Tag Archives: Supreme Court

Idea Soup

Justice Kennedy

Anthony_Kennedy_official_SCOTUS_portrait

This story from the Guardian sums up the historic decision on same-sex marriage issued by the US Supreme Court on June 26, 2015.

An excerpt from the 103 page opinion written for the majority (5-4) by Justice Anthony Kennedy:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex. 

 

The momentous legal opinion paves the way for a little more equality. Thank you, Justice Kennedy — and now the work in welcoming the four arch-conservative justices into the non-constructionist, non-textualist 21st century must continue apace.

From the Guardian:

His prose may lack the fiery eloquence of his US supreme court colleagues Ruth Bader Ginsburg and Antonin Scalia, or the razor-sharp precision of chief justice John Roberts, but the majority opinion written by Justice Anthony Kennedy – granting a constitutional right to same-sex marriage across the United States – will go down as one of the most important legal documents in the history of the American civil rights struggle.

Court-watchers were left in little doubt where most of the nine justices stood on marriage equality after two and a half hours of extended oral arguments held the hushed halls of the nation’s highest tribunal spellbound in April.

On one side, the court’s traditional liberals: Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan were withering in their view of the arguments advanced by Republican-controlled states that wanted to hold back the growing tide of legal rulings that backed gay marriage.

On the other side of the bench were the more reliably conservative members of the supreme court – Scalia, Samuel Alito and the typically silent Clarence Thomas – who believed not just that marriage should remain solely between a man and woman, but that the court had no right to voice its opinion on the matter at all.

More inscrutable, however, were Roberts, who barely said a word throughout the entire hearing, and Kennedy, who seemed genuinely unsure which way to lean: he expressed concern for the consequence of either ruling.

Kennedy, the 78-year-old former lawyer from California appointed to the bench by Republican president Ronald Reagan a generation ago, is seen – in theory – as one of the conservative majority. But in practice, he has long been the most enigmatic of the swing voters on some of the most defining stories in American history.

On Thursday, he had joined Roberts in defending Barack Obama’s healthcare reforms from yet another legal onslaught by conservative critics.

But on Friday, the day same-sex marriage became the law of the land, Roberts had decided to stay firmly in the conservative camp.

And so Kennedy became the one man to effectively determine a decision that will directly affect millions of Americans in love – and redefine a core legal and social bedrock for all of them, perhaps forever.

…

The closest Kennedy came to capturing the emotion felt by campaigners and protesters on both sides of the argument was when he was describing the institution at the heart of the argument.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” he wrote. “In forming a marital union, two people become something greater than once they were.”

Those who know the court best are in little doubt as to the significance of Kennedy’s words.

…

But on a day when a funeral for victims of the Charleston church shootings cast a long shadow over the ongoing battle for racial equality, the decision was a source of hope for many.

“America should be very proud,” said Barack Obama in an emotional statement from the White House rose garden.

“There’s so much more work to be done to extend the full promise of America to every American,” he added. “But today, we can say in no uncertain terms that we’ve made our union a little more perfect.”

Read the entire article here.

Image: Anthony Kennedy, Associate Justice of the Supreme Court of the United States, 2011. Public Domain.

Idea Soup, tD

Is Walmart Wiccan? Is BestBuy Baptist? Is McDonalds Methodist?

So much for the Roberts Supreme Court. Conservatives would suggest that the court is intent on protecting the Constitution from assault by progressive liberals and upholding its libertarian conservativism. Yet, protections of and for the individual seem to have taken a backseat to recent rulings that promote corporate power — a somewhat new invention; perhaps, none more so than recent decisions that ruled corporations to be “people”. But the court is not standing still — not content with animating a business with lifeblood, soon, the court is likely to establish whether corporations have a religious spirit as well as individual sentience. Sticks of oxymoronic progressivism.

From the Washington Post:

If you thought this “corporations are people” business was getting out of hand, brace yourself. On Tuesday, the Supreme Court accepted two cases that will determine whether a corporation can deny contraceptive coverage to its female employees because of its religious beliefs.

The cases concern two of the most politically charged issues of recent years: who is exempted from the requirements of the Affordable Care Act, and whether application of the First Amendment’s free speech protections to corporations, established by the court’s 2010 decision in Citizens United, means that the First Amendment’s protections of religious beliefs must also be extended to corporations.

The Affordable Care Act requires employers to offer health insurance that covers contraception for their female employees. Churches and religious institutions are exempt from that mandate. But Hobby Lobby, a privately owned corporation that employs 13,000 people of all faiths — and, presumably, some of no faith — in its 500 craft stores says that requiring it to pay for contraception violates its religious beliefs — that is, the beliefs of its owners, the Green family.

In a brief submitted to a federal court, the Greens said that some forms of contraception — diaphragms, sponges, some versions of the pill — were fine by them, but others that prevented embryos from implanting in the womb were not. The U.S. Court of Appeals for the 10th Circuit upheld the Greens’ position in June in a decision explicitly based on “the First Amendment logic of Citizens United.” Judge Timothy Tymkovich wrote: “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.”

Tymkovich’s assessment of how the five right-wing justices on the Supreme Court may rule could prove correct — but what a mess such a ruling would create! For one thing, the Green family’s acceptance of some forms of contraception and rejection of others, while no doubt sincere, suggests that they, like many people of faith, adhere to a somewhat personalized religion. The line they draw is not, for instance, the same line that the Catholic Church draws.

Individual believers and non-believers draw their own lines on all kinds of moral issues every day. That’s human nature. They are free to say that their lines adhere to or are close to specific religious doctrines. But to extend the exemptions that churches receive to secular, for-profit corporations that claim to be following religious doctrine, but may in fact be nipping it here and tucking it there, would open the door to a range of idiosyncratic management practices inflicted on employees. For that matter, some religions have doctrines that, followed faithfully, could result in bizarre and discriminatory management practices.

The Supreme Court has not frequently ruled that religious belief creates an exemption from following the law. On the contrary, in a 1990 majority opinion, Justice Antonin Scalia wrote that Native Americans fired for smoking peyote as part of a religious ceremony had no right to reinstatement. It “would be courting anarchy,” Scalia wrote in Employment Division v. Smith, to allow them to violate the law just because they were “religious objectors” to it. “An individual’s religious beliefs,” he continued, cannot “excuse him from compliance with an otherwise valid law.”

It will be interesting to see whether Scalia still believes that now that he’s being confronted with a case where the religious beliefs in question may be closer to his own.

The other issue all this raises: Where does this corporations-are-people business start and stop? Under the law, corporations and humans have long had different standards of responsibility. If corporations are treated as people, so that they are free to spend money in election campaigns and to invoke their religious beliefs to deny a kind of health coverage to their workers, are they to be treated as people in other regards? Corporations are legal entities whose owners are not personally liable for the company’s debts, whereas actual people are liable for their own. Both people and corporations can discharge their debts through bankruptcy, but there are several kinds of bankruptcy, and the conditions placed on people are generally far more onerous than those placed on corporations. If corporations are people, why aren’t they subject to the same bankruptcy laws that people are? Why aren’t the owners liable for corporate debts as people are for their own?

Read the entire article here.

Idea Soup

Is Your Company Catholic or Baptist?

Is your business jewish? Does your corporation follow the book of tao or the book of mormon or those of shadows (wicca) or yasna (zoroastrianism)? Or, is your company baptist, muslim, hindu or atheist or a practitioner in one of the remaining estimated 4,200 belief systems?

In mid-2012 the U.S. Supreme Court affirmed that corporations are indeed people when it ruled for Citizens United against the State of Montana in allowing unlimited corporate spending in local elections. Now, we await another contentious and perplexing ruling from the justices that may assign spirituality to a corporation alongside personhood.

Inventors of board games take note: there is surely a game to be made from matching one’s favorite companies with religions of the world.

From Slate:

Remember the big dustup last summer over the contraception mandate in President Obama’s health reform initiative? It required companies with more than 50 employees to provide insurance, including for contraception, as part of their employees’ health care plans. The constitutional question was whether employers with religious objections to providing coverage for birth control could be forced to do so under the new law. The Obama administration tweaked the rules a few times to try to accommodate religious employers, first exempting some religious institutions—churches and ministries were always exempt—and then allowing companies that self-insure to use a separate insurance plan to pay and provide for the contraception. Still, religious employers objected, and lawsuits were filed, all 60 of them.

A year later, the courts have begun to weigh in, and the answer has slowly begun to emerge: maybe yes, maybe no. It all depends on whether corporations—which already enjoy significant free-speech rights—can also invoke religious freedom rights enshrined in the First Amendment.

Last Friday, the 3rd U.S. Circuit Court of Appeals upheld the contraception mandate, rejecting a challenge from a Pennsylvania-based cabinetmaker who claimed that as a Mennonite he should not be compelled to provide contraceptive coverage to his 950 employees because the mandate violates the company’s rights under the free exercise clause of the First Amendment and the Religious Freedom Restoration Act. The owner considers some of the contraception methods at issue—specifically, the morning-after and week-after pills—abortifacients.

The appeals court looked carefully to the precedent created by Citizens United—the 2010 case affording corporations free-speech rights when it came to election-related speech—to determine whether corporations also enjoy constitutionally protected religious freedom. Writing for the two judges in the majority, Judge Robert Cowen found that although there was “a long history of protecting corporations’ rights to free speech,” there was no similar history of protection for the free exercise of religion. “We simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion,” he concluded. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”

Cowan also flagged the absolute novelty of the claims, noting that there was almost no case law suggesting that corporations can hold religious beliefs. “We are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.” Finally he took pains to distinguish the corporation, Conestoga, from its legal owners. “Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. … It is Conestoga that must provide the funds to comply with the Mandate—not the Hahns.”

Judge Kent Jordan, dissenting at length in the case, said that for-profit, secular corporations can surely avail themselves of the protections of the religion clauses. “To recognize that religious convictions are a matter of individual experience cannot and does not refute the collective character of much religious belief and observance … Religious opinions and faith are in this respect akin to political opinions and passions, which are held and exercised both individually and collectively.”

The 3rd Circuit decision creates a significant split between the appeals courts, because a few short weeks earlier, the Colorado-based 10th U.S. Circuit Court of Appeals ruled in favor of Hobby Lobby Stores Inc., finding by a 5–3 margin that corporations can be persons entitled to assert religious rights. Hobby Lobby is a chain of crafts supply stores located in 41 states. The 10th Circuit upheld an injunction blocking the contraception requirement because it offended the company owners’ religious beliefs. The majority in the 3rd Circuit wrote that it “respectfully disagrees” with the 10th Circuit. A split of this nature makes Supreme Court review almost inevitable.

The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a “substantial burden” on anyone’s “exercise of religion” unless it is “the least restrictive means of furthering [a] compelling governmental interest.” The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans. The employers and the judges who have enjoined the birth-control provision claim that they are being forced to choose between violating protected religious beliefs and facing crippling fines and that free or inexpensive birth control is available at community health centers and public clinics.

Basically, the constitutional question will come down to whether a for-profit, secular corporation can hold religious beliefs and convictions, or whether—as David Gans explains here —“the Court’s cases recognize a basic, common-sense difference between living, breathing, individuals—who think, possess a conscience, and a claim to human dignity—and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.” Will Baude takes the opposite view, explaining that the 3rd Circuit’s reasoning—that “ ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ … would all prove too much, because they are technically true of any organizational association, including … a church!” Baude likens the claim that corporations can never have religious freedom rights to the claim that corporations—including the New York Times—can never have free-speech rights.

Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation’s founding that corporations enjoy rights in connection to the purposes for which they were created—which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don’t meet those criteria. As the dissenters at the 10th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn’t make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”

The rest of the problem is self-evident. Where does it stop? Why does your boss’ religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.

Read the entire article here.

Image courtesy of ThinkProgress.

BigBang, tD, Technica

Law, Common Sense and Your DNA

Paradoxically the law and common sense often seem to be at odds. Justice may still be blind, at least in most open democracies, but there seems to be no question as to the stupidity of much of our law.

Some examples: in Missouri it’s illegal to drive with an uncaged bear in the car; in Maine, it’s illegal to keep Christmas decorations up after January 14th; in New Jersey, it’s illegal to wear a bulletproof vest while committing murder; in Connecticut, a pickle is not an official, legal pickle unless it can bounce; in Louisiana, you can be fined $500 for instructing a pizza delivery service to deliver pizza to a friend unknowingly.

So, today we celebrate a victory for common sense and justice over thoroughly ill-conceived and badly written law — the U.S. Supreme Court unanimously struck down laws granting patents to corporations for human genes.

Unfortunately though, due to the extremely high financial stakes this is not likely to be the last we hear about big business seeking to patent or control the building blocks to life.

From the WSJ:

The Supreme Court unanimously ruled Thursday that human genes isolated from the body can’t be patented, a victory for doctors and patients who argued that such patents interfere with scientific research and the practice of medicine.

The court was handing down one of its most significant rulings in the age of molecular medicine, deciding who may own the fundamental building blocks of life.

The case involved Myriad Genetics Inc., which holds patents related to two genes, known as BRCA1 and BRCA2, that can indicate whether a woman has a heightened risk of developing breast cancer or ovarian cancer.

Justice Clarence Thomas, writing for the court, said the genes Myriad isolated are products of nature, which aren’t eligible for patents.

“Myriad did not create anything,” Justice Thomas wrote in an 18-page opinion. “To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.”

Even if a discovery is brilliant or groundbreaking, that doesn’t necessarily mean it’s patentable, the court said.

However, the ruling wasn’t a complete loss for Myriad. The court said that DNA molecules synthesized in a laboratory were eligible for patent protection. Myriad’s shares soared after the court’s ruling.

The court adopted the position advanced by the Obama administration, which argued that isolated forms of naturally occurring DNA weren’t patentable, but artificial DNA molecules were.

Myriad also has patent claims on artificial genes, known as cDNA.

The high court’s ruling was a win for a coalition of cancer patients, medical groups and geneticists who filed a lawsuit in 2009 challenging Myriad’s patents. Thanks to those patents, the Salt Lake City company has been the exclusive U.S. commercial provider of genetic tests for breast cancer and ovarian cancer.

“Today, the court struck down a major barrier to patient care and medical innovation,” said Sandra Park of the American Civil Liberties Union, which represented the groups challenging the patents. “Because of this ruling, patients will have greater access to genetic testing and scientists can engage in research on these genes without fear of being sued.”

Myriad didn’t immediately respond to a request for comment.

The challengers argued the patents have allowed Myriad to dictate the type and terms of genetic screening available for the diseases, while also dissuading research by other laboratories.

Read the entire article here.

Image: Gene showing the coding region in a segment of eukaryotic DNA. Courtesy of Wikipedia.