In a speech to a group of young conservatives last week, Rep. Louie Gohmert, R-Texas, called for the impeachment of Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg in retribution for their ruling in favor of marriage equality, and insisted that a study trapping gay couples on an island would prove that gays and lesbians can’t have “what nature says is the preferred marriage.”
Gohmert, speaking at the Washington, D.C., conference of the college chapter of Phyllis Schlafly’s Eagle Forum, said that Justices Ginsburg and Kagan “ought to be impeached” for participating in the marriage equality case after officiating the legal weddings of same-sex couples.
“I think they ought to be impeached, I think ought to be removed, and until Congress shows that we do have some say in the Constitution over the courts the abuses are just going to get worse,” Gohmert lamented. He warned audience members that the Supreme Court wants you to “forget what Moses said God said, forget what Jesus said God said, we’re God and you go by what we say.”
He then suggested a study to prove that same-sex couples can’t have “the preferred marriage”:
We could take four heterosexual couples, married, and put them on an island where they have everything they need to sustain life. Then take four all-male couples and put them on an island with all they need to sustain life, take four couples of women, married, and put them on an island, and let’s come back in 100 to 200 years and see which one nature says is the preferred marriage.
Gohmert also told the audience that there’s “a case to be made” for impeaching President Obama, although he admitted he “hadn’t really thought about it” until reading a book by extreme conservative author Andrew McCarthy.
One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:
10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.
Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."
Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:
One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.
Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.
Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."
But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.
David Barton is outraged that Justice Ruth Bader Ginsburg nodded off during the State of the Union address last month, which Ginsburg attributed to the “very fine California wine” that Justice Anthony Kennedy had shared at dinner that evening.
Barton writes in a WorldNetDaily column today that while he isn’t personally “calling for the removal of Ginsburg for her recent faux pas,” Justice Ginsburg’s nap represented bad behavior and disrespect to the U.S. Constitution, both offenses warranting impeachment and removal from office.
You may recall pictures of Supreme Court Justice Ruth Bader Ginsburg sitting on the front row in the House Chamber sleeping during President Obama’s State of the Union Address. News recently broke explaining why: “I wasn’t 100 percent sober.”
A State of the Union message is a constitutionally mandated duty (Article II, Section 3), and for those who respect the Constitution, this address is serious stuff. But apparently not to Justice Ginsburg – which probably is not surprising given that her rulings routinely reflect a general dismissal of the Constitution and that she publicly advises leaders in other nations to seek something better than the U. S. Constitution for their country.
Regardless, it is certain that public intoxication by a Supreme Court justice does not inspire faith in the Judiciary. Luther Martin (one of the 55 delegates who framed the U. S. Constitution) warned: “It is necessary that the supreme judiciary should have the confidence of the people,” and to ensure this, the founders made certain that the federal bench could be ridded of those who embarrassed or misused it.
Citizens today might be dubious of such a statement, for we have long been told (and wrongly so) that federal judges have lifetime appointments. They do not – and it was the Founding Fathers themselves who specifically stipulated that federal judges could serve only for the duration of “good behavior” (Article III, Section 1). So as long as a judge acted right, he could stay on the bench, but if he acted otherwise, he could be removed. Nowhere in the Constitution is there any mention of, much less guarantee for, lifetime appointments for judges.
The first federal judge to be removed from the bench came at the behest of President Thomas Jefferson. That judge, John Pickering, was no obscure lightweight. Originally placed on the federal bench by President George Washington, Pickering had been a framer of the New Hampshire Constitution, served as the state’s governor, was selected as a delegate to frame the U.S. Constitution (but declined) and was subsequently a ratifier of the federal Constitution. So why was he removed? Among the reasons given was public intoxication (as well as a public disrespect for God). The Founding Fathers considered this to be bad behavior for a judge.
Don’t think I am calling for the removal of Ginsburg for her recent faux pas. Rather, I am pointing out that the current notion that federal judges are unaccountable because they have lifetime appointments is one of the greatest lies of our lifetime.
If America ever again expects the federal courts to be just one of three so-called “co-equal” branches rather than the supreme branch they have become, then we must recover the notion that our federal judges are not unaccountable demigods.
The last time Scott Lively appeared on “Trunews,” the right-wing pastor told host Rick Wiles that President Obama is the Antichrist (a claim he later denied, but ultimately conceded, making). In an interview yesterday, the two spent most of their time attacking gay rights and predicting that the Supreme Court will soon rule in favor of marriage equality.
Wiles warned that “corrupt, perverse judges” will soon declare that “multiple people in a marriage is constitutional,” and Lively said that Justice Ruth Bader Ginsburg already “telegraphed” the court’s intentions to strike down same-sex marriage bans once “society is ready for it.”
“She is one of the most wicked, vile human beings on the planet,” Wiles said.
“They’re going to rule against us, they’re going to rule for homosexual marriage, that might be the last straw for America, I don’t know, but God would have to apologize for Sodom and Gomorrah,” Lively said, before insisting that despite America’s imminent destruction he won’t leave the country “until the angel comes and grabs me by the hand.”
Russia, according to the two anti-gay pundits, may be their last hope to stop “the homosexual movement” and its backers in the “New World Order.”
Lively hoped that a “coalition of conservative nations led by Russia” will emerge to stand up to pro-gay “elitists,” who then in turn will try to “collapse the current economic system” until everyone succumbs to their gay, Marxist agenda.
To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 25, 2014
Subject: PFAW Foundation’s Supreme Court 2014-2015 Term Preview
The beginning of a new Supreme Court term has become a time to worry, “What’s next?” In the past two terms alone, often in 5-4 decisions, the Roberts Court has severely undermined the Voting Rights Act, continued its assault on the American people’s efforts to limit money in politics, strengthened the hand of employers who discriminate, significantly eroded church-state separation, discovered religious rights for for-profit corporations seeking to deny female employees needed contraception coverage, undercut unions, and found ways to help large corporations bypass laws designed to limit their power over small businesses and ordinary people.
As bad as the Roberts Court has been, there have also been some good decisions in the most recent terms. For instance, the Court struck down the odious Defense of Marriage Act, upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, and unanimously recognized our Fourth Amendment right to privacy concerning our smart phones.
The 2014-2015 Term is set to begin on October 6, the traditional First Monday in October, and the Court will be hearing a number of important cases. At the same time, perhaps half the cases it will hear this term have not been determined or announced, and there is substantial speculation on whether it will hear cases on several high-profile issues, marriage equality most prominent among them. Below is a summary of some of the major cases the Court may hear this term, along with cases already scheduled that we will be following.
CASES THAT THE COURT MIGHT HEAR
If the Court accepts a marriage equality case, it will obviously become the blockbuster case of the term (and perhaps the decade). The Court has already been asked to hear appeals of pro-equality rulings by three circuit courts: From the Tenth Circuit are Herbert v. Kitchen (Utah) and Smith v. Bishop (Oklahoma). From the Fourth Circuit are Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (all Virginia). From the Seventh Circuit are Bogan v. Baskin (Indiana) and Walker v. Wolf (Wisconsin). While states and government officials who lost in the lower courts are filing the appeals, the couples who won the cases are also urging the Court to hear the appeals, so there can finally be a national resolution to the issue.
Should one of the remaining circuit courts uphold a state marriage ban, the resulting split among circuits on such a major constitutional issue would almost guarantee review by the Supreme Court. But if every circuit continues to rule the same way, the Justices might decide to let the issue be resolved there.
Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can’t change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation’s highest court that would taint American law for decades to come?
For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy’s position, might not want to risk a 5-4 ruling in the “wrong” direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went “too far, too fast,” provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw “no urgency” for the Court to take up the issue now, although she added that she expects the Court to take it up “sooner or later.”
Should the Court grant cert on one or more of the appeals, it could answer a number of critically important questions in addition to whether states can prohibit same-sex couples from marrying.
Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.
A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – “rational basis” scrutiny by the courts: The law is constitutional as long as it’s rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)
But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.
The Court’s discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court’s eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.
Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.
Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law’s opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.
A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act,” noting that “[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble.” The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit’s.
But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.
The Roberts Court may hear one or more cases involving religious nonprofits that oppose the ACA’s contraception coverage requirement, in a sequel to Hobby Lobby v. Burwell. In that case, the Roberts Court gave certain for-profit corporations religious liberty rights under the Religious Freedom Restoration Act (RFRA), then completely rewrote the law to give the chain store the right to “exercise” its religion by refusing to comply with the ACA’s contraception coverage requirement.
Under RFRA, a federal law cannot impose a substantial burden on a person’s religious exercise unless it is in furtherance of a compelling governmental interest, and it is the least restrictive means of doing so. In Hobby Lobby, the Roberts Court concluded that the corporation and its owners suffered a “substantial” burden” on their religious exercise because the owners were offended by the contraception coverage requirement, even though it did not restrict or burden what they may believe or do. The majority also concluded that the law was not the least restrictive means of furthering the government’s interest in women’s health, because the Administration offers religious nonprofits an accommodation: They are exempt if they simply sign a form certifying that they are a religious nonprofit that objects to the provision of contraceptive services, and provide a copy of that form to their insurance issuer or third-party administrator, which then has the responsibility to pay for and provide the coverage. (Churches, in contrast, are wholly exempt.) The Roberts Court concluded that the federal government can make this accommodation available to for-profit corporations, meaning the coverage requirement is not the least restrictive means of achieving the ACA’s goal.
But three days later, the Court issued a temporary injunction against enforcing even this accommodation against Wheaton College, a non-profit religious institution that argued that the accommodation substantially burdens its religious freedom. This prompted a furious dissent from the three women Justices. Although the merits of the case are still being argued before a lower federal court, this was an ominous sign of how the Roberts Court will address the legal question when it inevitably reaches the high court.
Another high-profile case (or one similar to it) that may reach the Court involves Little Sisters of the Poor. This religious nonprofit organization, too, has a religious objection to the accommodation that was designed to meet its religious objections, arguing that the form is like a permission slip that would trigger contraception coverage, making the nuns complicit in sin. However, the Little Sisters’ insurer is classified as a “church plan,” which is actually exempt from the ACA requirement. So regardless of whether the Little Sisters signed the form, their employees would still not have the contraception coverage. Nevertheless, last January, while its RFRA suit against the contraception coverage provision was before the Tenth Circuit (where it is still pending), the Supreme Court enjoined the federal government from enforcing the law until a final resolution on the merits.
It seems likely that there will be a request that this issue be considered by the Supreme Court at some point this term, either through one of these cases or one similar to them.
CASES CURRENTLY BEFORE THE COURT
EMPLOYMENT DISCRIMINATION AND WORKERS’ RIGHTS
The Supreme Court is to decide to what extent employers can treat pregnant workers temporarily unable to work differently from other workers temporarily unable to work.
This case involves Peggy Young, a pregnant employee of UPS with temporary medical restrictions on how much she could safely lift. UPS did not make any accommodations for her, such as temporary alternative work. As a result, she spent several months on unpaid leave, during which she lost her medical coverage.
In 1976, the Supreme Court ruled that discriminating against employees who are pregnant was not sex discrimination under Title VII. Congress corrected that interpretation of the law in 1978 with the Pregnancy Discrimination Act (PDA), which has two relevant provisions. First, it specifies that sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.
The second provision explains how to apply that general principle: It says that women affected by pregnancy “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” This establishes a basis of comparison. So while a typical sex discrimination case looks at how a female plaintiff is treated in comparison to similarly situated men, a PDA case looks at how she is treated in comparison to non-pregnant workers with similar ability (or inability) to work.
UPS’s collective bargaining contract calls for UPS to accommodate temporarily disabled employees if the disability is due to an on-the-job injury, or if they have lost their DOT certification to drive. UPS also accommodates employees who have a permanent impairment under the Americans With Disabilities Act. UPS says its policy is “pregnancy-blind:” They claim they are treating Young the same way they’d treat a non-pregnant employee whose injury doesn’t fit any of the above conditions.
But Young argues that isn’t the proper analysis under the PDA. She points out that UPS would have made an accommodation for someone “similar in their ability or inability to work” to her if they were in one of those three categories. So, she concludes, the plain text of the PDA requires UPS to accommodate her, as well.
The Supreme Court is to decide if employers can deny overtime pay to employees at “customer fulfillment” distribution centers for the time they spend waiting for mandatory security screenings.
This is a class-action lawsuit brought by Jesse Busk and Laurie Castro, two former employees of Integrity Staffing Solutions, which provides workers to work in the warehouses of companies like Amazon.com. At the end of the shift, the company requires every employee to go through a security check before they leave the facility to make sure they aren’t stealing the merchandise. The employees wait as long as 25 minutes to be searched. Busk and Castro claim that they should have been paid overtime for this time under the Fair Labor Standards Act (FLSA), as should all current employees, as well.
FLSA requires overtime pay when a covered employee works more than 40 hours in a workweek. In 1947, Congress helped define what counts as “work” by passing the Portal-to-Portal Act (PPA), which says that FLSA’s overtime requirement doesn’t apply to activities that are “preliminary” or “postliminary” to an employee’s primary job responsibilities. In a 1956 case called Steiner v. Mitchell, the Supreme Court interpreted the PPA as requiring overtime only for tasks that are an “integral and indispensable part of the principal activities for which covered workman are employed.”
Busk and Castro say that any activity required by and beneﬁtting the employer (such as the security searches) are part of the actual job, not “postliminary” to it, so they count as time at work under FLSA and should generate overtime pay. They get support from an amicus brief submitted by the National Employment Lawyers Association, which details how loss-prevention activities have become integrated into the modern retail work routine, making searches like those at issue here part of an employee’s principal activities.
The workers won at the Ninth Circuit, but the court used different reasoning: that the searches are “postliminary” (so the Portal-to-Portal Act applies), but that they are an “integral and indispensable part” of the workers’ principal activities and therefore subject to overtime pay. Integrity (supported by an amicus brief from the Obama Administration) asserts that the searches are “postliminary” to work, are not an “integral and indispensable part” of the employees’ principal activities and, therefore, don’t trigger the overtime requirement.
Part of the company’s argument seems to be a results-based pitch to a corporate-friendly Court: In its certiorari petition urging the Justices to hear its appeal, Integrity Staffing wrote that since the Ninth Circuit ruling, “plaintiffs’ lawyers have brought nationwide class actions against a number of major employers—including Apple, Amazon.com, and CVS—seeking back pay (plus overtime and penalties) for time spent in security screenings.” Notice that it isn’t employees who are suing, but “plaintiffs’ lawyers,” a framing that is red meat for right-wing ideologues. This argument also seems to have less to do with discerning congressional intent and more to do with protecting large corporations.
The Supreme Court is to decide if employers can escape liability for illegal discrimination by arguing that the EEOC failed to make a sufficiently good-faith attempt to reach a settlement with the employer.
Mach Mining has never hired a woman for a mining position. A woman who had been turned down several times for a coal mining job filed a sex discrimination complaint with the Equal Employment Opportunity Commission, a step that Title VII requires before filing a lawsuit. EEOC looked into the allegation, found it had merit, and – again, as required by Title VII – sought to negotiate an end to the alleged sex discrimination “by informal methods of conference, conciliation, and persuasion” before suing. After several months without success, the EEOC notified the company that it felt further efforts would be futile and initiated a lawsuit. Mach Mining says the case should be dismissed on the grounds that the EEOC didn’t make a good-faith conciliation effort. In response, the EEOC says Title VII doesn’t allow such a defense.
While several other circuits have ruled otherwise, the Seventh Circuit in this case concluded that Title VII cannot be interpreted to allow courts to inquire into the adequacy of the EEOC’s conciliation efforts. For one thing, Title VII has no express provision for an affirmative defense based on a defect in the EEOC’s conciliation’s efforts. It also calls for the EEOC to “endeavor” to end the discrimination through “informal methods of conference, conciliation, and persuasion.” If it can’t reach a result “acceptable to the Commission,” it can sue. The Seventh Circuit interpreted this as giving the EEOC great deference.
The court also noted that Title VII makes the process confidential, with penalties for making the information public without the consent of everyone concerned. That could prevent the EEOC from showing the court the evidence that it had sought to conciliate in good faith. It seems unlikely that Congress wrote Title VII to require the EEOC to defend its conciliation efforts in court but made its ability to do so dependent on the permission of the employer being sued. The court also concluded that there would be no meaningful standard of review. For instance, just how hard should the agency pursue an agreement?
A Supreme Court ruling for the employer could give employers a significant tool to stymie legitimate lawsuits against unlawful employment discrimination. As the Seventh Circuit wrote:
Simply put, the conciliation defense tempts employers to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court. Such disputes impose significant costs on both sides, as well as on the court, and to what end?
All the employer should legitimately hope to gain is some unspecified quantum of additional efforts at conciliation by the EEOC. The result of such a defense, as we have said in a closely related context, is to “protract and complicate Title VII litigation, and with little or no offsetting benefit.”
The Supreme Court is to address whether a state prison’s prohibiting a Muslim prisoner from growing a half-inch beard violates the federal Religious Land Use and Institutionalized Persons Act.
This case originated with a handwritten request to the Supreme Court from Gregory Holt (aka Abdul Maalik Muhammad), a Muslim prisoner in Arkansas, to hear his case. He states that his religious beliefs require him to have a beard, and he seeks to grow a half-inch beard. The state Department of Corrections prohibits beards generally, but allows quarter-inch beards grown for medical reasons. Muhammad sees his request as a compromise (since his religious beliefs really would have him grow it much longer) that has been accepted in prisons elsewhere.
Since he is in a state prison, Muhammad’s case is governed by a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. Passed unanimously by Congress in 2000, RLUIPA requires prisons accepting federal funds to give greater religious liberty protections to inmates than is required by the First Amendment’s Free Exercise Clause. Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Hobby Lobby, RLUIPA is triggered when the government imposes a “substantial burden on the religious exercise” of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The state argues that the no-beard policy furthers the compelling government interests in prison safety and security, and that the proposed half-inch accommodation would not be as effective as the no-beard rule in achieving those purposes. For instance, they provide the opinions of penal experts that prisoners could use the beards to hide contraband, and that escaped prisoners could too easily and quickly change their appearance simply by shaving. Muhammad (now represented by counsel) argues that the lower courts, which ruled against him, did not provide the strict scrutiny of the state’s arguments that is required by RLUIPA.
In Hobby Lobby, the Supreme Court significantly rewrote RFRA, watering down the “substantial burden” requirement and applying the religious liberty law to for-profit corporations. Neither factor is relevant to this case, meaning the Court could rule in favor of Muhammad without rewriting the law. But the Roberts Court is known for playing the “long game.” Even if the Court rules unanimously for Muhammad, they may not all agree on the reasoning: The conservatives could write an opinion designed to be cited in future RFRA litigation strengthening the hands of those on the right who would reshape RFRA from a shield against government oppression into a sword.
The Supreme Court is to address whether Alabama engaged in unconstitutional racial gerrymandering when it drew new state House and Senate district lines that channeled large numbers of African Americans into districts that were already majority-minority.
The GOP-controlled Alabama state legislature enacted a redistricting plan that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black. In so doing, the legislature was seeking to achieve certain percentages of black voters in the majority-black districts. At issue is whether legislators engaged in an unconstitutional effort to separate voters by race, or whether they followed traditional redistricting criteria in a way that was necessary to comply with the Voting Rights Act.
Due to population shifts, majority-black districts established after the 2000 Census lost population and had to be redrawn after the 2010 Census to bring in new people. In some cases, the population loss was disproportionately white, meaning that a significantly higher percentage of the remaining population was African American than before. In redrawing the lines while keeping the same number of majority-black districts, the legislature made two decisions that led to what some call “bleaching” – drawing lines so that large numbers of African Americans in majority-white districts would be redistricted into supermajority-black districts, and diminishing African Americans’ political influence in much of the state.
First, they chose to reduce the permissible population difference between districts from 10% (the 2000 standard) to 2%. To achieve district populations that close to each other, many more people would have to be drawn into the modified black-majority districts than would otherwise have been necessary. That huge numbers of those people would be blacks removed from majority-white districts was determined by the second decision: Ostensibly to comply with the requirement under Section 5 of the Voting Rights Act (this was before Shelby County) that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, the African American percentages in the redrawn majority-minority districts should be at least whatever they had become in 2010.
This reapportionment was upheld by a divided three-judge federal district court. The majority concluded that race was not the predominant factor in drawing the redistricting boundaries, so that they need not be analyzed under strict scrutiny as in the 1993 Shaw v. Reno case. The majority also concluded that even if strict scrutiny applied, the legislative boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 of the Voting Rights Act, which applied at the time. The plaintiffs in this case – the Alabama Legislative Black Caucus and state Democrats – challenge those conclusions, arguing that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment.
FREE SPEECH AND SIGN REGULATIONS
The Supreme Court will hear a church’s Free Speech challenge to city rules regulating the size and placement of various types of signs, which affect the signs it puts up to direct people to its church services.
This case was brought by a small church (25-30 adult members) in Arizona that places signs up to invite people to its weekly services and inform them where they are being held. Good News Church and its pastor Clyde Reed are urging the Court to strike down the town of Gilbert’s sign ordinance, which treats some signs (such as directional signs for events, like a fair or, in this case, a church service) differently from others (like political, real estate, or ideological signs). The different types of signs have different rules on how large they can be, and where and when they can be posted. Good News Church argues the law is an unconstitutional content-based infringement of its First Amendment rights. The lower court had upheld it as content-neutral.
Gilbert regulations generally require a permit before posting a sign, with a number of exceptions that can be posted without a permit. These exceptions (each with specific size, number, and placement rules) include construction signs, open house signs, parking signs, building identification signs, garage sale signs, street address signs, and restaurant menu signs. The church devotes much of its focus to three of the exceptions:
The church has signs in the first category to tell people about their weekly church services in the space they rent. The maximum size is smaller than political and ideological signs, fewer can be posted, and they cannot stay up nearly as long. Represented by the far-right Alliance Defending Freedom, Good News Church argues that the city is violating its First Amendment rights by applying different rules to different types of noncommercial signs based on their content. According to the church, any classification based on what a sign says is content-based and therefore subject to the highest level of scrutiny. And if the law’s purpose is, say, to promote traffic safety or aesthetics, then what difference should it make if the sign is for a church service, political candidate, or particular ideology?
A divided panel of the Ninth Amendment disagreed, ruling against the church. It said the distinctions among different types of signs are content-neutral (and thus subject to a somewhat lower level of scrutiny) because Gilbert’s interests in regulating temporary signs are unrelated to the specific content or message of the sign. Each exemption is based on objective criteria related not to the sign’s message, but to the reason for the exemption (such as need for communication about elections, or the need to let event sponsors inform people how to get to the event).
HOLDING FRAUDULENT CORPORATIONS ACCOUNTABLE
The Court is to decide whether the clock stops on a deadline to sue for securities fraud when someone files a class action suit.
This case relates to a key 1974 precedent called American Pipe & Construction Co. v. Utah, where the Supreme Court ruled that the filing of a class action lawsuit stops the clock (“tolls” in legal parlance) on the statute of limitations on filing federal antitrust claims for all potential members of the class, including those who are not actively involved with or even aware of the class action lawsuit. So if a court then doesn’t certify the class for some reason or dismisses its claims, but makes that decision after the statute of limitations has passed, those who would have been included in the class have not lost their opportunity to have their day in court just because they hadn’t made an individual filing in the case.
The current case relates to the financial meltdown of the 2000s and involves federal laws in the Securities Act of 1933 prohibiting sellers of securities from misleading investors. The law has two key time limits: (1) You generally have one year to file a lawsuit, and that can be a year after the untrue or misleading statement is made or discovered. (2) But there is an additional limit, one that restricts just how long after the fact you have to discover the wrongdoing: “In no event shall any such action be brought … more than three years after the security was bona fide offered to the public [or, depending on which section of the law is involved] more than three years after the sale.” The Second Circuit concluded that the American Pipe rule did not apply to this statute.
One of the great benefits of class action litigation is that it protects the rights of people who cannot afford to themselves engage in litigation and may not even realize they have been wronged. It also vastly enhances our society’s ability to hold large corporations responsible when they violate people’s rights. The rule from American Pipe has served that purpose well. But in other contexts, the Roberts Court has significantly undercut the ability of Americans to utilize class actions to protect their rights. If the Court rules that American Pipe doesn’t apply in the securities fraud context, it will be important to see if its reasoning also undercuts American Pipe as a precedent in other contexts.
The Court is to address what investors need to prove to hold companies accountable for material misstatements in investment material.
When responding to a public offering of company shares, investors may rely on a company’s registration statement with the Securities and Exchange Commission. Under Section 11 of the Securities Act of 1933, investors can sue if that statement “contained an untrue statement of a material fact or omitted to state a material fact [that was] necessary to make the statements therein not misleading.” This case asks what investors need to prove if the purportedly “untrue statement” was the company’s opinion that it wasn’t breaking the law.
Omnicare is the nation’s largest provider of pharmaceutical care for the elderly and other residents of long-term care facilities. In Omnicare’s registration statement, it said that “we believe” that its financial relationships with pharmaceutical manufacturers were legal. The investors here claim that some of those deals constituted unlawful kickbacks. The question is whether that allegation is enough to trigger Section 11.
According to Omnicare, for the investors to have a claim under Section 11, they have to allege that Omnicare didn’t believe the statement when it was made. Otherwise, companies could be held liable for statements of opinion that turn out later not to be true. Two circuit courts have taken that view.
But in this case, the Sixth Circuit took a different approach, one that makes it easier for investors to file a Section 11 claim. That court reasoned that Section 11 is a “strict liability” statute where the state of mind of company officials isn’t relevant, so it’s sufficient to allege that the opinion was false, regardless of whether the company knew at the time it was false. That’s the ruling the investors in this case are asking the Supreme Court to uphold.
In an amicus brief, the Obama Administration takes a middle ground, in which the company isn’t held liable only because it expressed an opinion that turned out not to be true. The Administration argues that a statement of opinion is actionable under Section 11 if: (1) the company didn’t believe it at the time (which both parties in this case agree on), or (2) there was no reasonable basis for the opinion at the time, even if it was sincerely held (which Omnicare disagrees with).
Any ruling by the Roberts Court should keep in mind that Congress enacted Section 11 to encourage maximum disclosure by companies making a public offering. After all, people associated with the company know far more about the business than potential investors could ever know, and Section 11 was intended to dissuade corporations from tricking investors.
Just as the Lochner case defined the Supreme Court a century ago as it turned conservative economic policies into constitutional dogma, America finds itself living through the Citizens United era, where the Court again routinely rules in favor of corporate and other powerful interests. By the end of June, we will know if the current term will have been as damaging to Americans’ fundamental rights as recent terms have been.
Supreme Court Justice Ruth Bader Ginsburg wrote in her dissent in the Hobby Lobby case that the Court’s conservative majority had “ventured into a minefield” with its decision. Many of those mines have already been placed by right-wing leaders who claim a religious grounding not only for anti-gay, anti-abortion, and anti-contraception positions, but also for opposition to collective bargaining, minimum wage laws, progressive taxation and government involvement in the alleviation of poverty.
In Hobby Lobby, the Court found for the first time that for-profit corporations have religious rights just like real people and can therefore make claims under the Religious Freedom Restoration Act that they should be exempt from laws that burden their corporate “exercise” of religion. In her dissent, Justice Ruth Bader Ginsburg was deeply skeptical of Justice Samuel Alito’s assertion that the decision was limited only to the contraception mandate and only for closely held corporations.
“Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work?” she asked. How would the Court justify applying its logic only to religious views about contraception? “Indeed, approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’”
Ginsburg’s questions are not merely rhetorical. Conservative Catholic and evangelical leaders who have signed the Manhattan Declaration, including some U.S. bishops, declare themselves willing to engage in civil disobedience – maybe even martyrdom – in order to avoid any participation in abortion or any “anti-life act.” Nor, they declare, “will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”
Alito’s majority opinion says Hobby Lobby does not extend the right to religion-based discrimination on account of a person’s race, but is conspicuously silent on other kinds of discrimination. That silence raises concerns that business owners could use the Hobby Lobby decision to opt out of a future federal LGBT civil rights law, or the Obama administration’s executive order against anti-LGBT discrimination by federal contractors.
Indeed, especially in light of Alito’s mention in Hobby Lobby that RFRA applies to the District of Columbia as a federal enclave, such a claim could be brought today to seek an exemption from D.C.’s Human Rights Act that prohibits discrimination based on sexual orientation. What happens if and when a local bishop instructs Catholic business owners that it would be sinful to treat legally married gay employees the same as other married couples, or an evangelical businessman declares he will not “bend” to DC’s Human Rights Act?
Business owners now have a new basis for trying to evade anti-discrimination laws and their responsibilities to their employees. Religious liberty is already the rallying cry for conservatives looking for a legal way to discriminate against LGBT Americans; other business owners have tried to use religion to justify opposition to minimum-wage laws and Social Security taxes. Faith groups are already trying to capitalize on the Hobby Lobby decision out of court; on Wednesday, a group of religious leaders asked the Obama administration for an exemption from a forthcoming federal order barring federal contractors from discrimination on the basis of sexual orientation or gender identity.
To be clear, the federal Religious Freedom Restoration Act that was used as the basis for the Hobby Lobby decision applies only to federal and District of Columbia laws and regulations, including presidential executive orders, not to state laws.
The stories of business owners being told they cannot exempt themselves from anti-discrimination laws have mostly involved questions about state-level civil rights and religious freedom statutes. Earlier this year the US Supreme Court declined to review a New Mexico Supreme Court ruling that a wedding photography business had violated anti-discrimination law when it refused to photograph a same-sex commitment ceremony.
Although Hobby Lobby does not apply directly to state laws, it could influence state courts weighing religious claims by business owners in states with their own versions of RFRA.
The clash between religious conservatives and advocates for LGBT equality has been well publicized. But the minefield Ginsburg refers to extends well beyond traditional “social issues.” Religious Right leaders have been working hard to convince conservative evangelicals that the Tea Party’s anti-government, anti-union, anti-welfare agenda is grounded in the Bible – an effort that started well before the Tea Party arrived on the scene.
David Barton is an influential Republican activist and “historian” who helped write the GOP’s national platform in 2012. Barton’s “Christian nation” approach to history has been denounced by historians and scholars, including some who are themselves evangelical Christians, but it is embraced by conservative politicians who extol a divinely inspired American exceptionalism. Barton teaches that Jesus and the Bible are opposed to progressive taxation, minimum wage laws, collective bargaining, and “socialist union kind of stuff.”
In addition, “mainstream” Religious Right leaders and conservative politicians are increasingly allied with a group of Pentecostal leaders who promote a “dominionist” theology that says God requires the right kind of Christians to take dominion over every aspect of society, including the business world. Many of them were sponsors of, and participants in, the prayer rally that Texas Gov. Rick Perry used to launch his ill-fated 2012 presidential campaign.
Thanks to previous Supreme Court decisions, alluded to and affirmed by Alito’s majority opinion in Hobby Lobby, the Court has for now seemingly closed the door to companies making a religious challenge to paying Social Security and federal income taxes based on their objection to a particular government program funded with those taxes. But the same might not be true for more targeted taxes and fees, or for laws regulating company behavior or the relationships between companies and their employees.
Opposition to unions has deep roots in Christian Reconstructionism, which has influenced the Religious Right’s ideology and political agenda. An early Christian Coalition Leadership manual, co-authored by Republican operative Ralph Reed in 1990, is a stunning example. A section titled “God’s Delegated Authority in the World” argues that “God established His pattern for work as well as in the family and in the church.” It cites four Bible passages instructing slaves to be obedient to their masters, including this one:
Slaves, submit yourselves to your masters with all respect, not only to those who are good and considerate, but also to those who are harsh. For it is commendable if a man bears up under the pain of unjust suffering because he is conscious of God.
The conclusion to be drawn from these slaves-obey-your-masters passages?
Of course, slavery was abolished in this country many years ago, so we must apply these principles to the way Americans work today, to employees and employers: Christians have a responsibility to submit to the authority of their employers, since they are designated as part of God’s plan for the exercise of authority on the earth by man.
More recently, Religious Right leaders have cheered on corporate-funded attacks on unions in Wisconsin and Michigan. Does the Hobby Lobby ruling open another front in the right-wing war on workers? It is not uncommon for companies to refuse to cooperate with union organizers or negotiate with a properly organized union. Imagine that a business owner objects to a National Labor Relations Board finding that they have violated the National Labor Relations Act by arguing in federal court that their company’s religious beliefs prohibit them from dealing with unions?
It’s not as far-fetched as it might seem. Since long before the Hobby Lobby case created an open invitation to business owners to raise religious objections to bargaining with unions, the National Right to Work Legal Defense Foundation has encouraged workers to raise religious objections to requirements that they join or financially support a union. Here’s an excerpt from their pamphlet, “Union Dues and Religious Do Nots.”
To determine whether your beliefs are religious instead of political or philosophical, ask yourself whether your beliefs are based upon your obligations to God. Do you simply dislike unions or hate this particular union’s politics? Or, does your desire to stand apart from the union arise from your relationship to God? If your beliefs arise from your decision to obey God, they are religious.
It is possible that conservative courts may not give the same weight to religious claims about anti-gay discrimination or the Bible’s opposition to unions or minimum wage laws as they did to Hobby Lobby’s anti-contraception claims. Those claims were based on the owners’ belief – one that runs counter to medical scientific consensus – that some of the most effective forms of birth control work by causing abortions, and are therefore the moral equivalent of murder.
But as Justice Ginsburg pointed out, it is not clear how courts will differentiate between different types of claims. And it will be easier for claims to meet the new, lower threshold created by the Court in effectively altering the “substantial burden” test.
As Justice Ginsburg pointed out, rather than having to show that a person’s, or corporation’s, practice of religion has been burdened, they simply need to show that a law is “incompatible with” the person’s religious beliefs. Additionally, it seems that a wide array of regulations, conceivably including minimum wage laws, could be threatened by Alito’s reliance on the idea that having the government pay for the cost of implementing a regulation is less restrictive than having the company bear the cost of a regulation it objects to.
It is also not clear that the decision will remain “limited” to the 90 percent of American companies that qualify as closely held, which employ more than half of the nation’s workforce. The Court explicitly acknowledged the possibility that publicly traded corporations could raise such claims, but argued that it would be “unlikely.” But in this new world in which corporate religious claims can be made against government regulation, what is to prevent the CEO or board of a publicly traded organization from finding religion with regard to, say, greenhouse gas emissions?
The Evangelical Declaration on Global Warming, promoted by the anti-environmentalist Cornwall Alliance, declares as a matter of faith that earth’s ecosystem is not fragile and that efforts to reduce global warming, like regulating the emission of carbon dioxide, are not only “fruitless” and “harmful” but would discourage economic growth and therefore violate Biblical requirements to protect the poor from harm.
Justice Alito’s opinion rejects Justice Ginsburg’s characterization of the ruling’s “startling breadth.” But it is undeniable that the Court majority has opened the door to owners of for-profit corporations making an array of claims under the Religious Freedom Restoration Act.
Justice Ginsburg writes in her dissent, “Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.” For today’s right-wing leaders, who claim religious grounding for just about every aspect of their political ideology, there aren’t many forms of regulation that would be off-limits.
"The Federalists have retired into the Judiciary as a stronghold … and from that battery all the works of republicanism are to be beaten down and erased."
—Thomas Jefferson, 1803
TABLE OF CONTENTS:
In the dismal 2013-14 Supreme Court Term in which the conservative majority wiped out aggregate campaign contribution limits (McCutcheon v. FEC), undercut the power of unions (Harris v. Quinn), and approved lopsided sectarian religious invocations in public meetings (Town of Greece v. Galloway), one big consolation was Justice Ruth Bader Ginsburg’s devastating indictment of the majority in her seething dissenting opinion from perhaps the worst decision of the Term, Burwell v. Hobby Lobby.
In Hobby Lobby, of course, the runaway conservative faction, for the first time in American history, determined that for-profit business corporations have religious rights and then used this epiphany to grant corporate owners the power to deny contraceptive coverage to female employees under the Affordable Care Act, the major Obama-era accomplishment which the Right reviles and never tires of attacking.
Justice Ginsburg, fighting young at age 81, was having none of it and methodically destroyed the thin arguments of Justice Alito in a 35-page opinion that should be required reading for anyone who still cares about the rule of law in America. The highlights of her comprehensive takedown of the majority show a Supreme Court Justice who richly deserves her title by virtue of her devotion to the rule of law and the rendering of justice and fairness to the people.
But Ginsburg’s masterful dissent in Hobby Lobby is not a lone shot in the dark; she is likely to complete her tenure on the Court being known as the Great Dissenter from the jurisprudence of the ruling conservative faction. Although Ginsburg obviously prefers to speak for freedom and equal rights when in the majority—see, for example, her magisterial opinion in United States v. Virginia (1996), striking down the exclusion of women from the Virginia Military Institute—she does not shy away as a dissenter from blowing the whistle on the logical fallacies, doctrinal inconsistencies and rank hypocrisies that inform the opinions of her colleagues when they are transforming the powers of corporate America or trashing the rights of working people and minority groups.
This report canvasses, in addition to her brilliant dissent from Hobby Lobby, some of Ginsburg’s most important recent dissenting opinions whose logic still awaits vindication. One blistering dissenting opinion, the one she filed in Lily Ledbetter v. Goodyear Tire & Rubber Co. (2007), planted the seeds for a dramatic political and legislative reversal of the Court’s conservative majority in Congress. Another notable dissent of Ginsburg’s still awaiting change is one in which the oldest member of the Court speaks powerfully for the civil liberties of the youngest Americans in the context of school drug testing, Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002).Moreover, from last term, this report examines several forceful opinions Ginsburg lodged in dissent against three appalling anti-civil rights decisions: Shelby County v. Holder (2013), which ravaged the Voting Rights Act; and Vance v. Ball State University (2013), and University of Texas Southwestern Medical Center v. Nassar (2013), both of which undermined Title VII civil rights protections for people in the workplace. Assailing her conservative colleagues’ indifference to the situation of working people, castigating them from the bench for their tortured reasoning, and inviting Congress to reverse the damage they inflicted, Ginsburg showed that she remains at the top of her game.
While the Roberts Court majority continues its rampage against the constitutional, reproductive, and civil rights of the American people, Ginsburg not only calls out the real-world implications of this reactionary judicial activism but carefully spells out a path for corrective legislative action and for the elaboration of a principled jurisprudence in the future. Her progressive constitutional philosophy always places the equal rights and liberties of the people at the heart of the Court’s work and demonstrates a dynamic respect for Congress’ exercise of its enumerated powers to promote strong democracy, robust civil rights, and an inclusive economy.
HOBBY LOBBY STORES INC.
"In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."
In this well-chosen sentence that opens her dissenting opinion in Hobby Lobby, Justice Ginsburg explains how the majority decision, which authorizes business corporations to deny contraceptive care to millions of women employees, also generally rewrites American law to furnish corporations an all-purpose excuse for not complying with public laws.
Of course, the immediate victims of this breathtaking new orthodoxy are women, and Ginsburg, perhaps the greatest women’s rights lawyer of the 20th century, emphasizes the gender-based injury of the new doctrine.
“The ability of women to participate equally in the economic and social life of the Nation,” she writes, quoting Planned Parenthood of Southeastern Pa. v. Casey, “has been facilitated by their ability to control their reproductive lives.” Congress acted on this basic understanding when it provided for coverage of women’s preventive care in the Affordable Care Act and the Department of Health and Human Services (HHS) followed through by issuing regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). As Senator Durbin put it, “This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] . . . .This expanded access will reduce unintended pregnancies.”
Yet, the owners of Hobby Lobby claimed that it would violate the corporation’s personal religious rights (I know, this makes no sense) to allow 13,000 employees under the company’s group insurance plan to access certain contraceptives, including IUDs, that the corporation’s five owners consider to be sinful. The exemption that the owners were granted, Ginsburg writes, will “deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.”
Ginsburg demonstrates how the majority’s theological joyride depends on an indefensible reading of the Religious Freedom Restoration Act (RFRA). That Act was meant to “restore the compelling interest test for deciding free exercise claims” in the wake of Employment Division, Dept. of Human Resources of Ore. V. Smith (1990), but not in any way to begin treating for-profit business corporations like the flesh-and-blood people of the United States when it comes to religious rights.
Ginsburg shows that there is zero support in RFRA’s legislative history for the idea that it endowed business companies with the personal rights of religious worship and free exercise. Furthermore, until this brazen litigation was brought, “no decision of the Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.”
Moreover, Ginsburg observes, the “absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities.” Then she grabs the bull by the horns, revealing to America that the Hobby Lobby opinion is just a farcical copy of the tragic error committed in Citizens United (2010), the decision that pretended that corporations have the political free speech rights of citizens in order to endow CEOs with the power to spend treasury money in elections.
She quotes Chief Justice John Marshall’s famous statement from the Dartmouth College case in 1819 defining a corporation as “an artificial being, invisible, intangible, and existing only in contemplation of law,” and Justice Stevens’ stinging and obvious words from his dissenting thoughts in Citizens United: corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”
Ginsburg then brushes away Justice Alito’s attempt to confuse the issue by citing cases where religious non-profit corporations—that is, churches!—have been granted religious free exercise protection. Of course this is the case, she points out, because these are religious entities enacting the religious practices and values of the people who belong to them. The Court’s “’special solicitude to the rights of religious organizations . . . is just that,” she says. “No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had never been extended to any entity operating in the commercial, profit-making world.” (internal citations omitted)
The reason for this is clear. “Religious organizations exist to foster the interests of persons subscribing to the same religious faith,” Ginsburg writes. “Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations.” Ginsburg thus raises the obvious question: do business corporations now have a RFRA right to discriminate in hiring and firing based on religion? It follows logically from the majority’s awful opinion.
Nor does Ginsburg try to hang on to the thin reed offered by the majority at one point to suggest that its reasoning might extend only to “closely held” corporations (which are actually the vast majority of corporations anyway) as opposed to publicly traded ones. “Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private,” she writes.
After obliterating the central fallacy of the Court’s reasoning, Ginsburg proceeds to show how, even if the corporations in the case were “persons” within the meaning of RFRA, they did not have their religious rights violated by the Obamacare contraceptive insurance provisions.
To begin with, those provisions do not “substantially burden” the corporation or corporate owners in the exercise of their religion, which is the rigorous standard Congress established in RFRA. Conceding the sincerity of the Hobby Lobby owners’ objections to certain kinds of contraceptives, Ginsburg shows that nothing in the ACA makes them use such contraception, change their beliefs about these methods, or alter their religious practices in any way. The owners are in the same position as the Native American father in Bowen v. Roy (1986), who lost his case challenging the Government’s use of his child’s Social Security number as a violation of his sincere religious belief that his child’s sacred spirit is profaned by its reduction to a number and by its use in this fashion. There, Ginsburg points out, the sincere religious adherent lost because the Government’s administrative mandate and program “placed no restriction on what the father may believe or what he may do.” (emphasis added, internal citations omitted) Similarly, Hobby Lobby’s owners can believe and do whatever they want, except they may not have their company opt out of a federal law that does not impair their own religious practice. Hobby Lobby employees who share the religious views of the owners are under no obligation to use the sinful contraceptive devices, and their use by other employees does not affect the religious worship or practice of the owners, managers, or fellow employees.
Even if you pretend that there is a substantial burden on the company, Ginsburg writes, “the Government has shown that the contraceptive coverage . . . furthers compelling interests in public health and women’s well being,” a point so concrete, specific and demonstrable that the majority does not even bother to contest it.
So, finally, Ginsburg refutes the majority’s claim that the contraceptive coverage requirement fails to satisfy RFRA’s “least restrictive means test”—in other words, the claim that the Government could have promoted contraceptive health without this mandate. But, here, Ginsburg is devastating, showing that “there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing insurance coverage for certain contraceptives . . .and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women receive, at no cost to them, the preventive care needed to safeguard their health and well being.” Ginsburg dismantles the majority’s reliance on the idea that the government itself should pay for any religiously offensive insurance as a less restrictive means. That solution would force creation of another bureaucracy and a series of “logistical and administrative obstacles” put up in the path of women seeking comprehensive health care.
“And where is the stopping point to the ‘let the government pay’ alternative?” Ginsburg reasonably wonders. “Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?” (case citations omitted)
Ginsburg closes her dissent with a discussion of United States v. Lee (1982), a case in which an Amish employer unsuccessfully challenged having to participate in the Social Security system by withholding taxes for his employees. Although the majority dismissed the relevance of this “tax case,” the Lee Court “made two key points” that Ginsburg shows neatly dispense with all the bogus claims in Hobby Lobby.
First: “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” Second: “allowing a religion-based exemption to a commercial employer would ‘operate to impose the employer’s religious faith on the employees.’”
Mobilizing cases from the past, Ginsburg suggests that the Court’s decision opens the door to the discredited but once-popular claims by restaurant chain owners that they should not be forced to serve black patrons if they have a religious objection to race-mixing or by for-profit health clubs that want to discriminate against women working without their husbands’ or fathers’ consent, not to mention all the suddenly viable claims against the ACA by “employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).”
The Supreme Court thus delivers a mess to America in Hobby Lobby by carrying over the political fallacy in Citizens United to the religious field. Justice Ginsburg renders the mess in its full glory.
SHELBY COUNTY, ALABAMA, Petitioner
Eric H. HOLDER, Jr., Attorney General, et al.
"In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."
The most stinging defeat inflicted on voting rights in at least a decade came last term with the majority’s invalidation in 2013 of the preclearance coverage formula in the Voting Rights Act of 1965. This decision effectively wiped out the major provision of the most important voting rights law in American history. The ruling revealed the Court’s hostility to the institutional infrastructure of African-American political empowerment and the role that Congress has played in securing the right to vote against conservative white resistance.
Joined in dissent by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg was having none of it. She systematically refuted the majority’s distorted view of history, its remarkably cavalier assault on the powers of Congress, and its thoroughgoing illogic. She was unsparing of the radicalism of the majority’s error: “It cannot tenably be maintained that the Voting Rights Act, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments. Nowhere in today’s opinion ... is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve.”
Ginsburg painstakingly reconstructed the history of violent and nonviolent suppression of black voting rights after the Civil War and stated, “Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.” The preclearance mechanism in the Voting Rights Act was the principal instrument for dismantling the ever-changing tactics of racial vote dilution, trickery, and intimidation.
But Justice Ginsburg showed that the attacks on voting rights never ceased and that the reauthorization of the Voting Rights Act in 2006 was based on congressional review of voluminous reports of ongoing assaults on voting rights. Ginsburg wrote:
“Surveying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which § 5 continues to protect minority voting rights. Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:
- In 1995, Mississippi sought to reenact a dual voter registration system, ‘which was initially enacted in 1892 to disenfranchise Black voters,’ and for that reason, was struck down by a federal court in 1987.
- Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be ‘designed with the purpose to limit and retrogress the increased black voting strength … in the city as a whole.’
- In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town's election after ‘an unprecedented number’ of African-American candidates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen.
- In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore ‘the mark of intentional discrimination that could give rise to an equal protection violation,’ and ordered the district redrawn in compliance with the VRA. In response, Texas sought to undermine this Court's order by curtailing early voting in the district, but was blocked by an action to enforce the § 5 preclearance requirement.
- In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an ‘exact replica’ of an earlier voting scheme that, a federal court had determined, violated the VRA. DOJ invoked § 5 to block the proposal.
- In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority-white district would have three representatives. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits.
- In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the availability of early voting in that election at polling places near a historically black university.
- In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disqualified many citizens from voting ‘simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.’
“These examples, and scores more like them, fill the pages of the legislative record. The evidence was indeed sufficient to support Congress’ conclusion that ‘racial discrimination in voting in covered jurisdictions [remained] serious and pervasive.’ 679 F.3d, at 865.5
“Congress further received evidence indicating that formal requests of the kind set out above represented only the tip of the iceberg. There was what one commentator described as an ‘avalanche of case studies of voting rights violations in the covered jurisdictions,’ ranging from ‘outright intimidation and violence against minority voters’ to ‘more subtle forms of voting rights deprivations.’ This evidence gave Congress ever more reason to conclude that the time had not yet come for relaxed vigilance against the scourge of race discrimination in voting.”
Ginsburg also displayed a steely resolve to put the facts of real-world race discrimination in the face of a Court that is determined to covers its eyes. Consider this striking report from Justice Ginsburg, drawn from a federal district court case:
“A recent FBI investigation provides a further window into the persistence of racial discrimination in state politics. See United States v. McGregor, 824 F.Supp.2d 1339, 1344–1348 (M.D.Ala.2011). Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking. Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. See id., at 1345 (legislators and their allies expressed concern that if the referendum were placed on the ballot, ‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’). These conversations occurred not in the 1870's, or even in the 1960's, they took place in 2010. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the ‘recordings represent compelling evidence that political exclusion through racism remains a real and enduring problem’ in Alabama. Racist sentiments, the judge observed, ‘remain regrettably entrenched in the high echelons of state government.’”
Ginsburg’s final judgments on the performance of the Court were withering. She did not flinch from linking the regressive nature of the Court’s jurisprudence to the return of disenfranchisement and voter suppression, and she revealed her understanding of the tragic side of American history. She wrote:
“The Court criticizes Congress for failing to recognize that ‘history did not end in 1965.’ But the Court ignores that ‘what’s past is prologue.’ W. Shakespeare, The Tempest, act 2, sc. 1. And ‘[t]hose who cannot remember the past are condemned to repeat it.’ 1 G. Santayana, The Life of Reason 284 (1905).”
And she openly declared that members of Congress had acted with greater professionalism in reauthorizing the Voting Rights Act than her Supreme Court colleagues in the majority did in dismantling it:
“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court's opinion today.”
Because Justice Ginsburg cut her teeth as a lawyer on fighting for equal rights and fairness in the workplace, she knows what having strong federal labor laws means for working-class Americans who report to a boss every day.
Title VII of the Civil Rights Act of 1964 is the essential anti-discrimination law protecting women and racial minority groups at work and establishing a framework for workplace fairness. But Title VII has been under ceaseless attack by right-wing forces ever since it was passed. Today, the five conservatives on the Roberts Court are looking for every opportunity to undermine its essential terms, and the 2012-13 term was especially brutal on the statute. In the following two key cases where the conservatives cut back on the protections available to workers under Title VII, Justice Ginsburg dissented sharply, insisting that congressional intent was being thwarted and the interests of workers thrown under the bus. These dissenting opinions register an echo of what was perhaps Justice Ginsburg’s greatest dissent so far, the blisteringly effective opinion she filed in Lilly Ledbetter v. Goodyear Tire and Rubber Co. (2007).
Maetta VANCE, Petitioner
BALL STATE UNIVERSITY
“The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”
Under Title VII, when an employee is subject to workplace harassment at the hands of their supervisor, the employer is liable. This ensures that victims of harassment have a remedy, and it also gives companies a financial incentive to remedy harassment after the fact and take action to discourage it before it occurs.
In Vance v. Ball State University, the Court conservatives dealt another blow to Title VII, ruling that the class of “supervisors” held accountable under the statute includes only those managers who have the power to fire employees or reduce their salaries—and not those managers who actually control employees’ day-to-day schedules, work assignments, and working environments. In one fell swoop, the conservatives thus lopped off a big chunk of anti-discrimination law, making the workplace a more hostile and dangerous place for Americans, especially women.
Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, completely demolished the shoddy reasoning of the majority. The decision, she wrote, “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation's workplaces. ... Until today, our decisions have assumed that employees who direct subordinates’ daily work are supervisors.”
Using the vivid and appalling language that comes with the territory of sexual harassment, Ginsburg discussed case after case where harassers controlled women’s work schedules, workloads, and work lives, showing that the employers in these cases would now escape direct Title VII liability because the harassers did not have the power to hire and fire.
Ginsburg was blistering in her judgment of the damage wrought by five conservative male Justices. “As anyone with work experience would immediately grasp, [the harassers in these cases] wielded employer-conferred supervisory authority over their victims. Each man's discriminatory harassment derived force from, and was facilitated by, the control reins he held”; “Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC's Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ”; “Faced with a steeper substantive and procedural hill to climb, victims like Yasharay Mack, Donna Rhodes, Clara Whitten, and Monika Starke likely will find it impossible to obtain redress. We can expect that, as a consequence of restricting the supervisor category to those formally empowered to take tangible employment actions, victims of workplace harassment with meritorious Title VII claims will find suit a hazardous endeavor. Inevitably, the Court's definition of supervisor will hinder efforts to stamp out discrimination in the workplace ... the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.”
Ginsburg again demonstrated that her deeply felt professional passion is to serve the cause of constitutional and legal justice, affirmatively calling on congressional lawmakers to continue to “correct this Court's wayward interpretations of Title VII. ... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Petitioner
“What sense can one make of this other than ‘heads the employer wins, tails the employee loses?’"
In another decision whose illogic and injustice Justice Ginsburg protested in 2013, the five-justice conservative majority pulled a rabbit out of a hat and found that, under Title VII, workers alleging retaliatory discharge for complaining about job discrimination must show that the retaliatory motive was not just a “motivating factor” in their firing but the “but for” cause, a nearly impossibly stringent standard to meet. The case, which involves egregious ethnic and national origin discrimination against a doctor of Middle Eastern descent, established that plaintiffs facing retaliatory discrimination must essentially not show just that employers acted in order to punish them for exercising their civil rights but that this was essentially the only purpose they had.
This decision marked a dramatic departure from the text of Title VII and a coherent reading of its terms. The statute considers it discrimination whenever “race, color, religion, sex, or national origin” is “a motivating factor for any employment practice, even though other factors also motivated the practice.” This language was adopted as part of the Civil Rights Act of 1991, which was designed to address a Supreme Court decision that sharply cut back on the scope of Title VII by forcing plaintiffs to prove that they would not have been fired or demoted without the presence of the discriminatory motivation. Congress wanted to be certain that, to be actionable under Title VII, discrimination would have to be only a “motivating factor” in the adverse employment action and not necessarily its “but-for cause.” Thus, prior to this ruling, it was considered enough under Title VII to show that discriminatory animus plays some role in a worker’s discharge or demotion, because it should be playing none at all. Critically, the rule Congress intended to restore in 1991 was not confined to substantive discrimination but presumably applied as well to retaliatory discrimination—that is, discrimination against workers who exercise their Title VII anti-discrimination rights. This is the way that the Equal Employment Opportunities Commission (EEOC) had always understood the law to operate.
But the Roberts Court majority, in another one of its dismal 5-4 specials, found that the more stringent standard openly repudiated by Congress still operates when it comes to retaliation claims. “In so holding,” Justice Ginsburg wrote in dissent, “the Court ascribes to Congress the unlikely purpose of separating retaliation claims from discrimination claims, thereby undermining the Legislature’s effort to fortify the protections of Title VII.” This holding, she observed, is “at odds with a solid line of decisions recognizing that retaliation is inextricably bound up with status-based discrimination.”
In her comprehensive and devastating dissent, joined by Justices Breyer, Sotomayor, and Kagan, Ginsburg demonstrated that this ruling had no basis in statutory language, legislative history, EEOC practice, or relevant case precedent. Ginsburg tore apart the majority’s sloppy, cut-and-paste job of analysis: “It is strange logic indeed to conclude that when Congress homed in on retaliation and codified the proscription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation. It is hardly surprising, then, that our jurisprudence does not support the Court's conclusion.” She showed that the conservatives had turned Title VII on its head: “Jurors will puzzle over the rhyme or reason for the dual standards. Of graver concern, the Court has seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation.” Nor was she shy about telling us what was really going on with the Court’s decision: “In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers.” Perhaps most blistering and memorable of all was this zinger on the Court’s doctrinal somersaults: “What sense can one make of this other than ‘heads the employer wins, tails the employee loses?’”
Recognizing again that the rights of workers is what matters the most, not just the terribly weak debating tactics of the majority, Ginsburg called for Congress to come to the rescue again of the nation’s major civil rights law in the workplace: “Today’s misguided judgment, along with the judgment in Vance v. Ball State Univ., should prompt yet another Civil Rights Restoration Act.”
Lilly M. LEDBETTER, Petitioner
The GOODYEAR TIRE & RUBBER CO., INC.
“This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. … Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.”
If Ginsburg’s passionate call to action on Title VII helps inspire Congress to act to reverse its recent mistakes, it will be a replay of Justice Ginsburg’s experience dissenting in Lilly M. Ledbetter v. Goodyear Tire & Rubber Co. (2007), when the whole country followed her ferociously principled dissent and Congress went to work right away to reverse the Court’s disastrous decision.
Writing for herself and Justices Stevens, Souter and Breyer, Justice Ginsburg pointed out the absurdity of this interpretation, which rewards discriminators for their deception. She argued that each act of issuing a discriminatory paycheck clearly renews and continues the original discrimination. Ginsburg minced no words: “The Court asserts that treating pay discrimination as a discrete act, limited to each particular pay-setting decision, is necessary to ‘protec[t] employers from the burden of defending claims arising from employment decisions that are long past.’ But the discrimination of which Ledbetter complained is not long past. As she alleged, and as the jury found, Goodyear continued to treat Ledbetter differently because of sex each pay period, with mounting harm.” Ginsburg pointed out to the conservatives that it was Ledbetter who was the victim of discrimination in the case—not Goodyear: “Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.” Ginsburg’s forceful dissent laid the groundwork for a huge public education campaign across America in 2008 to reverse the Court’s pinched interpretation of Title VII. This campaign helped turn the tide of public opinion against both right-wing economics and right-wing judicial activism. The Lilly Ledbetter Fair Pay Act of 2009 was signed on January 29, 2009, the first bill signed into law by President Barack Obama. By all accounts, Ginsburg’s dissenting opinion was instrumental in making it happen.
BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT NO. 92 OF POTTAWATOMIE COUNTY
“Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to (drug) test in truth are engaged in activities that are not safety sensitive ...”
In the 21st century, governmental and corporate assaults on personal freedom and privacy are replete and constant. For many conservatives, Big Brother tactics are fine when the people whose rights are being trampled are students, prisoners, workers, criminal defendants, and others who lack the kind of social power the conservatives respect. But Justice Ginsburg stands up for civil liberties across the board, even for high school students, reminding everyone that freedom is at the heart of what it means to be an American under our Constitution and Bill of Rights. At a time when Justice Ginsburg’s age is being debated in public, it should not escape notice that she is a great champion on the Court of the rights of young Americans.
In the 2002 case of Board of Education School District No. 92 of Pottawatomie County v. Lindsay Earls, Justice Clarence Thomas delivered an opinion for the majority upholding the constitutionality of a high school imposing mandatory drug tests on all high school students in competitive extracurricular activities, including the Future Farmers of America, band, choir, the academic team, and cheerleading. The majority compared this policy to the facts of a 1995 case where the Court upheld random urinalysis drug tests for students involved in school sports, given the risk of immediate physical harm to athletes and those with whom they play, the lessened privacy expectations inherent in public school locker rooms and showers, and the school district’s demonstrated drug problem with students in school athletics. Justice Ginsburg had concurred in that case.
But in the 2002 case, joined by Justices Stevens, O’Connor, and Souter, Justice Ginsburg dissented, arguing that the policy violated the Fourth Amendment because it “is not reasonable, it is capricious, even perverse [because it] targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects.”
Displaying her famous humor and dry wit, Ginsburg lampooned the majority’s effort to liken the situation of students in chorus, orchestra, and Future Farmers of America to varsity football and basketball players, who are engaged in a dangerous, high-risk sport and are used to situations of “communal undress.” Responding to the argument that members of the Future Farmers of America “handle a 1500-pound steer” and participants in Future Homemakers of America “work with cutlery,” Ginsburg wrote: “Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to any unusual degree.”
She also gently but pointedly chided the majority for using reasoning that could apply to all school children, despite the Vernonia opinion’s having gone out of its way to explain why school sports programs could be distinguished from other elements of going to school: “Had the Vernonia Court agreed that public school attendance, in and of itself, permitted the State to test each student’s blood or urine for drugs, the opinion in Vernonia could have saved many words.”
Ever attentive to the real-world implications of the Court’s rulings, Ginsburg reproached her colleagues for upholding a policy that is not only repressive but severely counterproductive: “Even if students might be deterred from drug use in order to preserve their extracurricular eligibility, it is at least as likely that other students might forgo their extracurricular involvement in order to avoid detection of their drug use. Tecumseh’s policy thus falls short doubly if deterrence is its aim: It invades the privacy of students who need deterrence least, and risks steering students at greatest risk for substance abuse away from extracurricular involvement that potentially may palliate drug problems.”
In our day—as in Thomas Jefferson’s and Franklin D. Roosevelt’s—conservative forces in the country have turned the Supreme Court and the judiciary into their “stronghold,” and from that battery they work to nullify and neutralize progressive legislation and well-established constitutional rights. Given how much progress Americans have made over the last half-century on voting rights, workplace rights, equal pay and civil liberties, the Roberts Court is doing far more damage to democratic progress than any Court since the Lochner era, when judicial conservatives wiped out progressive workplace laws and economic regulation.
Justice Ginsburg has emerged as a crucial and powerfully eloquent voice for protecting the legislation produced by the civilizing movements of our time. She has also continued to spell out a constitutional vision that includes robust democracy, an inclusive economy, and ample civil liberty for all of us.
As an impassioned and thorough dissenter, Ginsburg continues a visionary tradition that goes back to Justice William Johnson, who was nominated to the Court by President Thomas Jefferson in 1804 and launched the practice of filing dissenting opinions; Justice John Marshall Harlan, whose dissenting opinion in Plessy v. Ferguson (1896) insisted that Jim Crow segregation was unconstitutional because “in view of the Constitution, in the eye of the law, there is no superior, dominant, ruling class of citizens”; and Justice Oliver Wendell Holmes, whose prescient dissent from the fateful Lochner decision, which struck down wage and hour legislation (1905), argued that the case was “decided upon an economic theory which a large part of the country does not entertain.” Like her constitutional forerunners, Ginsburg painstakingly demonstrates how an errant majority has trampled constitutional justice and equality.
With her stirring rhetoric and sly humor, Justice Ginsburg provides anyone listening in Congress, as well as her colleagues and successors on the bench and, above all, the American people themselves, an alternative “vision of democracy and the Constitution,” which is the hallmark of a great dissenter, as Professor Mark Tushnet argued in his book on the subject, I dissent. This alternative constitutional vision is essential today because the conservatives routed in the presidential elections of 2008 and 2012 have “retired into the Judiciary as a stronghold,” where they try to beat down and erase all progressive legislative and judicial victories just as their forebears did. Ginsburg’s vision is the opposite of the constitutional philosophy held by the Roberts Court majority, which defends corporate and government power over individual rights and liberties and always manages to find a reason to discard federal and state laws that seek to promote democracy and the common good.
Whenever Justice Ginsburg chooses to leave the Court, it will be a loss to her country. Win, lose, or draw, she never takes her eyes off the prize.
The following is a guest blog by Beth Huang, 2010 Fellow of People For the American Way Foundation’s Young People For program.
Last Monday, the Supreme Court ruled in two critical cases with major implications for working women. The Supreme Court ruled once again that corporations are people, this time conferring religious rights that trump workers’ rights to access full healthcare. In a dissent to the Burwell v. Hobby Lobby ruling, Justice Ruth Bader Ginsberg noted “that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage.” Justice Ginsberg’s dissent reveals the real impacts of denying coverage of contraception for low-wage working women -- something the slim five-justice, all-male majority fails to comprehend.
To compound the attack on working women, five male Justices severely undermined the ability of care workers – 95 percent of whom are women – to collectively bargain in the case Harris v. Quinn. This assault on working people stems from the Justices’ view that the care workers in the case are not “real” public employees and thus the union cannot charge the appropriate agency fee to all of them for its bargaining services. This ruling serves the interests of anti-worker extremists at the expense of these invaluable workers who care for our families and our children.
It’s clear: a majority of Justices are trampling over the rights of working women. In light of these attacks, it’s time to organize for gender equity and economic justice for working women.
Back in 2010 when I was a student, Young People For helped me develop organizing skills that have led me to effectively advocate for and with women and workers. Through my work in student labor organizing as an undergraduate and since graduation, I have seen that workers’ rights are women’s rights, from having access to comprehensive healthcare to having a voice on the job. To build an economy that works for today’s students and youth, we need to organize locally and train new leaders in the broad effort to advance our agenda for gender equity and economic justice.
At the Student Labor Action Project a joint project of Jobs with Justice and the United States Student Association, we’re doing just that by building student power to advance an agenda that protects the rights of current workers and promotes a more just economy for students to enter when they graduate. Our campaigns focus on demanding funding for public higher education, which we know is a major source of good jobs and upward mobility for women and people of color; pushing back on Wall Street profits that fuel the student debt crisis; and raising the working conditions for Walmart workers, 57 percent of whom are women.
The Supreme Court’s decisions last week underscored the urgency of organizing for these changes. Women’s access to equal rights, power in the workplace, and comprehensive healthcare depends on it.
Days after the Supreme Court handed down its damaging 5-4 decision in Burwell v. Hobby Lobby, SCOTUS issued an order that underscored the danger that Hobby Lobby poses for women’s health.
In Wheaton College v. Burwell, SCOTUS temporarily granted relief to Wheaton College, a religious institution that is “categorically” opposed to providing contraceptive services, from the contraception coverage compromise solution that the Court explicitly endorsed in Hobby Lobby. The order says that Wheaton may be exempt from submitting a form that would inform the government that they object to covering birth control. Wheaton College argued that submitting this form would make it “complicit in the provision of contraceptive coverage.” The temporary order indicates that the Court’s majority may accept this problematic argument.
In what Think Progress called a “blistering dissent” to the order, Justice Sonia Sotomayor — joined by the two other female Justices Elena Kagan and Ruth Bader Ginsburg — sharply criticized the order. Sotomayor wrote in the dissent:
“Those who are bound by our decisions usually believe they can take us at our word. Not so today.”
While this order is temporary until the case may be heard in front of the Court, the female Justices’ strong dissent demonstrates not only the division within the Court, but also the importance of having diversity on our courts. Women on the bench provide a critically important perspective on all cases, but especially those that deal with women’s lives. It is more important than ever, when women’s rights are under assault, that women are more fairly represented at all levels of government.
In its 5-4 ruling today in Hobby Lobby, the Supreme Court’s right-wing majority played fast and loose with the Religious Freedom Restoration Act (RFRA), the law that provided the basis for the claim that religious liberty rights conflicted with the Affordable Care Act (ACA). As Justice Ginsburg’s dissent pointed out, the clear language and history of RFRA stated that it was intended to “restore” the protection of religious liberty that the First Amendment provided before Justice Scalia’s infamous decision in Employment Division v. Smith, which said that there was no protection for religious people whose religious practices were substantially burden by general laws. As a participant in drafting and helping get support for RFRA in the 1990s, I can testify personally that this was true. The broad coalition of groups and legislators – from PFAW to the National Association of Evangelicals, from Orrin Hatch to Ted Kennedy – would never have agreed otherwise. But the 5-4 majority in Hobby Lobby nevertheless claims that RFRA was, in Justice Ginsburg’s words, “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”
This twisting of RFRA was significant in two ways to the Hobby Lobby result. First, it allowed the majority to rule that for-profit corporations like Hobby Lobby could claim rights under RFRA. As Justice Ginsburg pointed out, the Court had never so ruled before, since religious liberty protection properly belongs to individuals and religious institutions like churches. Second, it led to the majority’s ruling that there was a “substantial” burden” on religious exercise in the case, based on the claim that the religious beliefs of Hobby Lobby’s owners were offended by the ACA requirement. As Justice Ginsburg explained, pre-Smith law made clear that this kind of mere conflict with religious beliefs was not enough to prove a substantial burden. Instead, a requirement must actually restrict or burden “what [the person] may believe or what he may do.” Under this analysis, Ginsburg explained, any burden in this case was too attenuated to be substantial. After all, Hobby Lobby was not required to purchase or provide contraceptives, but simply to deposit money into undifferentiated funds that finance a wide variety of benefits; it was up to individual employees whether to utilize contraceptives.
These concerns are much more than historical or theoretical. First, the majority’s rationale could deprive millions of Americans of contraceptive or other coverage under ACA. Even if restricted to closely held corporations, more than 50% of all American workers work for corporations that could similarly claim under Hobby Lobby that their religious beliefs are sincerely offended by providing coverage for contraceptives or other services, and that would be enough to trigger RFRA. Second, if a corporation can prove it is substantially burdened under RFRA because its owners or board have a sincere religious objection to a government requirement, they can make exactly those claims to try to exempt themselves from anti-discrimination and other workers’ rights laws. The Hobby Lobby majority tried to downplay this concern by Justice Ginsburg, but specifically mentioned only that laws banning racial discrimination should be safe from this claim. For example, what about laws banning discrimination based on gender and sexual orientation? The 5-4 majority opinion is almost an invitation to businesses to further distort RFRA by making such claims.
Crowds of activists and advocacy groups gathered outside while the Supreme Court heard oral arguments Tuesday in the Sebelius v. Hobby Lobby Inc. case.
Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg did not shy away from asking difficult questions that demonstrate the broad implications this case could have. Justices Sotomayor and Kagan voiced concerns regarding the implications of a ruling for the first time in our nation’s history that for-profit corporations have religious rights. Both justices questioned whether this decision would allow companies to deny access to coverage of not only contraceptive methods, but also of other lifesaving procedures employers might object to on religious grounds—like blood transfusions or vaccines.
The Huffington Post quotes Justice Kagan as saying, “There are quite a number of medical treatments that could be religiously objected to… Everything would be piecemeal, nothing would be uniform.”
Pushing the issue further, Justice Sotomayor asked, “How are courts supposed to know whether a corporation holds a particular religious belief?”
Similarly, Justice Ruth Bader Ginsburg stated that the Religious Freedom Restoration Act
was a law that was passed overwhelmingly [by] both houses of Congress. People from all sides of the political spectrum voted for it. It seems strange that there would have been that tremendous uniformity if it means [corporations are covered].
[T]here was an effort to adopt a … specific conscience amendment in 2012, and the Senate rejected that… That amendment would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions. It was specifically geared to secular employers and insurance providers. And that…was rejected.
Justice Kagan noted that RFRA was considered non-controversial when it passed, an unlikely reaction if it had been understood to open the door to employers citing religious objections to complying with laws relating to sex discrimination, minimum wage, family leave, or child labor.
Justice Kagan also noted that women are “quite tangibly harmed” when employers don’t provide contraceptive coverage. This decision, however, could have far-reaching implications beyond women’s reproductive rights since this case deals with some of the same core issues seen in “right to discriminate” bills like Arizona’s, as we pointed out yesterday morning.
With little over a month before the Supreme Court hears oral arguments in McCutcheon v. FEC, a money in politics case that some are calling the next Citizens United, Justice Ruth Bader Ginsburg spoke out this week on the damage that Citizens United v. FEC continues to cause to our democracy.
Discussing the infamous 2010 Supreme Court decision that paved the way for unlimited corporate spending to influence our elections, Ginsburg told Greg Stohr of Bloomberg News:
“You take the limits off and say, ‘You can spend as much as you want,’ and people will spend and spend,” she said. “People are appalled abroad. It’s a question I get asked all the time: Why should elections be determined by how much a candidate can spend and why should candidates spend most of their time these days raising the funds so that they will prevail in the next election?”
It’s a great question, and one with a clear answer – they shouldn’t.
Justice Ginsburg is not alone in her concerns about the damage done to our democratic system. A 2012 Brennan Center national poll found that nearly seven in ten respondents agree that “new rules that let corporations, unions and people give unlimited money to Super PACs will lead to corruption.”
And this is not the first time Justice Ginsburg has publicly commented on the Citizens United decision. Early last year, Justices Ginsburg and Breyer released a statement in conjunction with a Court order in a campaign finance case out of Montana stating that:
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.
It is also not the first time she has commented on the Roberts Court more generally. In an interview with the New York Times this weekend, Ginsburg called the current court “one of the most activist courts in history.”
In October, the high court will hear arguments in a case considering similar issues, McCutcheon v. FEC, for which People For the American Way Foundation submitted an amicus brief. In this case, the Supreme Court could take the damage of Citizens United one step further by eliminating the caps on how much money an individual can contribute – in total – in each two-year campaign cycle. It other words, the court would be striking down another protection against wealthy special interests overpowering our political system, allowing even more big money to flow into our elections.
Just what our democracy needs. PFAW Foundation Executive Vice President Marge Baker noted last month:
Protecting the legitimacy of our political system, and restoring the faith of the American people in that system, is vital to a working democracy.
And as Justice Ginsburg highlighted this week, elections shouldn’t be determined by who has the biggest wallet.