Judiciary Archives

Good news on the religious liberty front. Gabriel Malor writing at Ace of Spades give a great rundown of the main points of the district court judge’s ruling with regards to forcing the Catholic Archdiocese of New York to cover, or exempt themselves, from the ObamaCare™ requirement that they cover contraception or abortion. In a snark-less post, it’s just a matter-of-fact examination of the ruling, and why this may have a very tough road to the Supreme Court, assuming it’s appealed that far.

Some highlights (but, as they say, read the whole thing):

This is the first litigation to result in a final injunction against the contraception mandate for religious non-profit organizations that come within the Obama Administration’s purported exemption to the mandate.The 7th, 10th, and D.C. Circuit Courts of Appeals have all found the mandate to be an unacceptable burden on the free exercise of religion for for-profit businesses that don’t come under the exemption. This case is important, though, because it recognizes that even the act of having to claim the exemption is an unacceptable burden on religion.

Very late in this case, the government realized that, although the Archdiocese and its constituent organizations are covered by the mandate, the regulations might not actually force a third party they designate to provide the objectionable contraception coverage. The judge was not amused:

The Obama administration has handed out so many exceptions to the law, it can no longer claim the law serves a compelling purpose.

The administration, as it has frequently done with respect to disobeying laws it does not like, argued that it had to enforce the contraception mandate in such an infringing manner because it could not do it any other way. The district court pointed out the obvious flaw in this line of thinking:

A very interesting and damaging ruling.

    Same-sex marriage got a gentle nudge from the Supreme Court in the recent ruling on the Defense of Marriage Act. But, as much as it seems that it’ll be a state-by-state issue, a court ruling in late July suggests that same-sex marriage anywhere may mean same-sex marriage everywhere. A federal judge in Ohio ordered state officials to recognize the marriage of two men who were married in Maryland, for the purposes of listing on the death certificate of one that he was married to the other.

    Yeah, it’s just a blank on a form being filled in, but if it stands, it would be a legal precedent that could easily be built upon. So here’s the question for same-sex marriage proponents. Do you really believe this should be decided by each state, or should it be handed down from the federal government? If the former, you should be against this judge’s action. If the latter, you should be letting us all know. My guess is that if people knew that proponents are looking to force this on all states, there would be quite the backlash. And so, in the meantime, it’s not spoken of much in polite company. After all, if you think the federal government shouldn’t define marriage via DOMA, then it shouldn’t define marriage, period.

    And the people of Ohio would get to choose how to deal with this situation themselves.

      Attorney Generals Are Not Judges

      [This is part of the script from the latest episode of my podcast, "Consider This!"]

      The Supreme Court said that the people of California have no standing to defend a constitutional amendment that they passed if the state won’t defend it. It’s now open season on laws that state administrations don’t like. Exhibit A.

      Pennsylvania attorney general Kathleen Kane announced Thursday afternoon she will not defend the state in a federal lawsuit filed this week challenging the constitutionality of the state’s ban on same-sex marriage, calling the prohibition “wholly unconstitutional.”

      Who promoted her to judge? Whether or not it’s unconstitutional is not her call to make. The Attorney General represents the state and defends its laws; all of the state and all of its laws.

      If a state Attorney General refuses to defend those laws, that’s an abdication of his or her primary responsibility; their oath of office. AGs do not (or at least should not) have this prerogative. Otherwise you’ll have one set of laws when one administration is in power, and another set for another administration.

      The Supreme Court said that they’re leaving it up to the states to decide what marriage is. But are we leaving it up to the state governments or to the state’s people?

        The Supreme Court "Proposition 8" Ruling

        The Prop 8 ruling was perhaps more troubling than even DOMA. The Supremes decided, cutting across ideological lines interestingly, that the people of California had no standing to bring their own challenge against the ruling of a judge that Prop 8, which created a state constitutional amendment defining marriage, was unconstitutional. Here’s a graphic I found that describes the problem the best.

        While I’m against true direct democracy (the ol’ “two lions and a sheep voting on dinner” analogy), the proposition feature of California law has a high enough bar to clear to get something on the ballot to safeguard that. But now the people’s will can be simply ignored, with the ruling of a single judge, and we, the people, have no standing to challenge it at the Supreme Court. Wow.

          The Supreme Court DOMA Ruling

          In the recent spate of rulings from the Supremes were two that dealt with same-sex marriage; the Defense of Marriage Act (or DOMA), and California’s Proposition 8. I’ll look at Prop 8 tomorrow.

          The portion of the DOMA law that was ruled against is a provision that denies benefits to legally-married gay couples. Gay couples, under federal law, will now be considered “married.” The DOMA vote was 5-4, with Justice Kennedy writing for himself and the liberals on the court. He wrote that DOMA is a violation of, “basic due process and equal protection principles applicable to the federal government.” Very interestingly, he also pointed out that DOMA infringed on states’ rights to define marriage.

          Having just written about the Voting Rights Act yesterday, let me just say that that last observation is almost humorous coming from the liberal justices. The same people who said that 50-year-old data is sacrosanct in one ruling, said, in another ruling released the same day, that the definition of marriage, which has been defined for millennia, is just a states’ rights issue. The duplicity and blind partisanship is simply breathtaking.

          In one respect, I agree with the DOMA ruling, regarding the idea that the federal government doesn’t need to be in the business of defining marriage. Now, I don’t thinks states should do that either, but it sets a precedent, that marriage is decided at the ballot box. It isn’t. And besides, regarding federal involvement, it’s the states that give out marriage licenses, not DC. So from that angle, it does make sense. Sort of.

          The problem is, some states have decided to insert government into marriage like it has never been before. Glenn Reynolds, one of the most popular bloggers out there, the Instapundit, has been voicing his support for the repeal of DOMA by saying that government should get completely out of marriage. But as I have said before, when the government defines marriage, it is completely in the issue. Politics and PR will now define marriage. It didn’t need formal definition before, because it was almost universally agreed that it was one man and one woman. Cultures and religions, outside of government, defined marriage. All the state did was sanction what had already been decided. Basically, now that states decide what marriage is, the logical end of this is that marriage will mean what anyone wants it to mean, which means it will be meaningless. Since states were redefining an already well-defined term, it fell to the federal government to bring a little order and common sense to this chaos. I didn’t like it, but didn’t see any other good way out of it.

            A portion of the Voting Rights Act of 1965 was struck down by the Supreme Court. The Act itself wasn’t chucked, just the way that it was determining which states came under it. The era of poll taxes and literacy tests are gone, and the disparity between whites and blacks regarding voter participation have been erased. The state with the largest gap between white and black voter turnout these days is Massachusetts, for cryin’ out loud. And in Mississippi in the 21st century, black turnout exceeds white turnout. But the VRA was still punishing the South for race disparities in voting that have long been remedied.

            So then, is 50-year-old data better than current information when trying to determine who should come under the Voting Rights Act? Have we learned nothing from the mistakes of the past? The four liberal Supreme Court justices, Attorney General Eric Holder, and President Obama would answer No to both those questions, at least based on the outrage they feigned over the ruling. They can’t seem to bring themselves to believe that progress has actually occurred. Or they’re pandering to their base. Either way, to call requiring these stats to be updated “turning back the clock” is cognitive dissonance of the highest order. The request is that the clock be turned forward, and Democrats are against it. Or they are pretending to be against it, and hoping that their base isn’t paying attention.

            If you are a Democrat, and you’ve wondered why Republicans are often wary of laws that try to remedy sins of the past, this is exhibit A. Here is a law trying to do such a thing, but it’s stuck in the culture and racism of the 1960s, and any attempt to acknowledge repentance from those sins is taken, by liberals, to be just as bad. And if you want to take politically corrective legislation like the Voting Rights Act and update it for today’s reality, you must be racist.

            Ronald Reagan quipped that government programs are the nearest thing to eternal life we’ll ever see on this earth. But the Supreme Court didn’t do away with the VRA, it just said that it should be relevant. Those politicos that spoke out against this eminently reasonable decision are, in my mind, just as irrelevant as 50-year-old statistics.

              The "Consider This!" Podcast, Episode 28

              Maybe this is why I’ve not been blogging much. Well, it’s certainly a contributing factor.

              The latest episode covers the fight of North Carolina pro-choicers against a license plate that advocates a choice, and a rundown of how well the Washington, DC gun ban reduced homicides (hint: it didn’t).

              Click here for the show notes, links to articles mentioned, and ways to get your voice heard on the podcast. You can also listen to the show right on the page, or subscribe in iTunes, Stitcher or the Blubrry network.

                "Happy" Anniversary

                Forty years and 50 million lives ago, Roe v Wade was decided, and the Supreme Court federalized all state abortion laws, by somehow finding a right to kill your unborn child in the Constitution. Justice Byron White said as much in his dissent.

                I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

                Fifty million children. If they had died from gunshots, the Left would realize the tragedy. As it it, it’s just "choice".

                  The War on Religion

                  (Hey, if Democrats can invent a war, so can I.)

                  Hobby Lobby had filed suit to block the ObamaCare contraception mandate. They lost round 1.

                  As a “secular” corporation, they have no rights to use the religious beliefs of their ownership as a justification not to abide by the contraception mandate. This decision is inconsistent with the Tyndale House one you may have heard about. So apparently being a Bible publisher does make you religious, but being a Bible seller doesn’t.

                  The argument the administration advanced successfully in the Hobby Lobby case is a particularly troublesome one for believers of all faiths who operate under the assumption that they can use their moral principles to guide the way their place of business spends money. According to the administration’s legal arguments, the family that owns Hobby Lobby is not protected by the First Amendment’s "free exercise" clause because “Hobby Lobby is a for-profit, secular employer, and a secular entity by definition does not exercise religion.”

                  Hobby Lobby is an all-American success story if there ever was one. Read the whole thing for their history. But now, with ObamaCare breathing down our collective necks, you lose your religious freedom the minute you start a company.

                  The company remained all privately owned, with no franchising. Their statement of purposes and various commitments all begin with Bible verses, commitments to honor the Lord. The Hobby Lobby folks pay well above minimum wage and have increased salaries four years in a row despite the recession. They are teetotalers of the old Oral Roberts variety, refusing to stock shot glasses, don’t sell any of their store locations with liquor stores, don’t allow backhauling of beer shipments – all things that could make them money, but they just bear the costs. Every Christmas and Easter, the Hobby Lobby folks advertise a free Bible and spiritual counseling. They are closed every Sunday. The family also signed the giving pledge, committing to donate the majority of their wealth to philanthropy.

                  So: I doubt this is the type of company to spend one dime on this contraception mandate. They will just drop coverage, and pay employees the difference, shifting them onto the exchanges or the taxpayer, rather than compromise their beliefs. It’s logical, it’s more predictable as a budgeting choice, and it will save them tens of millions in the long run versus retaining coverage and paying the fine.

                  I have to wonder if this wasn’t part of the plan all along; a self-fulfilling prophesy of the need for state insurance exchanges by forcing, in part, religious people who happened to have started a business to join them. That’s a little cynical, I’ll agree, but it’s tough to understand this blatant contravening of freedoms in the very first Amendment.

                  Arguing that a corporation isn’t a person is one thing. Arguing that you stop being one when you create one is another one entirely.

                    Traditional Marriage Upheld in Hawaii

                    An interesting reasoning that Judge Alan Kay used to uphold the law (emphasis mine).

                    HONOLULU (BP) — A federal court has refused to legalize gay marriage in Hawaii, ruling the issue is best addressed by the legislature and that the current law — which defines marriage as between a man and a woman — does not violate the U.S. Constitution.

                    The ruling by Judge Alan. C. Kay Wednesday (Aug. 8) broke a string of court losses by traditionalists on the subject of gay marriage.

                    At issue in Hawaii was a constitutional amendment passed by voters in 1998 giving the legislature the power to define marriage in the traditional sense, which legislators subsequently did.

                    A lesbian couple and a gay man filed suit in federal court last year against Hawaii officials, arguing the amendment and law violated the Due Process and Equal Protection Clauses of the U.S. Constitution. But Kay, nominated by President Reagan, ruled the legislature had a rational interest defining marriage as between a man and a woman.

                    "Throughout history and societies, marriage has been connected with procreation and childrearing," Kay wrote in his 117-page decision. "… The legislature could rationally conclude that on a societal level, the institution of marriage acts to reinforce ‘the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other.’"

                    The legislature, Kay wrote, could "also rationally conclude that other things being equal, it is best for children to be raised by a parent of each sex."

                    "Both sides presented evidence on this issue and both sides pointed out flaws in their opponents’ evidence," he wrote of parenting. "Thus, the Court concludes this rationale is at least debatable and therefore sufficient."

                    The issue, Kay added, is up to the legislature.

                    He deferred to the legislature when the point was debatable. What’s very interesting about this is that it is essentially the reasoning Supreme Court Chief Justice John Roberts used to uphold ObamaCare; a decision that liberals hailed. While Roberts rewrote the law to make the individual mandate a tax (not something I agree he could or should do), he then concluded that it was within Congress’ power and deferred to them.

                    This is the very opposite of judicial activism, and what they’re supposed to do; judge the law and not redefine it.

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