The Next Potential SCOTUS “Adoption” of Religious Freedom

Disputes over religious freedom have intensified in recent years following the U.S. Supreme Court’s decision in Obergefell v. Hodges that recognized a Constitutional right to same-sex marriage. Most of the nation is aware of the ensuing Masterpiece Cakeshop litigation regarding the dispute between a Christian baker and a same-sex couple over the refusal to bake a same-sex marriage wedding cake. While ruling for the baker there, the Supreme Court unexpectedly sidestepped core First Amendment issues such as free speech and free exercise. It largely ruled on a procedural technicality focusing on unfair bias on the part of the state commission that had brought action against the bakery. In the new disputes revolving around religious freedom, the Supreme Court may take a different approach. In this piece, we will focus on Fulton v. City of Philadelphia, which concerns a Catholic adoption agency in Philadelphia.

Background

In Fulton, the U.S. Supreme Court may address more centralized and substantive Constitutional issues. Here, it will assess a dispute between Catholic Social Services (CSS) and the city of Philadelphia regarding the shut-down of a religious based foster care agency over closely held religious beliefs. This case will also be an early indicator of the impact of the newest Supreme Court Justice Amy Coney Barrett on the Supreme Court’s direction. Early indications are based on oral arguments and the present jurisprudence of the Supreme Court, that this decision will come out to 6-3 in favor of CSS.

There is a question, however, as to how narrow or broad this decision will be and whether it will overturn the controversial Employment Division v. Smith matter from several years prior, most notably authored by Justice Scalia that held neutral laws of general applicability do not violate the Free Exercise Clause.  That case dealt with a substance called “peyote’ that was ingested in a Native American ritual, but also prohibited by state law. This case has aroused much debate and we will discuss a projected impact it will have on this matter. Perception of this case will ultimately be shaped on how the concept of “neutral” is defined.

CSS is a foster care agency affiliated with the Catholic Church and has been a staple of Philadelphia since 1917.  Its foster care services are connected with Catholic doctrine and teachings, thus, the position of the foster care agency is to not provide an endorsement certification for same-sex couples for the foster child placement process. The Philadelphia local government and government agencies have pressured CSS to alter its position and provide the endorsements.  The city government has gone so far as to stop allowing foster children to be placed with families endorsed by CSS. The city cites to its Fair Practices Ordinance that prohibits discrimination on the basis of sexual orientation for support for its position. It should be noted, however, that this has never been applied to adoption agencies. Furthermore, per the facts presented it has been understood that throughout the course of its presence in the Philadelphia community, CSS has never been approached or challenged by a same-sex couple with regards to its policy. During recent oral argument some justices queried whether the city of Philadelphia acted overbroadly and even seemed to be “picking a fight” by the position it has taken against CSS.

Issues

The nuanced issues the Supreme Court will be tackling in this matter are presented as follows:

The Supreme Court will consider whether the plaintiff’s right to free exercise was violated in a discriminatory matter by the city of Philadelphia.

First, there is a question as to if the government would undertake the same conduct versus an entity of another religious persuasion or whether the alleged anti-discrimination law itself is not neutral and generally applicable thus it should be invalidated in its entirety. The latter would assess if this law is in accordance with Employment Division v. Smith and would not necessarily result in that matter being overturned.

Second, there is an issue as to whether Employment Division v. Smith should be revisited and this path would assume that applying the standard and that line of reasoning would be detrimental to plaintiff and violate its enumerated right to free exercise. The Court would then have to revisit the standard and weigh if it remains compatible with the right to free exercise.

Finally, an issue presented is whether the government violated the First Amendment by conditioning the plaintiff’s right to participate in the foster care service by violating their religious beliefs by statements and actions.

Paths of Analysis

Many in the scholarly community have called for the overturning of Employment Division v. Smith because they find it infringes on the right to free exercise. As hostile religious sentiment towards organized religion has developed in society since that decision their argument becomes plausible. The view of religious liberty disputes have evolved. No longer are headlined religious disputes commonly brought on substance abuse comingled with religious beliefs, rather in recent years the focus has been on the fallout of the same-sex marriage decision in Obergefell. Discrimination claims are now being brought against religious small businesses and religious inclined business owners regarding the services they choose to provide. The stakes have been raised in these increasingly divisive litigations. The vague language of Smith regarding a law’s neutrality and general applicability could conceivably be utilized by a more activist judge to umbrella what is at issue in Fulton. The unpredictability and questionable application of this standard forms a basis to their criticism. It can be argued, however, that Justice Scalia may not have had the foresight when Smith was decided that such a ruling would have formed a basis for the potential of a broader based litigious assault on religious freedom interests.

There are other issues that should be considered, however, that could lead to productive debate on the matter. First, whether the city law in of itself has been weaponized and applied to attack the core of a faith belief. It would then not be classified as neutral and generally applicable. Under the facts of this matter, the Philadelphia law at issue has never been applied to adoption agencies. A plausible remedy could therefore find the city of Philadelphia in violation based on its application of the ordinance without disturbing Smith.

 Second, the concept of marriage between a man and a woman is fundamental to Christian, specifically Catholic teaching.  Applying the broad, largely undefined sexual orientation class in the law against a faith entity invites conflict especially if there is no carve out for a religious exemption under the law. This is not representative of neutrality and general applicability. While Catholic Church teaching specifically does not accept sexual orientation discrimination, an activist government actor could broadly expand an understanding of this class to cover the construct of same-sex families. This would then prove problematic for religious entities and compromise their mission for helping children in adoption and foster care agencies.

The faith-based foster agency was not basing its endorsement decision on the basis of sexual orientation as an individual discriminatory matter, it was basing its decision on its theological understanding of family life. A same-sex inclination of an individual is distinct from manifestation of orientation that encompasses a form of family life that the Catholic Church does not recognize. Manifestation itself is not the same as orientation.  This is the position of the Catholic Church, thus in principle an allegation of sexual orientation discrimination against the Catholic Church should be dismissed.

The Catholic Church does not want to be a willing facilitator[1] and endorser of an interpretation of family life not in accordance with its teaching. This path would lead to the conclusion that the law as its written is not in compliance with Smith due to its obvious confrontation with religious interests and cannot possibly be applied in a neutral and general applicable matter unless undergoing serious revision.

Conclusion           

Overall, there are various interests at work here that will ultimately go into the Supreme Court’s final decision. It is highly likely that Chief Justice John Roberts will be in the majority of this opinion and vote in favor of the Catholic adoption agency. He has demonstrated a strong jurisprudential inclination in favor of religious freedom interests with the exception of the recent Covid regulation disputes. As Chief Justice and being in the majority, he would then have the option of assigning himself the majority opinion which would then in fact control how broad the ruling will be in favor of the Catholic adoption agency. He has presented himself to be more of an incrementalistic jurist during his tenure on the Supreme Court, less inclined to overturn long-standing precedent. Look for him to maintain the Smith precedent and rely on arguments focusing on how the Philadelphia law was not neutral and generally applicable. The law’s very nature without a religious exemption has created confrontations with religious interests. In addition, there is no demonstrated history of this law being applied towards adoption agencies, specifically religious based ones. He will likely find a path to highlight this issue and stop short of overturning Smith.

If, however, the Chief does not find himself in the majority or assigns the opinion to Justice Samuel Alito, who has penned several law and religion opinions, look for a more aggressive approach towards Smith. Justice Alito is known to be a stead-fast proponent of interpreting the Constitution to consider its enumerated Constitutional religious freedoms supported by the traditional understanding of the role of faith in our nation’s history. We will continue to follow this case and update you on its developments.


[1] As an aside, the facilitation argument has been considered in the Little Sisters of the Poor litigation that concerned providing contraceptive and abortifacient coverage against the Church’s beliefs. Not the same facts, but facilitation here is an interesting point connecting to faith interests.

Reflecting on the Jurisprudence of Justice Amy Coney Barrett

Justice Amy Coney Barrett has recently been confirmed to the U.S. Supreme Court and will likely have a profound impact on Constitutional law for years to come. Prior to being confirmed to the Supreme Court, she served as a judge on the 7th Circuit federal court, was a former Notre Dame law professor and former clerk to the late Supreme Court Justice Antonin Scalia.

She was nominated by President Donald Trump to fill the vacancy on the U.S. Supreme Court left by the death of the late Justice Ruth Bader Ginsburg. Justice Ginsburg was a liberal jurisprudential icon and the addition of Justice Barrett will likely shift the court in a more conservative constitutionalist direction. In this piece we reflect on Justice Barrett’s philosophy and consider a couple of her articles that she wrote as a law professor and a key opinion as a federal judge that gathered attention during her confirmation hearings.

The scholarly articles we will focus on are Precedent and Jurisprudential Disagreement and Congressional Originalism. In these works, she clearly demonstrates a respect for precedential value of prior court decisions, but would not shy away from revisiting them when the correct opportunities arose. She also clearly articulates in her works the distinct roles of the judiciary and legislature when assessing Constitutional issues and the distinct responsibilities of both branches when considering the value of precedent.

The decision we will focus on is her dissenting opinion in Kanter v. Barr which drew a lot of attention during her confirmation hearings. Much like her mentor Justice Scalia, in this opinion she provided an assessment that carefully considered the role of history.

Scholarly Articles

In Precedent and Jurisprudential Disagreement[1], Barrett focuses on an assessment of stare decisis (the method of interpretation of adhering to prior precedent) and how judges should properly consider it in cases and its limits. She opens by explaining that Constitutional cases are more subject to a close stare decisis analysis that could lead to re-contemplating precedent than statutory matters where the concentration is interpreting statutes passed by Congress. 

A goal of stare decisis is to resolve jurisprudential disagreements. A decision to overrule precedent, however, does not come lightly. From Judge Barrett’s view, there is a burden on those willing to overturn precedent to make a compelling and comprehensive case justifying the reasoning. An ideal view does not allow for disruptive action in Constitutional law just by a new majority without thoroughly vetted consideration. Reliance interests must be one of the factors in the decision-making process and requires reflection on the present societal and institutional investment in the prior decisions. A judge should strive to obtain a special justification if so persuaded to challenge the precedent. If there is material uncertainty within the decision-making process on whether to overturn the decision, maintaining the present standard would be the optimal position. She acknowledges, however, that a less extreme approach would focus on choosing to not extend precedent rather than overturning it. This is a more narrow and less controversial view. Naturally, the line of law then would no longer present the dominant standard to facilitate the adjudication of the area.

Judge Barrett is skeptical of the argument, however, that if the decision is made to overrule precedent, it affects the Court’s actual legitimacy. She states:

“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

She does add, however, that consistent upheaval in the law would not be optimal, thus the emphasis on special justifications for challenging precedent. She also cites to our historical understanding of the Supreme Court in that overturning prior decisions is not “out-of-bounds”, but the decision to proceed in that matter can be categorized as “exceptional”.

Overall, when reflecting on Judge Barrett’s view on stare-decisis she takes a tempered, but realistic approach. While she acknowledges that the doctrine presents a compelling factor in Constitutional interpretation and circumstances are limited in which prior decisions should be overturned, she does not totally discount overturning prior decisions. For Judge Barrett, there must be comprehensive support for making this decision after deftly balancing reliance interests with the judge’s chosen method of Constitutional interpretation. A special justification may in fact be present in the appropriate situation and this is consistent with our understanding of the practice of the Supreme Court. Unlike what has been portrayed in some commentary outlets, this is very much a mainstream and respectable way of judging.

In Congressional Originalism[2], Judge Barrett discusses the interpretative theory of originalism and how it is considered by Congress when crafting policy and law. Judge Barrett begins by reflecting on the current meaning and application of the theory. The current interpretive style of originalism focuses on the original public meaning. It would require an assessment emphasizing the textual meaning at the time of ratification as a whole, broader than simply the intent of the framers. There is a concentration on historical context in helping to understand how the law should be interpreted today. Judge Barrett devotes the piece on considering whether legislators in Congress are bound to this interpretative style when passing laws and crafting policy or whether it is something only within the purview of the judicial branch.

Discussion is then provided on the concept of “super precedent” Supreme Court decisions and how Congress should handle them. You may recall this was a common topic during her senate confirmation hearings following her nomination to the U.S. Supreme Court. The defining qualities of super precedents are discussed and an evaluation as to the obligation of the legislators to uphold them or pass laws circumventing them is considered. Super precedents are classified as Supreme Court decisions invoking foundational doctrine and practice that have withstood the test of time. Judge Barrett categorizes them under five characteristics: (1) endurance over time, (2) support by political institutions, (3) influence over constitutional doctrine, (4) widespread social acquiescence, and (5) widespread judicial agreement that they are no longer worth revisiting.

Among the cases that Judge Barrett cited as falling under this standard are Marbury v. Madison, Brown v. Board of Education and the Civil Rights cases. These decisions have become a major component of the fabric of the law and have wide acceptance among the people of this nation. These cases will likely never be challenged and resurface on the Court’s agenda. Focused briefing is required for petitions to the Supreme Court and the Supreme Court has the authority to grant or deny certiorari based on the legal questions presented in a given petition. This undoubtedly presents a thorough filter that will maintain the super precedent. This is the core of how super precedent remains intact, not simply relying on the nature of a stare decisis assessment in the general sense of committing to blindly maintain precedent.

In terms of Congress, legislators can avoid passing laws that would entangle with super precedent by maintaining the presumption that the precedent is constitutional. Judge Barrett was careful to point out, however, that this does not mean the legislature classifies the precedent as an absolute, but rather it is settled in the sense of not requiring policy to address it. While Congress has the authority to reexamine them, by no means are they obligated to or in the case of super precedent, inclined to do so. The super precedent may in fact be contrary to the original meaning and failing to correct it, however, does not necessarily mean that the originalist legislator is in agreement with the flawed interpretation.

As a practical matter an attempt to reconsider, while possible is simply impractical given the circumstances. Just as the Supreme Court would only reconsider in response to a litigant’s petition, so too would Congress be likely to reconsider if pressured by the electorate. The nature of the issues are settled by a vast swath of electorate in cases of super precedent so pressure is unlikely. Judge Barrett, however, makes an able comparison- the judiciary and Congress can be moved (or not moved) by the people. It just depends in what form – whether it is litigants in the context of the court of law or elections when selecting representatives in Congress.

Judge Barrett further explains that the judiciary and legislature are not required by the Constitution to correct every constitutional error that may arise. Congress by its very nature considers political interests when determining when to devote time to address alleged constitutional errors. Until the time arises, questions are deemed settled.  This should not be construed, however, to conclude that Congress should be defying the Constitution, rather the central focus of the view holds that constitutional interpretations are subject to change and Congress has the autonomy to decide when to become entangled in the issues and perhaps apply the originalist view to the law-making process.

Case Law

During Judge Barrett’s confirmation hearings, a great deal of focus drifted towards some of her opinions as a 7th Circuit judge. We will cover her dissent in Kanter v. Barr[3] here. This one attracted significant attention during the hearings and concerned Second Amendment issues.

In Kanter v. Barr, Rickey I. Kanter pleaded guilty to one count of mail fraud under 18 U.S.C. § 1341. In his business, he submitted foot inserts to Medicare for approval before sending them to podiatrists. They initially failed the approval process.  Later, a new batch of inserts would be approved, however, Kanter had continued to sell the non-compliant inserts with marketing that they were Medicare approved. Kanter, however, had no history of any form of violent or domestic crimes.

Due to his felony conviction, he was prohibited from possessing a firearm under both federal and Wisconsin law. At issue in this case was whether the felon dispossession statutes— 18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m) —violated the Second Amendment as applied to Kanter. The 7thCircuit ruled that even if Kanter could bring an as-applied challenge, the government has met its burden of establishing that the felon dispossession statutes are substantially related to an important government interest.

Judge Barrett dissented and relied on historical assessments to support her view that there should be a categorization of felons when pursuing a means of depriving them of their enumerated rights. She articulates that Kanter’s status as a non-violent felon should have been persuasive and his conviction of mail fraud bears no relationship to a substantial government interest in curtailing gun violence. She proceeds to cite to historical text in the early colonies that showed laws meant to disarm or keep weapons out of the hands of dangerous criminals. The historical record is inconclusive on removing weapons from all felons just because of the nature of being broadly categorized as a felon.

These legislatures “intended to disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety.” Public safety interests were a primary concern for these legislatures. Judge Barrett concludes that “absent evidence that Kanter would pose a risk to the public safety if he possessed a gun, the governments cannot permanently deprive him of his right to keep and bear arms.”

Judge Barrett is also critical of the majority’s opinion that relied on statistics claiming convictions of nonviolent felons can predict future violence. The majority relied on this to help illustrate the state’s substantial government interest in stopping gun violence. The statistics, however, did not differentiate between the non-violent felons to provide a comprehensive assessment. For example, one could reasonably consider that a Medicaid fraud felon without a prior violent history could be treated differently than a drug felon with a history of domestic violence. It was not proven in the given facts that Kanter showed a propensity with his traits or any pattern of violence to justify being deprived of his Second Amendment rights.

Overall, in the Kanter matter, this dissent invoked memories of Justice Barrett’s mentor Justice Scalia in using a historical approach to advocate for a position. From a pragmatic standpoint, this dissent is very persuasive and looks to further assess the analysis in a fact-specific way by considering the comprehensive background of litigant Kanter. Justice Barrett presents a reasonable method to filter claims that could deprive convicted felons their enumerated Second Amendment rights. The intent is to restrict firearms access to dangerous felons, but we cannot fall into the trap of painting a broad brush in having government overstep its power. It is not necessary given the set of facts presented here of a non-violent felon that did not carry a violent history.

Conclusion

These works are a sample of insight into Justice Barrett’s jurisprudence. We can say, however, with relatively strong certainly that based on our analysis, Justice Barrett will be a judge that considers revisiting precedent from time to time if the right opportunity was presented before the Court. As part of her balancing test, however, she would consider reliance interests and take a fair, methodical and reasonable approach. Also much like her mentor Justice Scalia, she will use history and rely on original public meaning interpretation as tools to formulate her position.

As the Supreme Court presently stands- Justice Sotomayor, Justice Breyer and Justice Kagan are in the left of center camp with Sotomayor the farthest left. Chief Justice Roberts presently comprises the ideological center with having been a deciding factor in recent years in decisions that have benefited both the left and the right. Justice Gorsuch and Justice Kavanaugh, although currently early in their tenures are to the right of Roberts in that order based on a small sample size. Justice Gorsuch has sided with the left on various occasions such as issues dealing with Native America rights and sexual orientation as a protected class. Justice Alito is positioned to the right of Kavanaugh with the most consistent record from his longer tenure and Justice Thomas to the right of Alito. Justice Thomas has taken a far bolder approach to major issues even in dissents and concurrences. He has embraced Constitutionalism in its purest form.

An early prediction for Justice Barrett is that she will fall either in between Kavanaugh and Alito or perhaps even Alito and Thomas. She is an excellent asset to the Supreme Court and we look forward to watching her impact on the further development of Constitutional law in the years to come.



[1] Amy C. Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711 (2012-2013).

[2] Amy C. Barrett & John C. Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1 (2016).

[3] Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).

RBG on Law and Religion Part 1

Supreme Court Justice Ruth Bader Ginsburg, the second woman to be appointed to the Supreme Court following Sandra Day O’Connor passed away after a heroic bout with cancer. She was nominated to the Supreme Court by former president, Bill Clinton and replaced the late jurist Byron White who we have discussed in prior pieces. One must respect her early work as a litigator with regards to women’s issues and seeking legal reforms along with her tenacity to battle through her many health issues in recent years. She was also a close friend of the late Justice Antonin Scalia and proved that differences in ideology do not always need to come in the way of friendship.

Justice Ruth Bader Ginsburg

Respectfully, however, the purpose of this blog is to educate on several issues including on law and religion. As a Supreme Court justice her work in this area has left much to be desired. In this piece, we will reflect on a couple of her opinions in controversial law and religion cases and gauge the probability of these opinions having a lasting impact on the law. We will focus in Part 1 here on her majority opinion in Christian Legal Society Chapter of the Univ. of Calif. v. Martinez (2010) and dissent in American Legion v. American Humanist Assoc. (2019).

I.        Christian Legal Society Chapter of the Univ. of Calif. v. Martinez

In Christian Legal Society Chapter of the Univ. of Calif. v. Martinez, the Court assessed whether a campus student organization, Christian Legal Society (CLS) was in violation of an “All Comers” policy instituted by the school to welcome any student into their respective student group. The organization in question had a policy that did not allow membership to those that were involved in relationships that were in violation of Christian teaching. If the organization did not comply with the “All Comers” policy, it would not receive funding.

The Supreme Court held in a 5-4 vote that the school should not be compelled to alter its “All Comers” policy to allow for exclusion of students based on conduct. In the majority opinion authored by Justice Ginsburg, the Court held that the Christian student organization in question did not meet the standards to be classified as a Registered Student Organization (RSO) that required the organization to be adherent to state law policy barring discrimination on several bases including religion and sexual orientation.

The Court found that the limited public forum standard applied was both reasonable and viewpoint neutral, and therefore did not violate CLS’s right to free speech. The right to expressive association was also not violated because the Christian student organization was not forced to accept members, it simply restricted access to facilities and funds. It also claims no religious beliefs were violated but that the policy was neutral and applied to all student groups.

The Court also found persuasive the argument that the financial assistance to groups came from mandatory student fees and the school did not want to compel funds from students that would be rejected as a member from the general student body. The Court also found that the school would necessarily undergo a daunting task of having to ascertain the group’s motivations to exclude members with a belief vs. status investigation. Finally, the precedential state law discrimination principles would necessarily apply and were not outside of the Constitutional limits.

One could argue that this decision may be challenged in the future with a different composition of the Supreme Court. One of the major aspects of Justice Ginsburg’s opinion that could be subject to challenge is the belief vs. status assessment that is the core of the decision. In its most basic premises, the student group did not restrict membership on orientation, but rather on lifestyle. While there may have been a restriction for those actively in a homosexual relationship, that same restriction could have seemingly applied to those in a heterosexual relationship actively engaging in consummation outside of marriage. In both of these cases, the bedrock is belief and active lifestyle, not status. It does not matter the homosexual or heterosexual inclination; it is rather the lifestyle decisions and beliefs of the prospective member. A faith-based student group likely sought to preserve the religious mission by admitting members that follow their respective belief system.

There could be a plausible argument to be made that the school actions targeted an organization with a faith mission. It is different if there was evidence stating status was the defining issue for restriction, but that does not appear in the facts. Furthermore, the Court weakly presented that it would be a “daunting” task to ascertain the student group’s decisions to assess if there was a status violation. The “daunting” task should have been of no concern to the Court, it is not the Court’s responsibility to engage in commentary opining on the school’s status of individual protocol implementation to conform with the law. Its position is to merely interpret the law as written and apply it to the given facts.

A Supreme Court decision finding the school in error would also be harmonious with the pre-existing state law that prohibited discrimination on religion and sexual orientation. The Court would in fact be clarifying that there was religious discrimination by the school in violation of the state law, but no violation on the part of the organization with regards to sexual orientation because it was never established as a restricted group based upon these facts. If the Court was to make a sound pronouncement, it could find the school in violation of state law.

There is a counter-argument, however, that Justice Gorsuch’s decision in Bostock this past term would in fact strengthen the majority opinion here when assessing belief vs. status. There he wrote in the majority opinion that sexual orientation could be violated under the gender class in Title VII discrimination matters. He found that necessarily there would be a gender violation because it is the nature of the respective gender itself that created discriminatory sexual orientation conduct based on gender expectations. The argument as applied here would likely present that expectations of sexual orientation would bear on decisions of admittance into the student group with the understanding that certain lifestyles must be adhered to depending on the nature of a respective sexual orientation.

While a formidable challenge, it can still be contested because the interest of religious belief must be weighed accordingly. The text of the state law clearly states there must be no discrimination based on religious belief.  Any type of a sexual orientation expectation relating to consummate relationships here would necessarily fall under religious belief of the mission of the organization, not on a matter of orientation alone. It presents a general principle, not animus towards a respective individual. There would be compliance with the All-Comers policy so to speak because the group in of itself is open to everyone, however, it is the decision of the individual as to whether they believe their lifestyle complies with the mission. If their conscience lifestyle decisions are not in compliance with the mission, then they could not proceed to becoming a member, but this does not change the fact that the group was initially open to them. Furthermore, it provided under the group’s rules that there was an allowance for an evolution of lifestyle decision-making that eventually reaches compliance with the mission of the group.

Overall, if this case was revisited again, it is not unrealistic that the Supreme Court would carefully reconsider the nature of the religious interest under these or similar facts and be protective of the group’s religious mission.

II.        American Legion v. American Humanist Assoc.

In American Legion v. American Humanist Assoc., the Supreme Court ruled that a WWI memorial cross erected on now public land near a highway does not violate the Establishment Clause. It was originally erected as a tribute to WWI veterans when it was still private land. The land was eventually sold to the government and a highway was built around it. The cross is an imposing structure but it clearly stands as a war memorial monument. The majority opinion authored by Justice Alito articulated that the cross, although originating as a Christian symbol, later assumed a secular meaning. Its historical importance diluted its Christian symbolism. Government action to remove the memorial could also be considered on its surface an appearance showing hostility towards religion.

In Justice Ginsburg’s dissent, she emphasized that the cross is staple symbol of Christianity and its nature as a war memorial does not change this symbolism. She argued that the cross on now public land presents the appearance of prioritizing Christianity over other faiths and non-religion. Justice Ginsburg would have remedied the situation by relocating the monument to private land or by transferring ownership of the land and monument to a private party.

Here, Justice Ginsburg failed to focus on the original intent of the Establishment Clause. The Establishment Clause was enacted to prohibit government from compelling a religious belief on its population and in turn have a church that is state run, modeled like the Church of England. A factor for early settlers in the colonies in their decision to depart England was the religious intolerance shown towards their beliefs. Protestant sects that broke off from the Church of England were looked upon disfavorably as were Catholics and other faiths. They experienced various forms of persecution. The King of England was the defacto “head” of the church and government was largely an influence in its faith practice. The framers wanted to avoid a similar situation, for example a figure like George Washington being the head of the “American Church” with various sects experiencing persecution if not part of this tradition. Another example that was to be avoided was forcing people of faith to convert to a respective sect or punishments for not being a person of faith.

Now, in the present day we again reflect on the cross. The cross is a symbol of Christianity, but much like the Christmas Creche debates and Menorah debates, a representation of such a symbol does not amount to compulsion. One could argue the Supreme Court here did not go far enough in focusing on this point, but instead rather the “evolving” conceptual understanding of the memorial. Nowhere in the facts does it state that there was punishment in the local community via monetary or another form for not being a Christian. The cross itself does not have this power, nor does it show that the government favors a religious preference and actively addresses it over other faiths. If a Menorah was to be put up next to it for Jewish veterans, that would also not amount to a violation. It is representing the faith reflection of a local community, not compelling others to join the community or be used as a tool for animus towards other beliefs. The outcome of this matter would be different if a Menorah bid was made and was rejected for unsubstantiated reasons that hinted at animus.

III.       Conclusion

Overall, the direction of the Court will likely transition to greater protection for religious freedom and conscience rights if Judge Amy Barrett is to be confirmed to the Supreme Court in the spot left vacant due to the death of Justice Ginsburg. She was a clerk for Justice Scalia and has written on law and religion issues. Her jurisprudence and scholarly assessment will be the topic of a future post. It is not unrealistic to suggest that the Court may reassess the issues presented in Christian Legal Society with a more sympathetic view towards religious interests. In American Humanist, however, the Court has continued its movement towards broader acceptance of religious symbolism compatible with the Establishment Clause. With the addition of Judge Barrett, the Court may take a bolder approach to these matters and could consider more seminal issues such as reassessing the role of prayer in other aspects of life such as education and extracurricular activities sponsored by schools. It will be an interesting evolution to consider.

Cancel Howard Zinn

The nation has reached contentious times with the erosion of the very fabric of American civilization in a slow, but methodical manner. How did we get to this point? This is the question that is not commonly asked. When statues are torn down and team mascots changed because of a destructive sense of American guilt complex, how do we respond?  Its time we start to focus on the origins in order to avoid these destructive effects.

This problem has impacted every American whether they are a republican, democrat, conservative, liberal, male, female, religious believer, atheist or any race. The American culture is shared by all of these diverse groups, the time has come to make strides to preserve the culture. Yes, every nation has a dark past and imperfections at some point in their history, but also every nation has time periods of prosperity and cultivation, innovation and optimism. Today, in the American education system from the lowest to the highest levels there tends to be an engrained sense of American guilt complex most notably found in social studies, history, literature and civics courses. These courses help mold the moral compass and view of the world that is shared by young people who will one day grow to be leaders in society whether that be on the cutting edge of business or science or caring for a family. This guilt complex did not come about overnight, but over a period of several decades and years. In order to begin a healthy reform process, we must cut to the core of the problem. We need to focus on the seeds rather than the weeds that have sprouted. A bad seed that contributed to the origins of this problem were planted by an individual named Howard Zinn and we will examine how his philosophy has grown to become almost an uncontrollable weed on our education system, while simultaneously misguiding generations of Americans. Perhaps we should give cancel the Zinn legacy before it fully engulfs our nation.

Howard Zinn published a well-known historical book, called “A People’s History of the United States”.[1] It was ground-breaking in the sense that it articulated in a lone volume the American guilt complex that has grown to become a bedrock of our education system today. It concentrates on the concept of victimization that was brought on by colonial and corporate interests that have allegedly suppressed the people. It promotes a misguided and impractical sense of egalitarianism that if in fact allowed to occur would never have allowed for true progress defined by the authentically American trait of innovation. We break down 3 of the many points in his books that raise significant issues- Christopher Columbus, The Founding and World War II and address why we cannot accept the Zinn narrative of these critical points in history.

Christopher Columbus

Zinn emphasizes some major points in his distorted retelling of history. First, he presents Christopher Columbus as an imperialist bigot that sought the destruction of native people when arriving in the Americas. In his book on page 9 he makes the outrageous claim that “the treatment of heroes (Columbus) and their victims (the Arwaks) [Indian tribe] – the quiet acceptance of conquest and murder in the name of progress- is only one aspect of a certain approach to history, in which the past is told from the point of view of governments, conquerors, diplomats, leaders.”

 While we can acknowledge that conflict existed between explorer expeditions and tribal natives in the new world at times, to classify the overall intent of the exhibitions as a murderous enterprise is in error. Columbus pursued his mission and lined up his royal resources and funding based on stories of new land cultivation and treasure that was said to be ready for development in the new world. The mission for him to travel across the world was not embarked upon to commit murders and atrocities. While surely some men in his exhibition may have been dishonorable with their actions or in fact took arms to defend themselves – to generalize conflicts that would later arise and define the exhibition on those terms truly distorts history. This issue has a direct correlation to misinformed education that has now cultivated in tearing down statues of Christopher Columbus nationwide and making him an alleged scapegoat for a wholly unrelated tragic occurrence in Minnesota. To get to this point, to connect Columbus naturally with racism and genocide has been years in the making and has finally begun to bear fruit. In his revisionist history, Zinn conveniently brushes aside the many collaborative efforts with native peoples and explorers that led to a blossoming and prosperous relationship with communities in learning the land and appreciating its vast resources. It was also not uncommon for several of the explorers to mate and mix with native peoples, thus leading to a diverse family racial structure that remains visible today.

The Founding

Second, Zinn challenges the legacy of the Founding Fathers. On page 89 he takes a radical view in what he sees as the true purpose and end game of the revolution:

“The inferior position of blacks, the exclusion of Indians from the new society, the establishment of supremacy for the rich and powerful in the new nation- all this was settled in the colonies by the time of the Revolution. With the English out of the way, it could now   be put on paper, solidified, regularized, made legitimate, by the Constitution of the United States, drafted at a Convention of Revolutionary leaders in Philadelphia.”

This is minimizing the Revolution, founding of the nation and enactment of the Constitution as simply a rubber stamp to oppress those in society. Zinn conveniently fails to mention that the Constitution itself was a ground breaking document in establishing liberties and a cohesive government structure that would later serve as a beacon to the world.

For example, several founding fathers including Alexander Hamilton were abolitionists and fiercely detested the practice of slavery. Hamilton was among the founding fathers that fought tirelessly for the Constitution’s ratification in bridging many interests that needed to be balanced at that contentious time. Zinn declines to mention that the phrase, “slavery”, itself was not specifically provided in the Constitution. Although, the text references the 3/5 clause and connotations such as those held to service in labor, the word slavery is never used. If in fact the Constitution was to be a rubber stamp on encouraging this practice to continue for generations, why does it not even appear by name and feature as a heavy point of emphasis in the document? Furthermore, why is there an amendment procedure clearly outlined in the Constitution that allows for the document to undergo reform with the times as the generations progress? A rubber-stamped document with an emphasized mission to preserve prior controversial practices would not allow such flexibility and an amendment process that allows for change. This is the same process that would eventually allow for the United States to ban slavery and serve as a model for the world. The healthy seeds were planted for this monumental moment at the time of the founding. Howard Zinn carelessly disregards these facts to provide an alternate and destructive understanding of history.

Zinn is not finished with the founding, rather, he continues in his work on many occasions to not tell the entire story and establish a proper context. He cites to the creation of the Bank of the United States in the early days of the nation. This project was spearheaded by Alexander Hamilton. Zinn categorized this project in the following manner on page 101:

“Hamilton, believing that government must ally itself with the richest elements of society   to make itself strong, proposed to Congress a series of laws, which it enacted, expressing   this philosophy. A Bank of the United States was set up as a partnership between the government and certain banking interests. A tariff was passed to help the manufacturers. It was agreed to pay bondholders- most of the war bonds were concentrated in a small group of wealthy people- the full value of their bonds. Tax laws were passed to raise money for this bond redemption.”

While Zinn is correct here in pointing out some of the features and structure of the Bank, he does not provide the context as to why its establishment was so important and why Hamilton looked to some of the wealthier elements in society to help in its enactment. The way he has prepared this point- it seems worded to contemplate in a negative light, the concept of looking to those with economic resources to help provide a foundation for the project. Its more than just allying with rich interests and repaying a small group of wealthy people their bonds in full value, it’s creating an economic outline for the nation’s future growth.

Hamilton had recognized that the nation, having just come off war was in desperate need of financial organization. War debts were still owed and rival nations across the globe still posed as threats. The nation needed to be stabilized in its early days with a solid banking system to allow for channels of economic productivity and the capability to raise funds through taxing to maintain a military to serve national security interests and pay down the debts. The highest economic levels of society were prepared to assist in this mission and the Bank of the United States was formed.

World War II

Third, on WWII, Zinn makes several controversial points. One in particular that shows a shameful distortion of a historical narrative is his discussion on the atomic bombs being dropped on Hiroshima and Nagasaki to end WWII. On pages 422-423, he takes issue and challenges the Allied intelligence that estimated hundreds of thousands of troops would have died had an invasion been done on the Japanese soil. He further states that the Japanese would have eventually surrendered and were engaged in discussions of that nature, but were adamant against unconditional surrender which included the leadership of Japan as the Allies demanded. He even queries that it may have been the concept of money and effort that would have been squandered if the Allies did not in fact proceed with the bomb that led to the final decision.

These allegations portray a dangerous distortion of history and are not established in a fact appropriate context. As President Truman agonized over the decision to drop the atomic bomb, he considered the many Allied lives that were lost by this point in the war after a long 4 years of America’s involvement. He had the resources to avoid further serious bloodshed to the Allied troops and took action. A key point that is never mentioned by Zinn, however, is that 11 days prior to the first atomic bomb being dropped on August 6, 1945 over Hiroshima, he demanded formally with the Potsdam Declaration the Japanese’s unconditional surrender.[2] Leaflets were also dropped for civilians to heed the warning and evacuate the cities. The Japanese failed to respond and the first bomb was dropped.  Truman issued another warning via radio address that was not heeded before the second bomb was dropped a few days later on August 9, 1945.[3] The Japanese would then surrender shortly after the second atomic bomb was dropped.[4]

Permitting the leadership structure to remain intact in Japan and agreeing to not force an unconditional surrender would not have been a good decision. The Japan leadership during the war was responsible for many deaths in the Pacific Theatre during the war and that does not include the attack on Pearl Harbor on December 7, 1941 that would later bring America into the conflict. In order to move past this horrific era in history, there needed to be left no doubt that the evil stemming from the Axis powers would no longer be tolerated in any form post-war and not be permitted to return. It is also lost that there were opportunities for the Japanese to peacefully end the conflict, but the stubbornness and failure of the leadership to appreciate the stern warnings ultimately led to destruction. For several years after the war, the American with the Allied remained committed to rebuilding and restoring Japan following the destruction stemming from World War II. America did not abandon them despite the destructive conclusion of WWII.[5]

Zinn makes no mention of any of these points that establish a context for the actions at the end of World War II. Furthermore, his suggestion that perhaps monetary and prideful interests were major factors in Truman’s decision-making disrespect the honor of President Truman who was faced with a very difficult decision. If such interests were as compelling as Zinn would make us believe, there would not be a necessity to make the effort to warn Japan and their people. At any point Japan, could have chosen to heed the warning and Truman would not have had to act so decisively, but they exerted their free will and chose not to.

Conclusion

Overall, a common theme running through Zinn’s work is the concept of the people rising after being suppressed for generations. It is influenced from Marxist philosophy in which class warfare is desired to forcefully disrupt and overthrow the system. It lacks a sense of individualist and narrow focus, wholly abandoning reason for a generalized sense of emotion.

For example, even in addressing America’s dark time of slavery, Zinn fails to appreciate that reform did occur. Instead of praising the American way for being at the forefront of abandoning the practice and promoting the abolition movement he dwells on the slavery practice as defining us as an imperfect people incapable of removing its stain. He would rather us base our policy and philosophy today on past transgressions rather than appreciate the greater points of innovation and true progress of the American way that pushed for healthy societal reform. The interpretation of history articulated by Zinn, not only distorts the true historical narrative of America, but also creates a guilt complex that has culminated in societal unrest that we witness today. Education is key to the reform of society, but it also has the capacity to push society into the abyss with misinformation. As school begins this fall, let’s cancel Zinn and his distorted historical narrative.


[1] Zinn, Howard.  A People’s History of the United States.  New York, HarperCollins, 1980.

[2] https://www.trumanlibrary.gov/education/presidential-inquiries/decision-drop-atomic-bomb

[3] https://millercenter.org/president/harry-s-truman/key-events

[4] https://www.crf-usa.org/bill-of-rights-in-action/bria-15-3-b-choices-truman-hirohito-and-the-atomic-bomb

[5] https://www.theatlantic.com/photo/2014/03/japan-in-the-1950s/100697

Justice Alito’s Scalian Fury

This past term at the Supreme Court offered some surprises with several controversial cases decided. We have touched on Chief Justice John Roberts’ role in these decisions, but we cannot neglect the resistance offered by U.S. Supreme Court Justice Samuel Alito this term. His dissents were fiery and often embraced a Scalia approach with combative, but well-grounded legal reasoning unafraid to call out the majority’s perceived drift from the Constitution. In general, Justice Alito has been a relatively stalwart Constitutionalist during his tenure unlike that of the Chief, a fellow appointee of former President George W. Bush. We will break down Alito’s dissenting opinion in perhaps the most controversial case, Bostock v. Clayton on the redefinition of Title VII to include sexual orientation as a protected class.

This has been rightly billed as among the most controversial if not the most controversial case during this Supreme Court term. Justice Neil Gorsuch, in writing for the majority composed of Chief Justice Roberts, Justice Ginsburg, Justice Breyer, Justice Sotomayor and Justice Kagan redefined the scope of Title VII employment discrimination to include sexual orientation despite not being explicitly defined in the statute. Justice Gorsuch attempted to display in his reasoning that on the basis of “sex” that is provided in the statute naturally leads to a definition of sexual orientation based on the discriminatory conduct stemming from the sex choice of claimant’s relational choosing. This majority opinion is vulnerable to substantial criticism as even those voting in the majority adopted different reasoning to support the outcome in addition to the expected scathing challenges of the dissenters.

Facts and Arguments

In Bostock, this matter combined two cases – one a county employee in Georgia was fired for participating in in a gay softball league and the second an employee was fired from working in a funeral home for being transgender. Gorsuch emphasized that sex is a necessary factor in the employer’s decision making and pointed out that the employer maintains expectations of the male and female and considered the “traits” of their sex’s expected behavior before making the discharge decision. He finds that “homosexuality and transgender status are inextricably bound up with sex”.

Justice Alito then provided a scathing dissent challenging the premises of Justice Gorsuch’s interpretation. He opens with explaining that the Supreme Court has usurped authority of other branches of government, namely here the legislature to rewrite a statute. He classifies this action as “preposterous” and invokes memories of energetic Scalia dissents. He even cited to Scalia’s legacy and work in his book “A Matter of Interpretation” by plainly stating that this is an opinion Scalia would have “excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” This also reflects some of Judge Robert Bork’s view that we have spoken about in prior pieces to deter judges from relying on new societal drifts to promote activist opinions.

In taking aim at Justice Gorsuch’s argument that the orientation is intrinsic to sex he relies on the following example: “an employer can have a policy that says: ‘We do not hire gays, lesbians, or transgender individuals.’” He adds that “an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants.” He concludes that “an employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge.” Justice Alito is arguing that this proves that orientation is not intrinsic to sex, therefore it is impossible for an employer to base a discharge decision on sex if orientation is the given trait provided in the policy. They are clearly two separate classes.

Another strong argument made by Justice Alito is in the context of linguistics. He articulates that the phrase “sex” is used in several modifiers such as sexual intercourse. Is this now protected under Title VII? Deriving from Justice Alito’s analysis here, let us consider the following example. Could a plausible action be brought under Title VII by an employee that was discharged for sleeping with the CEO’s wife? Per Justice Gorsuch’s assessment there would be protection there as it is connected with the concept of sex as one’s sex is being acted out necessarily with regard to orientation. This “sexual” intercourse would seemingly fit under the umbrella of “sex” as a simple noun. The door that has now been opened could seemingly lead to more outrageous ends based on a reading that adds substance that was not intended when the statute was passed.

Effects                

Justice Alito raises the concern that this standard can now lead to a slippery slope and prove detrimental in other areas of society. One area he pays special attention to is the concept of professional sports. A path has perhaps been made for a case in which an individual with clearly identifiable masculine traits developed from birth considers a transition and new classification to a woman, thereby making himself eligible to participate in women’s professional sports such as basketball. This would then leave the various sports owners in a difficult position and perhaps lead to a Title VII action under the sex classification. Calling into question the fairness and legitimacy of the league to the naturally women participants would create an array of problems and in fact be detrimental to these women. The statue had also intended to protect women and this directly compromises this purpose. This stems from Gorsuch’s broad interpretation of what constitutes sex to now include transgender and transitioning individuals. Adherence is no longer firmly with regard to birth traits, but rather has opened a conflict between the physical characteristics and the “view” one identifies with from a mental standpoint.  Unnecessary complexities have now been added to the equation and will now pose significant and unclear hurdles. What is the balancing test for the physical vs. the mental sex expectations? How long has one been fully transitioned? Is there a time frame for that in order to be accepted as full female or full male? Does this raise the specter of fraud- can one transition mid-way through a fledgling NBA career and switch to WNBA right away if going through the appropriate administrative channels? The Bostock decision has left open a wide range of possibilities and future complications for adjudication of Title VII.

Justice Alito was also concerned about the religious impact stemming from the issue.  While he acknowledges that faith institutions have pre-existing defenses such as the ministerial exception that protect them in some situations if teachers are communicating a lifestyle contrary to the faith’s message, claims will still be brought. Claims based on failure to hire or unjust discharge based on such issues as sex reassignment and types of romantic relationships remain possibilities, especially if the concept of minister has an unclear application to certain employees. The lower courts will have to overcome these hurdles, but he did note that the Supreme Court will soon be addressing these issues.

State Law

Finally, drifting away from Justice Alito’s opinion, there is another plausible argument that can be made that strongly challenges the underlying principles of the Bostock opinion. Nineteen states[1] have passed employment discrimination statutes that maintain a separate class for sexual orientation under the law. This is not a small minority of states and supports the view that at the state level there was not widespread intent to incorporate orientation claims under the umbrella of sex with regards to employment discrimination. It proves this is yet another example where judicial minimalism should have been given paramount consideration considering the clear text of Title VII and the established practice of several states understanding orientation as a separate and distinct class.

Conclusion

Overall, the Bostock opinion was surprising to some and has raised more questions than answers with the future adjudication of Title VII claims. It will have a monumental impact, but the questions that it creates will continue to be adjudicated in several forms. It will unnecessarily complicate this area of litigation and the ensuing debate returns us back to a seminal issue. When judges drift from the original intent and textual interpretation, they find themselves in dangerous territory and risk assuming roles best left to other branches of government. One could argue that this is what in fact occurred here. A major takeaway from this term and most specifically this decision, however, is the boldness of Justice Alito to embrace a bit of the Scalian fury to challenge what he perceives as judicial activism. The Scalia legacy is alive and well and this term Justice Alito wholly embraced it.


[1] https://www.ncsl.org/research/labor-and-employment/sexual-orientation-in-employment-discrimination-laws.aspx

A Few Words on Hamilton

Today, July 12, marks the death anniversary of one of our greatest Founding Fathers- Alexander Hamilton also known as Publius stemming from the duel with hated rival Aaron Burr. Alexander Hamilton played an integral role in our nation’s founding. He is an American icon and his legacy should be cherished for all the great things he did for the founding of our nation.

He was born in the Caribbean island of Nevia. He had a difficult upbringing as his mother had him with his father while technically being married to another man. His mother’s marriage was one that was steeped in confrontation as her husband had treated her very poorly, spending her fortune and imprisoning her for alleged but unfounded revelations of adultery. From the onset, her mother was the driving factor behind the marriage as the husband had presented himself in a deceiving manner. When she had the chance to escape, she did and met Alexander Hamilton’s father, James Hamilton. In addition to Alexander, she also had another son before him, named James Jr. At a young age, however, Hamilton’s father departed and his mother was left to care for him and his brother. She worked very hard to raise them with working a small business, but sadly succumbed to an illness two years after his father’s departure. The young Alexander Hamilton then took up work in a trading company where he was able to showcase his intellect and learn invaluable business skills that he would later use when being at the forefront of establishing our nation’s economic system. He left a strong impression on his employers and had a promising future ahead. In the Caribbean, the slave trade was active and the young Hamilton was a witness to the several atrocities it entailed with dehumanizing Africans that were imported. This left such a strong impression on him, he would later find himself as one of the Founding Fathers more open about his abolitionist leanings.

When a hurricane hit the island, he penned a letter to his estranged father that got the attention of the locals and was showcased in the local publication. He wrote so well, that he continued to gain support from several people on the island for his description of the hurricane. Many saw in him a bright future and helped him organize funds to study in America. It was believed that after he received his education, he would return and bring back his knowledge. During his time of study at King’s College in New York (what is now Columbia University), he continued writing on issues as the colonies were preparing for revolution. He eventually fought for the colonies when the war began and began to rise up the ranks, to eventually being one of George Washington’s most loyal military leaders.

After the war was over, he continued his studies and eventually was admitted to the New York bar and practiced for a time as an attorney. From his impressive connections he made during the Revolution with Washington among other Founding Fathers, he was tasked with helping to organize plans for the new government to be formed. He was a part of the Constitution ratification process. Among his notable contributions was his work as being one of the “Publius” writers for the Federalist Papers which defended the principles of the Constitution and provided a new vision for this new government.

The mission of our blog is found in Federalist 78 when he eloquently articulated the role of the judiciary. It is a timeless message:

“It may truly be said to have neither FORCE nor WILL, but merely judgment.”

When looking closely at Hamilton’s words here, we can contemplate that the tendency to exert “force” or “will” often occurs when judges move away from the Constitution and create their own biases on what the law should be rather than what the law is. By working within the Constitution and its boundaries judgment rather than will is exercised under an objective standard which is what Hamilton and the framers intended.

This is not the entirety of Hamilton’s contributions; however, he was also named George Washington’s First Secretary of the Treasury. He was responsible for helping create our economic and early banking system. The First Bank of the U.S. was established and created the early foundations for a stable economic and banking system. There were rivalries with other framers, however, as to the direction of the country. For example, Thomas Jefferson wanted more power given to state governments and a very weak federal government. Hamilton wanted a stronger federal government and sought a balance with manufacturing and industry rather than an agricultural concentration that Jefferson envisioned. While allowing the states to maintain their liberties and power was important, at this early stage there also needed to be a centralized federal government to help ensure the stability of the nation. This would allow the nation to collect revenue and maintain a solid national defense force.

On a more local note, Alexander Hamilton is buried at Trinity Church in downtown Manhattan. Tourists flock there often to pay respect to one of our greatest Founding Fathers. He also was instrumental in recognizing the advantage of the Great Falls in Paterson, New Jersey as providing a great advantage in developing industry. Textile mills and the cotton industry would soon begin to develop there. It is a National Historic Park and is a reminder of his great legacy.

Overall, the foresight of Hamilton was unparalleled. He was a brilliant intellectual and Founding Father. During the adversity of his early years, he certainly developed the skills to become one of the great American icons. This included working in the trading company to develop his economic skills and his love of books as a youth that helped make him a great writer and intellectual. He also dealt with tragedy that helped him forge the strength to persevere through the rigors of the Revolution. Hamilton embodied the mission that every American should hold dear today. No matter your origins, if you work hard you can make it here in some way, some form.

We owe Alexander Hamilton a debt of gratitude and encourage more Americans to be educated on his great legacy. He is more than just a figure on the $10 bill, he played a leading role in developing the system to provide us that $10 bill.

Let us not exile Publius, but rather celebrate his legacy and contributions to the nation we hold dear today………

Hail to the Chief?

This Supreme Court term offered many surprises to some with the outcome of various high-profile decisions ranging from issues related to immigration and DACA to gender discrimination and abortion rights to school choice with religious private schools. Chief Justice John Roberts for good or for bad- whichever side you take exerted his influence in a breakout term for him. With the retirement of Justice Kennedy and Kennedy’s replacement by Justice Kavanaugh, the Chief has found himself in a unique position as the “Chief” swing vote on several major cases. In this term, he positioned himself in the more liberal camp for much of these opinions, thus drawing the ire of several conservatives. Justice Kavanaugh, who many thought would be voting in lock-step with the Chief based on their similar background of jurisprudence found himself on the opposite side of the Chief in several of the opinions, often aligning himself with Justice Thomas, Justice Alito and most of the time Justice Gorsuch. It will be interesting to note how this line of jurisprudence continues to develop in the coming years. We will cover Justice Kavanaugh this term in a future piece.

As we have discussed in prior pieces, however, the way Roberts has handled this term is not entirely surprising when it is considered that this is an election year and he seems to want to take the Court out of a controversial spotlight with several culturally charged issues. While it is easy to disagree with his present view, one could foresee the Court being aggressive next year with major cases when the atmosphere will likely be less charged. Roberts has presented himself as a judicial gradualist, not in the same vein as his predecessor and former boss, the late Chief Justice Rehnquist who was more inclined to tackle tough points, despite the societal landscape.

In this piece we will discuss Roberts in Espinoza v. Montana Department of Revenue, with regard to the school choice for religions private schools and June Medical Services v. Russo case with regards to the abortion issue.  

Espinoza v. Montana Department of Revenue

We have discussed this matter in our April piece in anticipation of the Supreme Court’s decision. By way of summary, it concerned a state tax credit law passed in Montana that offered credit to companies and individuals that donate to private school scholarship funds. There are several private schools in Montana that are classified as religious and would have benefited from the program. The Montana Supreme Court ruled the scholarship aid program unconstitutional per the Montana state constitution because there was an opportunity for direct or indirect funding to religious schools. This archaic provision in the Montana state constitution originated from the Blaine Amendments passed in the late 1800s in various states that sought to restrict the influence of Catholic educational opportunities that were beginning to develop.

The U.S. Supreme Court, in a 5-4 vote authored by Chief Justice Roberts found that the Montana Constitution’s no-aid provision to religious private schools was unconstitutional and in violation of the Free Exercise Clause.

 He made reference to the recent Supreme Court case, Trinity Lutheran v. Comer that held “disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny. In that matter the Supreme Court ruled it was valid for the state to provide funds for tire pieces at a religious school’s playground, a Missouri law there had previously prevented funds from being provided to religious educational institutions for such a function. The Supreme Court there found the actions discriminatory. He compared that case to the Montana case by articulating that the Church was treated in a discriminatory manner just by its nature and status and was thus subject to strict scrutiny. The government failed to meet its burden and the Montana decision was invalidated.

Roberts later proceeded to discuss the history and tradition of various examples of states and the federal government providing grants to religious based private schools. On the opposing end, he also was careful to highlight that the Blaine Amendments had served an anti-Catholic purpose and were rooted in bigotry and should not be considered as supportive sources for Free Exercise claims.

When assessing Roberts’ opinion here, he showcases his gradualist approach, in the context of law and religion jurisprudence. He built off the model set forth in Trinity Lutheran a few years prior to reaffirm that religious private schools are also entitled to protection and support under the Constitution. While there are other areas in which the Roberts Court may have disappointed, religious freedom remains as one of its strengths. Moving forward, expect more religious claims to be brought that look to reaffirm our early Constitutional understandings of the relationship between religion and government.

June Medical Services v. Russo

The issue of abortion has unleashed a flurry of controversy since the Roe v. Wade decision that legalized abortion in 1973. As discussed in prior pieces, this decision removed a historically state regulated issue and placed it in the hands of the judiciary and since that point, the Supreme Court has found it very difficult to shed the political spotlight. With passion on both sides of the issue, it has become defining in Supreme Court confirmation hearings since the days of Robert Bork to Brett Kavanaugh. When a case arises such as the one here that even gently touches on the issue, it creates a national following. Chief Justice Roberts’ decision here baffled many with him taking the seemingly opposing side a few years prior on a similar case, but as you will see in this decision Roberts’ reliance on stare decisis (offering strong leeway to prior decisions) was a deciding factor. Some have commented that on its merits, Roberts does not accept invalidating the law at issue, but in fact he has taken a position to shield the Court from further societal charged pressure in an election year.

The central issue in June Medical Services is the admitting privileges of doctors at hospitals when there are emergency abortion complications. The Louisiana law that was challenged had required in relevant part that: any doctor who performs abortions to hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced,” and defines “active admitting privileges” as being “a member in good standing” of the hospital’s “medical staff . . . with the ability to admit a patient and to provide diagnostic and surgical services to such patient.”

The clinics at issue argued that the law was unconstitutional because among other things that it imposed an undue burden on the rights of the patient to obtain an abortion. The medical provider was thereby attempting to assert Constitutional rights in the stead of the individual. In a 5-4 decision, the Supreme Court ruled to invalidate the Louisiana law. Roberts joined the 4 liberal judges, but his reasoning diverged from their opinions.

In Judge Breyer’s majority opinion, he relied on Whole Woman’s Health v. Hellerstadt and Planned Parenthood v. Casey in assessing the undue burden that would be placed on women seeking an abortion based on this law. He found that the providers could assert rights on behalf of the women and was not convinced that admitting privileges bear any relevance to better outcomes for the women that would justify the law. The law hampered the ability of the abortion doctors to provide their services.

Most specifically, in Whole Woman’s Health, which the Court addressed in 2016 with Justice Kennedy still on the Court, the Court there found in relevant part that: the admitting-privileges requirement in a Texas law placed a substantial obstacle in the path of women seeking a previability abortion, constituted an undue burden on abortion access, and thus violate the Constitution. This was also a 5-4 decision with Justice Breyer again writing the majority decision, but the Chief Justice dissenting.

Chief Justice Roberts concedes in his concurring opinion in June Medical Services that he stands by his dissent in Whole Woman’s Health and believes the case was wrongly decided, but affirms the outcome of that decision on stare decisis grounds and adherence to precedent. He states that: “the legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents.”

He also spends considerable time in his concurring opinion reflecting on the Casey decision and the concept of a “substantial obstacle” in obtaining an abortion. He also acknowledges that the undue burden standard that was embraced in Casey and cited in Whole Woman’s Health should be respected. In an even further revealing statement he articulated he would further adhere to the Casey holding that required finding a substantial obstacle before striking down an abortion regulation. Clearly, the Chief has shown his sympathy with the legal outcomes and effect of the prevailing major cases in abortion jurisprudence despite whatever personal reservations he may have. This does not bode well for those who consider some of the major opinions vulnerable.

There is much to criticize about this opinion. Most importantly, however, the stare decisis reliance as the central form of support for reaching the opposite outcome than he had a few years prior is troubling. Justice Thomas, in his dissent sufficiently critiques this reasoning. After providing a very thorough challenge to the third-party rights issue in the matter and critical commentary on the substance of abortion litigation to date, he proceeds into the stare decisis critique. He cites to one of his earlier decisions and reemphasizes that when our prior decisions clearly conflict with the text of the Constitution, we are required to “privilege [the] text over our own precedents.” From his view, Roe does not have a Constitutional foundation, thus reliance on the abortion right itself is faulty. He even went so far as to challenge the right to privacy jurisprudence stemming from Griswold v. Connecticut that eventually was a factor in the Roe opinion. Justice Thomas then cites recent cases in which Chief Justice Roberts, himself, has been a factor in overturning precedent. He further explains that the lack of uniformity on how the Court has interpreted abortion rights jurisprudence with pluralities and divisions in several cases diminishes the merit of any stare decisis analysis. The law is far from settled.

When all the above is considered, from the outsider it seems that the Chief used legally lite support to harmonize how he came to opposite conclusions in June Medical Services and Whole Woman’s Health. To address that stare decisis should be a primary source in interpreting the law “albeit special circumstances”, Roberts finds himself in a quandary. He does not proceed further to elaborate what constitutes such a circumstance and how his decisions to overturn precedent in other recent matters differ from the standard employed here.

In sum, Chief Justice Roberts has proven himself to embrace institutionalism during his tenure on the Supreme Court. While we recognize that society has been charged with controversy in recent years and arguably for an extended period of time with the abortion issue among others, it does not mean that we must abandon our Constitutional principles. The threat of court packing and radicalization from politicians with their targets focused on the Supreme Court is very real. Some have been willing to go to the extent of mainstreaming lies about prospective Court appointees to destroy life reputations. Others have threatened impeachment if a judge does not follow their view of the Constitution. While the position of the Chief Justice is not an easy one with the Court being in the cross-hairs, one cannot help but consider that part of this is the Supreme Court’s own doing- past generations of the Court willing to embrace a legislative role to reflect the supposed social agenda circulating at that point in history. This is not what the framers envisioned when they considered the role of the Supreme Court. What better way to remedy the mistakes of prior generations of the Court than taking a stand for the Constitution? In the short-term there will be an outcry, but the reward is worth it and will in fact be a step in the right direction of de-politicizing the Court.

As Publius described the role of the judiciary in Federalist 78, “It may truly be said to have neither FORCE nor WILL, but merely judgment”.  In good judgment, Chief, embrace the Constitution. This country is depending on you. Leave the force and will to address societal needs to the elected branches of government.

American Heroes in Spotlight: Andrew McClary and Bunker Hill

Andrew McClary was one of the early great leaders in the American Revolution and his patriotic sacrifice should be taught and appreciated today. By way of background, he grew up in an immigrant Irish family in New Hampshire and eventually worked his way up the rungs of the New Hampshire colonial society and became a … Continue reading American Heroes in Spotlight: Andrew McClary and Bunker Hill

Expansive Government in Commerce Clause History

By: Chris Gomez The Commerce Clause was the product of ingenious foresight by our Founding Fathers to create an ability for the federal government to be the arbiter of interstate and foreign trade. As an enumerated power in Article 1, Congress was granted these powers. As our nation has developed, however, the judiciary has upheld … Continue reading Expansive Government in Commerce Clause History

“Anti-Trust” of the Constitution

“Breyer retire!” The monopoly of the progressive movement in the mainstream media has greatly harmed the understanding of Constitutional principles in our society. The “Breyer retire” craze is fueled by an unhealthy alliance of politics and an ignorance towards one of the essential fabrics of our Constitutional system. While Justice Stephen Breyer, a President Bill Clinton … Continue reading “Anti-Trust” of the Constitution

Law and Religion’s Swim in the Pool of Corona

The corona virus outbreak has taken the globe by storm and has had a major impact on the United States. Social distancing and quarantine orders have been enforced by governors and lately much debate has been centered on the treatment of people who seek to practice their faith during this time. Several states and dioceses have prohibited traditional mass attendance and live streaming of services has been encouraged. Some areas have allowed for drive-through confessions and other services. Legal issues and religious issues can be learned from this situation.

Legal

The regulations have not escaped conflict in a legal sense. During the earlier stages of the outbreak, Kentucky captivated national attention by the governor’s hardline stance against faith practice and enforcing closures. Penalties were to be enforced against people looking to attend services. Some argued they were excessive with recording license plates in church parking lots for those that intended to take part in religious gathering. The regulations drew lawsuits. A federal judge ruled that the governor must show “a compelling reason for using his authority to limit a citizen’s right to freely exercise something we value greatly — the right of every American to follow their conscience on matters related to religion.”[1] He did not meet that threshold. The Kentucky churches have since begun the process of reopening with adherence to social distancing regulations. In New York and New Jersey, among the hardest hit states due to the outbreak, the government made clear that churches and houses of worship were to not be open out of fear of the virus spread. In New York, however, a conflict emerged when a Hassidic Jewish community was attempting to have a funeral of a rabbi that had died. This drew the ire of Mayor Bill Di Blasio and the crowd that gathered was dispersed by authorities who were in violation of the New York social distancing ordinances.

Recently, the U.S. Supreme Court, in a 5-4 breakdown led by Chief Justice John Roberts joined by Justices Kagan, Sotomayor, Breyer and Ginsburg recently rejected a challenge to California’s orders regulating worship practice amid the virus shutdown. The petitioners had sought to enjoin the regulations which strictly enforced attendance at places of worship to 25% of building capacity or a maximum of 100 people. Roberts focused his opinion on emphasizing the national virus crisis and did not want the court actively making decisions that he believed were best left to the local state politicians. He found no violation of the Free Exercise Clause and argued that grocery stores, banks and laundromats that were exempt do not hold many people for an extended period of time like a church gathering.

Justice Kavanaugh issued a scathing dissent.[2] He was joined by Justice Thomas and Justice Gorsuch and argued that the church should be evaluated the same under the law as businesses such as factories, restaurants, retail stores, pharmacies, salons, cannabis dispensaries and shopping malls that are not subject to the 25 percent cap on attendance. He notes that California has a compelling government interest to consider the public health with its policy but the policy is not narrowly tailored to achieve that interest. The Pentecostal Church at issue in this matter had offered to comply with the regulations these other entities were to follow with regard to social distancing guidelines but the state prohibited it. Justice Kavanaugh did not agree with the state’s handling of the policy there and also encouraged that the occupancy rules among other regulations be applied across the board to the other entities if this was to be the state position.

In terms of the legal aspects of the virus outbreak, there were clear collisions with religious interests. State executive authority by governors was put to the test when enforcing the restrictions on faithful gatherings. This has established a strong precedent that government will take an aggressive stance even if it means diminishing religious interests in a time of national crisis. While there was reasonable concern for the public health, once could argue that the law was not applied fairly throughout the course of the outbreak. The outbreak is now winding down and several states have begun to schedule phases of reopening, but one must wonder whether the extended actions the states have taken were in full adherence to the Constitution.

Chief Justice Roberts made a strong point on the principle that the Court should not be relied upon to interfere with local state management of public health issues, however one could argue that Justice Kavanaugh had the better argument. At what point does the state’s regulation of its citizens infringe and overburden their enumerated religious rights guaranteed to them by the U.S. Constitution? It is conceivable that religion was targeted in a sense when other entities were allowed to be open to full or in California’s case fuller capacity despite the health risks they also posed. California was a mild case and at the very least had allowed for some attendance. Other states did not even allow that position. If a case was brought from New York or New Jersey where the same level of leniency was not shown as in California, one must wonder if the Chief Justice would have the same approach? While regulation is necessary in a time of crisis, there did not seem to be any middle-ground that was worked towards to accommodate the religious interests of citizens from a legal standpoint.

The George Floyd protests have further complicated the matter when considering state relations with citizens. As a practical standpoint, the mayors and governors have allowed protests that have seen hundreds and thousands in close proximity gather on the streets to exercise their Constitutional rights yet churches remain closed. One could argue that the state is favoring freedom of assembly over freedom of religion. Decisions should have been made that if the local authorities were to go in one direction with rule-making, the other areas would also need to be amended to reflect this concept under the law and offer equal protection. Social distancing guidelines have not been applied equally as we grip with this new national crisis. While some of these issues may be rendered moot in a few weeks when the states further advance in their reopening phases, it does not mean we should forget the actions the government has taken during this time of crisis. This may present an opportunity for legislatures to consider laws in the future that better protect the interests and rights of the citizenry while maintaining an acceptable respect for safety of the populace. Presently, the power of the executive in these various states can be called into question and perhaps further dialogue and discourse can be had so as to better balance the legal and public health issues that may face us in the future.

Religion

We have provided some background as to some of the legal issues the nation has confronted when considering the role of religion in the pandemic, now we will assess the religious view. In response to the emerging outbreak, churches began to take extreme measures to protect their congregations and fellow citizens with obedience to social distancing guidelines articulated by the government. Churches throughout the nation had used innovative techniques such as streaming services as a means to keep their religious communities connected during this difficult time. These means justly served a purpose to take into account the threat that the virus posed, but there were missed opportunities for more innovative means to connect the community.

For example, the deadliest part of the outbreak began to occur during the Lenten season in the Christian tradition, eventually also consuming the Easter season. In response, in the areas of the Northeast especially, many churches upon edict from the bishops and the governors with few exceptions were not permitted to keep their churches open for even individual quiet prayer during the holiest time of the Christian liturgical calendar. While some offered drive-through confessions outside the windows of the churches, these were few and far between and served as the exception and not the rule. Some churches conducted outdoor services, but this was also not a regular occurrence and failed to be meaningfully encouraged. Surely, the bishops in the various areas were in communication with the government and most specifically the governor’s offices with enforcing their diocesan regulations, but it has appeared that no middle ground was even attempted to be reached that would have reflected the religious and state interests. Some areas could have further considered the outdoor service and people staying in their vehicles or having attendance capped with perhaps more services that could be offered albeit during a shorter time-span. There was also plenty of opportunity to enforce reasonable church policy such as wearing masks and sitting 6 feet apart if you were to attend a service. While all of these situations were not ideal given the faithful practice and traditions of Christians among many other religious groups, it would have been a viable compromise. Even if all of the demands were not met a genuine effort to work out the issues should have taken place.

Full closures with limited exceptions have been detrimental to the community and congregations nationwide. During a time of economic downturn with the virus outbreak and lack of maintaining meaningful connections with others, people of all faiths needed their organized religious communities to be a viable presence for them. A streaming service while a nice concept is not the same as taking the time to reflect in a house of worship even if it is for a short period of time. One could argue that as religious vibrancy weakens, so does the morality of society.

It has been reported that the rate of suicides and depression have risen. From the most recent example with the protests, tensions in communities are running very high. If a society has been denied a central part of its faith practice, one must consider- what type of society will we have left? How long will the Corona hangover last?

While it is hard to have all the answers with all the interests and concerns at play, a stronger compromising framework between the faithful and their government, bridged by just and reasonable law may be a sobering recipe to heal this nation.


[1] https://abcnews.go.com/US/judge-rules-kentucky-churches-hold-person-services/story?id=70599636

[2]https://www.natlawreview.com/article/us-supreme-court-upholds-california-s-covid-19-restrictions-religious-worship

Commerce Clause Reflection in the Age of Covid-19

There has been much discussion by those on both sides of the aisle with regards to the power of the federal government over the states as it relates to reopening the economy in some of the more gravely stricken states such as New York, New Jersey and California. The president has articulated that the executive branch has the power to enforce this process. Most commentary has focused on challenging the president’s claim on this issue and stating he does not have this authority. One can suggest, however that this issue encourages further debate when considering some major cases that the Supreme Court has ruled on with regards to the Commerce Clause. Here, we highlight a couple of these cases that can encourage further discussion and debate on this issue with regards to the relationship between the federal government and the states in the area of commerce. The president has a duty to enforce duly passed acts of Congress that meet Constitutional standards.

          First, a 1942 case, Wickard v. Filburn concerned a farmer in Ohio that had grown more wheat then was permitted under the Agricultural Adjustment Act of 1938 and thus did not need to purchase from the outside market. He suffered a penalty under the Act and had to pay a fine. He argued that his extra wheat was not in violation of the Act as it was local and for his own use and consumption. The Supreme Court unanimously rejected this view and stated that because he therefore did not participate in the outside market this could culminate in a substantial economic effect on interstate commerce if other wheat farmers had followed suit. This issue therefore fell within the scope of the Commerce Clause and the government had the right to regulate it. Congress had maintained its goal to stabilize consumption prices in the market through the Act, thus it was a valid exercise of authority.

            This decision is often criticized because of the infringement and seemingly hostile actions taken by the government to penalize simply because of the conscious choice to not participate extra in the outside market based on the local circumstances. It also is commonly held as a stretch of the Commerce Clause when the issue comes down to a more indirect relationship and projected outcome of substantial economic effects on commerce. Some may argue that it is not the place of judges to make this determination, but rather left to local governments and economists to consider the substantial effects economic assessment.

            As it relates to the present issues we face as a nation with regards to federalism questions in the midst of a virus outbreak, this creates complications. In the modern landscape, one could argue that there has been greater interdependence on fellow states for products. Take for example, Florida’s orange juice. If a state order was issued that the factories and groves could no longer be in production of the product because of supposed safety concerns it would be detrimental to the flow of commerce between states. Many states and grocery store chains throughout the nation rely on this orange juice to cater to their populace. The next question then posed would require a balancing of factors including just how high was the safety risk posed in the production mechanisms of the product compared to the detrimental impact on the economy and interstate commerce. Orange juice may not be deemed as essential as other products such as vegetables, milk, eggs, spring water and the like but it still creates an interesting quandary. If Congress considers the effects and passes a law that defines national economic standards and safety levels that need to be met in this test like the controls in the 1938 Act, it would be validly exerting its authority on the issue under Wickard.

            In the next phase, the president, in the executive branch would be tasked with enforcing the regulations passed by Congress. One could then argue that his enforcement of a duly passed law against the conditions posed with the state decision on Florida’s orange juice production would seemingly displace the authority of the governor on the issue. If a suit was brought against the federal government with the actions of the president and Congress, the Supreme Court could consider the Wickard standard and find there was a detrimental impact on interstate commerce because of the state moratorium on producing the orange juice during the outbreak. Congress had a valid right to exert its authority under the Commerce Clause with executive enforcement. It should be noted, however, that this would unlikely come to pass in the present situation because of the divided Congress and a seemingly collaborative, albeit imperfect relationship between the White House and state governors. This does not mean, however, that a discussion and substantive debate on the issue should not take place based on the historical precedent that has been set in place. To state that it is an impossibility for the federal government to displace the state authority on the issue would be off-base.

            Another case that build offs and assesses the Wickard reasoning is United States v. Lopez. This case measured the authority of Congress under the Commerce Clause in regulating the carrying of handguns. The statute in question focused on the 1990 Gun-Free School Zone Act and the Court considered the power of Congress to legislate on the carrying of the handguns as defined under this act. The government had argued that this power is encompassed under the Commerce Clause because among other arguments the general economic conditions could be impacted because violent crime impacts insurance rates and deters travel due to alleged unsafe conditions. It then made a bold leap in arguing that the presence of handgun firearms in a school zone would have a detrimental impact on learning and would harm the national economy because education is an essential part of it.

            The Supreme Court disagreed in a 5-4 decision, finding that Congress’ broad authority under the Commerce Clause did not extend to this handgun regulation, an aggregate effect of the factors outlined. The Court did, however, clearly identify three areas that could be regulated (1) the use of channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activitiesand (3) activities that substantially affect or substantially relate to interstate commerce.

            As to the third area, the court assessed factors to discern whether the legislation is an acceptable method to regulate activities that substantially impact interstate commerce. First, must consider whether the activity is economic or non-economic in nature. Second, whether the product moved in interstate commerce. Third, whether there were Congressional findings of a valid economic link between the object and the national interest. Fourth, connected the link was between regulated activity and interstate commerce.

            As applied to our Florida’s orange juice example, a law passed from Congress could plausibly be found Constitutional under this standard unlike the gun issue in Lopez. We begin by finding that the Florida orange juice is in fact a good that would be part of interstate commerce and sent to many states. Producing the orange juice substantially relates to interstate commerce as it is an important national product in demand sold in stores throughout the nation. It is very healthy with nutrients in building up immune systems during virus season. Congress would not be outside its purview in regulating the necessity of the product in challenging a state law or order discontinuing its production.

            When focusing on the substantial relationship area, the factors outlined in Lopez could in fact apply. First, producing the orange juice and selling it to grocery store chains is in fact economic in nature. Second, the product was transported in interstate commerce to various stores throughout the nation to be available for purchase to customers. Third, Congress would likely be able to produce an economic finding and study on the relevance of orange juice financially and in terms of its impact on the nation’s health. Finally, Congress can articulate with the valid law passed the necessity to produce the orange juice and define the degree of economic impact if this staple product was no longer available in stores. All of these factors do not need to be met, but there is a logical basis and argument for them to support the substantial relationship area discussed in Lopez.

            Overall, there is a plausible Commerce Clause argument to be made for Congress to pass laws that impact state decisions made during a virus outbreak that can impact interstate commerce especially in regards to staple goods of the nation. The president would then have the power to enforce the Congressional mandate even if it meant displacing an overbearing state law on the issue. While orange juice production is not necessarily the same as restaurant openings it is just one example that can begin the discussion and logical debate and discourse on defining the boundaries of federal government and state power when considering economic concerns during a virus outbreak.

Faith in School Choice: SCOTUS and the Espinoza Matter

The Supreme Court is scheduled to rule on a major case in June concerning religious freedom as applied to the education system. We address the background and predict the direction the Court will go with respect to this matter.

The matter, known as Espinoza v. Montana Department of Revenue, considers a state tax credit law that offered credit to companies and individuals that donate to private school scholarship funds. There are several private schools in Montana that would be classified as religious and would benefit from the program. The Montana Supreme Court ruled the scholarship aid program unconstitutional per the Montana state constitution because there was an opportunity for direct or indirect funding to religious schools.

The seminal issue in this case that the United States Supreme Court is tackling is:

“Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”[1]

This case invokes a foundational issue of the history of state Blaine amendments and their anti-religious undertone, most specifically targeting Catholics.

What were the Blaine Amendments?

James G. Blaine was a prominent representative, senator, Secretary of State and later recurring presidential candidate in the 1870s and 1880s. While serving in Congress he supported President Grant’s educational policy initiative that emphasized state secular public schooling. This culminated in the creation of the proposed Blaine Amendment that sought to restrict the spread of parochial education as new Catholic communities began to form. It provided as follows:

“No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

Even though it was unsuccessful in being passed by Congress to be incorporated into the U.S. Constitution, many states chose to adopt a version of it in their respective state constitutions. The amendments served Blaine’s political purposes of attracting Protestants to the Republican party while feeding into the Anti-Catholic sentiment of the times. The main religious schools established at the time were Catholic, as are two-thirds of Montana’s private schools are today.

The Direction of the Court and Constitutional Considerations

Based on the lines of questioning posed at oral arguments[2], the final breakdown of this decision could be closer to 5-4, thus invalidating the Montana court’s decision and allowing the tax credit scholarship program to proceed. It is foreseeable that Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch and Justice Kavanaugh would vote to uphold the constitutionality of the program. Perhaps Justice Breyer or Justice Kagan may join as they did in the Trinity Lutheran[3] case, but this matter raises issues with a stronger connection to direct student educational opportunities rather than simply the more detached issue of private school institutional funding for school playground tire. A scholarship program for individuals that seek to attend private religious schools may prove to be a bridge too far for the liberal jurists.

Establishment Clause

The Establishment Clause provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The Court would be wise to consider the concept of what constitutes an Establishment. The tax credit for funding a scholarship for private education on its face does not constitute any Establishment of religion, rather it supports educational opportunities of individuals and their families that decide to embark on the path of private education. There is no requirement that the credit should only apply to Catholic schools or Protestant schools or Hebrew schools or Muslim schools or any other faith that serves as the basis of a private school.  One state religion is not specifically recognized within the definition of private parochial education. This is where the Blaine Amendment fails and should be re-evaluated as it does not have a firm basis under the U.S. Constitution.

Even if the state’s private schools are majority Catholic this does not constitute a basis to recognize Catholics as an establishment religion under the law. Nothing suggests that other faiths were prohibited for developing private schools in Montana and would not also be entitled to the benefits generated by the tax credit program. The Supreme Court has an opportunity to invalidate long embedded laws that have targeted faith-based entities in violation of the text and original public meaning of the Constitution. One could also argue that the broader question of direct vs. indirect funding to religious entities also warrants further consideration and discussion by the court and this case gives more substance to that debate. Furthermore, the concept of tax policy recognition of faith is not unfamiliar. There are tax exemptions and other policy nuanced privileges connected to religion and charitable giving on the national scale.

As discussed in prior pieces, when recognizing an “Establishment” we must look to the founding era of this nation and the many issues it was forced to consider from a religious standpoint. It was recognized that the Church of England played a role in the early colonial age of this nation for encouraging the migration of non-Anglicans to the New World. Religious freedom was a persuasive consideration for the early colonists as they sought to flee from England and the state-run Church of England that was not known to be tolerant of other faiths and Protestant sects. The New World was an opportunity to not allow for a state-run establishment of faith, while still recognizing the importance of faith communities in the geographic areas in which these new colonists settled. The Blaine Amendments’ assault on faith depart far from this premise and one can argue helped set the foundation for further challenges to faith in the public sphere that would occur near the middle of the twentieth century, such as the prayer in school debate.

Equal Protection

An assessment under the Equal Protection Clause should also be considered. The Equal Protection Clause of the 14th Amendment provides that “a state shall not deny to any person within its jurisdiction the equal protection of the laws.”  The legislature had passed the law enabling this program for private schools and without barring religious private schools from participating. The Montana state agency responsible for collecting taxes then declared that religious private schools could not be included under the program because of indirect funding of religious schools.[4] The case reached the Montana Supreme Court and the court held specifically that the program could not include religious institutions, thus deeming it a violation of Montana law. It also concluded that the religious aspect of the program was not severable from the entire program, thus the entire program was invalidated.

While the Montana Supreme Court “remedied” the contradictory nature of the tax agency’s ruling on the program with its invalidation of the entire program, it does not mean that this issue should escape Equal Protection scrutiny. On its face, the actions of the agency to prohibit religious schools from benefiting from the tax credit program for private schools draws itself into conflict with the Equal Protection Clause. This case provides a unique opportunity for the Court to delve into a thorough analysis of the relationship between the two major areas of education and religion.

While education is not recognized as a fundamental right under the Constitution, the program established a means for educational opportunities for families choosing to enroll their children in private schools. The legislature did not prohibit it from applying to private religious schools. When it was decided that those individuals sought to take advantage of the already passed law, but apply it to a private religious school, the tax agency acted to deprive them of that choice. The agency’s decision by its very nature denied the individuals equal protection of the pre-existing law just because the private educational institution was religious based. The initial law passed should be found Constitutional. On simply Equal Protection grounds, the government had a rational basis for providing further educational opportunities for its students. Religious-based schools can be classified as private schools and the law encompassed private schools in Montana.

Free Exercise

If, however, one still accepts the Montana court’s decision that no Equal Protection violation was present by eliminating the private religious schools’ scholarship entitlement because Blaine takes priority it still does not remedy the problem that the Blaine Amendment itself poses. With this matter invoking a religious component, not just an educational one, there is an argument to be made that Blaine raises potential Free Exercise Clause violations here and therefore heightens the scope of this analysis. The Supreme Court has a checkered history of how to assess Free Exercise Clause violations.

In sum, for the purposes of this matter, the Supreme Court should use the Strict Scrutiny test that it has used in the past. This test provides that the state must have a compelling government interest to invalidate. As applied to this matter, it would be a compelling interest to refuse to accommodate the scholarship program as applied to religious schools. The basis of the Blaine Amendment to disallow direct and indirect funding to religious institutions infringes upon the Free Exercise Clause. One must question and press the state on how cutting off religious education funding is compelling, especially when the roots of this law were enacted under a discriminatory basis.

As discussed earlier, perhaps it centers around establishment concerns and the fear of state mandating a specific religious belief or practice. This, however, has its limits. Today, we live in a heterogeneous society with respect to the many faith traditions that are practiced in the United States. Montana may have more Catholic private schools that exist, but that does not mean that other faith beliefs and traditions are unwelcome to establish schools there. In addition, the state would likely have difficulty establishing that despite the numerous Catholic schools, that the bishop is the head of the state government or other religious faiths are disallowed to practice.

Furthermore, the concept of choice must be explored – does the state have a compelling interest to deprive or significantly burden their residents of educational decisions when it comes to religious schooling?  An example of how this could apply is if a religious school in the state was found to be promoting societal unrest and violence in the community. The public interest is therefore directly threatened by such an institution; therefore, the state may have a compelling even if its temporary, interest to prohibit support to these religious institutions. That is not present here, a law was duly passed allowing for the tax credit scholarship program to be permitted for private schooling, there so no compelling interest to deprive these institutions of indirect or direct funding even if they are religious in nature.

Conclusion

Overall, on several bases the Blaine Amendment should be found unconstitutional. Hopefully, the Supreme Court will use this opportunity to clarify the state relationship with religious education and challenge the Blaine Amendment legal framework that was wrongly enacted over 120 years ago and is in direct conflict with the Constitution.


[1] https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/

[2] https://www.nationalreview.com/2020/01/religious-liberty-supreme-court-considers-challenge-to-blaine-amendment-espinoza-v-montana-department-of-revenue/

[3] In Trinity Lutheran, the Supreme Court assessed if a private Missouri faith-based school was entitled to receive state funding through grants to provide safety playground tire on its playground.  The Court ultimately found in a 7-2 vote that the failure to provide state funding to the faith-based school like the non-religious private schools violated the Free Exercise Clause.

[4] https://www.nationalreview.com/bench-memos/the-long-history-of-blaine-amendment-bigotry/