab a sign and head to a protest. Make defending truth and a free society a core value of your life every single day.

Life is about significance: Cory Booker

New Jersey Senator Cory Booker addressed the graduating class at Penn:

Ultimately, life is not about celebrity, it’s about significance; life is not about popularity, it’s about purpose; life is not how many people show up when you’re dead but about how many people you show up for while you are alive.

You’re never not afraid: Will Ferrell

Will Ferrell addressed graduates at the University of Southern California, the actor’s alma mater.

You’re never not afraid. I’m still afraid. I was afraid to write this speech. And now, I’m just realizing how many people are watching me right now, and it’s scary. Can you please look away while I deliver the rest of the speech? But my fear of failure never approached in magnitude my fear of what if. What if I never tried at all?

Your station in life does not define you: Howard Schultz

Howard Schultz, former chief executive of Starbucks, delivered the commencement address at Arizona State University

I grew up in Brooklyn, New York, in public housing. The projects, as it was called back then. My parents were both high school dropouts, and they could barely afford $96 a month rent in our two-bedroom apartment for my brother, my sister and my parents. However, from my earliest of memories, my mother instilled in me her belief in the American dream and the promise of America. That a good education and hard work will open the doors to a better life, and that provides me with an important lesson to share with you all today. That your station in life does not define you and the promise of America that is for all of us.

We can build resilience: Sheryl Sandberg

Sheryl Sandberg, Facebook’s chief operating officer, addressed the graduating class at Virginia Tech. There she spoke of her husband’s death two years ago.

The most important thing I learned is that we are not born with a certain amount of resilience. It is a muscle, and that means we can build it. We build resilience into ourselves. We build resilience into the people we love. And we build it together, as a community. That’s called “collective resilience.” It’s an incredibly powerful force – and it’s one that our country and our world need a lot more of right about now. It is in our relationships with each other that we find our will to live, our capacity to love, and our ability to bring change into this world.

Avoid intellectual walls: Lee Bollinger

Columbia University President Lee Bollinger addressed the class of 2017.

We should avoid, if at all possible, heedlessly erecting walls—intellectual walls—that will impair our ability to understand and engage our modern, interconnected world. For the world today is imbued with profound issues and needs that, however much we might wish otherwise, are simply not going away—that no wall can block—and that deserve as much attention and thought as our collective minds can possibly muster.

Imagine the possibilities when we remove imbalance: Pharrell Williams

Pharrell Williams, the musician, songwriter and producer, addressed graduates of New York University.

Speaking to you guys today has me charged up. As you find your ways to serve humanity, it gives me great comfort knowing this generation is the first that understands that we need to lift up our women. Imagine the possibilities when we remove imbalance from the ether. Imagine the possibilities when women are not held back. Your generation is unraveling deeply entrenched laws, principles and misguided values that have held women back for far too long and therefore, have held us all back. The world you will live in will be better for it.

Categories
Law

The Fourth Circuit’s ruling against the Trump travel ban shows that campaigns also have consequences

President Trump’s halt to visits to the United States by people from six majority-Muslim countries excludes people from the United States based on their religious beliefs in violation of the First Amendment, the Fourth Circuit ruled  on Thursday in yet another rebuke to the White House over the constitutionality of its travel ban.

The executive order that enshrines the ban “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination,” Chief Judge Roger Gregory wrote on behalf of 10 of his colleagues at the outset of a 67-page opinion published Thursday by the court’s majority.

The ruling means that an order by a district judge in Maryland that blocks implementation of the ban nationwide will remain in effect pending a determination by the Supreme Court, to which the administration said it would appeal. A ruling by the Ninth Circuit, which also is weighing the travel ban’s constitutionality, is expected shortly.

Words matter

In support of its conclusion that the travel ban disfavors Islam, the court relied on a series of statements that the president and his surrogates uttered before and after the election. They range from a statement in December 2015 by Trump that called for “a total and complete shutdown of Muslims entering the United States,” to statements by the president in January that his order aimed to promote Christianity, to comments in February by White House adviser Stephen Miller that the revised order reflects “the same basic policy outcome for the country” as the order it replaced.

Those statements, together with “the post hoc nature of the national security rationale” and evidence from national security agencies that a revised version of the travel ban signed in March by Trump would have no effect on national security persuaded the court that the administration’s leaning on national security “was provided in bad faith, as a pretext for [the order’s] religious purpose,” Gregory wrote.

Despite the urging of the government, the majority refused to disregard statements by Trump solely because he uttered them as a candidate. “The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action,” said Gregory, who declined to adopt “a bright-line rule against considering campaign statements” and said the court would continue to review such statements case-by-case.

The challengers “have seriously called into question whether the stated reason for” the travel ban was provided in good faith, noted the majority, citing a concurrence by Justice Kennedy in a ruling two years ago by the Supreme Court that suggests courts should look in such instances behind the reasons the government gives to support its actions.

In dissent, Judge Paul Niemeyer rejected the majority’s reliance on campaign statements, which are “often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise,” wrote Niemeyer. “The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds — one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.”

We may be about to find out.

Categories
Law

Why the Supreme Court will block Trump’s travel ban

Two-and-a-half years ago, in the aftermath of the Paris attacks, Congress, with the support of the Obama administration, tightened scrutiny of foreigners entering the United States who had visited Syria, Iran, Sudan or Iraq during the past five years. In February 2016, the Obama administration extended the scrutiny to visitors from Libya, Somalia and Yemen.

Fast forward to March, when President Trump issued an executive order that banned, for a period of three months, visits to the U.S. from nationals of three of those four countries (Iraq excluded) along with Libya, Somalia and Yemen.

In support of its decision, the White House cited reports published in June 2016 by the State Department that cataloged conditions in each country that cause their residents, as the administration asserts, to present a risk to the security of the U.S. The administration cited no evidence in the nine months that ensued (or since) to reinforce its conclusion that national security demands a halt to visits to the U.S. from residents of those six predominantly Muslim countries. (A travel ban would not have prevented an attack like the one Monday in Manchester, which was carried out by a citizen.)

The evidence cited by the White House to bolster its claims feels warmed over. That explains, in part, why the State of Hawaii and others suing to invalidate the ban accuse the president of leaning on national security as a pretext to disfavor Islam, in violation of the First Amendment’s Establishment Clause. A series of federal district judges, along with three judges of the 9th U.S. Circuit Court of Appeals court, have agreed with the challengers, who have adduced a series of statements by Trump and his surrogates that suggest an intent to enact a Muslim ban.

The appeal came before the Fourth and Ninth (again) circuits last week. Regardless how they rule, one of the parties will look for relief to the Supreme Court. Yet notwithstanding what will be a push by at least four justices –Roberts, Thomas, Alito and Gorsuch – to side with the president, the administration will struggle to secure a majority for its position. (More on Justice Kennedy in a moment.)

During arguments last Monday before the Ninth Circuit, Jeffrey Wall, the acting U.S. solicitor general, contended that the Supreme Court has authorized the president to restrict entry of foreigners into the U.S. and obligated judges to defer to that decision provided it is based on a “facially legitimate and bona fide reason.”

To say that Trump acted in bad faith with an intent to discriminate against Muslims, would require “the strongest showing for that sort of remarkable holding, and I just don’t think plaintiffs have put together the kind of record” that would support that conclusion, Wall argued.

Congress designated three of the six countries as sponsors of terrorism and removed visitors from those countries from the so-called visa waiver program, he noted. In short, Wall argued, the Trump travel ban reinforces a determination reached previously.

Therein lies the weakness of what Wall is defending. For all its talk of the need to bolster security, the White House has not assembled a record that could lead courts to defer to its judgement about the alleged threat posed by visitors from the banned countries. And that’s despite the law being largely on the president’s side.

You could see the judges of the Ninth Circuit struggling to find support in the record for the president’s determination about the threat that he contends the travel ban addresses. “How is a court to know if in fact it’s a Muslim ban in the guise of national security justification?” Judge Ronald Gould asked Wall. Is there sufficient evidence that admitting everyone from the six countries identified in the ban would threaten national security sufficient to justify the ban, Gould wanted to know.

Wall replied that the travel ban addresses concerns that Congress articulated after the attacks in Paris. But he offered nothing new to justify the ban, which Neil Katyal, who argued the case for the challengers, noted:

“We’re not here saying that the president doesn’t have emergency powers, national security powers. Of course, he does. The question is, when you have a circumstance like this, when the very evidence that they have pointed to was before the Congress of the United States, and they said, ‘We don’t need this mass, dragnet ban. Instead, we can do something more limited: require visas.’ That is particularly telling.”

Katyal argued that the executive order cites crimes committed by two people who entered the U.S. from Iraq, which is not subject to the travel ban. The order also mentions someone from Somalia, who came to the U.S. as a refugee when he was two years old and committed crimes when he was an adult, Katyal noted.

You start to see why a court might conclude that the White House has not reasoned its way through this one. Or that it really wants to ban Muslims.

Motive matters

Which brings us back to Justice Kennedy. Two years ago, the court ruled that a U.S. citizen cannot challenge the denial of a visa for her non-citizen spouse, an Afghan citizen and former civil servant who resided in Afghanistan. Not only did the government not infringe a constitutionally protected interest of the citizen when it denied the visa, but “to the extent that she received any explanation for the government’s decision, this was more than the Due Process Clause required,” Justice Scalia wrote for the majority.

While Justice Kennedy concurred that the citizen could not challenge the denial, he would not have gone as far as his colleagues. Once the government decides to deny a visa for a “facially legitimate and bona fide reason” (see above), courts will not “look behind” the reasons for the exercise of that discretion, particularly in the area of national security, Kennedy noted.

But in its decision to deny a visa to the non-citizen spouse, the government followed steps prescribed by law, Kennedy noted. So, he reasoned, the non-citizen spouse’s failure to satisfy a condition for admissibility (the spouse worked for the Taliban government), rendered the denial facially legitimate.

Thus, “absent an affirmative showing of bad faith on the part of the consular officer who denied [the non-citizen spouse] a visa,” (there was none) the court will not “look behind” the government’s decision “for additional factual details” that would explain its decision, Kennedy wrote.

The government can claim no such footing that would support the Trump travel ban, the plaintiffs argue. The ban does not turn on a decision by a consular officer to deny a visa, and, they assert, the president’s own statements suggest bad faith that compels the court to examine his motives. In short, motive matters when analyzing action by the government that disregards constitutional guarantees of religious freedom. “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality,” Justice Kennedy wrote for the majority in a 1993 case that involved religious gerrymandering.

The record is likely to lead at least five justices to look behind the justification that the White House has offered. When they do, they will struggle to find support that merits a ban that sweeps as broadly as Trump’s

Categories
Law

Judge orders White House to turn over Giuliani ‘Muslim ban’ memo

In their rulings blocking President Trump’s travel ban from taking effect, at least two federal judges have cited statements by the president and his surrogates as evidence that the White House sought to prevent Muslims from visiting the U.S. in violation of the Constitution.

Among the statements is one by former New York City mayor Rudy Giuliani, who told Fox News in January that Trump had asked him to “put a commission together” to advise on a ban and to show the president “the right way to do it legally.”

Now District Judge Victoria Roberts in Detroit has ordered the White House to turn over to the Arab American Civil Rights League and others suing to invalidate the ban a memo from Giuliani and several Trump advisers, including strategist Stephen Bannon and Attorney General Jeff Sessions, before they were in their current posts, as well as Michael Flynn, the former national security director.

“We believe these documents will show exactly how the Muslim ban that Donald Trump called for on the campaign trail turned into the executive order he issued a week after taking office,” Miriam Aukerman, senior staff attorney at the American Civil Liberties Union of Michigan, said in a statement.

Giuliani says his comments to Fox have been misconstrued and that Trump had not asked him to formulate a ban on Muslims that could pass muster with the courts but instead asked “what can he do legally to keep the country safe.”

The commission sought to focus on “the areas of the world that create danger for us” and not religion, the former mayor said.

In a ruling in February that prevented the travel ban from taking effect, District Judge Leonie Brinkema noted that “the evidence in this record focuses on the president’s statements about a ‘Muslim ban’ and the link Giuliani established between those statements and the [executive order.]”

Categories
Tech

Cyberattack hits worldwide 

Computers in dozens of countries suffered an attack on Friday that bogged down the United Kingdom’s health service and seized machines worldwide.

The attacks, which reportedly originated with a group that calls itself Shadow Brokers, infected computers with malicious code known as Wanna Decryptor that spreads via email, burrows through an opening in Microsoft Windows and takes files hostage in return for ransom.

The group may have obtained the malware last summer in a hack of the U.S. National Security Agency, which developed the code to infect computers in countries such as China, Russia and Iran. “Whoever it is it looks very much like they are taking advantage of the NSA’s tools,” Becky Pinkard, vice president at Digital Shadows, a cyber intelligence firm, told the Financial Times.

The malware struck computers in at 16 hospitals in the U.K., the National Health Service said in a statement, adding that it had no evidence the intruders had obtained medical records. Still, the attack crashed systems and cut off electronic access to patient records. “We’d like to reassure patients that if they need the NHS and it’s an emergency that they should visit A&E or access emergency services in the same way as they normally would and staff will ensure they get the care they need,” said Dr. Anne Rainsberry, incident director at the NHS.

St Bartholomew’s, a hospital in central London, said the attack forced it to cancel appointments and divert patients. “Everything’s getting delayed,” Asif Munaf, a gastroenterologist at Chesterfield hospital, told the Guardian. “Patients who were supposed to go home this afternoon won’t go home until Monday because they now won’t be seen and get a follow-up plan. It’s quite unfortunate for the patients.”

Shadow Brokers has demanded about $300 per computer in ransom (payable in Bitcoin) to remove the malware, which also infected computers in Russia, Ukraine, India, Taiwan, Portugal, Spain and Romania. Companies hit included Telefonica, the Spanish telecommunications giant, and MegaFon, one of Russia’s largest phone companies. Russia’s Interior Ministry said that its computers had also come under attack.

Despite the damage, law enforcement officials in Britain said they are treating the attack as a crime as opposed to an attack by a foreign power. Though Microsoft issued a patch in March that can secure machines against the malware, the Times reports that some organizations, including many hospitals, had yet to update their systems.

Categories
Law

Unpacking the arguments over Trump’s ‘Muslim ban’

Arguments on Monday before the Fourth Circuit over the constitutionality of the Trump travel ban highlight a collision of legal theories.

Jeffery Wall, the acting United States solicitor general, urged the 13-judge panel to defer to the president on what the government terms a matter of immigration policy and national security. In support of his argument, Wall leaned heavily on a ruling by the Supreme Court 45 years ago in a case known as Kleindienst v. Mandel.

That case arose from accusations by a group of university professors that a decision by the attorney general to deny a visa to Dr. Ernest Mandel, a Belgian academic and self-described “revolutionary Marxist” who sought to deliver a series of lectures at Americans universities violated the professors’ – all U.S. citizens – First Amendment right to hear Mandel’s views.

The court rejected their argument. Writing for the majority, Justice Blackmun noted that Congress had delegated to the president the power to make policies and rules for the exclusion of aliens. When the president exercises that power “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant,” he wrote.

In dissent, Justice Marshall expressed concern that the court would not examine the reason the White House gives for excluding someone, especially when a group of Americans accused the government of violating the First Amendment.

“Even the briefest peek behind the Attorney General’s reason for refusing a waiver in this case would reveal that it is a sham,” Marshall wrote. “At least when the rights of Americans are involved, there is no basis for concluding that the power to exclude aliens is absolute.”

Mandel became law. “The court said no… we are not going down the road of inquiring into subjective motivation” of the reasons why the president would deny a visa, Wall told the Fourth Circuit on Monday.

Of course, as Amy Davidson at The New Yorker observes, “Asking for a presumption of regularity, or legality, or just basic honesty, is asking a lot, when it comes to the Trump Administration.”

Examining the government’s motives

National security merely provides a pretext for banning Muslims, argues the International Refugee Assistance Project (the lead plaintiff in the case). The plaintiffs note that the president stated clearly during and after the campaign his goal of banning Muslims from coming to the U.S. Those utterances, the plaintiffs contend, provide the court with evidence to conclude that the executive order violates the Establishment clause, which prohibits the government from favoring one religion over another.

Mandel does not control the outcome in the travel ban appeal, say the plaintiffs. Instead courts must determine whether the law has a so-called secular purpose. In support of their argument, the plaintiffs cite a series of rulings, including a 1993 decision by the Supreme Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah.

In that case, a church and its congregants practiced Santeria, which for them included ritual sacrifice of chickens, pigeons, doves, ducks, guinea pigs, goats, sheep and turtles. Prompted by the concerns of residents who did not want a Santeria church in their midst, the City of Hialeah adopted an ordinance that prohibited animal sacrifice within the municipality.

The church accused the city of aiming to exclude it in violation of the Free Exercise clause of the First Amendment. Though city officials noted that the words of the ordinance said nothing about Santeria, the analysis doesn’t end there, said the court.

Motive matters when analyzing government action that may violate the First Amendment’s guarantees of religious freedom. “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality,” Justice Kennedy wrote for the majority. “The Free Exercise clause protects against governmental hostility which is masked, as well as overt.”

The plaintiffs in the travel ban appeal contend that the court can infer the administration’s motive from a series of statements by the president that expressed either an intent to ban Muslims from entering the country or otherwise conveying anti-Muslim sentiments.

An example: Before signing the first travel ban, which was later overturned, Trump said, “This is the protection of the nation from foreign terrorist entry into the United States. We all know what that means.” On Monday, after a reporter asked the White House press secretary why the president’s campaign website still mentioned “preventing Muslim immigration,” the online page was erased.

“We think that the ordinary Establishment clause cases apply,” Omar Jadwat, who argued on behalf of the plaintiffs, told the judges on Monday. “There is no reason to extend Mandel to this context. I think what the court is to do is to determine whether [the order] was issued in bad faith by looking at the evidence in this case.”

Jadwat cited three categories of evidence: the order itself, Trump’s statements and facts in the record that are not statements, including an analysis by the intelligence arm of the Department of Homeland Security that the executive order would not reduce terrorism in the U.S.

A three-judge panel of the Ninth Circuit is slated to hear arguments this Monday in the government’s appeal of an order by a judge in Hawaii that blocked enforcement of the travel ban nationwide.

Categories
Law

The Supreme Court seems likely to side with Trinity Lutheran Church

I wrote recently about an appeal to the U.S. Supreme Court by Trinity Lutheran Church of Columbia, Missouri, which has accused the state of violating the First Amendment by disqualifying the church from receiving public funds to resurface a playground at a preschool and daycare center that it operates.

The court heard oral argument of the appeal on April 19. Based on the justice’s questions, a majority appears inclined to side with Trinity Lutheran. As Amy Howe at Scotusblog notes, “The end result could be an important ruling on the disbursement of funds by state and local governments to religious institutions.”

Justice Ginsburg, who together with Justice Sotomayor seemed most skeptical of Trinity Lutheran’s argument, asked David Cortman, who argued on behalf of the church, why the appeal differs from rulings by the court “that the Framers didn’t want tax money imposed to pay for building or maintaining churches or church property.”

There’s a difference between funding religious activities and funding secular activities of religious organizations, replied Cortman. But, Justice Sotomayor noted, the playground is part of the ministry of the church. “How do you separate its secular function from its religious function?” she asked.

“The way the court always has,” said Cortman, who noted that even though the motivation for operating the preschool “is a religious motivation, that doesn’t mean that every activity that occurs there happens to be religious.”

Justice Breyer asked Cortman whether Missouri, which says that its constitution prevents the state from distributing funds to a church, has ever said the constitution “prevents the state from giving grants or from spending money on police protection for churches.”

The state hasn’t said that, responded Cortman.

Justices Breyer and Ginsburg, noting that a decision a week earlier by the governor of Missouri to reverse the state’s policy on giving grants to religious organizations, asked whether the reversal mooted the appeal.

No, responded Cortman, calling the change “temporary” and noting that the state could “return to its old ways.”

James Layton, who argued on behalf of the state, told the justices that Missouri’s ban on funds to churches dates to 1820 and is modeled on Thomas Jefferson’s Virginia Statute for Religious Freedom.

Layton said the appeal parallels a ruling by the Court in Locke v. Davey, a 2004 case in which the court upheld a decision by Washington State to exclude from eligibility for scholarship aid students who pursue degrees in devotional theology. In that case, the state cited its constitution, which prohibits use of public funds to aid religious instruction.

“But this is quite different than Locke, because this is a status-based statute,” Justice Kennedy noted.

Justice Alito returned to the question raised by Justice Breyer. “So if you have a synagogue that is at high risk for an attack by an anti-Semitic group or a mosque that is considered to be at high risk for attack by an anti-Muslim group, would the Missouri constitution permit the erection of bollards like we have around the court here?” he asked.

“The answer traditionally would be no,” Layton replied, saying that state money could not be used to erect a “physical addition” to a church or synagogue.

So why can the state provide police protection or fire protection, Justice Kagan asked. In that case, the state is “providing a service,” said Layton. “And the service is not being provided solely for the benefit of the church” but for the benefit of public safety.

Justice Breyer continued. “Does the Constitution of the United States permit a state or a city to say, we give everybody in this city police protection but not churches?”

It does not, Layton replied.

“If it does permit a law that pays money out of the treasury for the health of the children in the church, school, or even going to church, how does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera?” Justice Breyer continued.

“The difference is that the establishment concerns that motivate Missouri’s policy do not apply in the police and fire context but they apply here,” Layton replied.

Chief Justice Roberts noted that Locke distinguished “between assistance for devotional, theological education and scholarship and others.”

But this case raises “more serious problems” than Locke, replied Layton. “It is a direct payment to a church.”

“Still the question,” said Justice Kagan, “is whether some people can be disentitled from applying to that program and from receiving money if they are qualified based on other completely nonreligious attributes, and they’re disqualified solely because they are a religious institution doing religious things…. and you’re still saying, well, no, you – you can’t get the money.”

Justice Roberts continued. “What if you had a program at the state capitol. You had tours for school groups, and you had someone who… coordinated, tied it into the social studies program; school groups can come in, but no religious schools.”

The state does have tours, noted Layton, who added that the tours “do not require the state to be entangled in any way with the church and its ministry.”

Plus, Layton added, “the church gets points [in the community] for telling people in the community that the state paid for this improvement to their church.”

But “you could say the same thing,” replied Roberts. “That the church is delighted that is has fire protection.”

“So long as the money is granted based on neutral criteria that are faithfully applied, I don’t know that you can draw a distinction between a program that’s open to everybody and a selective program,” said Justice Alito.

But a grant of funds for playground resurfacing, responded Layton, “is a publicly visible manifest demonstration of state endorsement.”

“It’s a clear burden of a constitutional right…  because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit,” responded Justice Kagan, who seemed over the course of the argument to swing toward siding with Trinity Lutheran.

“Here we have… a direct payment to a church,” Layton reiterated.

Justice Sotomayor, perhaps sensing the majority’s inclination to side with Trinity Lutheran on the merits of the case, returned to the possibility that the governor’s reversal mooted the appeal.

“If we have no adversity hasn’t this case become mooted?” she asked.

But under Missouri law, a taxpayer could sue the state for allegedly violating its constitution, Layton responded.

Justice Gorsuch returned to the line of questions about tour groups. “The tours, isn’t it selective based on who can show up at the capitol and afford to do that?” he asked.

But with playgrounds, “we have a selective program that is publicly announced, publicly visible, that is different from these other kind of programs,” said Layton.

“But how do we draw the line between selective and general?” Justice Gorsuch asked.

“We do know that the decision here was made because it was a church,” said Layton.

Justice Gorsuch countered that the state has programs that pay for crossing guards for children. “Do we do the same thing with health of children?” he asked. “That’s what I see as the difficulty. We choose your line there, and we proliferate litigation forever.”

“There’s a statement… in the [church’s] brief that says the church is told that it can’t participate in the life of the community, but what Trinity wants is to have the community participate in the life of the church,” Layton added. “And that is anathema to the kind of basic doctrines that we get out of the founding era that provided for a division.”

But “now the line is moving,” responded Justice Gorsuch. “Now it’s apparently on the basis of whether we’re granting the money to physical plant or to some other purpose.”

“Wherever the line is,” said Layton, “writing a check that says payable to Trinity Lutheran Church ought to be on the other side of that line.”

The court is expected to issue a ruling in the case this June.

Categories
Economy

Ending poverty in Africa will require both growth and inclusiveness says Oxfam

Focusing solely on the sum of goods and services produced within their borders cannot alone reduce the inequality that plagues the economies of countries throughout southern Africa, a report published by Oxfam International concludes.

Despite periods of economic growth during the past two decades, the benefits have yet to reach the poorest in countries such as Swaziland, Nigeria, Namibia and South Africa, notes Oxfam, which adds that the inequality falls most heavily on women and young people.

“The shape of many of the continent’s economies – characterized by an overreliance on the extractive sector, inadequate investment in agriculture and large informal sectors – has meant that the consequences of inequality have mostly been felt by the young and by women,” concludes Katy Wright, author of the report, which was released in the run-up to the recent World Economic Forum on Africa. “Instead of focusing solely on GDP and hoping to tweak it to make it more inclusive, leaders should focus directly on reducing inequality and eliminating poverty, in ways that lead to economic prosperity for all.”

“These aims should be placed above GDP growth – not because growth is unimportant, but because poverty and inequality represent the most significant barriers in Africa to achieving sustainable and inclusive growth,” she adds.

Swaziland has the greatest inequality in the world, followed by Nigeria, Namibia and South Africa, notes Wright (below chart). Oxfam found recently that three billionaires in South Africa have the same wealth as the bottom 50 percent of the population.

The 20 most unequal countries in the world, using raw and adjusted Gini measurements

Across Africa, up to three-quarters of women work in the agricultural, low-paid and informal sectors, notes Wright, who adds that women who work in manufacturing, services and trade earn about 70 percent of that of their male counterparts.

The continent also has yet to deliver jobs to a majority people under the age of 24, who, she notes, have the potential to drive economic prosperity with the right investments and policies. In South Africa alone, more than half of all young people are likely to be unemployed.

The report recommends that countries boost their tax-to-GDP ratios to at least one-quarter, including reducing tax avoidance and “enhancing capacity to collect taxes from highly paid individuals and large firms.”

According to Oxfam, governments also must meet commitments to spend a fifth of their national budget on education and 15% of their budgets on health, and “make explicit plans to reduce poverty and eliminate inequality” in line with the United Nations Sustainable Development Goals, a series of 17 goals that aim to end poverty, protect the planet, and promote peace and prosperity.