Category: Law

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Law

The Supreme Court blocks New York’s COVID-19 restriction on religious services

The Supreme Court late on Wednesday blocked the governor of New York from enforcing restrictions that sought to restrict attendance at religious services in areas of the state that officials say are witnessing clusters of COVID-19.

Five of the court’s conservative members granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to block the attendance limits, which capped at 10 the number of people who could attend a service in an area classified as “red” and at 25 in zones the state designated as “orange.”

Both the diocese and the synagogues noted that the restrictions targeted religious services more harshly than they did businesses deemed by the state to be essential, all of which could operate without limits on the number of people who entered their premises.

As such, the regulations violated the Free Exercise Clause of the First Amendment, contended the religious groups, which asked the court to block their enforcement.

“The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty,” wrote the majority, which included recently confirmed Justice Amy Coney Barrett. “Even in a pandemic, the Constitution cannot be put away and forgotten.”

The majority noted that the churches and synagogues subject to the order had honored protocols recommended by the state (including wearing masks and forgoing singing), which the majority added could point to no instances in which the religious services risked the spread of COVID-19 more than a store in Brooklyn that might have hundreds of people shop there on a given day.

Justice Gorsuch concurred. Writing that squaring the governor’s orders with the First Amendment “is no easy task,” Gorsuch underscored what for him showed the extent to which the state’s order treated religious groups differently:

It turns out the businesses the governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the governor, it may be unsafe to go to church, but it is always fine to pickup another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?

“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Gorsuch wrote.

At issue in the appeal is the requirement of government neutrality toward religion. Rules issued by the government that treat religious groups differently must be narrowly tailored to serve a compelling state interest.

The majority acknowledged that the state has a compelling interest in stemming the spread of COVID-19 but that the restrictions in New York were far more restrictive than needed to prevent the spread of the coronavirus at religious services hosted by the groups that sought to block the governor’s order.

For their part, the court’s three liberal members noted in dissent that the governor’s order had changed since the appeal was filed; that the churches and synagogues are no longer within the red or orange zones — that the houses of worship are now in yellow zones, where they can hold religious services at up to 50% of capacity.

Though the state remained free to reimpose red or orange zones in areas where the churches and synagogues are located, the diocese and synagogues also remained free to refile their requests for court review, the dissenting justices noted.

“The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the state has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges,” they said.

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Law

Justice loses a champion

In January 1973, Ruth Bader Ginsburg, representing the American Civil Liberties Union, appeared before the U.S. Supreme Court on behalf of Sharron Frontiero.

Four years earlier, Frontiero, then a 23-year-old lieutenant in the U.S. Air Force, married a man a year older. The Air Force automatically provided a housing allowance and health benefits for the spouses of married servicemen but not for the those of married servicewomen. To receive the same benefits as a married serviceman, a married servicewoman had to prove that her income covered more than half of her dependent’s expenses.

Frontiero set out to correct what she thought was a mistake. When the complaint didn’t dislodge the policy, she sued in the federal district court in Montgomery, Ala., charging that the policy violated the Fifth Amendment’s guarantee of due process of law. The court ruled in favor of the government. Frontiero appealed to the Supreme Court.

The appeal was among a suite of cases that Ginsburg, who died on Friday at age 87, brought to advance the equality of women. Two years earlier, she had filed a friend-of-the court brief in an appeal to the Supreme Court by Sally Reed, a single mother in Idaho whom state law had disqualified from serving as administrator of her son’s estate because she was a woman.

Ginsburg’s brief in Reed’s appeal became known as the “grandmother brief” for its comprehensiveness of argument that treating women differently than men based solely on the basis of sex was suspect and warranted the same strict scrutiny as classifications based on race. The court agreed, and in Reed v. Reed, a majority of justices struck down the Idaho statute without addressing the level of scrutiny that should guide judicial review of such cases in the future.

That task fell to Ginsburg two years later in Frontiero. In oral argument before the court, Ginsburg, as she had in Reed, urged the justices to view distinctions based on sex no differently than distinctions based on race; that such distinctions are immediately suspect. Ginsburg took aim at two arguments cited by opponents of treating curtailment based solely on sex as a suspect criterion: First, that women are a majority, and, second, classifying women by sex does not imply the inferiority of women.[1]

“With respect to the numbers argument, the numerical majority was denied even the right to vote until 1920,” Ginsburg said, adding that “surely, no one would suggest that race is not a suspect criterion in the District of Columbia, because the Black population here outnumbers the white.”[2] Far from not implying inferiority, classifying people based on sex keeps “a woman in her place, a place inferior to that occupied by men in our society,” she added.

In a plurality opinion by Justice William Brennan, the court agreed with Frontiero that the disparity between men and women in the dependents policy was unconstitutional. But a majority of the court could not agree to apply the same standard to sex discrimination as it did to race discrimination.

Following the ruling, Ginsburg, who in the 1970s directed the ACLU’s Women’s Law Project, set out to persuade the court to adopt an intermediate scrutiny for sex discrimination cases. As the facts in Frontiero suggest, Ginsburg also had the insight to find cases whose facts had the power to rewire how people (including judges) might think about sex discrimination.

She found one such case that came before the court three years later. The appeal by Curtis Craig centered on an Oklahoma law that barred the sale of so-called 3.2% beer to males under the age of 21 and to females under the age of 18. The law, argued Ginsburg, denied males 18 to 20 years of age equal protection of the law.

A majority of the court agreed and, in Craig v. Boren, enshrined mid-level scrutiny as the standard of review in sex discrimination cases. Though the intermediate standard fell short of the strict scrutiny the court applied to distinctions based on race, distinctions based on sex had, thanks to Ginsburg, earned a standard of review that marked them as plainly discriminatory.

As Wendy Williams, an emeritus professor of law at Georgetown and Ginsburg’s authorized biographer, noted in 2013, Ginsburg “tweaked the Craig standard upward, bringing it closer to the race standard” 20 years later when, as a member of the court, Justice Ginsburg wrote for the majority in U.S. v. Virginia, which held that the Virginia Military Institute’s practice of admitting males only violated the 14th Amendment’s Equal Protection Clause.

Virginia’s justification for excluding all women from “citizen soldier” training for which some are qualified does not rank as “exceedingly persuasive” Justice Ginsburg wrote. (To appreciate the tweak, compare it with intermediate scrutiny, which requires laws that distinguish between people based on sex to be substantially related to an important government purpose.)

On Saturday evening, mourners were expected to hold a vigil for Ginsburg in cities across the U.S. “I think that I can speak for most women that we are devastated by her passing,” Saima Assed, an organizer in Albuquerque who helped to organize a vigil there, told the Times. “We know we lost a champion.”

 

 

 

[1] “Neither legislators nor judges regarded gender lines as ‘back of the bus’ regulations,” she later wrote of the second point. “Rather, these rules were said to place women on a pedestal.” In short, that discrimination somehow venerated women.

[2] Ginsburg noted that equal protection and due process of law “apply to the majority as well as to the minorities.”

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Law

What courts mean by ‘the law of the case’

Lawsuits tend to produce a series of court rulings at each stage of the proceedings. In New York State such rulings can become part of a doctrine known as the law of the case.

The law of the case aims to prevent parties from litigating anew legal questions that have been determined at an earlier stage. (For example, a trial judge who rules on a legal question would be obligated to follow his own ruling; it’s the law of the case.) The doctrine doesn’t apply in instances in which the law changes, new evidence arises, or the earlier ruling was in error.

In July 1996, Richard Brownrigg, an employee of an elevator repair company, was injured in the elevator shaft of a building in Brooklyn owned by The New York City Housing Authority (NYCHA) when he was struck in the right eye by a screwdriver-like tool dropped by a co-worker four floors above.

Brownrigg sued NYCHA. The trial judge denied a request by Brownrigg, based solely on the allegations in court papers, to hold NYCHA, as owner of the building, liable for his injury. Though New York law makes building owners liable for injuries to laborers who are injured while working in construction or demolition of elevator shafts, the court found insufficient evidence in the court papers alone to relieve Brownrigg of the need to present evidence at trial.

On the eve of opening statements, Brownrigg renewed his request for summary judgement on the question of liability. This time, the judge granted it, the earlier ruling notwithstanding.

NYCHA objected, asserting that the earlier ruling constituted the law of the case. In short, NYCHA said that the question of its liability needed to be decided at trial – as the judge had ruled initially. The trial court overruled NYCHA’s objection and the trial proceeded to the question of damages (because liability already had been decided in Brownrigg’s favor when the court granted his request for summary judgment).

The appeals court disagreed. The ruling granting summary judgment for Brownrigg at the beginning of the trial “was based on the same facts and law as the prior order… which denied summary judgment to the plaintiff on the issue of liability,” a three-judge panel of the Appellate Division wrote in ordering a new trial on the question of liability. The earlier order “was the law of the case, and there were no extraordinary circumstances permitting the [trial court] to ignore the order,” the court said.

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Law

The Supreme Court permits partisan gerrymandering

In 2016, the Republican-controlled legislature of North Carolina mapped the state’s congressional districts with the aim of ensuring that elections produced more victories for their party than for Democrats.

“I think electing Republicans is better than electing Democrats,” said one of the two Republicans who chaired the redistricting committee. “So I drew this map to help foster what I think is better for the country.”

In elections that November, Republicans won 10 of the state’s 13 congressional districts. That despite the reality that four years earlier, Democratic candidates received more votes statewide than Republican candidates. (States redraw congressional districts every 10 years based on census data.) In elections last year, Republicans won nine seats, while Democrats won three.

On Thursday, a majority of the U.S. Supreme Court ruled that inequality drawn into the North Carolina map (and an equally partisan district drawn by Democratic officials in Maryland) did not intentionally dilute the electoral strength of Democratic voters in violation of the Equal Protection Clause of the Fourteenth Amendment. Nor did the map violate the First Amendment rights of Democratic voters (or, in Maryland, Republicans) by retaliating against them for their political beliefs.

The question, said Chief Justice Roberts, who wrote on behalf of the majority, is not whether legislators can be partisans when drawing the boundaries of congressional districts (they can, according to the court), but whether the so-called gerrymander has gone too far. Or, as Roberts quoted the court from in a 2006 ruling, “how much partisan dominance is too much?”

According to the majority, claims of partisan gerrymander are, in essence,  a contention that legislators should draw congressional districts so that they hew as closely as possible to allocating seats to the parties based on what they’re anticipated statewide vote will be.

But, said the court, the framers of the Constitution did not think it required such representation. Historically, “a party could garner nearly half of the vote statewide and wind up without any seats in the congressional delegation,” Roberts noted.

A federal court, as the majority sees it, cannot adjudicate whether the map is fair. That determination, said Roberts, falls to the states. “Federal judges have no license to reallocate politi­cal power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions,” he wrote.

Not so, said the court’s four more liberal justices. The gerrymandering at issue in the appeal “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people,” Justice Kagan wrote in dissent. “In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.”

The cases from North Carolina and Maryland show that politicians can, in essence, “cherry-pick voters to ensure their reelection” said Justice Kagan, who noted that the majority disputed none of the abuses documented in either state.

The majority’s “complacency” in the face of those wrongs means that partisan gerrymandering will only get worse (“or better, depending on your  perspective”) as the ability to collect and analyze data improves, Justice Kagan predicted.

Improvements in technology give officials who aim to diminish the influence of one group of voters at the expense of another the ability to do so with precision. “Big data and modern technology – of just the kind that the mapmakers in North Carolina and Maryland used – make today’s gerrymander­ing altogether different from the crude linedrawing of the past,” observed Justice Kagan.

“What was possible with paper and pen—or even with Windows 95—doesn’t hold a candle (or an LED bulb?) to what will become possible with developments like machine learning,” she wrote. “And someplace along this road, ‘we the people’ become sovereign no longer.”

Categories
Law Politics

Court orders North Carolina to redraw its unconstitutional congressional map

In November 2016, Republican candidates for Congress in North Carolina won about the same share of the vote as Democratic candidates but garnered 10 of 13 of the state’s seats in the U.S. House of Representatives.

On Monday, a three-judge panel of the U.S. District Court in Greensboro, ruled that the map used to outline the districts that each of the seats represented — a map drawn by the GOP-controlled state legislature – favors Republicans in violation of the U.S. Constitution.

“A common thread runs through the restrictions on state election regulations imposed by Article I, the First Amendment, and the Equal Protection Clause: the Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others,” Judge James Wynn wrote for the court.

The 321-page ruling, which Republicans are expected to ask the panel to refrain from applying to the elections scheduled for this November, holds the potential to throw the midterm election into a state of uncertainty.

According to the court, the 14 Democratic voters who filed the lawsuit demonstrated that the 2016 map gave Republican voters a greater say in choosing a member of Congress than voters who favor candidates put forward by rival parties.

The evidence, said the court, showed that Republicans drew the map of legislative districts in ways that diluted the votes of Democrats. They did that by packing Democrats into some districts and “cracking,” or separating, clusters of Democrats in others.

“The division of political subdivisions allowed the General Assembly to achieve its partisan objectives, by packing non-Republican voters in certain districts and submerging non-Republican voters in majority-Republican districts,” wrote Wynn.

The map disfavored a group of voters “based on their prior votes and political association” in violation of the First Amendment,” he added. It also contravened the constitutional requirement that the people – not the states – elect their representatives.

Republicans say they will ask the Supreme Court to stay the ruling. But a stay would require the votes of five justices, and the retirement of Justice Anthony Kennedy has left the court divided by ideology into two sides of four.

The district court, which is expected to rule on the feasibility of applying its ruling to the midterm election, said it may give the state assembly until Sept. 17 to redraw the map in a way that remedies its deficiencies

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Law

Why a sitting president can be charged with a crime

In July, Representative Devin Nunes, a Republican who chairs the House Intelligence Committee, told donors gathered for a fundraiser that preserving their party’s majority in Congress matters above all because they “are the only ones” who can protect President Trump if the special counsel or the Department of Justice refuse to clear him.

The comments raise anew the question whether a sitting president can be indicted and tried for his crimes. The question has yet to be answered in practice. But among experts who have shaped my thinking about the question is Noah Feldman, a professor of constitutional law at Harvard, who in May published an analysis in The New York Review of Books.

Feldman argues from the premise that “the Constitution should not be read to allow a sitting president who has committed serious crimes to hide behind his office and avoid accountability for them.”

As he sees it, whether the crime occurred while the president is in office or before he became president, we ought to allow prosecution of the president if Congress fails to remove him from office via impeachment. I agree.

Feldman suggests a scenario in which prosecutors in New York who are investigating Michael Cohen, the president’s former lawyer, uncover evidence sufficient to charge President Trump with crimes such as money laundering or conspiracy. Could a federal grand jury indict the president?

Without precedent

A sitting president has never been indicted. Feldman chronicles debate over the prospect since 1973, when the Watergate prosecutor received a memo from a law professor at Harvard asserting that President Nixon could be indicted while in office. (The prosecutor decided not to indict Nixon once proceedings in Congress to impeach him had begun; the prosecution named the president an unindicted co-conspirator.)

The same year, the Office of Legal Counsel at the Department of Justice produced a memo concluding that all executive branch officials could be prosecuted while in office with the exception of the president, who was immune. In 2000, the office wrote a memorandum affirming that view, which has guided policy at DOJ since.

But the analysis doesn’t end there. Suppose, as Feldman does, that Trump actually shot someone on Fifth Avenue, a scenario that then-candidate Trump imagined aloud in 2016 as a brag about the loyalty of his supporters.

Feldman writes:

“Suppose further that a Republican House did not immediately impeach him, or that the Senate could not reach the two-thirds supermajority needed to remove him from office. Could we continue to believe in the rule of law if the president were able to avoid criminal prosecution as long as he remained in office?

Our conclusion should presumably be the same if we imagine that the crime was committed before he entered office but revealed only once he was in the White House. The Constitution should be not interpreted to require such a moral outrage.”

Yet the prospect of such an outrage looms. As the comments by Nunes and the refusal of Republicans in Congress to pass a bill to protect the Mueller investigation suggest, the party could look away regardless what the evidence shows and refuse to impeach him.

Feldman acknowledges the views of scholars who oppose indicting a sitting president – either because Congress, a coequal politically elected branch of government should do it, or because, in their view, the Constitution implicitly requires impeachment and removal from office to precede criminal prosecution.

As a practical matter, Feldman notes that prosecutors could name Trump as an unindicted co-conspirator (assuming the evidence warrants) and then see whether Congress impeached him. If Congress resisted, prosecutors could try to persuade the attorney general to authorize a prosecution.

Feldman notes with approval the recommendation of Cass Sunstein, Feldman’s colleague at Harvard, that we should think about impeachment, as Feldman puts it, “based on principle, without thinking of concrete scenarios connected to specific politicians we like or despise.”

Of course, if takes some imagination to picture prosecutors actually prosecuting the president. Would the FBI arrest him if he refused to turn himself in? What would the Secret Service do if FBI agents showed up at the White House with a warrant for the president’s arrest?

There’s no precedent for such scenarios, which underscore the fears of those who say that Congress alone – subject to the voters in the election that follows – should decide the fate of presidents.

Feldman counsels a focus on practical results and consequences. He also notes that we allow for the investigation and prosecution of representatives, senators and other elected officials who have committed crimes.

“In the end, pragmatic reality should outweigh high formalism when it comes to preserving constitutional government,” he writes. “In the matter of the Watergate tapes, the case was called United States v. Richard Nixon. If it becomes necessary, the Department of Justice, acting on behalf of the people, should bring the case of United States v. Donald Trump.”

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Law

Refugees

In his 2004 novel, “The Plot Against America,” Philip Roth imagines the United States overtaken by fascism. Charles Lindbergh, the aviator and Nazi sympathizer, wins the Republican nomination for president and, with a pledge to keep America out of war, defeats Franklin D. Roosevelt in the election of 1940.

In the authoritarian administration that follows, Lindbergh enters into a nonaggression pact with Hitler and resettles Jews to the interior from cities such as Newark. Roth’s narrator — a boyhood version of the author — recalls a democracy all too capable of abandoning its values in the thrall of a hero turned president.  It’s a terrifying alternate history that challenges the idea it couldn’t happen here.

Roth’s is a work of fiction. But the nightmare has happened in the U.S. In the 1830s, Native Americans were removed by force from their homelands east of the Mississippi River and resettled in Oklahoma. In 1942, the government resettled Americans of Japanese descent from their homes in Northern California to camps in the interior. Two years later, in Korematsu v. United States, a majority of the Supreme Court authorized the internment.

This month, the Supreme Court is expected to rule on a ban on visitors from five predominantly Muslim countries that followed statements by President Trump before and after he took office that he intended to bar Muslims from entering the U.S.

Trump also is leading attacks on allies such as German prime minister Angela Merkel while failing to criticize populists like Italy’s deputy prime minister Matteo Salvini, who has called for a census of that country’s Roma population to determine which should be deported. “Make no mistake, there is a concerted attack on the constitutional liberal order,” Constanze Stelzenmuller, a German scholar at the Brookings Institution, told the Financial Times. “And it is being spearheaded by the president of the United States.”

Last year, 68.5 million men, women and children across the world were forced to leave their homes as a result of persecution, violence, conflict or violations of their human rights, according to a report released last Tuesday by the UN Refugee Agency. The total includes 25.5 million refugees and 40 million people displaced within their own countries.

The numbers tell of misery for the people forced to abandon their homes and, in many instances, to seek refuge in a foreign country. That includes people who seek asylum in the U.S., children in tow, because they fear for their lives in Central American countries plagued by violence.

On the day the UN issued its report, the president addressed a trade group in Washington, where he mocked the Refugee Act of 1980, which offers asylum to immigrants who can document “a well-founded fear of persecution.” According to the president, lawyers for asylum seekers advise their clients “exactly what to say.” He continued:

“They say, ‘Say the following:’ — they write it down — ‘I am being harmed in my country.  My country is extremely dangerous. I fear for my life.’ ‘Say that. Congratulations. You’ll never be removed.’  This is given to them by lawyers who are waiting for them to come up… But, in a way, that’s cheating because they’re giving them statements.  They’re not coming up for that reason. They’re coming up for many other reasons and sometimes for that reason.”

As Trump sees it, invoking the law in pursuit of asylum constitutes cheating. Meanwhile, his administration has separated children of asylees from their parents without recording clearly which kids belong to which parents and without plans (or, apparently, the ability) to reunite them.

Whatever you think of the immigration laws and the need to revise them, the people who invoke them are asserting their rights set forth in the statute. Words have legal significance, including the words uttered by someone who seeks asylum in America.

Trump himself knows the power of words to trigger laws. Or at least he does when it serves his interest to invoke them. Like when the president stated 16 times in one interview last winter that there was “no collusion” between Russians and him to influence the 2016 election.

Some other words that Trump has uttered bear on the immigration crisis he has incited. They’re in the Constitution, which prescribes the oath Trump swore at his inauguration, when he pledged to  “faithfully execute the office of president of the United States.”

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Law Tech

Cable competition comes to my block

On a recent visit to a Spectrum cable TV store in Manhattan, I  experienced an emotion that one does not tend to connect with cable TV and internet service: delight.

The price of my service dropped by $10 a month. Besides alerting me to that happy news, the representative sent me home with the latest modem, which she told me can handle the faster internet speeds that Spectrum now delivers in my neighborhood. And she displayed a willingness to accommodate me whether I decided to change (or even abandon) service.

The experience left me feeling as if I had received an unexpected gift. (To be sure, a gift that costs the recipient about $120 a month. A few days later, the reason for the friendliness revealed itself.

It seems the owner of the apartment complex where I live, as part of a push to offer amenities that might lure prospective tenants, had invited Verizon to offer a competing internet service. Contractors for the company scurry throughout the buildings installing equipment that will carry strands of fiber optic cable to each of our apartments.

The left side of the staircase that serves my unit now holds risers for Verizon. The right side houses coaxial cable that belongs to Spectrum. The services parallel each other en route to every unit.

While Verizon is installing the connections, a representative for Spectrum, dressed in a blue polo shirt, is making the rounds, leaving his card at the doors of apartments that have yet to sign up. “Great offer, call me,” the rep jotted on a business card left on a neighbor’s door.

As both the anecdote and economics suggest, when competition arrives, consumers come out winners.

Such competition is a rarity. Just over a third (36%) of urban census blocks in the U.S. had two or more broadband providers at the end of 2015, according to data compiled by the Federal Communications. (The percentage fell to six percent in rural areas.)

As Jonathan Sallet, a former general counsel of the FCC who represented the agency in court battles over broadband policy has observed:

“[W]hen the FCC looked at the use of municipal broadband… it set out evidence showing that the presence of an additional broadband provider pushes down the prices and increases the quality of both new and incumbent providers.

In other words, such competition is ‘win-win.’ It benefits those consumers who switch and even those that do not but who gain from faster download speeds resulting from the incumbent’s response to competitive pressures.”

Sallet notes that in one city, the incumbent cable company reduced its prices when facing the prospect of a new broadband competitor and increased the top speed of its broadband service to 105 megabytes per second (mbps) from 8 mbps.

Though Verizon has yet to connect its service, the prospect of its arrival has spurred Spectrum to lower prices and up its game.

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Law

Supreme Court finds narrow ground in cake shop case

On Monday, a majority of the Supreme Court sided with a bakery in an appeal that backed the owner’s refusal to create a wedding cake for a same-sex couple because of his religious opposition to their marriage.

My first reaction upon hearing the news was to conclude that a majority of the Court had ruled that the Constitution protects discrimination.

The appeal required the justices to reconcile the obligation of the law to protect the rights of gay people who wish to marry and the right of everyone to exercise freedom of religion guaranteed by the First Amendment.

I wondered how Justice Kennedy, who wrote the majority opinion and who authored a 2015 ruling that upheld the right of same-sex couples to marry, could have backed the bakery’s owner.

But that’s not what happened exactly.

The majority sided with the owner after finding that a state commission charged with reviewing the owner’s contention that creating a cake for a same-sex wedding would contravene his belief that “God [intends that marriage] should be the union of one man and one woman” had abandoned its neutrality.

A couple walks into a bakery

The dispute began in 2012, when Charlie Craig and Dave Mullins entered Masterpiece Cakeshop, a bakery in Lakewood, which forms part of metropolitan Denver. The couple planned to marry in Massachusetts (at the time, Colorado did not recognize same-sex marriages) and then hold a reception in the Mile High City.

Craig and Mullins told Jack Phillips, the shop’s owner, of their interest in ordering a cake for “our wedding.” Phillips, a devout Christian, replied that he does not create cakes for same-sex weddings, but that he would sell them birthday cakes, cookies or brownies. “I just don’t make cakes for same-sex weddings,” he said.

Phillips reiterated his stance the next day on the phone to Craig’s mother, who had called to ask why he declined to serve her son. He explained that to create a cake for an event that celebrates “something that directly goes against the teachings of the Bible” would constitute his endorsing and participating in the ceremony. Philips also noted that Colorado law (at that time) did not recognize same-sex marriage.

The law in Colorado

Colorado law bars businesses from refusing to serve anyone on the basis of their sexual orientation or marital status. Someone who feels their rights have been violated can file a complaint with the Colorado Civil Rights Division, a state agency that will investigate the claim.

If the agency concludes that the claim has merit, it forwards the dispute to the Colorado Civil Rights Commission, a seven-member body that can refer the dispute to an administrative law judge for a hearing. Decisions by the administrative law judges can be appealed to the full commission, which then holds a public hearing before voting on the case.  The law gives the commission the authority to order a business to cease and desist a practice deemed to be discriminatory.

In August 2012, Craig and Mullins filed a complaint against Phillips with the civil rights division, which concluded, after investigating the matter, that Phillips had refused to sell cakes to a series of same-sex couples and referred the case to the commission.

The commission referred the case to an administrative law judge, who ruled in favor of Craig and Mullins after finding that the state’s anti-discrimination law is a “valid and neutral law of general applicability” that did not violate Phillips’ right to the free exercise of his religion.

Phillips appealed the ruling to the commission, which affirmed the judge’s ruling, and then to the state’s court of appeals, which upheld it as well. He appealed to the U.S. Supreme Court after the state supreme court declined to hear the case.

A narrow ground

Justice Kennedy noted that clash between state law, which protects gay people like it protects others in acquiring whatever products or services they choose, and the claim by Phillips that creating a cake for the couple would have required him to use his skills as an artist to make an expressive statement that would contravene his sincerely held religious beliefs.

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” wrote Kennedy. “For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”

“At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms  of  expression,” he added.

Still, Phillips was entitled to “neutral and respectful consideration of his claims” that the majority found was lacking.  Instead, the civil rights commission’s handling of the case showed “some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection,” Justice Kennedy wrote.

At a meeting of the commission’s seven members to consider the case, one commissioner suggested that Phillips remained free to believe what he believes “but cannot act on his beliefs ‘if he decides to do business in the state,’” noted Justice Kennedy.

At a meeting of the commission about six week later, another commissioner went further, saying that using religion to “justify discrimination… is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The comment, which no other member of the commission objected to, “is inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation,” Justice Kennedy wrote.

The majority also noted that on at least three occasions the commission upheld the right of bakers to refuse to create cakes with messages “that conveyed disapproval of same-sex marriage.”

Though in the case of Phillips the commission ruled that any message on the cake would be attributed to Craig and Mullins and not to Phillips, “the commission did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism,” Kennedy noted.

As such, the commission’s treatment of Phillips’ case “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint,” said Justice Kennedy. Because Phillips “was entitled to a neutral decision maker,” the commission’s order must be set aside.

Still, Kennedy suggested that the Court may side with same-sex couples in future disputes that raise similar facts.

“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” he cautioned.

In a dissent, Justice Ginsburg, joined by Justice Sotomayor, said she would have affirmed the state’s ruling in favor of Craig and Mullins. The record does “not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decision-making entities considering this case justify reversing the judgment below,” she wrote.

Justice Thomas, joined by Justice Gorsuch, wrote separately to focus on the baker’s free-speech rights. “Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated—the precise message he believes his faith forbids,” Thomas said.

Reaction to the ruling

Writing at Scotusblog, Elizabeth Clark, a professor of law at Brigham Young University, predicted that by denying the claims of partisans on both sides of the case, “the decision may open up a space for a more thoughtful examination of the interaction of LGBTQ rights and religious freedom, both of which reflect deeply felt worldviews and both of which offer strong dignity, equality and liberty claims.”

Professor Michael Dorf of Cornell Law school focused on what the ruling doesn’t do. “[T]he stated rationale for the ruling in Masterpiece doesn’t wash,” he wrote. “At best, it is a masterpiece of ducking the hard questions.”

In the Times, Linda Greenhouse concluded that “the religious right didn’t get what it wanted from this case, and we have Justice Kennedy to thank for that. He found a way for two gay men to lose a case without setting back the cause of gay equality for which he has earned his place in history.”

Over at Slate, Dalia Lithwick noted the confusion (such as my own) that greeted the ruling, which she says focuses on the tenor with which tribunals resolve disputes. “No wonder the headline writers were confused,” she writes. “To the extent Masterpiece Cakeshop resolved the issue it was granted to take on—whether or not the dignitary interests of religious dissenters can override civil rights and public-accommodations laws—the rule that emerged is simply that we must speak civilly toward one another. The merits? They can wait for another day.”

The American Civil Liberties Union welcomed parts of the ruling that the group said reaffirm legal protections for gay people.

At Masterpiece Cake shop, phones rang off the hook following the ruling. Phillips referred reporters looking for comment to his lawyers.

Outside the shop, Marie Sautter Damm and her husband Richard Damm ate brownies. “It’s not about being anti-gay,” she told the Denver Post. “I have friends and church members that are gay. People should have their religious rights. Too long in my life I’ve been keeping my mouth shut – but no more. I don’t have to agree with you for you to have your own rights.”

Craig told CNN that the ruling affirms that businesses can choose what they sell to people, “they just can’t choose who to sell it to.”

Categories
Law

Trump shows why Congress should reclaim the power to declare war

Three days after the 9/11 attacks, Congress passed a resolution authorizing the president to use military force against those responsible.

Rep. Barbara Lee, a Democrat who represents California’s East Bay region, was the lone member of either the House or Senate to vote against the resolution.

“In granting these overly broad powers, the Congress failed its responsibility to understand the dimensions of its declaration,” she wrote.  “I could not support such a grant of war-making authority to the president; I believe it would put more innocent lives at risk.”

For that act of bravery and conscience – not to mention a construing of the Constitution as strictly as a hero of the right such as Justice Neil Gorsuch might construe it – Lee received insults and death threats.

Yet the concerns she expressed endure. They arose again on Tuesday, when the president took to Twitterto tell Russia to “get ready” for missiles fired at Syria by the U.S. in retaliation for what appears to have been an attack on civilians using chemical weapons.

In the wake of that tweet, Lee, now joined by three of her colleagues, including two Republicans, issued a statementurging the president to seek authorization from Congress before using military force against Syria.

“The Constitution clearly gives Congress, not the executive branch, the power to authorize war,” they wrote. “Any use of force against Syria requires approval from Congress first.”

The move follows a similar statement last June by members of the Senate Foreign Relations Committee who said that U.S. airstrikes in Syria exceeded the authorization passed in the wake of 9/11.

In 2013, at Lee’s request, the Congressional Research Service compiled a memorandum that listed the uses of military force taken pursuant to the 2001 authorization. They included the use of such force in 10 countries (a number that now stands at least at a dozen after deployments in Niger and Syria), detaining prisoners at Guantanamo Bay, and engaging terrorist groups both “on the high seas” and “around the world.”

In short, the resolution produced a forever war that has strayed from its justification to avenge the 9/11 attacks and now stands on questionable legal footing.

President Barack Obama recognized the problem implicitly in August 2013, when, after being presented with evidence of a chemical weapons attack by the Syrian regime against its own people, he refrained from taking military action until Congress could be heard.

Obama explained his decision as follows:

“[H]aving made my decision as Commander-in-Chief based on what I am convinced is our national security interests, I’m also mindful that I’m the President of the world’s oldest constitutional democracy. I’ve long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people.”

A month later, the prospect of a diplomatic solution that called for the Syrian government to hand over its stockpile of chemical weapons spared Congress what some members feared would be a tough vote.

Still, the decision by President Obama to seek authority from Congress marked a move to harmonize the use of military force with the Constitution.

In September 2013, when a vote by Congress on the use of military force in Syria seemed imminent, Donald Trump warned President Obama against attacking Syria. “If you do, many very bad things will happen,” Trump tweeted.

Fast forward to last Sunday, when Trump blasted Obama for failing to take military action against Syria. Though the tweets induce whiplash, they establish that, as president, Trump has about as much regard for the Constitution as he does for consistency.