In January of 2015, the nation remained in the intense political battle over gay marriage, a topic directly from the culture wars to which Justice Scalia liked to refer. Most expected the Supreme Court to embrace marriage equality, but many feared that a backlash was on the horizon, being engineered by those who had opposed gay civil rights for almost fifty years. While the LDS Church has taken some positions that suggest a change in its views toward civil rights for the LGBTQ, there are also signs that they are still willing to sanction discrimination based on sexual orientation if it can be justified to protect what is being billed as "religious freedom." This new invocation of religious freedom places it as the constitutional value most at risk. Perhaps just one more example of our polarized “culture war” politics, one form of political activism of the religious right has been to favor government acting to support and protect religious thought and action, even by granting religious thoughts and values an overriding role in our constitutional rights.Read more
Perhaps not since The Patriot Act have we had members of Congress plainly attempt to name a proposed law by attributing to it the opposite of the effect the law would have. Just this year, Senator Mike Lee introduced in the Senate a slightly revised version of the First Amendment Defense Act (FADA), a proposed law that would do basically nothing to protect First Amendment rights and appears to have been written to undermine the freedoms the First Amendment was written to secure. Yet if it is enacted, President Trump has promised to sign it into law.Read more
The NRA yesterday addressed the conservative conference, CPAC, and turned a defense of gun rights into a conservative political rant. The issues—and they are very real ones, worth debating—is whether the Second Amendment forbids the gun regulations being proposed, and whether, even if it does not, would any of them contribute to the reduction of gun deaths.Read more
“People have due process rights in this country,” Speaker of the House, Paul Ryan, scolded the Democrats after they had provoked the Republicans, and their NRA partner, into seriously considering a No Fly, No Buy proposal. Ryan continued, asserting that “we can’t have some government official just arbitrarily put them on the list.” We can’t?
Are Gender Bathroom Laws Meant to Protect Children, or a Reaction to the Marriage Equality Decision?
North Carolina recently enacted what has been a controversial law requiring individuals to use bathrooms that are consistent with the gender of their birth. This law completely rejects the goal of legally recognizing and protecting the gender identity of transgender individuals.
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