Archive for the ‘Supreme Court’ category

Religious Discrimination

July 12, 2020

The 1st Amendment got a work out this week as the high court came down on 1st Amendment cases is a mixed manner.  The Court ruled that North Dakota must grant tax relief to residents who pay tuition for religious schools just as ND would for tuition paid to other private schools. In the two other rulings, (1) the Supreme Court said religious based organizations can not be required to provide birth control means (as prescribed by the Affordable Care Act) and (2) religious organizations were free to hire and fire without constraint by anti-discrimination laws.  Hmmm.

So how can the Court read into the 1st Amendment that some can discriminate and others can not?

In the North Dakota situation, the State had committed “public school suicide” already.  Private schools are just that.  Private schools, as with home schooling, represent an alternative to tax funded public education.  When North Dakota decided to use tax payer money to underwrite private schools, it put the State on a slippery slope.  While there is a difference between religious and secular private schools, with respect to public schools there is no difference.  The Supreme Court probably got this one correct.

In two other decisions, however, the Supreme Court entered an entirely different world. 

  • Religious organizations operating in the “public square” such as hospitals, social services, or schools are no longer doing business in places of worship.  In these capacities, where presence is entirely voluntary and optional, the religious organization should be bound to whatever rules the secular government has enacted to guide public commerce.  Remember, running a hospital is in no way a tenant of religious beliefs.  And similarly in the case of “Hobby Lobby” type organizations (common everyday commercial business owned and operated by deeply religious individuals), there is no reason laws and regulations should differ for them as compared to “Home Depot” for example.  Providing the same services under the ACA seems only reasonable and withholding some services for whatever reasons is discriminatory at its basic roots.

Arguably, one could hold that birth control is a private issue and individual should provide for themselves.  Under such circumstances religious organizations or private business holding “deeply held religious” views would not be tested. 

  • But when the notion of hiring and firing fellow citizens simply based upon the whim of a church or zealous business owner would seem clearly over the line.

One has to ask why it would be acceptable for a church operating in the public square to fire a LGBTQ member (or while we are asking, a Black or woman or handicapped person) and a secular organization could not.  Of course, the Court could hold that wanton discrimination is acceptable for anyone.  In other words, America is a land of individual rights where limitations are discouraged.  Survival of the fittest.  Hmmm.

The Supreme Court (and regrettably much of America) is stuck in a crack where the tides of time are sweeping by.  Religions have been bedrock institutions and have offered idealized solace for movie makers, politicians, and everyday people.  America’s younger generation, however, cannot see why Blacks, LGBTQ’s, or women are less worthy than anyone else.  On the other hand, TV evangelism, priest child abuse in the Catholic Church, and Islamic extremism have displayed to everyone the foibles if not hollowness (or at least shortcomings) of organized religions.

The LGBTQ community is still an “awakening” in progress.  With more people “coming out”, the more probability that each of us has known (or at least now knows) a member of this community and has had perfectly normal interactions.  Again the more the subject is discussed, the more it becomes clear that LGBTQ members are born the way they are and have not learned their behavior.  LGBTQs exist because of nature not the results of nurturing.

So the question arises, should the 1st Amendment (religious freedom) pre-empt the 14th Amendment (Equal protection)?  Should there be laws which if viewed from a religious perspective, should be free to apply to some citizens and not necessarily others?   

One is left wondering when will the Supreme Court members become religious neutral despite their own personal beliefs? 

Which Side Of History?

June 25, 2020

Terry Gonda, a music director at her parish near Detroit, was told she would be fired because she is married to a woman.  The marriage was not a recent event and Ms Gonda had been active in the church for several years.  Why now, and for what reason?

  • First and foremost, Ms Gonda was not fired for job performance reasons.  Hmmm.
  • Second, bureaucracies move slowly to be sure, so the Archdiocese of Detroit may simply have not gotten around to firing Ms Gonda until last Friday… or was the diocese quietly betting that the Supreme Court would hold that Title VII definition of “sex” did not include LGBTQ members… and just got it wrong.

The Catholic Church has encountered many conflicts with what the Church has defined as dogma and believes as undeniably “true”.  Disappointingly, the Catholic Church has been on the wrong side of history uncomfortably often.  Famously Galileo put forward the notion that planets, including the earth, traveled around the sun, and refuted the church’s notion that all bodies traveled around the earth. (Why would the church even hold such a view?)  But for Galileo,  the Catholic Church disagreed and convicted Galileo in a church trial.  

Being on the right side of history, especially when the reason to be on the wrong side is based upon “dogma” or “unfounded beliefs” begs clear thinking and courage.  Once history vindicates the agonizing choice, everything looks easy.  In the 21st century, with medical science providing plenty of evidence that sexual orientation has a huge body chemistry component, continuing to ostracize LGBTQ humans seems a bit anachronistic.  

Of course recognizing LGBTQ humans does represent a risk for any religious organization.  For years, the average religious participant has been force fed a diet that says the individual church member is “better” than “those people”.  Eternal salvation is there for the asking… of course, with a little donation of currency too.

Wouldn’t one think that in 2020 religions are better than the Detroit Archdiocese example?  

Pay Back?

September 17, 2018

Over this past weekend, a woman has come forward in an interview with the Washington Post, identifying Brett Kavanaugh as someone who groped her at a high school house party some thirty years ago.  Hmmm.

This revelation is sparking hopes among Democrats that President Trump’s Supreme Court nominee might be stopped after all.  For many this is enough to call for celebration, for others this is enough to call out “fake news”.

The incident, even if true, ought not disqualify Kavanaugh.  His repeated denials might be seen as a character flaw (not telling the truth) but trying to have sex with another teenage is hardly aberrant behavior if this was an isolated event.  He was a youth himself and has had plenty of time to have seen the errors of his ways.  Who would like to throw the first stone?

So what’s the big deal?

Many point to Robert Bork’s rejection as a Supreme Court nominee in 1987 as the end of bi-partisan review of Supreme Court nominees and the beginning of purely partisan selections.  The Republican controlled Senate’s refusal to even hold hearings on Merritt Garland’s nomination in 2016 crossed the line of judicial fairness to gutter politics.  With Robert Bork one could argue with a straight face that Bork legal views lay outside the norms, but with Garland, the Senate would have faced a centrist.

Judge Kavanaugh doesn’t deserve this type of smear campaign even though his judicial views are viewed as right of Chief Justice Roberts.  Conservative groups, however, have worked diligently to gain a disproportional representation of their views.  Adding another very conservative justice to the Court could (many say, will) tilt the Supreme Court too far right and out of step with “most” Americans.  

So, will these new abuse charges hold up and represent “pay back” or will they be found lacking in merit?  Stay tuned.

Root Causes

June 28, 2018

Supreme Court Justice Anthony Kennedy announced today his retirement.  This, not so unexpected announcement, was never the less a bummer for moderates and progressives.  But viewed in the American way, his replacement will be a result of a fair process, and a consequence of our political system.  President Trump was elected, and to the victor go the spoils.

While it is not known at this point who President Trump will nominate, smart money is on a very conservative jurist which the President has promised.  Confirmation is extremely likely since Republicans control the Senate.   Should the President pick someone from the extreme right, confirmation is not assured.  Never the less, in short order, the likelihood that the Supreme Court will tilt partisan and dramatically conservative will be known.

In tangible terms, the new Court is expected to be pro-business (anti-union), pro-States Rights (less powerful Federal Government), and pro-evangelical (anti-abortion and anti-gay rights).  It is the religious element which should mainly concern Americans since over turning Roe v Wade and striking down gay marriage are two long stated goals of the religious right.  Here’s why.

Roe v Wade is a sad story of millions of Americans being mis-lead by their chosen faiths. 

Of course, abortion should not be like candy and sought after by the masses. Simple ethics should lead one to take necessary steps to avoid unwanted pregnancies.  Once pregnant, however, there are many reasons why carrying the pregnancy to full term may not make sense (health of fetus or mother, for example).  Americans truly concerned about the unborn would be expected to attack the reasons leading to unwanted pregnancies but that is not the case.  

Gay marriage is a similar issue in that gays marrying creates NO harm for heterosexuals.  Whether married or not gay Americans should have every right to civil benefits handed out heterosexual couples that marry.  If not, why not?

IMO, the underlying driver behind the religious energy against abortion and gay marriage is one of control.  Keeping a woman in her place drives one effort and marginalizing gays keeps a large creative portion of Americans on the sidelines.  And both of these drivers can be played masterfully by religious groups’ leaders to control their flocks.

Religions above all else are businesses.  Full churches translates into full collection baskets, and the opposite leads to pastors and clerics needing to get real jobs.  Hmmm.

So back to the Supreme Court selection.  Conservatives of many stripes have found that banning together is mutually beneficial.   Imagine a libertarian who does not want anyone making them do anything, bonding with a evangelical who gets excited telling others what to do.  Hypocrisy grows and lives well in Washington, DC. 

The pillar of Christianity, Donald J Trump will get to select the next Supreme Court Justice.  Hmmm.

Should Gifts Be A Problem?

September 7, 2017

Senator Bob Menendez is on trial in Federal Court charged with graft and corruption, or words to that effect. Menendez accepted eye popping amount of gifts and favors from one of his out of Sate supporters but Melendez is resolute in claiming he has not brought disrepute to the office of US Senator.

Vacations, watches, and air plane fares apparently do not mean there is a quid pro quo, according to Menendez’ defense team. These perks are just what any two friends share. Hmmm.

In an eerily similar case, former Virginia Governor Bob McDonald took his conviction to the Supreme Court and won on appeal. The Supreme Court ruled, in essence, there had to be proof of “if you give me this, I’ll do that for you” in order to justify a corruption conviction. What was the Court thinking?

The Supreme Court could find no smoking gun, that is any evidence that McDonald offered favors in return for gifts. And, although the Court was well aware of the sophisticated methods that campaign donations miraculously appear when special interests favored legislation is approved, the Court in essence was saying, no explicit demand or promise, then no corruption took place under existing law.

There in lies one of the problem… existing law.

Since political campaigns cost so much and candidates need to raise huge amounts of money in order to be viable, and there are few meaningful limits on donations, it is simply unrealistic to think that contributors won’t get at least the politician’s ear when they wish.

Further, unless a Congress member is willing to hear from a business interest, it is possible that legislation being contemplated might adversely hurt jobs in that State and send them to another.  There seems to be many opportunities for a donation to be considered in policy and law development. Hmmm.

So, once again are gifts a problem?

Coffee cups, donuts, baseball caps, and pens are long time honored “remembrances” which are generally accepted as corruption free gifts. These gifts are of minimal value and demand little in return. Rolex watches, vacations in Paris, and multiple free trips to the Dominican Republic are not just over the line in acceptability, these emoluments represent an open invitation to corrupting behavior.

Even if Senator Menendez felt no need to reciprocate, his ethical radar should have warned him to avoid such appearances and not put himself in the position of possible temptation to invite even more “gifts”.  “Friends” would not put their “friends” is such a compromising spot.

A few years ago, a Louisiana Representative was arrested for graft. Investigators found stacks of $20 bills wrapped and stacked in his freezer. No one had much trouble recognizing that this man was taking advantage of his office for personal gain. What is so different this time?

Cold cash, I guess, is different than a cold “Rolex”,

Bake Me A Cake

August 14, 2017

Jack Phillips is a baker from Colorado who denied serving a gay couple who asked him, in his capacity as a bake shop owner, to bake them a wedding cake (as he would for anyone else). Mr. Phillips claimed his deeply held religious views, which see homosexuality as a sin, prevented him from serving the gay couple. Colorado Courts have held against Mr Phillips but never the less, Mr Phillips has (clearly with outside support) appealed his case to the Supreme Court. Hmmm.

In the political world, pandering is a high art form. Some on the Supreme Court have been searching for a case to strengthen the First Amendment’s religious freedom clause and may see Mr Phillip’s case as a way to make a statement. IMO, the Supreme Court is entering very dangerous waters, especially if they should uphold an individuals right to discriminate.

Will the Court decide that in the cases of the LGBT community, discrimination (denial of service based upon sexual orientation) is acceptable?

What about deeply held religious views on race, gender, or white supremacy?

No one is saying Mr Phillips or any other holder of deeply held religious views cannot believe them or cannot lead their own life based upon these views. What should be at stake is that in a secular society, no one, regardless of how strongly held their personal religious views might be, has the right to impose their personal views on anyone else.

Regrettably, with the Hobby Lobby decision, the Court has already erred and may find this case too tempting and will reverse the Colorado Courts decision.

I wonder how the Court would rule if Mr Phillips had denied service to, say a Catholic or Baptist or Muslim for similar reasons?

Deeply Held Religious Freedom

June 26, 2017

Hmmm. The Supreme Court has agreed to hear on appeal a case where a cake maker refused to serve a gay couple who wished to purchase a decorated cake for their wedding.

The baker claimed that his deeply held religious views would be compromised because the bible and his religion instructed him not to recognize homosexuality. The Supreme Court will now weigh in on whether religious rights can justify discrimination.

When I think about religion, the first thought that comes to mind is, ”love your neighbor as yourself”. So it seems to me incomprehensible how a serious religion can say, “hold on a minute, the Bible did not mean all neighbors”.

Regrettably, too many religions find it useful to divide and conquer the masses. By assigning “good” to some and “bad” to others, religious leaders can more easily influence the congregation’s direction, and not to be overlooked, the congregation’s gift giving (to the religious leaders). So one might be justified to suspect to any claim of “deeply held” religious views.

If a black person went into any store and when they requested a service, they were told that store does not serve black people, would there be a question that his behavior was illegal? And the same can be said about a Christian denying service to a Jew, or a Jew denying service to a Muslim. So what is it about homosexuals who want to celebrate their marriage?

Mormons were once upon a time excited about having multiple wives. Federal law prohibits that practice and did that Federal law not go against deeply held religious views?

Jehovah Witnesses do not believe in blood transfusions. Yet courts have ordered blood transfusions when medically necessary to save a life viewing the refusal of a blood transfer to be scientifically unfounded and tantamount to committing suicide.

Arguments before the Supreme Court will not take place until the Court’s new term in October. Between now and then, the public could boycott this religious baker and help this religious person reap the benefits of his deeply held views.

Seems Obvious

May 6, 2017

In the upcoming Philadelphia District Attorney primary, George Soros has announced he will spend $1.4 million to advance the candidacy of one of seven candidates. In Philadelphia terms, that is a lot of money. The obvious question is why?

The simple answer is George Soros is very wealthy and there is nothing to stop him.  Hmmm.

Actually George Soros is and should be free to “prefer” any candidate in any State or National election and even make verbal recommendations. The real question is why should George Soros, or anyone else who is not a resident of the US, a State, or a local election be able to spend money to influence the election’s outcome?

Most people would find it repugnant that a foreign citizen or country could spend money to influence a US election. Why then should someone living in Michigan or Mississippi spend their money to influence an election in Boston or Los Angeles?

Cynically, the answer might be that the more money spent in any elections translates into more revenue spent in the State and local economy than would have been spent otherwise. Spending loosely translates into jobs, and what’s bad about jobs?

The Supreme Court’s Citizens United ruling called corporations the same as people. With that reasoning, rights accruing to people should accrue to corporations, the reasoning goes. And, spending is an expression of free speech. Hmmm.

So, a large multi-location corporation, flush with money, could support local politicians who espouses certain policies viewed favorably by this corporation, to the disadvantage of local citizens and not to mention smaller, local corporations. The notion of “one man – one vote” just went swishing by, out the window.

Not to complicate this issue needlessly, surely corporations operating in a jurisdiction in question must have opinions on many issues, and would routinely express these views directly or through lobbying firms to elected officials. Why not join the conversation before the candidate is elected?

From my perspective, this seemingly obvious question boils down to what is “reasonable”, and in line with the voice others who will cast a vote (corporations despite being people do not vote) will have. What should be at the heart of this issue is protecting the integrity of the vote. A citizen’s vote should not be drowned out by a voice greatly amplified by money coming from any source, particularly sources outside the jurisdiction whether corporations or by individuals.

The current lack of campaign funding regulations represent cynical attempts to utilize vast sums of money to twist the electoral process to favor certain parties, ideologies, and policies in contempt of the one man – one vote tradition.

George Soros should have no role to play in Philadelphia.

Religious Freedom

April 22, 2017

In a recent issue of the New Yorker, there is an article on Leonard Leo. Mr Leo is not a household name although maybe he should be. Mr Leo’s most recent claim to fame is his successful “shepherding” of Judge Neil Gorsuch through the Senate approval process. Mr. Leo, however, is not one to thirst for the spot light, preferring instead to operate at the periphery of public discussion.

And operate Mr. Leo does.

As the Executive Director of the Federalist Society, Mr Leo has spearheaded conservative interests in most matters of government but with a clear focus upon the courts, especially the Supreme Court. As an “originalist”, Mr Leo supports Constitutional interpretations which purport to represent the “founding fathers” views. Hmmm.

The Federalists speak, not for wild and crazy people, but for reasoned, conservative, traditionalists. Within these ranks, however, hide moneyed interests who see “originalist” views as conducive to their personal business and financial well being. Nothing like the braggadocio associated with a high minded principle which conveniently puts money in your pocket too.

From the New Yorker article, Mr Leo’s hands appear clean although someone must be paying his lawyering bills. Rather Mr. Leo is presented as a congenial, non-confrontational person who seeks and befriends up and coming conservative legal minds. The article claim Mr. Leo was a close friend of the late Justice Antonin Scalia.

So where is this post going?

Mr. Leo is also a conservative Catholic who is strongly pro-life. Mr. Leo was an early supporter of Chief Justice Roberts and Justice Alito, both pro-life advocates. The prospect of over turning Roe v Wade (long established law) suddenly does not seem that impossible.

Mr. Leo says that the Constitution was silent over specific rights to abortion and therefore to his reasoning, the US Supreme Court has no rightful place making a woman’s right to an abortion the law of the land.

At this point, one could argue contrarily that in fact the freedoms expressed in the Constitution as well as the Amendments recognize the rights of a woman to make her own reproductive decisions.

Within the thought, why not point out what seems even more obvious. The first Amendment speaks to “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, and that should be enough.

Mr. Leo, Chief Justice Roberts, and Justice Alito are more than free to hold sincere “pro-life” religious beliefs. They are all free to practice such views in their own lives but the Constitution does not provide them the right to foist their personal religious views on anyone else. (Admittedly, someone who is against all forms of life ending acts, including the death penalty, wars, and suicides has a moral argument which rises above religion dogma but in the end, addresses only their own behavior.

Justice Kennedy is thought to be the deciding Justice should the current John Roberts Court consider another Roe v Wade challenge. If Justice Kennedy should decide to retire while a Republican President is in office, another Gorsuch/Alito/Roberts Justice is almost assured. In such a situation, the true color of these jurists will be seen.

Will these Jurists over turn Roe v Wade in favor of States self determination, or will they become religious zealots and side with some future Congressional law which outlaws all abortions and denies States the right to decide?

The irony of this Roe v Wade debate is that the real “federalists” were extremely concerned about the excesses of organized religion. The closest most of the founding fathers came to religion was some recognition of a higher spirit. Consequently, if the Supreme Court should overturn Roe v Wade, we should recognize the “originalist” principle is purely a crutch designed to deny some Americans individual freedom.

GOP Goes Nuclear

April 4, 2017

The GOP Senate leadership appears poised to take a dangerous and unwise step this week. Senate Leader Mitch McConnell has promised to change the 100 year old Senate procedural rule governing filibusters and Supreme Court nominees. If Democrats insist upon 60 votes to confirm, McConnell promises to change the rules to a simple majority.

Since Republicans have already a Senate majority, why shouldn’t they change the rules?

The Supreme Court is a life time appointment and is already divided along ideological lines. Democrats argue that Judge Gorsuch, while well qualified in every way, has a judicial perspective which is out of the mainstream. Democrats feel a Justice Gorsuch would approach each case with a preconceived ultra conservative perspective.

Republicans respond that Gorsuch is in the mainstream and more importantly views the Constitution (as originally conceived).  It is not clear how or with whom Judge Gorsuch verifies or confirms his interpretation of original intent.

So again, why shouldn’t Republicans change the rules?

Democrats argue a Supreme Court nominee ought to get more than a simple majority given the importance of the position. Competency, good character, and an impartial mind would seem to be the desired requisites. With Judge Gorsuch, the disagreement seems to be hanging upon whether Goruch can be impartial. Hmmm.

The Gorsuch vote will underline the extreme positions of the two major parties. Conservatives who now dominate the Republican Party seek to reduce the size of government, eliminate (or at least vastly reduce) entitlements, and reverse all sorts of social changes made over the past 50 years.

Democrats largely under progressive influence seek to interpret the Constitution in modern terms reflecting over two hundred years of advancements in science, medicine, and experience. There was no internet, no antibiotics, or no airplanes/automobiles/trains in the lives of our founding fathers. The hand delivered letter, death from common illnesses, and foot or horse transportation were the norms of our founding fathers’ time. As a consequence, Democrats prefer a Justice who sees the world as they do.

The Gorsuch vote is the next step in a series of regrettable failure in Senate leadership. Conservative groups had sought during former President Obama’s term to limit how many Judges Obama could appoint. The GOP reasoning was that with fewer appointments, there would be fewer progressive leaning members of the judiciary when it came time to nominate higher court judges and ultimately Justices. To this end, Republicans filibustered Obama nominees and blocked consideration. In frustration, then Senate Leader Harry Reid changed the Senate filibuster rules on most Presidential appointees to a simple majority to end the filibuster… except for the Supreme Court where Reid left in place the 60 vote threshold.

Republicans were furious and took the next step of not even considering Judge Merritt Garland following Justice Scalia’s death. As previously done filibustering former President Obama’s nominee, Republicans upped the anti and did not even hold hearings for Judge Garland.

It is possible that Republicans think they are taking prudent action. Republicans may be so focused on what they feel is the proper ideological direction that “the ends justify the means”. Republicans, if so, could not be more wrong. History has shown that the party in power changes like the leaves on a tree. Regardless of which party is in power, voters tend to tire of that party and vote them out. Does it take much effort to think what the next Democrat controlled Senate might be like?

There is an even more serious consequence on the table if Senator McConnell changes the rules. There is no reason for either party to feel it necessary to nominate a “competent, good character, and impartial” person in the future. With the confirmation assured, why not nominate Sheldon Adelson or any other wildly rich donor, or why not Jeff Sessions if all that’s needed is a straight party vote?

Democracy has been tried by many countries around the world. In far too many, democracy has a given way to authoritarian regimes of some form or another. America’s secret has been a robust balance of powers held together by functioning checks and balances.

Merritt Garland should never have been passed over and Neil Gorsuch deserves an up or down vote (with no filibuster).  Unfortunately Garland was denied a fair vote and now it is Gorsuch’s role to take the blow back.

A wise GOP leadership would accept the blow back from their overt blocking of President Obama’s nominations and move on to their next nominee.

Instead it appears US politics are headed tribal.