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The Supreme Court’s Newly Invented Right to Equal Dignity and the Problems It Will Cause (Forbes.com) July 8, 2015

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In case you missed it, Justice Kennedy and the majority of the Supreme Court invented a new constitutional right when they overruled bans on same sex marriage.  In the closing line of the opinion, the Court said that those seeking the right to gay marriage “ask for equal dignity in the eyes of law.  The Constitution grants them that right.”

Read the Constitution front to back and tell me where you find the section about the “right to equal dignity.”  Sorry, but like a lot of things people mistakenly assume must be in the Bible or in the Constitution, it’s not there.

What is in the Constitution is the 14th Amendment, on which the Court said this decision was based.  It promises that no “state [shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  Even there, Kennedy’s decision is awkward and unclear, claiming to base its decision on a deprivation of liberty, namely the fundamental right to marry the person you want.  Equal protection seems the less strained basis.

But then Kennedy, writing for the majority, waxes eloquent about equal dignity, as he has done in the past.  It’s in many of his Supreme Court opinions, from the Casey abortion case to the Lawrence sodomy decision to his opinion in the Windsor Federal Defense of Marriage Act case.   So some kind of dignity right is in Kennedy’s mind and jurisprudence; the problem is that it is not in the Constitution.  And it is so broad and vague it shouldn’t be.

One unanswered question is what equal dignity, or even dignity itself, might mean under the law.  None of the cases attempts to answer that question.  Webster’s Dictionary says dignity is the “quality or state of being worthy, honored or esteemed.”  The Oxford Dictionary adds the term “respect.”  Does this mean, then, that when people in our litigious society feel disrespected, their constitutional rights are violated?  Or, with some limitation, if government is somehow involved in that disrespect, there is a legal cause of action?  In some countries and cultures, even jokes have prompted arrests and prosecution on similar grounds.  Will the First Amendment protection of free speech still win out over this new “constitutional right?”

Less speculative is the looming clash between First Amendment free exercise of religion protections and this new right to equal dignity under the law.  Although many religions, including conservative Christianity, do not accept gay marriage, the Supreme Court’s opinion gave scant attention to their concerns.  Justice Kennedy said they may “continue to advocate” their view and “teach the principles…they have long revered.”  But wait, isn’t the First Amendment stronger than that?  Doesn’t it protect free exercise of religion, not just advocacy and teaching?  If a Christian or Muslim school or agency does not deal with same sex couples and their families in the same way as heterosexual couples, does that not violate Kennedy’s principle of “equal dignity?”  But at the same time, is that not protected by the free exercise of religion clause in the First Amendment.?  Or how about the bakers or florists or artists who feel they must exercise their religious beliefs and decline to participate in gay marriages?

Equal dignity looks like Pandora’s Box to me.  It is not in the Constitution and is ill-defined, vague and uncertain.  No one really knows what it means in a legal context.  It is overly broad—there is indignity everywhere in a crowded and busy world.  And it has now been attached to a new practice, same-sex marriage, that clashes and jars against other rights, most notably free speech and the free exercise of religion, also guaranteed by our Constitution.

Equal dignity under the law—coming soon to a courthouse near you.

See article at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/07/08/the-supreme-courts-newly-invented-right-to-equal-dignity-and-the-problems-it-will-cause/

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The Supreme Court Removes One Raisin Of The Smothering New Deal Legacy (Forbes.com) June 23, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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According to conventional U.S. history texts, Franklin Roosevelt’s New Deal ended sometime in the late 1930’s.  Unfortunately, that is one more urban myth that needs to be exposed on Snopes.com. To our detriment, the New Deal is alive and well, still serving as the basic framework for U.S. domestic and economic policy.  Indeed, Time magazine was prescient when it featured a cover shortly after Barack Obama was first elected in November, 2008, showing the new president with Roosevelt’s top hat and long cigarette holder, proclaiming “A New New Deal,” since Obama has continued to exercise the powers and extend the policies of the New Deal.

Finally the U.S. Supreme Court struck a blow against the antiquated New Deal agriculture policies this week, declaring on an 8-1 vote that the Raisin Administrative Committee, overseen by the U.S. Department of Agriculture, took a farmer’s raisins in violation of the 5th Amendment “takings” clause of the Constitution.  Still, 80 years after the Depression, the government exercises the power to take crops from farmers in order to keep supplies down and prices up.  So Fresno, California, farmer Marvin Horne must be paid in full for the crop that was taken from him as part of the government price support program.  That’s one small raisin for farmer Horne, one big bag of raisins for rolling back the New Deal.

Unfortunately it is not clear how widely this may affect other agricultural subsidies since they do not all involve “taking” the crop.  The USDA said it would review the Supreme Court ruling and “provide guidance based on the decision in the near future.”  Even dissenting justice Sonia Sotomayor admitted that the raisin regulations may be “outdated and by some lights downright silly.”  But this is the legal legacy we live with when emergency laws and regulations from a worldwide depression are not removed or even reviewed when the emergency is over.

Another such relic of the New Deal may be removed later this month when authority for the Export-Import Bank expires.  It, too, was established by Executive Order of President Roosevelt to facilitate loans with the Soviet Union.  Now it appears to be one more measure still on the books long after its purpose has vanished.  Although its proponents argue it helps small businesses compete abroad, Boeing (not exactly a small business) received most of its money last year.  Amazingly Hillary Clinton still wants to put up a fight for it, saying she wants an Export-Import Bank “on steroids.”  Alas, the New Deal legacy will be part of campaign 2016.

Believe me, there is plenty more from the New Deal that needs to be reexamined.  It was during that period that executive power began to grow dramatically, with Roosevelt saying the president needed war-like powers to deal with the economic emergency.  Again the courts have been somewhat helpful here, with the Supreme Court ruling that the president cannot do end-runs around the Congress with “recess appointments,” and another federal court ruling recently that he does not have the power to change the immigration laws unilaterally.  Likewise huge growth in the national debt was a gift from the New Deal that keeps on giving today.

It was also during the New Deal that the commerce and spending powers of the government under the Constitution grew dramatically.  Again the Supreme Court has taken a little wind out of those sails, declaring that Obamacare was not justified under the Commerce Clause, even while upholding it under the taxing power, and also warning that Medicaid regulations bordered on an unconstitutional stretch of the spending clause.  Of course Obamacare itself is a major addition to the New Deal legacy of Social Security.

President Obama recently made news when he said in an interview that “racism casts a long shadow and is still part of our DNA that’s passed on.”  Unfortunately the same thing could be said about the New Deal—kudos to the Supreme Court for at least trimming its sails a bit.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/23/the-supreme-court-removes-one-raisin-of-the-smothering-new-deal-legacy/

Congress Actually Decided The Hobby Lobby Case Decades Ago (Forbes.com) June 30, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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You can bet on hand-wringing and outrage about judicial activism and political motives behind the 5-4 U.S. Supreme Court decision in the Hobby Lobby case but, in fact, this case was all but decided in 1993 when Congress passed the Religious Freedom Restoration Act (RFRA). Both the liberal justices who dissented in the case, and others who attack the decision as conservative activism, should instead be aiming their arguments at Congress for enacting that law, because today’s court opinion is a relatively straightforward and narrow application of the RFRA.

Unhappy with a Supreme Court decision that narrowed religious freedom (Department of Human Resources of Oregon v. Smith, 1990), Congress took matters into its own hands and passed the RFRA. Whereas the Court in Smith said that “neutral, generally applicable laws could be applied to religious practices even when not supported by a compelling governmental interest, “ the RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Few may understand that Congress, as a co-equal branch with the Supreme Court under the Constitution, has the power to pass laws and, in some cases, thereby alter constitutional interpretation through legislation.

The Religious Freedom Restoration Act, then, established a high bar for any law impacting religious liberty, saying that not only must the government have a compelling interest in doing so, but it must use the “least restrictive alternative” available to accomplish its purposes. That is to say, if there is another way to accomplish the government’s purpose with a lesser restriction on religious liberty, that is what is required. In the case of contraceptive services, the Affordable Care Act (ACA) had already created such an alternative for religious nonprofits (churches and religious associations), providing that insurance administrators make those services available to individuals without imposing any cost-sharing on the religious organization. The Court in Hobby Lobby simply, and narrowly, said: Apply that same alternative to family businesses that have religious objections to the contraceptive services required by the ACA. Nothing dramatic or even surprising here—any politics or activism came in passing the RFRA, not in the Supreme Court’s application of it in Hobby Lobby.

Of course the additional pronouncement in today’s decision was the Court’s holding that such religious rights may be exercised by a business, not just individuals. But this is not unexpected either—lower federal courts, as well as the U.S. Supreme Court, have been laying the groundwork for the idea that individuals do not give up their constitutional rights based merely on the legal form in which their business operates. Indeed, the Dictionary Act, which courts follow in the absence of some special definition in a particular law, defines “person” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies as well as individuals.” So again, disagree if you want, but your objection is really to those who passed the Religious Freedom Restoration Act without some special definition of “person” or with the Dictionary Act and its broad definition.

Indeed, even though the Court was clear that its Hobby Lobby decision only applied to a family-owned business, we should anticipate that one or more publicly-held companies will soon bring a follow-on case, claiming they also have religious rights. The Court commented in Hobby Lobby that this seemed “improbable” because of the “practical restraints” of a diverse set of shareholders sharing religious beliefs. But nothing in the RFRA or in the Court’s decision would prevent a publicly-held corporation from stating religious views and, as long as shareholders were aware of those when they purchased the stock, it would seem such rights should also be protected. In any event, it seems likely one or more such public companies will try.

In short, the Hobby Lobby decision should not have been a surprise. The underlying religious freedom issues were resolved 21 years ago when Congress passed the Religious Freedom Restoration Act. And the notion that corporations are people has been in the Definition Act since 1947. Dissenters argue that the increasing diversity of our society demands different definitions and outcomes, but this ignores two important points, one of process and one of substance: Let them amend the laws, if they wish, to make their point, rather than relying on judicial interpretation and activism, and allow their own understanding of a diverse society to include those committed to the free exercise of their religious beliefs.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2014/06/30/congress-actually-decided-the-hobby-lobby-case-decades-ago/

The Supreme Court Voted In Favor of Public Prayer, But Only 5-4 (Forbes.com) May 5, 2014

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The Supreme Court announced its much-awaited decision on whether prayer prior to a town board (city council) meeting violates the Establishment Clause of the First Amendment of the U.S. Constitution. The answer is such prayers are ok, but the vote was 5-4, meaning pray quickly in case the either the makeup of the court or the mind of one judge changes.

Still, it was an important decision in many respects. The primary reasoning of the Court is that such ceremonial prayers have long been practiced in this country at all levels, from the U.S. Senate to the local city hall. The long-held nature of the practice itself, the majority of the Court held, suggests that such prayers do not violate the Constitution. This answers a question I have entertained myself: how can a phrase like “one nation under God” in the Pledge of Allegiance be constitutional for decades until a single federal judge wakes up one morning and decides it’s not legal anymore. Is constitutional law so subject to change that things that are permissible for centuries suddenly, overnight are not anymore? So here’s a vote that history and practice mean something, at least.

Another important principle from the decision was the Court’s holding that a person’s discomfort with religious expression is not the same thing as religious coercion under the First Amendment. Those bringing the lawsuit were attending a town board meeting in Greece, N.Y. where a Christian prayer had been offered to open the meeting and they felt uncomfortable, as if they were forced to participate against their will. But the Court noted that such prayers in the early moments of a council meeting were largely ceremonial, focusing on seriousness and tradition, and were addressed to the council itself, not the audience. People were free to come and go, not required to sit there like students at a high school graduation. In that context, the Court said that feeling offended or disrespected was not a violation of the First Amendment, adding that “offense . . . does not equate to coercion.”

The Court was clearly reluctant to get into the business of overseeing the actual language of public, ceremonial prayers. The 4 dissenting judges were uncomfortable with the heavily Christian nature of some of the prayers, but the majority held that such content was not objectionable. The majority ruled explicitly against an evolving religious diversity marginalizing Christian prayer, holding that the “decidedly Christian nature of these prayers must not be dismissed as a relic of a time when our Nation was less pluralistic than it is today.” As long as the prayer opportunity does not proselytize or advance or disparage some particular faith or belief, judges will not oversee its content.

Somewhat surprisingly, even the dissenting judges (Elena Kagan, Stephen Breyer, Sonia Sotomayor and Ruth Ginsburg) acknowledged that a public forum such as a town hall or legislative session “need not become a religion-free zone.” That seems to be the goal of most of these challenges to religious expression, to cleanse the public square of religion. But this, of course, is not what the Establishment Clause requires, and it’s encouraging that all nine justices essentially agreed on that point. What the dissenters would have preferred was greater diversity among those leading the prayers and more neutrality of language. But the majority thought it was a mistake for courts to engage in that kind of detailed scrutiny of public prayer, so long as there was no coercion.

This was one more chapter in the unfolding drama of constitutional interpretation. The “living constitution” judges feel that changes in the diverse nature of our society must continue to transform constitutional standards such as First Amendment Establishment Clause litigation. A narrow majority has held that history and tradition still mean something, and that diversity must itself be more tolerant, even to the point of discomfort and offense, but not to the point of the constitutional prohibition against religious conversion. That’s settled law for now—by one vote on the Supreme Court.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2014/05/05/the-supreme-court-voted-in-favor-of-public-prayer-but-only-5-4/

Federal Judges in Utah and Oklahoma Out of Bounds on Same Sex Marriage (Forbes.com) January 25, 2014

Posted by daviddavenport in Op/Eds.
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When the Supreme Court talks, other courts are supposed to listen. But when the Court gives mixed or muddled messages, federal judges are left with room to take the law where they wish. A good example of this is a recent pair of decisions by federal judges in Oklahoma and Utah declaring state bans on same sex marriage to be unconstitutional, outcomes that seem to be at odds with where the Supreme Court left things following its two decisions about same sex marriage announced in June.

In Hollingsworth v. Perry, the Supreme Court heard arguments last year that California’s Proposition 8, declaring that marriage was only between a man and a woman, was unconstitutional. Powerhouse litigators Ted Olson and David Boies brought the case to make that very statement, and federal judge Vaughan Walker of San Francisco conducted an elaborate trial to make a record on which such a decision could be based. But the U.S. Supreme Court declined to make a broad constitutional ruling, instead throwing out the appeal on the narrow ground that no party before the court had standing to defend the law. While the practical effect was to leave Judge Walker’s decision against Proposition 8 in effect, the larger constitutional questions were not addressed by the Court, evidently awaiting another case on a future day.

At the same time last June, the Supreme Court issued its opinion in United States v. Windsor, declaring portions of the federal Defense of Marriage Act (DOMA) unconstitutional because they deprived same sex couples of a federal estate tax exemption available to opposite sex couples. The Constitutional basis for the decision was muddled—part due process, part federalism, part equal protection, but mainly unclear—and the Court specifically said it was not addressing the broader question of the legality of same sex marriage, leaving that to the states. Justice Scalia, in his dissent, predicted that it wouldn’t be long before the states showed up in the Supreme Court pressing that very question.

So it seemed clear that the action on same sex marriage moved to the states and their political processes, either through state legislatures or ballot propositions. Perhaps a lesson had been learned from Roe v. Wade on abortion in the 1970s, where the Court made a rather abrupt pronouncement about abortion rights that has left the matter contentious ever since. Forty years later, the pro-life movement is going strong, reminding us that a court ruling does not make strongly held moral and religious views simply go away. Looking back, even progressives have acknowledged the abortion matter would have been less contentious had the matter been resolved deliberatively through the political processes of each state rather than abruptly for everyone by a court decision.

This seemed to be where the Supreme Court was leaving same sex marriage, to be resolved by the political branches in each state, not by federal courts. Chief Justice Roberts opened his majority opinion in Hollingsworth v. Perry by saying, “The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry.” Roberts continued, in his dissent in the Windsor case, by saying “The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their historic and essential authority to decide the marital relation, may continue to utilize the traditional definition of marriage.” Justice Alito in his dissent in Windsor, joined by Justice Thomas, said it was not in the purview of courts to decide between two views of marriage, but that state legislatures clearly must do so. And decide they have: 8 state legislatures have legalized same sex marriage and 3 additional states have done so by popular vote.

So along come two federal judges, one in conservative Utah and the other in conservative Oklahoma, and they declare state state bans on same sex marriage to be unconstitutional. My point is not that the judges did not have the power to do this, or that they did so without careful deliberation. Federal judges famously do more or less whatever they want, so long as it does not directly violate Supreme Court precedents. My point is that the way the Supreme Court left things following its two muddled and unsatisfactory legal opinions in June was to give state political processes—legislatures and ballots—time to work this through. And these two federal judges are out of sync with that allocation of power (federalism) and that more deliberative approach to decision-making. The judge in Utah would not even stay his ruling pending appeal, leaving the legal status of a thousand marriages up in the air.

Too bad that two federal judges can overrule state constitutions passed by their people when the Supreme Court just said, in effect, there is no federal constitutional policy yet about same sex marriage. But then social engineering has long been a temptation that some federal judges cannot resist.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2014/01/24/federal-judges-in-utah-and-oklahoma-out-of-bounds-on-same-sex-marriage/

The Supreme Court Could Burn Down Obamacare In Order To Save It (Forbes.com) January 13, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Few recall that after the opening 100 days of the New Deal–when Franklin Roosevelt and the Congress ran a prolific two-minute offense passing bills, creating an alphabet soup of new government agencies and spending money in an effort to counter the Great Depression—the U.S. Supreme Court did everyone a big favor by declaring the centerpiece of it all to be unconstitutional. Oh, it didn’t seem like a favor to Roosevelt and his allies when the Court said a key part of the National Industrial Recovery Act was an unconstitutional overreach of federal power. In fact, Roosevelt was so angry about it that he initiated his ill-fated plan to pack the Court with new justices.

But looking back, most historians and economists agree that stopping the NIRA was a very good thing, indeed. Not only was it a vague and excessive delegation of power over private markets to the federal government, but it was bad economic policy to boot. It mistakenly treated falling prices as a cause, not effect, of the economic crisis and tried to address it with cartels to regulate outputs and prices, creating a huge bureaucracy to do so. As Amity Shlaes points out in her book, The Forgotten Man, in a year some 10,000 pages of federal regulations had been created under the NIRA, more than doubling the entire federal canon since the Founding. The bill was developed haphazardly and, by all accounts, it needed to be killed somehow. The Court provided a convenient way out.

Funny, but it sounds like a history that should repeat itself now with Obamacare. You know, the 2000-page bill that House leader Nancy Pelosi said, in classic Washington doublespeak, we had to pass so we could read what’s in it? The bill that has generated so much regulation that Obamacare chief Kathleen Sebelius couldn’t tally it up in testimony last month (turns out it is 10,000 pages, like FDR’s NIRA). The bill that, despite promises you could keep your own policies and doctors, ended up rendering millions of health plans illegal, destroying more health insurance than it created, at least in the early going. A law that has never been popular and grows less so every time it is polled.

My point is that, just as FDR could not see or politically afford to acknowledge the serious problems of the NIRA and received a huge favor when the Court declared it unconstitutional, we are in the same position today with respect to Obamacare. The NIRA at least had bipartisan support, but Obamacare was famously passed on a one-party vote and, rather than taking a surgical approach to fixing problems of healthcare policy, it undertook an extreme makeover (federal takeover) of healthcare. It has been beset by constant problems of implementation. You can hardly get through the website to buy it and, when you do, you find the price is much higher than you expected. So far it has managed to disappoint almost everyone.

The good news is that there are still court challenges out there that could undo it. The most promising challenge started in Oklahoma, but is now being brought in federal courts in 4 states, pointing out that buried in that language Nancy Pelosi and her colleagues did not read was a provision that federal subsidies for healthcare are only available where there are state health exchanges. Since 34 states declined to create their own exchanges, leaving their citizens on the federal exchange, most people would not be eligible for subsidies, which is crucial to Obamacare’s main priority, providing universal coverage. Nor would employers and individuals be subjected to related fines, which is a key part of the financing of Obamacare. The IRS, in a remarkable overreach, attempted to fix this by writing a regulation that ignored the plain wording of the law, all of which is now under court challenge. This seemingly small problem of wording, in fact could not be bigger for the future of Obamacare. As the first challenger, Oklahoma Attorney General Scott Pruitt put it, the Affordable Care Act would “crumble” if this court challenge is upheld.

If you’re old enough to remember the Vietnam war, you’ll recall the legendary, some say mythical, statement by a military officer: “we had to destroy the village in order to save it.” Like Roosevelt’s NIRA, Obama’s ACA may only be rescued if a court stops it cold and cooler, more deliberate heads work much more diligently on the smaller-scale, tailored and blended public/private approaches that could, in fact, improve the healthcare system.

Link to Forbes.com article: http://www.forbes.com/sites/daviddavenport/2014/01/13/the-supreme-court-could-burn-down-obamacare-in-order-to-save-it/

Will The U.S. Supreme Court Protect The First Amendment Rights Of Colorado Bakeries? (Forbes.com) December 20, 2013

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My dad ran a small bakery and I spent thousands of hours working there, baking, selling, delivering, sometimes even decorating cakes and other pastries. To him, the work was not just professional, but also personal: he knew most of his customers who came from our church, school, and neighborhood to shop. His front door was open to customers, but his back door welcomed friends for a cup of coffee, a donut and a chat while he worked. As a Christian, his work was also part of his ministry—he exercised his values there and helped a lot of people.

So I took more than a passing interest when a judge in Colorado recently ruled that a retail bakery had violated the law for refusing to decorate a cake for a same sex wedding celebration. Though my dad and the family bakery are long since gone, I could imagine him struggling with whether he could place two grooms on top of a wedding cake. As the Colorado baker argued in court, a cake decorator’s work is creative expression. When you take the cake to the church or party and set it up, you are in some sense a participant in the process. All this was a problem for the baker, whose religious convictions do not allow him to support same sex marriage.

But Colorado administrative law judge Robert Spencer said no, a bakery is a public accommodation, defined rather broadly in Colorado as any business that sells to the public. And, as such, a cake decorator cannot discriminate based upon sexual orientation. Even the fact that same sex marriage is illegal in Colorado did not cut the baker any slack. Next time he either decorates that cake, faces fines or jail, or closes the business, as the owner of a bakery in Oregon did in a similar situation a few months ago.

Although some have argued that this is a small matter—“let them eat cake”—it is part of an important and growing clash between one person’s First Amendment rights to freedom of religion and speech and another’s civil and social rights. With same sex marriage now legal in 16 states and still counting, that arena alone will generate increased conflict of this kind. For example, a wedding photographer in New Mexico who refused to serve a same-sex commitment ceremony on similar free speech and free exercise of religion grounds was held in violation of that state’s anti-discrimination laws and is appealing the case to the U.S. Supreme Court.

It’s not just about businesses and their customers, either. Hobby Lobby will be in the U.S. Supreme Court this term because the Affordable Healthcare Act requires them to provide contraceptive coverage to employees in violation of its owners’ religious principles. Indeed there are now over 80 of these lawsuits, and the D.C. Circuit Court of Appeals recently ruled that business owners do not give up their First Amendment rights merely because they choose to operate in a corporate form.

These are tough cases in part because both sides want an all-out win, not a compromise. Advocates for contraceptive coverage and same sex marriage argue that these are fundamental, constitutional protections that must be defended, essentially at all costs. Progressives and social activists see the contraceptive rights of Obamacare and same sex marriage as the new civil rights struggles and are unwilling to compromise. On the other side are those seeking to protect freedom of religion, which they believe to be under steady assault in society and especially in the courts. Some conservative Christians foresee the day when merely reading certain passages of scripture from the Bible, even in a church pulpit, will be considered “hate speech” under the law.

But in the end, there will need to be a solution in which the rights of both are recognized and they are able to live together in the same society. Will this be accomplished by balancing out the rights, one against the other? Should people in the expressive business—photographers or maybe bakers—have stronger rights than garden-variety businesses? Should public accommodation businesses be more narrowly defined than “anyone who sells to the public?” Or will one side win and the other lose? These are tough questions the U.S. Supreme Court will face in 2014.

http://www.forbes.com/sites/daviddavenport/2013/12/20/will-the-u-s-supreme-court-protect-the-first-amendment-rights-of-colorado-bakeries/

Government Officials Must Defend the Law (Townhall.com) August 13, 2013

Posted by daviddavenport in Radio Commentaries.
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A contagion is spreading through senior government officials across the land. Although they take an oath to defend the constitution and the law, many officials are concluding that they will not defend laws they disagree with or feel are unconstitutional.

It starts at the top: When President Obama and Attorney General Holder refuse to defend laws such as the Defense of Marriage Act. The disease quickly spread to California, where the governor and attorney general refused to defend Proposition 8. When the Supreme Court decided no one had standing to defend the law, a ruling of unconstitutionality by a single federal judge stood unchallenged.

Now a county official in Pennsylvania says he doesn’t agree with a state law banning same-sex marriage and he’s started issuing licenses.

Officials have a sworn duty to uphold a law until the legal process concludes otherwise.

Please click on the link to listen to the audio: http://townhall.com/talkradio/dailycommentary/676954

Is Gay Marriage The Product Of Judicial Activism? (Forbes.com) July 2, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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One practical definition of judicial activism is when a court makes a decision with which you disagree. Not surprisingly, then, conservatives objected to judicial activism in last week’s same sex marriage Supreme Court decisions, while liberals decried judicial activism in a case announced just the day before (on voting rights). But taking the two same sex marriage decisions as a case study, to what extent could they fairly be called the product of judicial activism?

Asking the question begs another more fundamental question: What is judicial activism? There are lots of opinions on that, but none is definitive. Apparently the origin of the term came not in a legal opinion at all, but in a 1947 Fortune magazine article by historian Arthur Schlesinger in which he described the sitting U.S. Supreme Court as having 4 judicial activists, 3 judges who practiced “self-restraint,” and 2 in the middle. The distinction, Schlesinger argued, was based on their legal worldview, with the activists finding the law more malleable and subject to interpretation, whereas those engaged in self-restraint felt that legal terms had real meaning and it was not their place to provide a lot of interpretation.

Since then, there have existed many understandings of judicial activism. Perhaps the most basic is when a court usurps the role of one of the other branches of government and takes up the work of the legislature or executive. Indeed, Justice William Rehnquist in Roe v. Wade found the majority of the Court engaged in judicial activism or “judicial legislation.” Another variation is when a judge is results-oriented, wanting to reach a particular conclusion and searching far and wide to find some strained legal interpretation to support it. Black’s Law Dictionary says it is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors to guide their decisions.” I would submit that when a Court becomes an engine of change, rather than a brake on the illegal actions of another branch, it is engaging in judicial activism.

Under virtually all of these definitions, it is fair to conclude that there was judicial activism, or at least what New Jersey Governor Chris Christie called “judicial supremacy,” in both of the same sex marriage cases. On the surface, the Supreme Court did not appear to engage in judicial activism in the Hollingsworth case challenging the lower court ruling that California’s Proposition 8 was unconstitutional, since the Court used the narrow legal doctrine of standing to decide it. But the effect of that narrow decision was broad and activist indeed. The ruling effectively meant that no one could challenge the decision of a single federal judge that gay marriage could not be banned by a vote of the California people. Since the Governor and Attorney General of California refused to defend the law, and the Supreme Court said the proponents had no standing to appeal the case, the lower court decision stands unchallenged. A sweeping change in California law, nullifying the votes of 7 million people, was made by a single federal judge.

In the second same sex marriage decision declaring the federal Defense of Marriage Act (DOMA) unconstitutional, there were several steps of judicial activism. Most fundamentally, the Court decided that there is a right under federal law (not yet in state law, though as Justice Scalia warned in his dissent that can’t be far off) to equal protection for same sex marriages, overturning Congress’ and the President’s opposite determination when DOMA was enacted in 1996. Second, in order to satisfy his newly constructed test for the constitutionality of equal treatment for same sex marriages, Justice Kennedy, writing for the majority, had to find and did conclude that Congress and the President were motivated by a bad animus or purpose. So good for you, Justice Kennedy, your righteousness exceeds all those 342 members of the House, 85 members of the Senate and President Bill Clinton who supported and signed DOMA. Way to ignore the purpose stated by the bill’s Senate sponsor that if states wish to recognize gay marriage they may, but this bill would ensure that “the 49 other states don’t have to and the Federal Government does not have to.”

It’s too bad Justice Kennedy wasn’t listening more carefully when President Ronald Reagan said at the justice’s swearing-in ceremony that, unless judges accept their role to interpret laws, not make them, “the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.” Insulated as they are by lifetime appointments, the justices might also take a peek at this week’s Rasmussen poll, showing the people’s confidence in the Supreme Court at an all-time low, a drop of 32 points among conservatives and 21 points among moderates in recent years. And 41% find the Court increasingly hostile toward religion.

The legalization of same sex marriage started with the vote of a single judge in Massachusetts ten years ago, and pressed forward with a single unappealable decision by a California federal judge. As in Roe v. Wade and the fury it caused about abortion, the courts would do better to leave social change to the people and their elected officials.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/07/02/is-gay-marriage-the-product-of-judicial-activism/

The Supreme Court Rulings on DOMA And Prop 8: Everyone Deserved Better (Forbes.com) June 27, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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It is often said that hard cases make bad law, and today’s twin Supreme Court opinions about same-sex marriage—the Windsor case holding the federal Defense of Marriage Act (DOMA) to be unconstitutional and the Hollingsworth decision, rejecting the appeal of a lower court’s declaration that California’s Proposition 8 is unconstitutional—prove that point once again.

Having waded through today’s two decisions and multiple dissents, I find myself most strongly in agreement with the final line of Justice Scalia’s lengthy dissent in the DOMA (Defense of Marriage Act) case: “[T]he Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”

While these decisions are being widely proclaimed as victories for same-sex marriage, that is a superficial view of what was decided and, perhaps as important in Supreme Court cases, how it was decided. To peel back the several layers of these complicated opinions, we should consider three different levels of analysis: (1) the constitutional questions, (2) the legal process issues, and finally (3) the social and political matters.

Perhaps naively, many hoped for some definite constitutional answers to the questions raised in these cases but today’s opinions disappoint here. Those who brought the California case hoped the Court would say Proposition 8, defining marriage as between a man and a woman, was unconstitutional on equal protection grounds, at least for California if not for all states. Instead the Court based its decision on narrow rules of legal standing. Those who defended DOMA in court hoped for a win for the traditional view of marriage, or at least a declaration that marriage belonged to the states and that DOMA was unconstitutional as a matter of federalism. But that didn’t happen either. Instead the Court cooked up a confusing stew of 5th Amendment due process rights, augmented by some standards of 14th amendment equal protection and a little substantive due process thrown in to justify its decision that DOMA is unconstitutional. This was hardly the kind of important constitutional decision either proponents or opponents of same sex marriage hoped for, and is instead a disappointing and confusing opinion with a kind of interim (we’ll have to clean this up later) feel.

Both decisions spent a frustrating amount of time on questions of legal process, especially who has standing to raise matters before federal courts. Since the government of California refused to defend Proposition 8 in court, the California Supreme Court ruled that proponents of the initiative could do so. But the Supreme Court rejected that, denying the appeal because no one had standing to challenge the lower court’s decision. That seems not only frustrating but bad law in that, in the end, no one was left able to bring a legal challenge to the district court’s opinion finding Proposition 8 unconstitutional. That seems like a bad result in both process and outcome. What we did learn again is that Justice Roberts is not really a constitutional conservative, but is a process conservative. If he can find a way to deal with a case by fiddling around with the rules (recall his creative rewriting of the healthcare law to salvage it?), he will resolve things that way, rather than on the merits. That has to be disappointing to conservatives for the long haul.

Finally, what does this mean for the social and political questions surrounding gay marriage? Two things are obvious: Proposition 8 is unconstitutional in California, as decided by the lower federal court (not the Supreme Court), and gay marriages there can go forward. And the federal Defense of Marriage Act cannot be used in states that decide to have gay marriage to deny full federal benefits (taxation, etc.) to those in such a union there. In that sense, it is a gain for the same sex marriage movement, but it mostly leaves the rest of it up to the political branches, not primarily to the courts.

So who are the winners and losers in today’s decisions? The traditional marriage people lost more than they gained, especially when the court went out of its way in the DOMA case to say there was no legitimate legal ground for that bill ever, a conclusion that, if you understood the state of the law and culture when it was adopted and signed in the 1990’s, is patently absurd. States also took it on the chin—while the court gave several pages of lip service to the role of states in marriage, it didn’t allow anyone in California to defend its own constitution, overriding the California Supreme Court’s own view of that question of state law. In my view, the good news today is that the court ended up taking a fairly modest role, leaving continued developments on same sex marriage to occur in the political branches and state governments where they belong.

But in the end, everyone deserved a better and more coherent message than came from these highly anticipated Supreme Court opinions.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/06/27/the-supreme-court-rulings-on-doma-and-prop-8-everyone-deserved-better/