Tag: Supreme Court

An epic Supreme Court showdown over religion and LGBTQ rights ends in a whimper

Posted on by Lone Candle

“Fulton v. City of Philadelphia, a case involving a Catholic group that objects to placing foster children with same-sex couples, was widely expected to be a sweeping victory for the religious right, and a correspondingly significant defeat for LGBTQ rights. Instead, the Court’s opinion dodges nearly all of the important issues raised by the case.
It’s still a small win for religious conservatives and a similarly small loss for the LGBTQ community in Philadelphia. But the Court’s decision is unlikely to have many implications outside of that city. And it hits pause on a fight to overrule a landmark Supreme Court decision from over three decades ago — most likely because, as Justice Amy Coney Barrett notes in a concurring opinion, several of the justices aren’t sure what to do next if that decision is overruled.”

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“The plaintiffs in Fulton, moreover, also asked the Supreme Court to overrule its seminal decision in Employment Division v. Smith (1990), which held that religious objectors must follow “neutral law[s] of general applicability.” Under Smith, a religious objector typically is bound by a state or local law so long as it applies with equal force to non-religious actors — so, if secular organizations are forbidden from discriminating, the same rule will generally apply to religious organizations.

But neither of these important questions was resolved in Fulton. While Justice Samuel Alito penned a lengthy opinion calling for Smith to be overruled, that opinion was joined by only Justices Clarence Thomas and Neil Gorsuch.

The remainder of the Court joined a much narrower majority opinion by Chief Justice John Roberts, which rules in favor of CSS, but on grounds that are unlikely to have many implications for future cases.”

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“this argument relies solely on the text of Philadelphia’s particular ordinance.”

How the Anti-Abortion Movement Used the Progressive Playbook to Chip Away at Roe v. Wade

Posted on by Lone Candle

“The attack on Roe has been decades in the making—and its successes owe not just to the strength of the conservative anti-abortion movement, but to the progressive playbook that achieved breakthroughs on civil rights, gay marriage and even abortion.

Much like the civil-rights activists of the past, abortion foes have pursued a long-term strategy that stretches far outside the courts. It depends on grassroots political change as well as legal challenges, and on the tidal push-and-pull between politics and the law at the highest levels.”

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“Efforts by anti-abortion activists at the state and local level also reflect the use of a strategy that has already proved successful for gay rights advocates—one that focused on changing local laws, one step at a time, to make the values written into an earlier case appear to be out of step with contemporary constitutional law as well as public sentiment.”

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“The current focus on “viability”—the question at the heart of the Dobbs case—is a new step in this politics of repudiation. In Roe v. Wade, the Court has held that there is a right to abortion until fetal viability, which now falls around the 24th week of pregnancy. Advances in neonatal care might move up the date of viability somewhat, but until now the point has held: Any future limits on abortion right would have to observe that line in the sand. The Court has preserved this “viability” line even as it repeatedly tinkered with abortion rights in response to politics.
To chip away at the “viability” norm, states have rushed to ban abortions much earlier in pregnancy—the Mississippi law now before the Supreme Court prohibits the procedure a full eight to nine weeks before viability. Georgia recognizes fetal personhood at six weeks. Alabama has sought to ban abortions outright, regardless of gestational time. Anti-abortion activists then point to all these moves as evidence that the viability norm encoded in Roe, just like the sexual-behavior norm encoded in Bowers, has now become an outlier—a relic of a time when American beliefs around abortion were far more permissive.”

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“By flooding the field of action with abortion restrictions based on different standards over the years, abortion opponents have forced courts to wrestle with difficult and often murky medical questions, and given judges with more favorable ideological leanings maximal opportunities to revisit legal rules and frameworks. One successful wave of post-Roe anti-abortion activism assailed the logic of the trimester framework, a critical part of the original Roe decision that deemed most restrictions in the first trimester of pregnancy unconstitutional. In the most important Supreme Court abortion case between Roe and Dobbs—Planned Parenthood v. Casey, in 1992—the Court threw out the trimester framework but preserved the viability line as an essential component of the right to choose.”

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“In Dobbs, the renewed attack on viability sets the stage for an end game. Viability has long been in the crosshairs because abortion foes see it as a potential weakness in the Roe precedent—philosophers and bioethicists have sometimes questioned its logic. The Supreme Court could have dodged the fate of viability in Dobbs, but instead they decided to tackle it head-on: In fact, they narrowly chose to consider only the question of whether pre-viability bans are unconstitutional. That means that if the Court wants to uphold Mississippi’s law, the justices must get rid of at least part of Roe. Even if the justices in Dobbs do not openly repudiate a woman’s right to choose, Roe could be fatally weakened.”

Brett Kavanaugh’s latest decision should alarm liberals

Posted on by Lone Candle

“Edwards did not simply limit the scope of Ramos. Justice Brett Kavanaugh’s majority opinion also overruled a 32-year-old decision governing when the Supreme Court’s precedents apply retroactively. Kavanaugh did so, moreover, without following the ordinary procedures that the Court normally follows before overruling one of its previous decisions. As Justice Elena Kagan points out in dissent, no one asked the Court to overrule anything in Edwards, and the Court “usually confines itself to the issues raised and briefed by the parties.”

Edwards, moreover, is the second time in less than a month that Kavanaugh authored a majority opinion that overrules a prior decision without following the Court’s normal procedures. In late April, Kavanaugh handed down a decision in Jones v. Mississippi that effectively overruled a 2016 decision establishing that nearly all juvenile offenders may not be sentenced to life without parole.”

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“this matters because Kavanaugh is the median vote on the Supreme Court. Last week, SCOTUSBlog published an analysis finding that Kavanaugh voted with the majority in 97 percent of cases decided so far this Supreme Court term — more than any other justice. If you want to win a case before the Supreme Court, you’ve got a tough road ahead of you if you can’t secure Kavanaugh’s vote.

And yet, Kavanaugh is signaling in Edwards, Jones, and in a few other significant opinions that he does not particularly care about precedent”

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“When deciding whether to overrule a precedent, Kavanaugh wrote, the Court should consider whether the previous decision is “not just wrong, but grievously or egregiously wrong.” It should consider whether “the prior decision caused significant negative jurisprudential or real-world consequences,” and it should ask whether overruling the prior precedent would upset “legitimate expectations of those who have reasonably relied on the precedent.”

But Kavanaugh engaged in none of this analysis in Edwards, and it’s hard to see how Teague would qualify as worthy of being overruled under the standard Kavanaugh articulated in Ramos. Kavanaugh doesn’t claim in Edwards that Teague was egregiously wrong or that it’s led to “significant negative jurisprudential or real-world consequences.” Indeed, he claims the exact opposite — that Teague’s holding regarding “watershed” rules should be overruled because it’s had no jurisprudential or real-world consequences whatsoever.

Kavanaugh also ignored the standard he laid out in Ramos in his opinion in Jones v. Mississippi, the decision involving whether juveniles who commit homicide crimes can be sentenced to life without parole.”

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“Kavanaugh, the median justice on most contentious issues that arise before the Court, is perfectly willing to overrule more than a century worth of precedent. And he’s willing to do so even when overruling those precedents would upend fundamental assumptions about how state election laws work — and who is in charge of deciding how our elections are conducted.

More broadly, much of American law — the constitutionality of the Affordable Care Act, the right to an abortion, the power of the EPA to protect the environment, the power of states to require businesses not to discriminate against LGBTQ workers and customers, and numerous other laws — hinges on the Supreme Court’s willingness to honor past decisions that Republicans don’t like very much.

Liberals, in other words, are depending on the doctrine of stare decisis — the idea that courts should typically be bound by their prior decisions — to stave off a conservative legal revolution.

And as liberals shout for stare decisis to save them, the Court’s median justice is looking down upon them, and whispering “no.””

The Christian right is racking up huge victories in the Supreme Court, thanks to Amy Coney Barrett

Posted on by Lone Candle

“As the Court held in Employment Division v. Smith (1990), religious objectors must follow “neutral law[s] of general applicability.”

Ever since Justice Amy Coney Barrett joined the Court last fall, however, the Supreme Court has been rapidly dismantling Smith…the Court fired a bullet into Smith’s heart. It ruled that people of faith who want to gather in relatively large groups in someone’s home must be allowed to do so, despite the fact that California limits all in-home gatherings to just three households.

Although the Court’s new 5-4 decision in Tandon v. Newsom doesn’t explicitly overrule Smith, the decision makes it so easy for many religious objectors to refuse to comply with the law that Smith is basically a dead letter.

The Court’s new majority has accomplished what amounts to a revolution in its approach to religion and the law, entirely through cases brought by churches and other religious actors seeking exemptions from public health rules intended to slow the spread of Covid-19.

The Court is serious about giving religious conservatives broad immunity from the law — so serious, in fact, that it is literally willing to endanger people’s lives in order to achieve this goal.”

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““California treats some comparable secular activities more favorably than at-home religious exercise,” the majority opinion in Tandon claims, “permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.

As Justice Kagan explains in her dissent, there are three very good reasons why a state might treat these secular activities differently than a gathering in people’s homes. First of all, “when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting,” and the people at social gatherings are “more likely to be involved in prolonged conversations.”

Additionally, “private houses are typically smaller and less ventilated than commercial establishments,” and “social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.”

But, ultimately, none of these distinctions mattered to the Court’s majority. The practical impact of Tandon is that, so long as many religious objectors can cite any secular activity that is treated differently than a religious activity — no matter how distinct those two activities may be — this Supreme Court is very likely to grant the objector an exemption.

Tandon is not an especially surprising decision — the Court reached a similar conclusion last November in Roman Catholic Diocese of Brooklyn v. Cuomo, a decision that I described at the time as a “revolutionary victory” for religious conservatives.”