Indiana isn’t targeting gays. Liberals are targeting religion
In the increasingly bitter battle between religious liberty and the liberal political agenda, religion is losing. Witness the media and political wrath raining down upon Indiana because the state dared to pass an allegedly anti-gay Religious Freedom Restoration Act. The question fair-minded Americans should ask before casting the first stone is who is really being intolerant.
The Indiana law is a version of the federal Religious Freedom Restoration Act (RFRA) that passed 97-3 in the Senate and that Bill Clinton signed in 1993. Both the federal and Indiana laws require courts to administer a balancing test when reviewing cases that implicate the free exercise of religion.
“The paradox is that even as America has become more tolerant of gays, many activists and liberals have become ever-more intolerant of anyone who might hold more traditional cultural or religious views.”
To wit: Individuals must show that their religious liberty has been “substantially burdened,” and the government must demonstrate its actions represent the least restrictive means to achieve a “compelling” state interest. Indiana’s law adds a provision that offers a potential religious defense in private disputes, but then four federal appellate circuits have also interpreted the federal statute to apply to private disputes.
“Part of the new liberal intolerance is rooted in the identity politics that dominates today’s Democratic Party. That’s the only way to explain the born-again opportunism of Hillary Clinton, who tweeted: ‘Sad this new Indiana law can happen in America today. We shouldn’t discriminate against ppl bc of who they love.'”
The federal RFRA followed the Supreme Court’s Employment Division v. Smith ruling in 1990 that abandoned its 30-year precedent of reviewing religious liberty cases under strict scrutiny. Congress responded with RFRA, which merely reasserted longstanding First Amendment protections.
“By that standard, Mrs. Clinton discriminated against gays because she opposed gay marriage until March 2013. But now she wants to be seen as leading the new culture war against the intolerant right whose views she recently held.”
In 1997 the Supreme Court limited RFRA’s scope to federal actions. So 19 states including such cultural backwaters as Connecticut, Rhode Island and Illinois followed with copy-cat legislation, and Indiana is the 20th. Courts in 11 states have extended equally vigorous protections.
Indiana was an outlier before the new law because neither its laws nor courts unambiguously protected religious liberty. Amish horse-drawn buggies could be required to abide by local traffic regulations. Read the rest of this entry »
“But without checks, democratically approved legislation can oppress minority groups…”
— Supreme Court Justice Sonia Sotomayor
WASHINGTON (AP) —Mark Sherman reports: The Supreme Court on Tuesday upheld Michigan’s ban on using race as a factor in college admissions despite one justice’s impassioned dissent that accused the court of wanting to wish away racial inequality.
The justices said in a 6-2 ruling that Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. The justices said that a lower federal court was wrong to set aside the change as discriminatory.
“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”
— Supreme Court Justice Anthony Kennedy
The decision bolstered similar voter-approved initiatives banning affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies. Read the rest of this entry »
W. James Antle III writes: Was contraception illegal in 2010? Were people unable to purchase birth-control pills without the consent of their employers?
The answer to these questions is no, despite the repeated insistences that the Supreme Court would bring about this state of affairs by ruling in favor of Hobby Lobby and against the Obamacare contraception mandate.
In fact, Hobby Lobby’s owners only object to being required to cover four of the twenty mandated contraceptives. They argue that they do not wish to be complicit in providing abortion-inducing drugs. But the same people who want to “ban bossy” now speak as if accommodating a religious for-profit employer necessitates overturning Griswold v. Connecticut.
Liberals have come a long way since 1993, when they helped pass—and Bill Clinton signed—the Religious Freedom Restoration Act. Back then, they were willing to endorse the principle that the government must have a compelling interest in making a person act contrary to her religious conscience—and even then, government must use the least coercive means to further that interest.
[W. James Antle III’s book, Devouring Freedom: Can Big Government Ever Be Stopped? is available at Amazon]
Whatever the First Amendment implications of the Hobby Lobby case, it is impossible to argue the contraception mandate meets that test. Large swathes of the American public are already exempt from the mandate, so how compelling could the government interest be? Second, there are ways to make birth control more accessible to women without making religious people pay for it.
Read the rest of this entry »
“…it’s up to each and every one of us as free Americans. Do your civic duty: Take out your smartphones, America, and stand your ground for freedom.”
As the Sun-Sentinel reports, 33-year old Brandy Sherling was stopped by a Broward County, Florida sheriff’s deputy for a minor traffic violation. When she told the officer she was recording the conversation on her smart phone, he demanded she give him the phone and told her (erroneously) that she was committing a felony by recording him. The argument went on for over four minutes. Finally the officer pushed Ms. Sherling from her car, twisting her arm and spraining her wrist in the process. She spent a night in jail—but was never charged. Now she’s suing. Good for her.
[See also – 7 Rules for Recording Police]
Oh, not because she’s going to get a ton of taxpayer’s cash from Broward County. Because she shows us the way we Americans will ultimately protect our freedom and civil rights in a nation where the desire for security now trumps the Bill of Rights.
From the NSA sweeping up metadata to local police scanning license plates, the authorities believe they have carte blanche to surveil us. So as they spy on us, we have a civic duty to return the favor – just like Brandy did with her smartphone.
You see, the only real safeguard we have against this new wave of creeping, technology-driven totalitarianism is to expose the abuses, and create tidal waves of public outrage. The surveillance community instinctively understands how powerful and deeply ingrained our distrust of government “security” runs, even in red states. Justice Scalia, certainly no liberal, penned the 2012 Supreme Court opinion in United States v. Jones, which found the warrantless use of GPS auto tracking devices violated the Fourth Amendment. Read the rest of this entry »
You and What Army? Delusional Lt. Col. Robert Bateman’s Captain Queeg Moment: Insults Supreme Court for Heller Decision; Calls for Massive Gun Bans, Turn-InsPosted: December 9, 2013
“Ah, but the strawberries! That’s where I had them. They laughed at me and made jokes but I proved beyond the shadow of a doubt…”
NRA-ILA reports: To say the least, some of the characters who have appeared on the national scene in recent years have demonstrated some enormous egos and used some pretty ill-tempered language in their efforts to turn this nation into something we wouldn’t recognize. But Army Lt. Col. Robert Bateman is challenging them for top dishonors in that regard, with an over-the-top rant in Esquire magazine this month.You pretty much know what’s coming when a guy begins by claiming, “My entire adult life has been dedicated to the deliberate management of violence. . . . My job . . . is about killing. I orchestrate violence. . . . I am really good at my job.”
Real warriors don’t brag, of course. They let their actions speak for themselves. And real warriors support the Second Amendment and oppose gun control, as indicated by a letter signed by over 1,100 current and former Army Special Forces soldiers in January.
Bateman’s self-adulation was just the beginning, however.
He next attacked Supreme Court Justice Antonin Scalia for “his attempt to rewrite American history and the English language” in his majority opinion in District of Columbia v. Heller. Bateman also extended his attack to Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas for concurring with Justice Scalia. “They flunked basic high school history,” Bateman said. Bateman added that Esquire readers could read the Heller decision for themselves, but that it really isn’t necessary, because “I can spell it out for you in ten seconds.”
At this point, we found ourselves asking to be spared additional arrogance and ignorance, but Bateman wasn’t inclined to oblige.
Bateman continued to explain his factually incorrect idea is that the Second Amendment’s reference to the well regulated militia means that no one has the fundamental, individual right to keep and bear arms. “As of 1903, the ‘militia’ has been known as the National Guard,” Bateman insisted.
Addressing who can own guns, where they can carry them, and whether guns can be transported to a second home
Brian Doherty writes: Since the 2010 Supreme Court case McDonald v. Chicago, which applied the ruling in the 2008 Heller case (which said the Second Amendment guarantees an individual right to bear arms) to states and localities, the Court has so far evaded any new case about the limits and meaning of the Second Amendment.
Those two cases, though, did not resolve all the important questions about how and when and why the government can restrict Second Amendment rights. Hellerand McDonald said that the right to possess commonly used weapons for self-defense in the home cannot be infringed, but Justice Antonin Scalia in his majority opinion in Heller explicitly said this didn’t mean anything goes when it comes to Americans and their guns.
Many other cases that try to define the whos, whens, and hows of our Second Amendment rights are percolating through the lower courts, and some are trying to wend their way to the Supreme Court.
Here are three of the most relevant active cases involving the Second Amendment, ones that promise to expand Second Amendment liberty, and resolve some of the core issues left unresolved by Heller and McDonald. Two of them will likely be considered for certiorari by the Supreme Court (though whether they will take them up is always hard to predict).
Robby Soave reports: Proponents of race-based admissions had a rough time during oral arguments at the Supreme Court this week, as both the conservative and liberal wings of the court humiliated an attorney for the Coalition to Defend Affirmative Action for her faulty reasoning.
Associate Justice Antonin Scalia immediately interrupted her.
“My goodness, I thought we’ve — we’ve held that the Fourteenth Amendment protects all races,” he said.
Yes, pop culture is crude, but who gives an F-word? By virtually every measure, we’re a safer, nicer, kinder country.
“I am glad that I’m not raising kids today,” Supreme Court Associate Justice Antonin Scalia recently told New York magazine. Though known for Torquemada-like inquisitions of lawyers during oral arguments and brutally lapidary prose in his written opinions, the 77-year-old jurist practically gets the vapors when engaging today’s popular culture. “One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it…. My goodness!”
Scalia has at least one unlikely high-profile ally: Pop singer Annie Lennox, who took to Facebook to denounce contemporary music videos, which she says are nothing more than “highly styled pornography.” And for what’s it worth, Gallup finds that 72 percent of Americans are convinced that “moral values” are getting worse.
I don’t know anyone who would seriously challenge the idea that America has become a far cruder society over the last 10, 20, or 30 years. There’s probably more sex, violence, and salty language in the opening credits of Keeping Up with the Kardashians than there was on all of prime-time TV when Scalia joined the Supreme Court in 1986.
But really, who gives an…F-word? We may well be an increasingly ill-mannered society, one that’s soaking in violent video games, instantly available online porn, and Here Comes Honey Boo Boo like our mothers used to soak in Palmolive liquid. But we’re also one in which youth violence, sex, and drug use are all trending down. If that means putting up with, you know, ladies cursing and other examples of unambiguously crass behavior, it seems a terrifically small price to pay.
For the sneering consequentialists of the post-constitutional Left, Justice Antonin Scalia is a bogeyman among bogeymen and the Second Amendment is an exasperating relic. It should thus come as no great surprise that Scalia’s considered and thoughtful comments on the future of firearms law, offered in good faith during a speech in Montana last week, were met with brash and injudicious criticism.
As revenge for his responding to the question of whether private citizens could own rocket launchers with the modest answer that this “remains to be determined,” the Daily Kos went so far as to suggest that Scalia, whom the outlet called “Supreme Court Justice Fever Dream,” was a “crackpot” and “not right in the head.” Over at the more moderate Daily Beast, meanwhile, Adam Winkler continued to lie about the nature of the Second Amendment, contending slipperily that the “insurrectionist understanding” is false and advancing without shame the smear that “Justice Scalia, that acclaimed lover of originalism,” is “taking his cues from the Tea Party rather than from the text and history of the Constitution.”
Chief Justice John G. Roberts Jr. didn’t hesitate last fall when a questioner asked him about the biggest constitutional challenge the Supreme Court faced.
Roberts told the audience at Rice University in Houston that the court must identify “the fundamental principle underlying what constitutional protection is and apply it to new issues and new technology.” He said, “I think that is going to be the real challenge for the next 50 years.”
A Return to Judicial Activism
Tuesday’s election victory means that President Obama will have four more years to reshape the federal judiciary. While it remains to be seen whether he can achieve any legislative victories in the face of Republican opposition, there is little doubt that he will, for the most part, get to appoint the judges of his choice.
Four justices on the Supreme Court are in their mid- to late seventies now: Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, and Stephen Breyer. With past as prelude, we can expect any Obama nominees to be reliably liberal in the mold of his two appointments from the first term, Justices Elena Kagan and Sonia Sotomayor. At a minimum, the president will likely replace the aging liberals Ginsburg and Breyer with younger models. But it’s also possible that Kennedy or Scalia, or both, could leave the bench during the next four years, presenting Obama with an opportunity to forge a liberal majority on the Court.
An invigorated and expanded liberal bloc on the Court could undo many important precedents. The Court’s decisions, for example, protecting speech rights of corporations (Citizens United v. FEC), school choice (Zelman v. Simmons-Harris), and the right to bear arms (District of Columbia v. Heller and McDonald v. Chicago) were all decided on 5–4 votes. Challenges to Obamacare and other recent regulations are likely to present the Court with major decisions on religious liberty and federalism over the next few years.
The president’s reelection also has profound implications for the lower courts. Obama will begin his second term with about 90 vacancies to fill among 874 federal judgeships; he has already appointed 126 judges. By the time his second term is over, Obama will probably have appointed over 300 judges and may approach the 379 appointed by Bill Clinton. Notably, this includes at least three judges of the Court of Appeals for the D.C. circuit—the court that hears most appeals of the decisions of federal agencies and, thus, one of the few institutions that can limit or block the administration’s regulatory overreach. But with Obama poised to fill three vacancies on this important court, its liberal wing will be greatly strengthened.
Unlike Supreme Court nominees, who receive intense media scrutiny, lower-court picks often fly under the radar. Obama’s true inclinations can be seen in nominees like Goodwin Liu, an outspoken proponent of using the “living Constitution” to create fundamental rights to welfare benefits; or Louis Butler, who, as a justice on the Wisconsin Supreme Court, “offered ill-reasoned, liability-expanding decisions in cases involving medical damage caps and ‘collective liability’ for lead paint manufacturers,” as Carter Wood reported at Point of Law.
To be fair, Liu and Butler were not confirmed. They demonstrate, however, Obama’s inclination to appoint liberal activists—the kind of judges who can advance progressive goals without the bother of legislation. Now, freed from any concerns about reelection, Obama has little reason not to put forward aggressively liberal judges in the hope that some of them will get through. And no doubt some will.
Adam Freedman is a contributor to Ricochet. His book, The Naked Constitution: What the Founders Said and Why It Still Matters, is published by Broadside Books.
via City Journal