Some members of Congress, especially conservatives, have decried President Obama’s executive order with respect to immigration policy as a fundamental assault on the concept of separation of powers. Yet the same conservatives are stridently opposed to the President’s decision to restore diplomatic relations with Cuba—threatening to withhold funding of the attempt to establish an embassy in Cuba or to otherwise support the decision to give complete diplomatic recognition of the Cuban government. So much for a coherent theory of the executive power or the idea of separation of powers!
So much for a coherent theory of the executive power or the idea of separation of powers!
Conservative religious organizations—the LDS Church, the Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics and Religious Commission of the Southern Baptist Convention and the Lutheran Church-Missouri Synod—all signed on to an amicus brief urging the Supreme Court to resolve the debate over marriage equality. One of their arguments, however, is at least curious. The brief contends that legal uncertainty is “especially burdensome for religious organizations and religious believers increasingly confronted with thorny questions.” Kevin C. Walsh, The Catholic/Evangelical, LDS, Lutheran amicus curiae brief in support of cert in the Utah same-sex marriage case, Sept. 22, 2014, in Mirror of Justice: A Blog Dedicated to the Development of Catholic Legal Theory.Read more
Perhaps the largest misconception promulgated in the current debate over gay marriage is the commonly offered argument that its establishment would threaten religious freedom. The most direct and significant threat the prospect of gay marriage presents to American religion is that, if conservative religious people—those who view legal action that lends legitimacy to homosexual conduct as effectively society’s decision to reject God’s commandments—lose the marriage equality debate, it will prevent them from imposing their religion on those citizens who do not share their religious beliefs. Societal acceptance of gay marriage necessarily means that the nation is not just determined to tolerate adult gay relationships, which includes (thanks to Lawrence v. Texas) refusing to criminalize gay sodomy, but is committed to treat gay relationships and behavior as quite acceptable, and indeed within the private sphere of autonomous constitutionally protected individual decision-making. Religious opponents to all things gay do not simply oppose this view of gay freedom, but are fearful of is consequences.Read more
Utah Governor Gary Herbert suggested that state officials who declined to defend state bans on gay marriage were taking “the next step toward anarchy.” (Quoted in Scott D. Pierce, Utah Gov. Herbert Will Look Bad in Future Documentaries About Gay-Rights Movement, Salt Lake Tribune July 4, 2014.) And he rejected out of hand the attempt to characterize gay rights as being importantly related to what we refer to as the civil rights movement. He said: “What you choose to do with your sexual orientation is different in my mind than what you’re born with as far as race.” (Id.)Read more
The United States Supreme Court set forth its ruling on June 30, 2014, to the dispute over the Affordable Care Act’s (ACA’s) contraception mandate. Burwell v. Hobby Lobby Stores, Inc., October Term 2013 (Slip Op.) Writing for a four-member plurality, Justice Alito held that the Religious Freedom Restoration Act (the RFRA) supplied the basis for a claimed religious exemption from the ACA requirement to include contraception in a company’s employee health insurance plan. Members of the Court debated whether or not a “closely held corporation,” that has entered a highly-regulated marketplace, may invoke the protection of the RFRA to resist a regulation designed to ensure adequate health insurance for female employees. The plurality concluded that it could, and also that the government was not able to show that it had pursued the least intrusive alternative available to achieve the compelling end of securing women’s health needs.Read more
Justice Scalia is every conservative’s favorite member of the Supreme Court. Conservatives on and off the Court speak enthusiastically about complying with the text of governing law and engaging in “objective interpretive method,” so that courts are not in the business of imposing their preferred politics on the Constitution and federal laws they apply. So the question raised by a recent gun control case, Abramski v. United States, 12-1493 (June 16, 2014), is why Justice Scalia and the other three conservatives on the Court voted to overrule an appellate opinion adopting the view of a majority of lower courts that where straw buyers of guns represent themselves as the actual gun buyer they violate the federal statute prohibiting knowingly making false material statements related to lawfulness of the gun sale. Abramski contended, and the dissent by Justice Scalia agreed, that if the person at the counter of the firearms store is eligible to own a gun, the statute authorizes the sale. Id. at 6. This view was thus that, so long as the person at the counter was legally eligible to own a gun, the sale is legal even if the person the gun was purchased for could not himself buy or own a gun. Id. at 7. The majority noted that this “ambitious argument,” which assumes that it does not matter if the person for whom it was purchased is not eligible to own a gun, had not been accepted by any previous court. Id.Read more
Modern right-libertarians sometimes contend that contemporary courts place undue emphasis on trying to explicate the requirements of constitutional equality and, in so doing, undercut securing the proper scope of the liberty rights secured by the Constitution. What they miss is that the fundamental rights long since recognized as part of the constitutional order become vastly less meaningful if they are not accompanied by an equal commitment to fulfilling the Declaration of Independence’s promise “that all men are created equal.” This has been a problem from the beginning. From the days of the early American republic, all the states and the nation managed to adopt bills of rights, and we have always been enamored of the concept of “inalienable” rights; but, despite the Declaration’s lip service to human equality, the nation began by the Constitution’s embracing the “slavery compromise” to ensure the creation of the federal union, even as we abandoned our natural law ideals...Read more
It has become a theme of conservative religionists that there is a frightening new trend toward demonizing religious thought and expression and that this trend actually presents a significant threat to religious freedom. The argument is common, but exemplary is Dallin H. Oaks’ suggestion that “[w]e are feeling increasing restrictions on unpopular views and unwelcome facts.” Transcript: Hope for the Years Ahead, address at Utah Valley Univ., 16 April 2014, at 2. The result, he says, is a threat to religious freedom. Though he is a prominent leader of an important American church, Oaks purported to speak only “on the basis of over 60 years as a participant or knowledgeable observer of church and state.” This was not revelation, nor offered any claim to be. He begins by acknowledging that the threat to free speech comes not from “formal free-speech doctrine,” but by limits indirectly imposed on “the extent of free speech enjoyed by citizens in their daily lives.”Read more
It has been almost two years since I reviewed a book by tea party constitutional guru, Cleon Skousen, The Five Thousand Year Leap: 28 Great Ideas That Changed the World (Ann. Ed. 2009). See Cleon Skousen, the Tea Party, and Equal Rights Before the Law, April 12, 2012, in McAffee Machinations. In that book Professor Skousen referred approvingly to the founding era’s harsh penalties for “the crime of ‘homosexuality,’” considering that it was—appropriately—viewed as a crime “against ‘the whole people,” virtually the equivalent of treason, cowardice, and desertion.Read more
Enforce the Law Act—So Much for Libertarian Values Favoring Personal Freedom, States’ Rights, and Restrictive Standing Rules
During this last week, the House of Representatives voted to enact the Enforce the Law Act by a vote of 233-181. The bill is unlikely to be adopted in the Senate, but it lends itself to conservative “talking points” about the Obama Imperial Presidency, so it struck republicans in the House as a worthwhile move. In the meantime, Senator Rand Paul, a potential candidate for the republican nomination as President, endorsed the attempt to counter the President’s choice of “writing his own laws whenever he feels like it.” Paul also complained that if the President likes a law, “he enforces it,” but if “he doesn’t, he won’t enforce it.” He concluded that the President thus needs to “be chastened, rebuked, and told that he needs to obey the constitution.” (See Erick Dolan, Rand Paul backs bill that could lead to crackdown on states where voters legalized weed, Mar. 24, 2014--www.rawstory.com/rs/2014/rand-paul-bakcs-bill-that c…)Read more