Freedom on Campus in the Red: St. John’s University Edition

Today, our society faces challenges. Many divisive issues have taken the forefront of the national debate including economic policy, the role of government and culture war issues. In the twenty-first century, the American people have increasingly relied upon social media as their news source. It has its positives and negatives. It is much easier to access information, however, it takes away from the initiative to seek out further information and challenge one’s self with substantive truths. The role of the education system must bridge this gap, but sadly it continues to fall short. The rhetoric of informed debate, no matter if you are on the right or left helps grow the intellect of the nation in a manner to prioritize matters of reason over emotional “cancel” initiatives that ignore comprehensive dialogue. The conclusion and outcome driven agenda conveniently skip over the reasoning process that is critical to the development of sound intellect and exchange of knowledge. As a result, we have a divided society filled with misinformation guiding masses behind hollow false premises rich in click bait but light on informed truth.

           Institutions of higher learning have largely abdicated their responsibility to adequately educate the young minds that will serve as the future. It begs one to wonder- will the future be served with reasonable interests and comprehensive dialogue to bridge differences or continue on this emotional path that leaves a fiery path of ruin, an intellectual crisis? This issue has gripped the entire nation. In recent years, speakers have been cancelled at university campuses for perceived societal injustices that are politically incorrect and facilitate dialogue on major issues. Professors have been removed from their positions for holding views that critically assess historical interpretations of the pre-origin and origin of this nation. There is not a sustained appetite for academic freedom and a true marketplace of ideas.

            A recent example has recently occurred in New York at St. John’s University. Students had sought to organize a Turning Point USA Chapter on campus, but have been obstructed in the recognition process by the campus student government. The decision against enactment was based in part on debatable media rhetoric that mercilessly attacked major national Turning Point USA figure Charlie Kirk and inaccurate allegations that members of Turning Point were part of the January 6 riot at the capitol. Sentiment seeking to justify the decision was based on alleged opportunities for division on campus on heated issues that Turning Point allegedly promotes. Per the Turning Point mission statement, its goal is to “educate students about the importance of fiscal responsibility, free markets and limited government.”[1] This is not a militant organization nor should be classified as one. Relying on resources from bias left-wing articles as support for a misguided student government decision, while at the same time incorporating defamatory and inaccurate language about one of Turning Point’s major national leaders is wholly unacceptable.

            The students at St. John’s are just seeking for their voice to be recognized on campus and for an opportunity to promote their message in a respectful way. Currently, on campus St. John’s recognizes the Roosevelt Institute, an organization that promotes left leaning values and principles. While it would not be acceptable if right leaning student government leaders sought to “cancel” or obstruct recognition of this student group based on its perceived disagreeable and controversial views, the same courtesy should be shown in the present situation by left leaning student government leaders and their approach to the recognition process of Turning Point USA at St. John’s University.

           The university setting should be a place of a respectful debate and dialogue on major issues that will help shape the compass of students as they approach their professional lives. In the professional landscape, no matter what career one pursues they are bound to encounter those of different philosophies. Respect for differing viewpoints in the university setting is preparation for this critical step in professional and personal growth.

          President Ronald Reagan visited St. John’s University on March 25, 1985 and gave an address to the students. One quote really stood out and we would be wise to consider it today. President Reagan gracefully articulated that “we’re a people who’ve discovered anew what a deep foundation freedom is and how we cannot live without drinking deep from it.”[2]

Let us not leave our students and our future leaders thirsty.


[1] https://www.tpusa.com/ourmission

[2] https://www.reaganlibrary.gov/archives/speech/remarks-students-and-faculty-st-johns-university-new-york-new-york

Is the New Jersey Reproductive Freedom Act Really Freedom?

The New Jersey Reproductive Freedom Act is a proposed law that would strengthen the right to abortion in New Jersey and improve access to the practice by codifying the elimination of various bureaucratic procedural hurdles. It would, however, have a detrimental impact to religious entities and interests with compromising conscience protections. This piece will cover some aspects of the bill that standout and should be cause for further critical reflection.

We begin with New Jersey state and federal case law that has served as a precursor for this proposed legislation.

Case Law

State

In Right to Choose v. Byrne, 91 N.J. 287 (1982) the New Jersey Supreme Court considered the question of the validity under the New Jersey Constitution of a statute that prohibits Medicaid funding for abortions “except where it is medically indicated to be necessary to preserve the woman’s life.” N.J.S.A. 30:4D-6.1 (1981). Medicaid paid for the costs of all childbirths and abortions to save the life of the mother but, because of the statutory prohibition, it did not pay for those therapeutic abortions needed to protect the health of the mother or for elective, nontherapeutic abortions. The court would, however, eliminate this barrier and ruled: “N.J.S.A. 30:4D-6.1 violates equal protection of the laws under the New Jersey Constitution by limiting funds to abortions medically necessary to preserve the mother’s life. We construe that statute to require Medicaid funding of all abortions that are medically necessary to preserve the mother’s life or health.”

In Planned Parenthood of Central New Jersey v. Farmer, 165 N.J. 609 (2000), the plaintiffs challenged a state statute that conditioned a minor’s right to obtain an abortion on parental notification unless a judicial waiver is obtained, but had imposed no corresponding limitation on a minor who sought other medical and surgical care related to pregnancy and her child. N.J.S.A. 9:17A-1;  §§ 1.2 et seq.  The New Jersey Supreme Court ruled that the classification created by the Legislature burdens the “fundamental right of a woman to control her body and destiny,” Right to Choose v. Byrne, 91 N.J. 287, 306, 450 A.2d 925 (1982), without adequate justification and cannot be sustained against plaintiffs’ equal protection challenge.

An unmarried, pregnant minor was now able to give consent to hospital, medical, and surgical care related to her pregnancy or child, without the need to notify her parents.

Federal

In Planned Parenthood of Central New Jersey v.  Farmer, 220 F.3d 127 (3rd Cir. 2000), the Third Circuit reaffirmed the ruling of the lower New Jersey federal district court in Planned Parenthood of Cent. N.J. v. Verniero, 41 F.Supp.2d 478, 504 (D.N.J.1998) which invalidated the New Jersey Partial-Birth Abortion Ban Act of 1997.

New Jersey’s partial-birth abortion statute prohibited “an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery.”  N.J.S.A. § 2A:65A-6(e).   The Act purported to define the phrase “vaginally delivers a living human fetus before killing the fetus” to mean “deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician or other health care professional knows will kill the fetus, and the subsequent killing of the human fetus.”  N.J .S.A. § 2A:65A-6(f). The Act provided a single exception whereby this otherwise banned procedure may be used:  namely, when the procedure “is necessary to save the life of the mother whose life is endangered by a physical disorder, illness or injury.”  N.J.S.A. § 2A:65A-6(b). The Third Circuit deemed it unconstitutional due to it being (1) void for vagueness; and (2) placing an undue burden on a woman’s constitutional right to obtain an abortion.

These cases are very important as it now relates to the proposed New Jersey Reproductive Freedom Act. The court decisions to invalidate the Partial-Birth Abortion Ban Act of 1997 specifically with regards to parental consent and the vaginal time frame of banning an abortion would now be codified. This would provide a bulwark in the statutory law governing abortion in this state despite the outcome of a potential future U.S. Supreme Court decision that could return the issue of abortion to the states as was the practice pre-Roe and that could encourage further fetal protections.

Some New Jersey Reproductive Freedom Act Points

Some other major points under the New Jersey Reproductive Freedom Act are provided as follows:

“The State: 

(1)   explicitly guarantee, to every individual, the fundamental right to reproductive autonomy, which includes the right to contraception, the right to abortion, and the right to carry a pregnancy to term;

(2)   enable all qualified health care professionals to provide abortion services in the State;

(3)   require all insurance carriers to provide coverage both for abortion care and for a long-term supply of contraceptives”

…..

The bill also makes clear that a fertilized egg, embryo, or fetus shall not have independent rights under the laws of the state of New Jersey. The bill would also amend the existing law pertaining to autopsies and medicolegal death investigations to eliminate the requirement that a medicolegal death investigation be conducted in a case where a fetal death occurs without medical attendance. A final major component of the bill, is potentially broadening the nature of the medical provider that would be legally permitted to perform abortions which raises similarities with the New York abortion law passed a couple years ago.

NJ Reproductive Freedom Act Imposes Burden on Religious Interests

The NJ Reproductive Freedom Act imposed a significant burden on faith interests.

Per the text of the NJ Reproductive Freedom Act with clarifications:

A religious employer may request, and a hospital service corporation, pre-paid prescription service organization, individual health insurer, carrier, group health insured, health maintenance organization (*we will call X) shall grant, an exclusion under the contract for the coverage required by this section if the required coverage conflicts with the religious employer’s bona fide religious beliefs and practices.  A religious employer that obtains such an exclusion shall provide written notice thereof to subscribers and prospective subscribers, and “X” shall provide notice to the Commissioner of Banking and Insurance in such form and manner as may be determined by the commissioner.  The provisions of this subsection shall not be construed as authorizing “X” to exclude coverage for care that is necessary to preserve the life or health of a subscriber.  

In sum, a religious employer may request an exclusion, BUT, in requesting exclusion it is facilitating coverage with notice to the subscriber, potential subscriber and Commissioner of Banking and Insurance. This notice would then allow for some form of the contraceptive/abortifacient service requested by the subscriber to be provided even if not directly from the religious employer. The concepts of notice and facilitation themselves arguably can compromise religious conscience decisions as presented here.

Furthermore, the clause regarding “preserving the life or health of the subscriber” also raises issues. The “life or health of the subscriber” is not adequately defined. One must consider who will in fact be determining that “preservation of life” concept and how many medical professionals must agree that these steps are “necessary”.  This clause may be ripe for abuse. One must also consider that some faiths do not hold in their tenants any exception for an abortive procedure. The conscience and religious interests conflict with the law and are never fully resolved. In sum, there are not adequate facilitation protection interests in this bill. Faith entities would still be involved through notice with the coverage of a contraceptive/abortive procedure with or without an interest concerning the life of the mother.

How the U.S. Supreme Court has Considered Contraceptive and Abortifacient Challenges

The U.S. Supreme Court has dealt with related issues in the Burwell vs. Hobby Lobby matter and the Litter Sisters of the Poor litigation, in both of those situations stemming from the conflicts caused by the Affordable Care Act (ACA).

In sum, Hobby Lobby concerned a challenge by closely-held corporations that objected to providing some forms of abortifacient and contraceptive coverage to employees on the basis of religious beliefs. The court found that there was a least restrictive means of implementing the government’s interest in offering the coverage that would not substantially burden religion. The court applied its reasoning under the Religious Freedom and Restoration Act (RFRA) and the mandate to provide the contraceptive coverage as provided under the ACA was invalidated as to closely held businesses expressing their religious objections.

In sum, the Little Sisters of the Poor litigation has also dealt with fallout from the ACA. In this matter, the seminal issue was the requirement under the ACA of religious non-profits to complete a form, thus offering notice to the federal government of their intention to not provide contraceptive coverage and requesting an exemption. The federal government’s grant of the exemption, however, would enable it to find another provider for coverage even if not specifically the Little Sisters of the Poor. The Little Sisters of the Poor believed that they, therefore were part of the facilitation process that would be against their beliefs.

The Supreme Court has addressed this matter in a procedural context by focusing on legal flexibility of agencies in issuing regulations on the substance of wider or more narrow exemptions. Factually, the case is most similar to the issues potentially stemming from the New Jersey Reproductive Freedom Act, however, the Supreme Court has largely to this point not offered a definitive ruling on the core of the issue this matter presents. If the New Jersey Reproductive Freedom Act becomes law, it would be a good opportunity for suit to be brought in the hopes the Supreme Court would then issue more clarity. Defining the nature of facilitation and how bound up in substance it is to burden enumerated First Amendment Free Exercise protections would go a long way towards settling an understanding of this conflict.

Conclusion

The New Jersey Reproductive Freedom Act would codify the trend of controversial court decisions involving the state of New Jersey both at the state and federal level. One could argue that the substance of these decisions was not the soundest legal framework especially as we have come to understand more about the science of fetal life in the womb. This bill should invite debate and our leaders would be wise to listen to the arguments because on the surface it appears as a hasty response to the potential of the U.S. Supreme Court returning more of the issue of abortion to states (pre-Roe) or at the very least issuing a ruling on greater fetal protections. The New Jersey Reproductive Freedom Act does not address comprehensive scientific advancements that have surfaced since the time Roe v. Wade was decided. In addition, it presents the opportunity for further conflicts with faith entities as they wish to exercise their enumerated right to Free Exercise.

Legacies Reconsidered: Joseph McCarthy

The stories of the late U.S. Senator Joseph McCarthy and the Red Scare have been widely discussed and often panned by several in historical commentary. They center around the growing communist influence within the confines of the U.S. government and several pillars of American life in the late 1930s through the 1940s and culminating with the senate hearings of the early 1950s that mainstreamed this concern. Often McCarthy is described as fanatical and way out of line for his accusations and allegations of suspected perpetrators. Some of his frequent targets included those in various agencies in government; the military and American social life. After the strain from the hearings Senator McCarthy succumbed at the young age of 48 in 1957. He battled a variety of medical problems, some that were aggravated by the stress and anxiety of the hearings.

In this piece, however, we offer a brief reconsideration of McCarthy and the anti-communist crusade that he stood for based on providing some empirical facts researched from first-hand accounts such as the work McCarthy[1] by Roy Cohn (who served as chief counsel to McCarthy during the hearings) and The Autobiography of Roy Cohn[2] by Sidney Zion. This reflection will add to the commentary and debate on the McCarthy legacy and hopefully will encourage the reader to reflect on contextual issues that are often ignored in modern discussion. We will largely focus here on a few elements of the Army-McCarthy hearings, a major episode that contributed to the present understanding of his legacy.

A main criticism of McCarthy has been his combative and bombastic style during the Army-McCarthy hearings in which he communicated his accusations. It unsettled several members of Congress and the media were eager to assist in clouding his image by presenting him in the light of a relentless zealot that sought to take no prisoners. In the modern day, we have seen similar criticisms appear when considering the legacy of former President Donald Trump. The substance is often ignored or diluted by a harsh reaction to communicative style. McCarthyism has now become a punchline word in the dictionary and today just uttering the name Trump has frequently become synonymous with the rising “cancel culture”.

In regards to McCarthy, however, one must first ask the question- how did this begin? A rising popular senator from Wisconsin who was very close with the Kennedy clan had defeated a popular incumbent and later decided to stake his career on this risky and controversial initiative. In McCarthy, his chief counsel to the hearings, Roy Cohn who ironically would later advise a young Donald Trump, stated it all began with an FBI contingent concerned about the national security of the nation met with Senator McCarthy and provided him with information on communist operatives working in the U.S. that had been vetted and investigated by the FBI in the 1940s. J. Edgar Hoover, longtime head of the FBI had begun this initiative at the direction of President Franklin D. Roosevelt. This FBI contingent, however, was unsatisfied at the persistent stalling and often minimizing the importance of addressing the issue, and sought to find a leader in Washington willing to mainstream and shed light on the problems. Prior to McCarthy, other senators had chosen to not seriously address the situation out of fear for their political careers. It took some convincing as McCarthy did not begin his senate career focusing on the issue. Once he thoroughly found himself studying and immersing himself into the intelligence, however, he decided to proceed. As chair of the Senate Permanent Subcommittee on Investigations, he was in a position to use resources and thoroughly conduct an investigation into this issue. Little did he know the firestorm that would be set off that would draw him into conflict with both sides of the aisle and a Republican administration headed by President Dwight D. Eisenhower.

A Few Points to Consider

In McCarthy’s crusade against communist infiltration, several substantive issues were brought to light. This episode also showcased the efforts of the Eisenhower administration, its allies and the media to release relentless attacks on McCarthy and present him as so far outside the mainstream with his goals that he should not be respected. The following are just a few of the many major areas in which McCarthy was drawn into conflict for seeking transparency for situations in which he believed the United States was at risk.

G. David Schine

G. David Schine was a member of McCarthy team along with Roy Cohn that worked to tackle the growing communist threat. One of his major missions was accompanying Roy Cohn overseas to Europe to investigate U.S state-sponsored libraries and education resources that had promoted communism. This was clearly an interest contrary to the U.S.’s formal anti-communism foreign policy. The media had dogged and sensationalized the work of Cohn and Schine throughout this trip in which they found a large degree of evidence. Cohn provides a comprehensive first-hand account in McCarthy.

Schine proved to be a strong asset to the team and also became a good friend of Cohn, but unfortunately was caught in the middle of the heated conflict between the McCarthy team and the Army during the Army-McCarthy hearings. As Cohn categorized it in his autobiography, Schine would essentially become a “hostage” of the forces acting against McCarthy. For his great work on the McCarthy team, Cohn as Chief Counsel to McCarthy recommended him for a commission in the Army after he was drafted in 1953. It was typical practice that politicians would recommend individuals for this designation from time to time in gratitude for the work they have performed in governmental capacities. As McCarthy and Cohn were putting pressure on the Army to challenge it into providing some insight into intelligence failures and infiltrations in their ranks most notably through the Irving Peress affair which will be discussed later, the Army with the support of the Eisenhower administration and the media detracted with essentially manufacturing the Schine scandal. The Army had sought to pressure McCarthy through Cohn based on allegations of improper pressure exerted for Schine’s commission by Cohn. The relentless attacks during the Schine affair on McCarthy and Cohn were truly a dark point in American history.  Allegations of corruption for seemingly a routine act by a politician were baseless, but detracted the attention from the major issue of the Army’s failure for effective oversight to minimize the communist threat.

Army Failure- The Irving Peress Affair

The Irving Peress affair was one of the major areas of McCarthy’s focus when investigating the alleged communist infiltration in the Army. It centered around Irving Peress, a dentist believed to be a member of the communist movement and who helped facilitate its cause as verified by members of the U.S. intelligence community. Pursuant to policy, Peress was eligible for automatic promotion as a medical professional but was under investigation based on his application responses in which he plead the 5th Amendment in regards to inquires related to communist and subversion activities. Nevertheless, he was still granted the promotion, thus creating a quandary and further reports and complaints were submitted about his potential communist activities. The Army then resolved to grant him an honorable discharge as a means to remedy the situation, however, McCarthy demanded accountability at the hearings on this bureaucratic failure and sought to assess if this was a systematic issue that required the Army to conduct serious reforms. It came to light later that the thorough investigation conducted by McCarthy and verified by intelligence on Peress was not a red herring, but in fact proved he was connected with communist activity. The Army had very strong allies in the White House and media and had pushed back on McCarthy’s crusade. The Schine affair was part of a wider counter-initiative to discredit McCarthy and Cohn. McCarthy would continue to raise the issue of other security breaches within the Army, but would find himself facing powerful establishment forces that sought to shield these issues from the public.

Ironically, General Ralph W. Zwicker had notified McCarthy of the Peress problem which spurred the investigation that revealed errors on the part of the Army. When pressed on these issues later during the hearings, Zwicker succumbed to outside pressure and refused to commit to this initial position. McCarthy was forced into a difficult position and could not burn his source out of fear that other sources would soon follow, thus compromising further intelligence gathering. More examples of blatant corruption are discussed in Roy Cohn’s works.

Annie Lee Moss

Annie Lee Moss held a position in the government working with Pentagon coding and suspiciously had been promoted from an unrelated cafeteria position. An undercover FBI agent testified to Moss’ communist membership in the 1940s and involvement with communist initiatives before Congress in 1954. Moss had denied these claims. The FBI testimony was corroborated by another witness and there was also a Department of Justice file on her. Politicians and the media painted Roy Cohn as a bully for pressing forward on behalf of McCarthy regarding this investigation during the Congressional testimony.

There were also claims that the FBI agent had perjured herself when testifying as to Moss’ activities. Some politicians even offered employment to Moss if she was to be reassigned or removed from her present position based on her alleged “mistreatment” during the hearings. In 1958, the Subversive Activities Control Board, a committee tasked with investigating communist infiltration and compelling the American Communist Party to register with the government, formally cleared the FBI agent of any perjury allegation as relating to the Moss matter. The board had in its possession considerable documentation supporting the testimony. McCarthy died in 1957 and would not live to see the vindication bear fruit.

Final Thoughts-A Legacy Reconsidered

McCarthy was ultimately censured by the Senate as a result of the fallout from his anti-communist crusade and hearings. His legacy has been sadly remembered in the history books as a sensationalist that fanatically alleged communist infiltration in the U.S. government and other areas of American life. This is an unfair verdict that has persisted for decades. As evidence has developed over time, however, we owe it to ourselves as Americans to revisit his legacy and respect his initiative to bring greater transparency to government. There was evidence of communist infiltration that he chose to bring to light and as provided in first-hand accounts, he was supported by the intelligence community. This prompted him to first tackle the issue.

While he may have exaggerated in some contexts and was a brash communicator, there were indeed several problems with infiltration in the U.S. government during WWII and the post-WWII era. If able, it is highly recommended to pick up copies of McCarthy by Roy Cohn and The Autobiography of Roy Cohn to inform from a first-hand perspective on the backstory of this often misunderstood issue in modern American history.


[1] Cohn, Roy. McCarthy. New American Library, Inc., 1968.

[2] Zion, Sidney. The Autobiography of Roy Cohn. Lyle Stuart, Inc. 1988.

Legacies Revisited: Hoover and The Great Depression

By: Chris Gomez

The 1920s were a turbulent period of economic growth, excess and then ultimately, calamity. In our history books, the severity of the Great Depression is typically laid at the feet of President Herbert Hoover. Is this scarring accusation correct or a misnomer? We will discuss Hoover’s legacy.

Hoover began his career in politics with his assignment to head the Food Administration during World War I under President Woodrow Wilson. This experience had a profound effect on him and did influence his personal views on humanitarian issues which would later gain him acclaim. He became sympathetic to the idea of the state as an instrument to cure poverty and suffering, but did not disregard his view that a free market system centered on individualism and less government intervention was optimal. Hoover’s tenure as Commerce Secretary began in 1920 under President Harding and later Coolidge. This began a period of overall success for the American economy. This success, however, was not to last as we consider some of the unsound fiscal policy that became prevalent throughout the world. To understand President Hoover and his ensuing policy priorities we must examine the pre-existing economic conditions globally and domestically.


When considering the global conditions, prior to World War I, many countries operated on the gold standard where paper currency was linked to and could be exchanged for an amount of gold. The main benefit of this system was that there were checks on inflation due to the limited ability to expand the supply of money. In order to fund the war effort, several of the countries, with the exception of the U.S., temporarily left the gold standard and let their currencies trade without backing, also known as fiat currency. The ensuing period of the 1920’s saw an attempt by Britain to return to the gold standard at a price economically impossible due to the wartime inflation. The idea was to go back to the legitimacy of the gold standard while forsaking the rule of convertibility and breaking the checks on inflation. Britain was attempting to reassert itself as the number one global superpower by enjoying the immediate economic benefits of inflation while pushing off the long term effects onto other countries. Several central banks of the nations were part of this collaborative effort. This, along with several other issues such as Germany being unable to independently pay its excessive war reparations created economic problems in Europe that would create a cycle of unpaid debt that would also impact the U.S. The global economic picture was beginning to appear bleak.

In terms of the domestic context, as Commerce Secretary, Hoover helped promote the deregulation, low tax rates and overall economic freedoms prevalent during the Harding and Coolidge administrations. He also warned of excessive stock speculation in the domestic U.S. and encouraged sound, but not overzealous government policy to monitor the situation. This was a good concept, but unfortunately it was ignored by others in the respective administrations. These administrations failed to adequately address the growing problems that were beginning to take place in the U.S. They did not adequately consider fair regulation of the market system and this would later become a major area of concern. Once Hoover assumed the Presidency, the stock market crash became a reality. The agricultural market in the U.S. was suffering and the years of unregulated stock speculation caught up with the U.S. economy.

In defense of Hoover, he was simply a man in the wrong place at the wrong time. Major global culprits behind the Depression were central banks that helped facilitate unsound European economic policy in addition to overzealous nations placing unrealistic reparation expectations on Germany following World War I. Debts were not repaid and this created an unhealthy economic chain reaction. These factors greatly unsettled the global economic climate. Domestically, there was not fair monitoring of stock speculation during the decade leading up to the crash and the agricultural sector was suffering. In the early stages of Hoover’s presidency, he was greeted with the stock market crash and arguably did not have enough time to fully apply his policy agenda to address it. To claim that he was the cause of the Great Depression, is wholly inaccurate and distorts the historical record. Ironically, as established, in the decade preceding the crash, Hoover was one of the minority voices in two administrations voicing his concern about the direction of the U.S. economy. If his propositions were applied sooner, it may have provided meaningful reforms that may have staved off some of the worst effects of the Great Depression, if not not rebounding from it in a shorter timeframe.

Now let us analyze Hoover’s actions after the crash. Hoover did not create the Depression but a question lingers; did his policies as President make it worse? Overall, the short answer is no they did not, but he was not given enough time to apply all his policy goals which may have shortened its timeframe. Hoover was a man greatly concerned about the effects of overzealous government intervention in the economy believing that it was a gateway toward socialism. Initially, he sought to continue promoting tax cuts as a means to ease the burden on the nation. One of his central focuses was also on state and local governments to work in collaboration with the federal government and private sector to address the economic issues facing the nation. He was adamantly against a central planning big government model to address the issues and post-presidency he would continue to be critical of this philosophy. During his term as he sought to lead the nation out of the Great Depression, he frequently reached out to major business leaders in the private sector and promoted laws that would focus on state centered relief disbursements.

He did, however, sign into law the enactment of the Reconstruction Finance Corporation, a government organization that was meant to invest in railroads, insurance companies and other large businesses as a way to limit the fallout. This was one of his few major legislative initiatives that sought to create a strong federally infused boom to the economy. His (mostly) non-interventionalist policy priorities, however, led to him being ostracized by the people and not re-elected for a second term. After President Franklin D. Roosevelt was elected, the Depression would continue for eight more years leading up to the dawn of WWII. The Roosevelt era would usher in the New Deal and a large scale government infusion into the economy.

Hoover represents an important figure in history. Hoover’s overarching vision was to rebuild the economy with policy encouraging the federal government to serve a collaborative, rather than central role. If he was able to fully integrate this into action, it could be argued that the Great Depression may have been significantly shortened. It could also be argued that Roosevelt’s actions that created a greater expansion of government into economic matters may have slowed the recovery. Hoover saw the New Deal as the road into socialism for the United States and spoke out against the efforts of Roosevelt. Politically ruined as he was, this did not garner much attention but his ideals have survived into today.

Today, the Hoover Institution stands at Hoover’s alma mater Stanford and promotes the ideas of free markets and individualism. It continues to carry out his legacy. Hoover was not a perfect President, yet there is a lot to be gleaned from his policy views and a large sense of unknown regarding what would have become of his policies if they had been given more time to work. His free market goals with an intent to reign in overzealous government intervention were optimal and continue to be considered today. To conclude, Hoover is a misrepresented President and contributed a lot to the intellectual forum that considers sound free market economic policy.

Pack the Court? Don’t Pack the Court, Baby

By: James West

Hamilton wrote in Federalist No. 71, “When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.” While many modern progressives would jump at the chance to quote a fictionalized version of Hamilton, it may behoove them to maintain a stricter adherence or understanding of his words.

To say that the fabric of our nation is under attack is not hyperbolic, though the sentiment needs some clarification to make it more well understood. What do I mean by “fabric of the nation?” An answer in two parts: first, Federalism. The delegation of powers and responsibilities between the Federal and State governments in order to ensure a more even-keeled spread of power. This has, of course, been “under attack” – and perhaps even partially destroyed – by the 17th Amendment and progressive agendas dating back to Wilson. That being said, the philosophical martyr that is Federalism is not the subject of this writing.

The second part of the “fabric of the nation” is the Separation of Powers, the delegation of powers and responsibilities between the three branches of government. It is an unfortunate reality that this foundation of our country’s government has been relegated to, essentially, a footnote in the American education system. We learned the branches, but never why they were separated in the first place, the philosophy behind why they were given the responsibilities they were and the dangers in blurring the lines between them. And so therein lies a major contributing factor as to why our fabric, as described above, is “under attack.” Now, perhaps there is some nefarious agenda to pool power in a massive oligarchical scheme. Perhaps there is a coordinated attack by outside parties to dismantle and disrupt how we operate in order to make us weaker. And, perhaps, there are elected officials and influential policy makers who know the risk of what the say and say it any way, not for a benevolent goal, but for selfish ends. While I am sure there is no shortage of the latter, Hanlon’s Razor presents a simpler explanation: never attribute to malice that which is adequately explained by stupidity. The “attack” is not like a line of missiles aimed at the front line, but more akin to a bear aimed at a screen door when it smells a fresh baked pie. The screen door is collateral damage to the bear’s end, and the bear knows not what it does – only the reward of pie.

With one party heading the Executive Branch, controlling (though less so than a few months ago) the House, and now the Senate, one obstacle poses a threat to the only bastion of objectivity blocking their agenda: The Supreme Court. The knob on the screen door. The pie is the agenda, and the claws and snout with which they rip through the screen like a less-competent Winnie the Pooh is court-packing. To quote a colleague, “I can’t believe we’re actually talking about that in 2020.” And we should not be – court-packing is logically incoherent, futile at best, and antithetical to American principles.

I understand how a “slippery slope” argument could easily become fallacious, and so I hold myself from saying “What are we going to have? A million Supreme Court justices?” But the argument holds that simply adding more justices leads to an incoherent outcome. The problem with court-packing is that it does not solve a problem of “not enough justices,” but solves a problem of “not enough justices that rule how we want, right now.” It is a permanent solution to a temporary problem (“problem” being used loosely). It does not address that there will always inevitably be some sort of inequity within a court – any court – with regard to the judicial philosophy being applied when rendering decisions. The closest mechanism for eradicating that inequity can be found in the Delaware State Constitution, which requires that no more than a “bare majority” – a “one-seat advantage” – may be held by the same political party on any given Delaware court. This mechanism (which made its way to the Supreme Court in December in Carney v. Adams, but was remanded based on standing of the plaintiff) ensures that on a five-member court, for example, there can only be a 3-2 majority. However, therein still lies some inherent inequity in the judicial philosophies of the judges. This inequity is impossible to eradicate, only to swing in the other direction. Like any pendulum, it will inevitably swing back.

The incoherence of idea of court-packing is supplemented by its futility – as stated above, the result of the endeavor would only be temporary until judges die or retire and new judges are appointed and the pendulum swings again (or worse, that precedent for packing is established and each cycle we add more judges – maybe not a million, but 15? 17?). But moreover, court packing assumes that each judge is going to rubber stamp an opinion and will inevitably rule one way every single time. To the unenlightened, this would assumedly be accurate and happen all the time. Fortunately, it’s not true. Justice Breyer often spoke in his debates and discussions with Justice Scalia however the Supreme Court rules unanimously – *unanimously* –  about 40% of the time. That’s 9-0 opinions, 40% of the time. It speaks nothing of the unexpected 8-1’s or 7-2’s, or even 6-3’s. We’ve been led to believe that the Court ruled 5-4 on everything, with a liberal wing and a conservative wing and one or two swings in the middle, and that that’s way it has to be and should be. The narrative now is that “balance” has been thrown off by the Court’s alleged 6-3 inequity, and that must be resolved. The facts dictate this is an exercise in futility. Not only is there no *guarantee* that the Court will rule 6-3 on the issues, but history suggests that they would not. We have seen that in action – Gorsuch, Kavanagh, and Barrett have issued rulings contrary to Trump’s interests. It’s almost as if they believe they are an independent, neutral branch of government.  

Court packing has no pragmatic end – except one. The threat of court packing is more combustible than the packing of the court itself. That much is historically true – see, FDR’s plan to add a justice every time one reached 70 and would not retire (a switch in time that saved nine, indeed). It was antithetical to American principles then, and its antithetical now. There is always going to be an inequity in the court, but in the same way attempts to remove that inequity are futile, the line is fine between a natural inequity over the progression of time and an inequity as a result of one Executive’s undue influence over a completely separate branch of government. Court packing – especially FDR’s plan – is a complete blurring of the separation of powers. It would grant undue influence from one branch over the other, and it would cause the judiciary to be a tool of the Executive to effectuate the rulings that they want. You may ask, “But James – isn’t that already the case? Doesn’t the President appoint who sits on the Supreme Court, and so the influence is Constitutionally based?” Yes and no. The problem is not the *influence* of the President on the Supreme Court. That influence is always there, just as each branch influences the other as they keep themselves in check (or are supposed to). But packing the Court would lead to an *undue* influence, and influence so great that it can only be called control. Many on the Left already view the Supreme Court as a Plan B Legislature, a way to get things done when the pesky Democratic process just will not move quickly enough. That is not what it is, and it is what it can never be. The sanctity of the Court’s objectivity must be maintained.  

And, of course, the undue influence would be shifted once a President from a different party was elected. The pendulum swings. What makes our country our country, or our Union our Union, has been eroded for decades. Mobs burn and torch small businesses, mobs storm the Capitol building, and the trust in our electoral system is at an all time low. Our division is stark, social media is making it worse, and everyone has opinions, but no one has convictions. After years of calling Trump a fascist and a dictator, the same people will be complacent or supportive of power continuing to centralize and acquiesce in the Executive. Court packing now would be just as if not more dangerous than when it was threatened by FDR. It’s a danger to the Separation of Powers and I implore all to think twice, especially Majority Leader Chuck Schumer, before suggesting it further.

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