Tag: Supreme Court

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News

Saturday’s headlines are for the ages

The front page of The New York Times on Saturday showed history happening in something approaching real time. In an instant one could see the end of an effort by Donald Trump to, as the headline put it, “subvert the vote,” together with a turning point in the effort to end the pandemic.

The headline splashed across the top of the page proclaimed that the Supreme Court on Friday tossed out a lawsuit by Texas that sought to overturn the results of the presidential election. The ruling effectively ends an effort by Donald Trump to change the outcome. 

Just below appeared the news that the Food and Drug Administration had authorized Pfizer’s COVID-19 vaccine for emergency use. The authorization clears the way for millions of people most at risk from the coronavirus to begin receiving the jab.

One commentator likened Saturday’s front page to those proclaiming the end of World War II. Though the latest milestones did not, fortunately, follow the use of a nuclear weapon, the ruling by the Supreme Court exploded an effort by Trump to overturn the results of the presidential election.

In an unsigned, one-page ruling, the justices said that Texas lacked standing (that is, a legally recognizable harm) to object to the ways that four states — Georgia, Michigan, Pennsylvania and Wisconsin — conducted their elections. 

The Trump Administration and more than half the Republicans in the House of Representatives backed the lawsuit, which asked the justices to consider the case as part of the Court’s so-called original jurisdiction.

The Constitution authorizes the Court to hear disputes between states directly, without the requirement that the dispute come through the appellate courts. In such instances the Supreme Court functions essentially as a trial court in which the justices weigh evidence and arrive at a verdict. 

Texas had asked the court to delay certification of the voting by the Electoral College because “unconstitutional irregularities” in the four states made it impossible to know who “legitimately won the 2020 election.”

Each of the four states filed briefs attacking the lawsuit. “Texas has not suffered harm simply because it dislikes the result of the election, and nothing in the text, history, or structure of the Constitution supports Texas’s view that it can dictate the manner in which four other states run their elections,” Pennsylvania told the Court.

The justices agreed, writing that Texas “has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.” For their part, Justices Samuel Alito and Thomas said that the lawsuit fell within the Court’s original jurisdiction “but would not grant other relief… and express no view on any other issue” in the lawsuit.

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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.”

Categories
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
News

The courts should take Trump at his word

As a candidate for president in 2015, Donald Trump called for a “total and complete shutdown” of the nation’s borders to Muslims. 

Two years later, President Trump signed an executive order enacting a ban on visitors from a series of Muslim-majority countries. Opponents sued, citing those statements as evidence that the ban was little more than a pretext for discrimination in violation of the Constitution. 

Fast forward to Friday, when Trump declared a national emergency at the U.S. border with Mexico. The maneuver enables the White House to build a wall that Congress had just refused to fund in full. Candidate Trump promised his supporters a wall, which is likely to be a cornerstone of his campaign for reelection in 2020.

In support of its argument, the White House said the declaration marks a step “to stop crime and drugs from flooding into our nation.” 

Yet in the Rose Garden on Friday, Trump himself seemed to undermine his own argument. “I didn’t need to do this,” he told reporters. “But I’d rather do it much faster.”

Late Friday, both the governor of California and the American Civil Liberties Union said they would sue the administration to overturn the emergency. Both are likely to point to the president’s words as evidence that the arguments propounded in support of the emergency have nothing to do with facts. Data compiled by the Department of Homeland Security show no evidence of a flood of illegal crossings at the border. 

Trump predicted that the declaration would be challenged in court. And that the administration could expect “a fair shake” at the Supreme Court, where conservatives, two of whom Trump appointed, constitute a majority. 

There has been little litigation over the 1976 statute that the administration cited in support of its declaration. 

The reality – as the president himself suggested by his statements – appears to be that he needs to show supporters between now and November 2020 that he upheld his promise to build a wall.  Now Trump’s words are the words of a president. The Rose Garden is not the campaign trail. 

In a 5-4 decision last year upholding the travel ban, the majority looked away from the statements by candidate Trump. “[T]he issue before us is not whether to denounce the statements,” Chief Justice John G. Roberts Jr. wrote. “It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”

Justice Sonia Sotomayor said the majority had ignored the facts. Its decision, she wrote, “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete’ shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

Categories
Law Privacy

New York ruling that lets police follow cellphone locations without a warrant highlights significance of Supreme Court review in Carpenter case

New Yorkers have no constitutionally protected right to privacy in information about our whereabouts that can be deduced from the data emitted by our cellphones, an appeals court in Rochester has ruled in a case that underscores the significance of a ruling expected this spring from the U.S. Supreme Court.

Sharhad Jiles was sentenced to 25 years to life in prison after being found guilty in the shooting death of Sheldon Hepburn during a 2011 robbery. At trial, prosecutors used records obtained from the company that provided Jiles’ cellphone service to place him in the location of the murder.

Jiles asked the judge to exclude the records, which revealed his location over a period of four days beginning on the data of the robbery; information that Jiles contended prosecutors needed a warrant to obtain.

Prosecutors had acquired the records, which track every time our cellphones register with the nearest tower, via a subpoena issued to the provider pursuant to the federal Stored Communications Act, which allows the government to obtain such data without a showing of probable cause of a crime. The trial judge sided with prosecutors and Jiles appealed.

On appeal, Jiles argued that so-called cell site location information is protected by the Fourth Amendment by two rulings of the Supreme Court: a 2012 decision that overturned the conviction of a Maryland man based on evidence obtained from a GPS device that police, acting without a warrant, affixed for 28 days to the underside of his automobile; and a 2014 ruling by the court that police may not, without a warrant, search the contents of a cellphone obtained from someone who has been arrested.

The New York court disagreed, citing a series of rulings by federal courts that suspects have no constitutionally protected privacy in records they voluntarily supply to a third party such as checks, deposit slips and other records filed with banks or telephone numbers they dial.

“We remain bound by the third-party doctrine when interpreting the Fourth Amendment [until] a majority of justices on the [Supreme] Court instructs us otherwise,” Justice Gerald Whalen wrote on behalf of the court in a Dec. 22 ruling.

The instruction should arrive this spring, when the Supreme Court is expected to rule in an appeal from Timothy Carpenter, who was convicted and sentenced to 116 years in prison for a series of robberies in Ohio and Michigan.

At trial, prosecutors introduced evidence of Carpenter’s location they gleaned from records obtained from his cellphone provider that revealed his movements over a period of 127 days.

Like Jiles, Carpenter contended that the government should have obtained a warrant for the records, but both the trial judge and the 6th U.S. Circuit Court of Appeals disagreed.

The Supreme Court heard arguments in the appeal on Nov. 29. Nathan Wessler, an attorney with the American Civil Liberties Union who argued on behalf of Carpenter, distinguished business records such as those filed with a bank from the location data collected by the towers that carry calls from our cellphones.

“The information in bank records can be quite sensitive, but what it cannot do is chart a minute-by-minute account of a person’s locations and movements and associations over a long period regardless of what the person is doing at any given moment,” Wessler said in response to a question by Justice Alito.

Such data gives the government “a categorically new power that is made possible by these perfect tracking devices that 95 percent of Americans carry in their pockets,” he said later in response to a question from Justice Kennedy.

Arguing for the government, Deputy Solicitor General Michael Dreeben dismissed the distinction. By obtaining records that reveal a suspect’s historical location, the government “is doing the same thing” it did in the case of bank records, he told the justices. “It is asking a business to provide information about the business’s own transactions with a customer. And under the third-party doctrine, that does not implicate the Fourth Amendment rights of the customers,” Dreeben added.

As Amy Howe at Scotusblog noted, the challenge for the justices may be where to draw the line between information that is entitled to protection of the Fourth Amendment and that which the government can obtain with a subpoena.

“This is highly personal information,” Justice Breyer remarked, referring to location data that can be gleaned from cell towers.

Justice Sotomayor took note of the erosion on privacy that can accompany developments technology. “Right now, we’re only talking about the cell sites records, but as I understand it, a cell phone can be pinged in your bedroom, “she said. “It can be pinged at your doctor’s office. It can ping you in the most intimate details of your life. Presumably at some point even in a dressing room as you’re undressing. So I am not beyond the belief that someday a provider could turn on my cell phone and listen to my conversations.”

Justice Alito pushed back, challenging Wessler to distinguish cell site location data from bank records or telephone numbers called. Cellphone service contracts advise subscribers that the company can disclose location information to the government pursuant to a court order.

Wessler replied that the Stored Communications Act provides two ways the government can obtain records: either by a court order or a warrant. That, he argued, suggests that anyone looking at the law “would be quite reasonable and right to assume that the reason there’s a warrant prong is to deal with records like these in which there’s a strong privacy interest.”

Some experts say the march of technology means it’s time for the court to discard the third-party doctrine entirely. Writing recently in The Washington Post, Bruce Schneier, a technologist and lecturer at Harvard’s Kennedy School, noted that we store most of our data on computers that belong to other people.

“It’s our email, text messages, photos, Google docs, and more — all in the cloud,” Schneier wrote. “All this data will be collected and saved by third parties, sometimes for years. The result is a detailed dossier of your activities more complete than any private investigator — or police officer — could possibly collect by following you around.”

Police should be able to draw on the data to help solve crimes, Schneier said. But they first should be required to have probable cause and obtain a warrant.

“It’s long past time the Supreme Court recognized that… my emails and other personal data deserve the same protections, whether they’re on my laptop or on Google’s servers,” he noted.

Categories
Law

Trump’s travel ban is moot

The White House needs a travel ban why?

On March 6, the president issued an executive order that banned travelers to the United States from Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days while the government reviewed procedures for vetting visitors from those countries.

Though at least 13 federal courts have blocked the order on constitutional and statutory grounds, the Ninth Circuit ruled in June that the president can proceed with a review to determine what additional procedures, if any, might be needed from the countries subject to the ban that would address security concerns.

Still, the administration has asked the Supreme Court to reinstate the ban and to review decisions by both the Ninth and Fourth Circuits that nullify “a national-security directive of the president,” as Jeffrey Wall, the acting solicitor general, wrote in a brief filed last Wednesday.

Even if the court reviews the executive order, the justices won’t hear arguments in the case until October at the earliest. Which means the administration has at least four months to carry out its review. So review away.

The travel ban will remain blocked, but the White House has cited no reason not to assess the threat. If security is at stake, there’s seemingly no reason to delay. Of course, the White House has cited no evidence that would suggest a threat that Congress didn’t address when it tightened visa procedures 18 months ago.

The State of Hawaii, which challenged the travel ban in the Ninth Circuit, contends as much. “Indeed, there is no need for the court to grant review at all,” the state wrote in its latest brief, noting that by October, “the government will have had almost nine months to complete the review and upgrade of immigration procedures that the order was allegedly designed to accomplish.”

The administration’s actions suggest the travel ban may be motivated less by keeping the nation safe than by keeping the president’s supporters stirring. If so, that’s a political calculation, which the justices don’t review anyway.

Categories
Law

Ninth Circuit misread the law governing the Trump travel ban, government tells Supreme Court

The Ninth Circuit misread the law that underpins the president’s exclusion of visitors to the United States from six majority-Muslim countries, the government argues in a new round of papers that ask the Supreme Court to reinstate the travel ban.

The Immigration and Nationality Act (INA) requires only that the president find entry of a group of visitors to the U.S. would be detrimental to the nation’s interests, regardless of whether Congress comes to the same conclusion, says the government in a brief filed on Thursday. Thus, the appeals court erred when it ruled on June 12 that the travel ban has no basis in the record and therefore exceeds the president’s authority, the government says.

“The court of appeals read into that provision a requirement that, before suspending entry, the president must articulate a factual finding — satisfactory to courts — that support[s] the conclusion that entry of all nationals whose entry he suspends would be harmful to the national interest,” writes the government. “That requirement turns the statute’s text on its head.” [internal quotes omitted]

In its ruling, the Ninth Circuit noted that the executive order containing the ban does not discuss any instances of terrorism in the U.S. by citizens of Iran, Libya, Sudan, Syria or Yemen — an omission the State of Hawaii and others challenging the ban raised before the appeals court and are likely to assert in their brief, which is due this Tuesday. The executive order cites one example of domestic terrorism by a native of Somalia who came to the U.S. at the age of 2.

Uncertainty alone justifies a ban, White House says

Besides relying on a series of State Department reports from 2016, the administration cited no evidence to support its assertion of a threat to national security posed by residents of the six countries. The omission explains in part why the challengers say the reasons for the ban offered by the White House are a pretext to disfavor Islam in violation of the Establishment Clause.

In its brief to the court, the government says the president imposed the travel ban “in the face of uncertainty over whether these foreign governments that sponsor or shelter terrorism are able and willing to provide” information that would allow the Departments of State and Homeland Security to determine whether entry of visitors from those countries constitutes a threat.

The uncertainty alone justifies a halt for three months on visitors while the administration ascertains whether each of the countries can screen travelers sufficiently, says the government.

The administration also urges the justices to overrule a finding by the Ninth Circuit that the travel bank violate the INA’s prohibition on discrimination based on nationality in the issuance of visas. That bar does not apply to the president’s ability to restrict entry of visitors, the government contends.

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

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
Law

Trinity Lutheran disregards the Establishment Clause

In the early 1770s, Thomas Jefferson set out to undo the web of laws that established the Church of England as the religion of Virginia. To aid his work, Jefferson made a list of acts of either the Virginia Assembly or the English parliament (as far back as the 1540s). In all, Jefferson found 17 Virginia statutes (beginning in 1661) and 23 English statutes concerning religion.

As Professor Michael McConnell of Stanford, who has reviewed the work of Jefferson and the establishment of religion at the nation’s founding tells it, financial support from taxes did not, by itself, enshrine establishment. “Even after dissenters were given the right of free exercise of religion and the Church of England lost its tax-exempt status, the Virginia Assembly continued to speak of it as the ‘church by law established.’”

Religious rights, and states’ efforts to withhold their sanction from religion, are scheduled to come before the Supreme Court this Wednesday, when the justices will hear arguments from Trinity Lutheran Church in Columbia, Missouri. The church, which operates a preschool and day care center, contends the state’s excluding the church on religious grounds from a program that provides funds for resurfacing playgrounds violates the Constitution’s Free Exercise and Equal Protection clauses.

The appeal by Trinity Lutheran presents an early test for a Republican majority of the court that now includes Neil Gorsuch, who could cast the deciding vote. That is the same Neil Gorsuch who ruled in favor of Hobby Lobby Stores, which persuaded the court to strike down a provision of the Affordable Care Act that required employers to cover the cost of contraception for their employees.

“It is simply impossible to establish Trinity Lutheran’s religious identity, when, as Missouri has done here, the state excludes it from participation in the life of the community solely based on its religious status,” Trinity Lutheran writes in its brief, citing a concurrence by Justice Kennedy in the Hobby Lobby decision.

The playground dispute began in 2012, when the church applied for funds from Missouri’s Scrap Tire Surface Material Grant Program, which the state uses to reduce the number of tires in landfills and improve children’s safety.

The church charges that the state’s Department of Natural Resources (DNR) notified the church that it would be ineligible to receive funds from the program. In support of its determination, the state cited the Missouri Constitution, which prohibits the use of public funds “in aid of any church, sect, or denomination of religion…”

Trinity Lutheran sued Missouri in the U.S. District Court in Kansas City. The trial court dismissed the accusations, noting that payment of funds by the state “to a sectarian institution” would contravene the Establishment clause. By a vote of 2 to 1, the Eighth Circuit Court of Appeals agreed.

Trinity Lutheran asks the Supreme Court to apply strict scrutiny to the state’s action, which means the state must be able to cite a compelling governmental purpose for denying the church’s application for playground funds based solely on its status as a religious institution.

“The religious difference between Trinity Lutheran’s daycare and secular daycare operators is the only basis for the exclusion here, although they both seek scrap tire funds to fulfill the state’s recycling goals and to provide children a safer area to play,” the church writes. “Because the DNR employs a suspect classification, it must satisfy strict scrutiny.”

But precedent, counters Missouri, leads to a conclusion that the state’s decision is entitled to deference where, as here, the state has not interfered with the free exercise of its faith by Trinity Lutheran. “This court has long held that the government does not infringe the exercise of a constitutional right by declining to subsidize it,” the state argues.

Trinity Lutheran asserts that the Eighth Circuit relied in error on a ruling by the Supreme Court in Locke v. Davey, a 2004 case in which the court upheld a decision by Washington State to exclude from eligibility for state scholarship aid students who pursue degrees in devotional theology. The state cited its constitution, which prohibits use of public funds to aid religious instruction.

In reaching its decision in Locke, the court noted the tension between the Free Exercise and Establishment clauses. “In other words,” Justice Rehnquist wrote for the majority, “there are some state actions permitted by the Establishment clause but not required by the Free Exercise clause.”

The majority also considered the challenge to Washington State’s decision in the context of the history of established churches in colonial America. Rehnquist wrote:

Most states that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate… that these provisions would not have applied so long as the state equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk. [citations omitted]

Missouri says the decision in Locke “applies squarely” to the appeal by Trinity Lutheran. But the church distinguishes the religious training rejected for state funds in Locke from the playground flooring that Trinity Lutheran hopes to install. Trinity Lutheran argues:

In Locke, this court was concerned by what the scholarship funds were going to be used for—the devotional training of clergy—not the identity of those who were using the money. But Trinity Lutheran’s religious identity was the sole basis for the DNR’s exclusion here. Locke simply has no application in that context.

The court agreed on January, 15 2016 to hear Trinity Lutheran’s appeal. Justice Scalia died about a month later. The justices seem to have waited to schedule the case for argument until the court again had nine justices.

That’s where Neil Gorsuch comes in. “I don’t think anybody on the secular side of the fence thinks the state of Missouri is going to get a fair shake from Mr. Hobby Lobby,” writes Elie Mystal at Above the Law, referring to the newest justice. (If that’s correct, so much for Republicans who claim to cherish states’ rights.)

Justice Gorsuch describes himself as an originalist, meaning, he says, he strives to apply the law as he finds it. For the appeal by Trinity Lutheran, he might look, as the American Civil Liberties Union suggests in a brief filed in support of Missouri, to ideas espoused by both Jefferson and James Madison, who wrote the First Amendment.

In 1785, Madison published, anonymously (he acknowledged authorship 41 years later), an essay titled “Memorial and Remonstrance against Religious Assessments.” The tract argued against a bill in the Virginia Assembly to collect a tax to fund preachers.

“Who does not see,” Madison asked, “that the same authority… which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?