October 5, 2015

It's the first Monday in October, so the Supreme Court is back on the bench, and mainstream media are telling readers which upcoming cases to care about.

SCOTUSblog collects links.

I'll just read the one in The Washington Post, from Robert Barnes, which I'm choosing because the headline so perfectly sums up the reason mainstream media think you could or should care: "Supreme Court faces politically charged election-year docket."

The "politically charged" issues that might matter to an ordinary person — because they might affect how you'll vote in the presidential election (the all-important question of our time) — are: "the legality of racial preferences to encourage diversity; how far government must go to accommodate religious liberty; how far government may go to restrict a woman’s right to abortion."

I'm not an ordinary person. I'm a law professor, and I've been a law professor for a very long time. From that perspective, I'm going to home in on the language discrepancy between: "how far government must go to accommodate religious liberty" and "how far government may go to restrict a woman’s right to abortion."

The "must" is deceptive if not wrong. The cases about accommodating religious believers are not about what the Constitution requires — what government must do — but about the Religious Freedom Restoration Act ("RFRA") — which is a limitation that the federal government chose to take on and which the government may change by statute. We already know — and the current cases are not about — that the government need only treat religious believers the same as everybody else when it comes to regulating conduct. That's the constitutional law. As I've explained before on this blog, RFRA was a reaction to the Court's rejection of constitutionally required accommodation: "The RFRA bill was sponsored in the House by Congressman Chuck Schumer and in the Senate by Teddy Kennedy. (Each had a GOP co-sponsor). The Democrats controlled Congress, but the Republicans all voted for it too (with the sole exception of [arch-conservative] Jesse Helms)." President Clinton signed the bill, which he effused over: "The power of God is such that even in the legislative process miracles can happen."

The government — Democrats and Republicans — chose to accommodate religion, and the Court is simply stuck determining what their statute means. Government can repeal or amend RFRA or put language in statutes (e.g., the Affordable Care Act) saying RFRA doesn't apply, so we are not talking about how far government must go to accommodate religious liberty.

Adjust your presidential preferences accordingly.

26 comments:

Ignorance is Bliss said...

I'm not an ordinary person.

That should be the new tag-line for the blog.

Ignorance is Bliss said...

and "how far government may go to restrict a woman’s right to abortion."

a.k.a. "how far the court may go to restrict a state's right to protect unborn children".

MisterBuddwing said...

From what I've quickly read online, I find no indication that Mr. Barnes holds a law degree. Maybe that's not a requirement for covering the U.S. Supreme Court, but surely it couldn't hurt. (I wonder how many people earn a law degree, not because they want to actually practice law, but because they want the legal knowledge.)

chickelit said...

The cases about accommodating religious believers are not about what the Constitution requires — what government must do — but about the Religious Freedom Restoration Act — which is a limitation that the federal government chose to take on and which the government may change by statute.

Can't Obama change all that by executive order? Why get SCOTUS involved?

Brando said...

If Hillary Clinton had an actual opponent (not counting Sanders who is strangely avoiding any criticism of her majesty, nor counting the GOP firing squad that is pretty determined to ensure they won't win next year) that opponent might ask her how much of her husband's legacy she is ready to disown. So far we have the RFRA, DOMA, Welfare Reform, Gramm-Leach-Bliley, the capital gains tax cut and the 1994 Crime Bill, leaving her with just his 1993 income tax increases as the only thing she is proud of (well, that and making modern feminism a living joke).

So then the question is, with so much of Bill Clinton's legacy disowned, why would she want him prominently campaigning for her?

FWIW, I'm all for trashing the RFRA--the original Supreme Court standard was a fine one and shouldn't have been abandoned for political expediency. It's just nice to see these same craven politicians who thought it was such a piece of bipartisan greatness now twisted in knots because a hobby store owned by Christians were able to use it to avoid funding their employees' birth control.

Laslo Spatula said...

THEN: "The government — Democrats and Republicans — chose to accommodate religion..."

NOW: Who will rid me of these troublesome Christians?


I am Laslo.

Known Unknown said...

I'm not an ordinary person.

Top three definitions of ordinary:

adjective
1.
of no special quality or interest; commonplace; unexceptional:
One novel is brilliant, the other is decidedly ordinary; an ordinary person.

2.
plain or undistinguished:
ordinary clothes.

3.
somewhat inferior or below average; mediocre.

So you're saying that you are better than the rest of the non-Law Professoring types out there?

chickelit said...

Clearly, the author's choice of modal verb (must vs. may) belies a certain agenda, no? let's consider the other possibilities:

Government may...
Government must...
Government will...
Government would..
Government can....
Government could...
Government shall...
Government should...

It's almost a rhyme

Qwerty Smith said...

In Tennessee v. Garner, the court considered how far government may go to restrict a police officer's right to shoot an unarmed suspect in the back of the head.

James Pawlak said...

The Bill Of Rights. Religion & Intent
1. The original intent of the "separation clause" was to prevent only the new Federal government from establishing a national sect/religion (As was the Church of England in the UK, the Lutheran Churches in parts of Western Europe, the Catholic Church in other parts of Europe, the Orthodox Churches in the East and, for that matter, various forms of Islam where such ruled). In fact, some of the Several States maintained "official churches" into the 1830s, and that without SCOTUS intervening.
2. President Thomas Jefferson addressed all matters of considering the Constitution as being best considered in the light of the intent of its authors.
3. The current misunderstanding of that clause was written down by a Justice who was an active member of the KKK and who held a life-long hatred of the most orthodox of Christian Churches being the Catholic Church. It was based on one private letter of President Jefferson and was/is opposed to the intent of the Founders and two-hundred years of honoring the Judeo-Christian base of our exceptional nation.
4. Such persons are attempting to unconstitutionally suppress orthodox Christianity and Judaism in favor of establishing the "Religion Of Atheism"

Abdul Abulbul Amir said...



"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

That's as constitutional as you can get.

Fen said...

Also, for the inevitable Separation of Church and State argument that's NOT in the constitution, but was in Jefferson's letter to Danbury Baptists...

If you support that line re the 1st Amendment, you should remember that Jefferson also wrote "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

So to have any intellectual integrity, you must also support Jefferson's writing re the 2nd Amendment - the people have a constitutional right to shoot leaders they find to be tyrants.

That's how lame your Danbury Letter argument is.

BarrySanders20 said...

AA is right that this is battlespace prep. The leftist position is presented as the reasonable alternative. How far must we go to accommodate the religious freaks? Surely, we've bent over backward for these people and we don't have to go any further. Better vote for the democrat.

How far may we go to burden the individual right to abortion? Surely no further -- we've already gone way too far as it is. Better vote for the democrat.

This also: "the legality of racial preferences to encourage diversity." Who could be against diversity? Better vote for the democrat.

So benign and noble "to encourage," suggesting a means, yet racial preferences in admissions are the ends if diversity only means different skin colors.

Why not "How far the government may go to prefer one race over another." Or, if skin-color diversity is a legitimate state interest, "How far the government may go to prefer one race over another to enroll students with different skin colors." That doesn't sound so reasonable anymore.

That print media frame is a bit skewed to the left. No wonder they don't want PAC's spending money to compete with their narratives.


Chuck said...

This is some really admirable writing on your part in this post, Professor Althouse. Brilliant blogging.

Some of your readers seem to like to tweak you; I presume they share with me a deep resentment of Obergefell. But as strongly as I feel about Obergefell, I still like your blogging.

Why bring up Obergefell? If your readers want to learn more from two good writers on the subject of RFRAs, they should turn first to Douglas Laycock of the University of Virginia, odds-on the nation's premier legal scholar on religious freedom. He likes RFRAs, he powerfully defended the Arizona and Indiana RFRAs from liberal attacks and yet he's no movement conservative; he personally favors same-sex marriage.

And the other fascinating voice on RFRAs is writer Andrew McCarthy; a true movement conservative who is a contributor to the National Review. The former federal prosecutor and frequent Megyn Kelly/Fox guest was not enamored of RFRAs even when liberals were using them as a punching bag. Here's Andy at the National Review online:

http://www.nationalreview.com/article/416453/controversy-indiana-trumped-rfra-isnt-good-law-andrew-c-mccarthy

On the other side of the political fence, liberal writers basically never wrote anything of worth or interest about RFRAs. It was all pro-RFRA, back when liberals like Schumer and Kennedy were only concerned with Indians taking peyote, and catering to religious fringes with no cost to any of their sacred constituencies. (Gays weren't their constituency back then.) Then, when RFRAs were being used (perhaps wrongly) to subvert the cause of nationally normalizing homosexuality, they suddenly turned against RFRAs. It was all just craven posturing for a political end.

The only interesting discussion on RFRAs is the purist legal discussion, almost exclusively among conservatives, and whether Althouse is a conservative or not, she gets it. Indeed, she is not an ordinary person. I don't read ordinary blogs.

rhhardin said...

English must and may don't even have infinitives. To must. To may.

In German it is other.

rhhardin said...

Whenever Erik Satie visited Debussy for dinner, he always got the vin ordinaire.

rhhardin said...

Debussy said Satie's music lacked form. Satie then wrote "Three pieces in the shape of a pear."

John said...

You really have to stand the Constitution on its head to conclude that the government cannot protect religious liberty. That is all the RFRAs do. They protect people's religious liberty at the price of the sacred homos being universally and forcefully accepted in society. The issue in the RFRA cases is does people's constitutionally protected right to free exercise exist such that they can resist accepting homosexuality in the public sphere. It is pretty flabbergasting that such a question would even be asked much less there be any question what the answer would be.

Sadly, we no longer have a rule of law in the courts. We have rule by fashion and favored group. And there is no group in 2015 America more revered and sacred than the homosexual. So it is hard to bet against them winning.

Mid-Life Lawyer said...

What Chuck said.

David said...

President Clinton signed the bill, which he effused over: "The power of God is such that even in the legislative process miracles can happen."

Bill Clinton again showing that he is the ultimate slime ball.

Chuck said...


John said...
You really have to stand the Constitution on its head to conclude that the government cannot protect religious liberty. That is all the RFRAs do. They protect people's religious liberty at the price of the sacred homos being universally and forcefully accepted in society. The issue in the RFRA cases is does people's constitutionally protected right to free exercise exist such that they can resist accepting homosexuality in the public sphere. It is pretty flabbergasting that such a question would even be asked much less there be any question what the answer would be.

Sadly, we no longer have a rule of law in the courts. We have rule by fashion and favored group. And there is no group in 2015 America more revered and sacred than the homosexual. So it is hard to bet against them winning.


Here's a non-rhetorical question for you, John. It's something that I have been thinking about increasingly, and I don't presume to know what your thoughts are...

In the public sphere as you say, is opposition to homosexuality limited to religious objections? Are we moving very quickly toward a public sector standoff wherein gay rights are more or less universal, and enforced through litigation and Civil Rights Act-type legislative schemes? With the opposition marginalized and/or balkanized into small religious backwaters? Where people with deeply-held but non-religious moral and social opposition to homosexuality forced to obey (or to fake some religious belief)?

I have this feeling about gay rights activists following a version of Grover Norquist's hostile view toward big government, that he'd like to reduce government to the size where it can be drowned in a bathtub. I get the feeling that the liberal media would like to reduced to small pools of religious zealots, alone, who can then be either laughed at (Southern Baptists, Muslims) or lobbied intensively until they fold (the Roman Catholic Church).

hawkeyedjb said...

This morning I listened to the NPR/DNC reporter describe one of the upcoming cases as "how to reduce voter participation in elections." A casual listener would never know that this was about the use of voter ID in elections.

To all those incensed about voter ID: why have you done nothing about the blatant suppression of minorities' rights to fly? As we all know, minorities are unable to obtain government-issued ID, so they cannot ride on airplanes. Black people are ok as pliable voters, but white lefties don't want to have to sit next to them on planes.

Known Unknown said...

be either laughed at (Southern Baptists, Muslims)

Laughing at Muslims? Yeah, that's what the media does.

John said...

Chuck,

What makes religious objections special is that they are protected by the Constitution. They are unlike other objections because they implicate a right specifically protected by the Constitution. So saying "no you can't refuse to accept homosexuals because you don't like them" is different than saying "you can't voice a religious objection".

A lot of people tend to forget that. They would like to read free exercise out of the BOR and pretend a religious objection is not subject to special protection. Sorry but it is. If you don't like that, take it up with the founders.

Chuck said...

I get that, John. But remember -- and many people overlook this -- that the RFRA cases are not constitutional cases. They are statutory interpretation cases. So are the cases, like several in Oregon, where Oregon is fining bakery owners for anti-gay discrimination. The fine is based on statute.

To be sure, in the Oregon case(s), there may be a Constitutional objection to the statute. But it may not be such a strong argument. As you already alluded, and doubtlessly know, the Constitution only forbids "Congress" from interfering with the exercise of religion ("Free Exercise" clause) and from establishing any religion ("Establishment" clause).

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


The Court (and there are a handful of decisions, too long to go into, leading to a semi-vague state of affairs that prompted the drafting of RFRA) has generally indicated that much of facially-neutral state action doesn't really compromise "free exercise."

And saying "no" to homosexuals because one doesn't like them isn't exactly illegal, unless a law exists to make it illegal. We tend to Constitutionalize everything in the modern era, but sometimes it isn't a Constitutional question at all.

Michelle Dulak Thomson said...

hawkeyedjb,

This morning I listened to the NPR/DNC reporter describe one of the upcoming cases as "how to reduce voter participation in elections." A casual listener would never know that this was about the use of voter ID in elections.

To all those incensed about voter ID: why have you done nothing about the blatant suppression of minorities' rights to fly? As we all know, minorities are unable to obtain government-issued ID, so they cannot ride on airplanes. Black people are ok as pliable voters, but white lefties don't want to have to sit next to them on planes.


Yes, I woke up to that as well. Add that minorities also can't buy beer, check books out of the library, or enter most government buildings. Or collect Social Security. Or check in to a hospital. Gee, who knew that photo ID meant so much? Maybe we should just give it out free, as Georgia now has for years.