Three States Sue for Declaration Equal Rights Amendment Now Ratified
1A Religious Liberty v. Discrimination: Two students sue Christian seminary for expelling them because they are in same-sex marriages
Discrimination: Pregnancy counseling center sues over New York law forcing it to hire employees who support abortion against the center’s beliefs. #AuthoritarianLeft
1A: California State University agrees to pay $240,000 in legal fees and change its policies to settle case against it for discriminating against pro-life student club
1A: Two Christian students in Georgia ask Supreme Court to hear their case against camp speech code and zone
2A: 21 states sue Trump administration over its effort to allow 3-D printed gun files on the Internet
2A: New Jersey seizes nearly 200 guns under red flag law in just 4 months
2A: The Founders were familiar with gun magazines having over 10 rounds
Shame! on the New York Times 1619 Project for making the preposterous claim the Founders fought the War of Independence to preserve slavery
Kudos! to the Virginia high school students who formed a flag caravan when told the U.S. flag is “offensive” and could not be displayed on vehicles on school grounds
Kudos! to the Alabama legislative committee that reported out a bill to require public schools to play the Star-Spangled Banner at least once a week and at school sporting events
Prepare to be confused. This is a tough one.
The Supreme Court recently heard oral arguments in another government aid to religious schools case, this one from Montana. The Court has been wrestling with this issue since at least the 1940s. The Court still has not enunciated a bright line test or clear framework for deciding these cases. A number of factors have been cited over time, producing a mish-mash of results. For example, the government providing buses to take children to and from religious schools has been upheld, but not buses for field trips. Government money for administering standardized tests in religious schools is OK, but not for administering writing tests. The cases are all over the lot, just like the Court’s decisions in the Christmas display cases. Both situations involve the Court interpreting what is and is not an unconstitutional establishment of religion under the First Amendment to the U.S. Constitution. [Chemerinsky, Constitutional Law - Principles and Policies, 4th ed., pp. 1275-76]
At issue in the Montana case is a state tax credit program for people who donate to private schools. A state agency barred any of the donated money from ending up at religious schools, citing the so-called ‘Blaine Amendment’ in the state constitution which prohibits any direct or indirect aid to any school controlled by any church. The proposed Blaine Amendment to the U.S. Constitution was designed to deny any aid to religious schools. It passed the U.S. House in 1875, but failed in the Senate and never became law. However, 38 states including Montana adopted the provision in their own state constitutions. Much has been written about the motivation behind the Blaine Amendment - an attempt by bigoted anti-Catholic Protestants to deny aid to Catholic schools.
Montana is arguing that its Blaine Amendment “promotes religious freedom by preventing the government from using its leverage to dictate religious policy." It also protects the rights of people who don’t want to be forced to support a religion they don’t believe in.
The counter-argument is that it’s unconstitutional, as the Court has held, to deny a public benefit just because a church is involved. That would show impermissible hostility to religion. Justice Kavanaugh said something similar during oral arguments in the Montana case. He asked, if it’s OK to give a scholarship to students who are secular, how do you justify denying students scholarships just because they’re Catholic?
One legal expert predicted another narrow 5-4 decision limited to the specific facts of the Montana case that will clarify absolutely nothing and give very little guidance for the next case, just like the Christmas display rulings. A decision is expected by June.
My personal opinion, for what it’s worth, is that religious schools should not want to take any government aid, period. Where government money goes, government control follows. I’m not saying government money will have kids in religious schools praying to Chairman Mao tomorrow, but I am saying government money creates dependency and religious schools will eventually succumb to pressure to follow the government line on religion in subtle ways. Better not to get hooked on government money at all than to be subverted in ways you can’t anticipate.
Let’s suppose you’re homeless and don’t have anywhere to sleep except a public park. Do you have a constitutional right to sleep in the park? Well, it’s a free country, isn’t it?
In December, the U.S. Supreme Court turned away a case out of Boise, Idaho involving a camping ban on the homeless, with criminal penalties. An advocate for the homeless said it was a good decision because authorities should not be criminally punishing homeless people in America who have nowhere to go.
The Supreme Court’s decision let stand a 2018 ruling from the 9th Circuit that enforcing criminal penalties on the homeless for sleeping or camping in public places if shelter beds are not available violates the 8th Amendment ban on cruel and unusual punishment. But the 9th Circuit’s ruling hamstrung the ability of cities from Alaska to Arizona to deal with the homeless problem, local governments said. Boise had unsuccessfully argued its ordinance was necessary to prevent a humanitarian crisis on its streets and adversely affected public health and safety.
The 9th Circuit ruling affects different cities differently. Spokane is not affected, because its ordinance already prevented enforcement if shelter beds are not available. The situation is less clear in neighboring Spokane Valley which restricts camping unless there’s no shelter space available elsewhere in the region. Olympia and Aberdeen have opened official camps.
Homelessness is a complicated problem that may be exacerbated by bad policies and not letting the police enforce the drug laws, but it also intersects with difficult social problems like the opioid crisis. The 9th Circuit’s ruling only touches on one aspect of the overall situation. And, to be clear, it does NOT establish a blanket ‘right to camp’. It merely restricts the use of criminal penalties in certain instances. It says nothing about moving people to official camps or governmental inducements to get people to move to desired locations voluntarily.
The next lawsuit might come out of Berkeley which banned ‘objects’ on sidewalks - presumably including grocery carts and tents - perhaps as a way to get around the 9th Circuit’s ruling. Or the next case might come from Seattle, which is flexible in how it enforces its ordinance depending on what is happening each day. Advocates for the homeless are already grumbling about the increasing involvement of Seattle’s police force in clearing city streets of the homeless. But whatever happens in the so-called ‘right to camp’ cases, the Supreme Court won’t be weighing in any time soon.
Hundreds of jurisdictions declare themselves gun sanctuaries as nationwide movement spreads (Constitution news round-up)
Free speech video series continues with episodes 8 and 9 (government property, privacy)
2A: Hundreds of jurisdictions declare themselves gun sanctuaries as nationwide movement spreads
Virginia becomes 38th state to ratify the Equal Rights Amendment, but court fights anticipated over 40-year ratification process
Nationwide Injunctions - Supreme Court stays nationwide injunction in ‘public charge’ rule case
14A Equal Protection: Utah judge cites government interest in protecting children against lewdness in ruling against woman who went topless in her own garage; other ‘Free the Nipple’ cases pending
Separation of Powers - Board of Immigration Appeals ignores appellate court order, draws rebuke from 7th Circuit: courts have the Article III judicial power
1A,4A: judge greenlights suit against Fish & Wildlife regulations restricting use of falcons in movies and product endorsements; regs also permit warrantless searches but Fourth Amendment claim dismissed
1A: rare prior restraint upheld against telling anyone a subpoena was received
1A: street musician challenges Houston’s time, place, and manner restraints on street performances
1A Religion: terminating city firefighter after refusal to get vaccinated does not burden free exercise of religion because reasonable accommodations had been offered (5th Circuit)
4A: strip search of prison visitor justified because of the suspicious way she was fiddling with her clothes (4th Circuit)
14A Equal Protection: same-sex marriage produces conundrums for who is listed as the ‘father’ on birth certificates (7th Circuit)
14A: Air Force ban on deploying HIV-positive airmen is out of step with modern science (4th Circuit)
Dormant Commerce Clause: California’s new privacy law might conflict with the need for uniform regulation of the Internet
Shame! New York City councilman says it’s ‘un-American’ not to allow noncitizens to vote. If U.S. citizenship means so little to you, you are free to leave.
Shame! Connecticut Senate President Pro Tem says free speech is “unfortunate” because look at all the haters running around. Sure.
Kudos! to PragerU for video pointing out that the word ‘slave’ in the third stanza of the Star-Spangled Banner could easily have been used metaphorically to describe subservient status, not actual slavery
5A Fundamental Rights: Climate Kids’ case tossed for lack of standing; to seek en banc review in the 9th Circuit
2A: Virginia Supreme Court upholds ban on guns at rally after Governor declares state of emergency; ‘safety and welfare’ trump Second Amendment
Amendments: Virginia legislature passes Equal Rights Amendment, Governor to sign; battle over whether the ERA has been duly ratified is set to begin
1A Religion: Supreme Court to consider whether ban on use of state education tax credits for religious schools keeps government out of religion or discriminates against religion
Electoral College: Supreme Court to take up ‘faithless electors’ issue
1A: Oregon Appeals Court hears arguments in Christian bakers same-sex wedding cake case after ordered by Supreme Court to revisit in light of Masterpiece ruling against hostility to religion
Commerce Clause: mosques are not in ‘interstate commerce’ nor do they affect it; federal arson conviction vacated (6th Circuit)
1A: challenge to Michigan hate speech database initiative survives state’s motion to dismiss
Shame! on the Democratic county board member in North Carolina who threatened to call the police after audience stages impromptu recitation of the Pledge of Allegiance
President Trump commemorated National Religious Freedom Day with a group of teachers and students in the Oval Office this past week. During the event, the President affirmed the student’s right to pray in public schools. This is very much in keeping with the Trump administration’s efforts to support the free exercise of religion and improve how religious organizations are treated by the federal government.
One student, a Catholic boy from Utah, told Trump during the commemoration how he was forced to remove ashes from his forehead at his largely Mormon school. Another student, a girl from Texas, told how a teacher reprimanded her after she was seen praying with friends for a student who had been hurt in an accident. The teacher told her to hide her prayers in some secluded area in the future. Trump told the group the right to pray is a very important right. There’s nothing more important than that, he said.
A student’s personal right to pray is separate and distinct from the issues decided by the Supreme Court in the school prayer cases starting in the 1960s. The personal right to pray involves the free exercise of religion under the First Amendment. The Supreme Court cases were about government-sponsored prayers amounting to an unconstitutional establishment of religion, under the establishment clause of the First Amendment.
In 1962, the Court - after a campaign by atheists - held that a nondenominational prayer composed by the government could not be read at the beginning of the school day. [Engel v. Vitale] The Court focused on the fact that the government wrote the prayer and directed it be read in school. A year later, the Court knocked down a state law and city rule requiring students to read Bible verses and the Lord’s Prayer in unison at the start of school every day. [Abington School District v. Schempp] The cases went on from there to cover moments of silence, graduation ceremonies, and other particular questions. Some of the cases involved coercion, subtle or otherwise, where students would feel forced to go along with prayer or be made to feel unwelcome. The Court has ruled that even encouraging students to deliver prayers at a school football game constitutes an unconstitutional government endorsement of religion under the establishment clause. [Santa Fe Independent School District v. Doe, 2000] [see discussion of cases in Chemerinsky, Constitutional Law - Principles and Policies (4th Ed.) at pp. 1260-1265]
Even though the commemoration in the Oval Office this past week involved personal prayer, not state action, the Freedom from Religion Foundation and other activists still criticized President Trump for blurring the lines between separation of church and state. They say there is an increasing number of instances of public schools promoting prayer in constitutionally impermissible ways.
But we’ve seen this before, where the authoritarian Left twists existing law and bullies people with it way beyond what the law actually says. It’s a leap to say that court decisions prohibiting public schools from opening with a government prayer each day also force kids to hide away somewhere if they want to pray on their own. That’s what former Justice Kennedy and former Chief Justice Rehnquist would call “hostility” to religion and it’s time for the Freedom from Religion Foundation and other militant atheists to live and let live. President Trump is to be commended for restoring some balance and common sense to the issue of personal prayer.
Due Process: Trump administration correctly implementing court’s order to avoid blanket separation of families at the border and allowing separation for cause (unfit parents with criminal history, disease, etc.)
Separation of Powers: 5th Circuit lifts temporary stay against Trump administration’s diversion of $3.6 billion in military construction funds to build the border wall
Article 1, Section 8 War Powers: 2001 Justice Department legal opinion arguably backs constitutional validity of President Trump’s strike on Suleimani
2A: hero who stopped Texas church shooting to be awarded Texas Medal of Courage
14A: five states looking at keeping transgenders out of women’s sports
4A: Pensacola shooting typifies unresolved Issue - should people have unbreakable encryption to keep Big Government out of their business? Or should law enforcement be given a ‘back door’ in terrorism and national security cases?
Dems claim Texas move to require personal (non-digital) signature for voter registration is unconstitutional
5A/14A Due Process + 1A: Massachusetts court declines to legislate from the bench, rules no constitutional right to assisted suicide; appeal planned. Court also said doctors have free speech right to discuss assisted suicide with patients.
1A: Supreme Court turns away texting suicide case and the argument defendant was convicted for words alone in text urging her boyfriend to kill himself
1A: Seattle Public Library decides to give meeting space to trans-skeptical feminist group; “we do not believe that stifling speech for anyone will result in positive outcomes for anyone”
1A: Indiana school district tells parents they can’t criticize it on social media; ACLU says policy is “flagrantly” unconstitutional
2A: Legislation introduced to make South Carolina a Second Amendment sanctuary state
4A: renters do not have to submit to an inspection before they can challenge rental inspection ordinance, Pennsylvania appeals court rules
14A: forthcoming law review article discusses whether a small percentage of African ancestry makes one a ‘disadvantaged minority person’ eligible for government contract set-asides
Equal Rights Amendment might subject women to the military draft, disallow same-sex bathrooms, abolish women-only shelters, and mandate government funding of abortion (not to mention eliminate minority set-asides for government contracts). Is that what you want?
Proposed amendment would give populous states more U.S. Senators (upsetting the deal that drew small states into the union in the first place)
Shame! Texas homeowner’s association orders active military resident to take down American flag. Kudos to his neighbors who raised their own flags in support.
The Equal Rights Amendment was back in the news this week. All eyes are on Virginia where a bill to ratify the ERA is working its way through the state legislature. The bill is expected to pass, making Virginia the 38th state to ratify the amendment, setting up a big constitutional fight.
Congress set a seven-year deadline for ratification and only 35 states had done so before the allotted time expired in 1982. Recently, three states - Alabama, Louisiana, and South Dakota - have sued the Archivist of the U.S. for illegally holding the ratification process open beyond the deadline and refusing to recognize the fact that five states rescinded their ratification by 1982.
This past week, the Justice Department Office of Legal Counsel weighed in with an opinion stating “because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States.” It would be unusual for the Archivist, who is part of the executive branch, to ignore the definitive statement of the executive branch on the subject.
Democrats have introduced legislation to have Congress remove the deadline. The Justice Department opinion said there is no constitutional text or judicial precedent allowing for that. [p.28] While Congress has already extended the ERA deadline once, the Justice Department said the pending legislation is different this go-around because it purports to remove ANY deadline, not just extend the ERA again for another definite period of years. [p. 26] Also, removing the deadline would raise a whole host of nettlesome questions, such as whether a future Congress could kill a proposed amendment by shortening the deadline, and whether a two-third’s vote would be required for all questions relating to changing the substance or procedures of proposed amendments.
But the Justice Department does not have the final say. Virginia Attorney General Mark Herring has already said he will defend the ERA in court when the state ratifies it.
You can be sure all of this will end up in the Supreme Court eventually. Don’t forget the question of whether states can rescind their ratifications. The Constitution is silent and the Justice Department gave no opinion.
Lots of unanswered constitutional questions here. The show is about to begin.
Supreme Court docket full of contentious issues - gun rights, DACA, LGBTQ, abortion, state aid to religious schools, CFPB, Trump financial records
1A Speech: You can burn the U.S. flag but not the gay flag? #PretzelLogic You get 16 years in prison for burning the gay flag - wow! This hate crime stuff has gone way too far.
Amendments: Virginia election prompts 3 states to sue to stop 1970s Equal Rights Amendment on theory deadline for ratification has passed
1A Religion: public health trumps Amish schoolers’ challenge to state vaccine law, NY Supreme Court rules
1A Religion: Michigan county threatens to demolish Amish homes unless they modernize. (And this leaves the Amish in this country, where, exactly?)
1A Speech: Texas woman challenges USPS regulation against customizing personalized postage stamps with religious content (‘it is viewpoint discrimination to allow all views except religious views’)
2A: Gun owner puts quick end to Texas church shooting
2A: “Virginia Congresswoman Proposes Bill Empowering Credit Card Companies to Track, Report Gun Purchases” #AuthoritarianLeft
4A: Maryland groups oppose Baltimore police drones
4A: information gathered on U.S. citizen incidental to surveillance of non-nationals abroad does not require a warrant, 2nd Circuit rules
5A Eminent Domain: Tenth Circuit declines to overturn trial judge’s ruling government need not compensate criminal defendant for home destroyed in police action
10A: panel discusses ‘horizontal federalism’ whereby states seek to impose their policies on other states
14A: documentary tells the story of one of the worst Supreme Court decisions ever - Korematsu
The General Welfare clause does not mean ‘anything goes’. The clause was intended to limit Congressional actions to those that benefit the whole, not some group.
Mayor Pee-wee Pete just wrong in asserting the Founders didn’t understand slavery was evil; they teed things up to get rid of it.
If a tree falls in the forest and no one is around to hear it, did the tree really fall?
If the House votes articles of impeachment and doesn’t transmit them to the Senate, is the President really impeached? Can the Senate proceed to a trial without the House formally presenting articles of impeachment?
We start, as always, with the Constitution but, unfortunately in this case, the Constitution doesn’t take us very far. Article I, Section 2 gives the House the sole power of impeachment. Article I, Section 3 gives the Senate the sole power to try all impeachments. Article II, Section 4 says the President and other civil officers of the U.S. “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” That’s pretty much it. Impeachment is mentioned in a couple other places in the Constitution not relevant to tonight’s discussion.
So the Constitution is silent on the current situation where the House has voted to impeach but has, so far, refused to present the articles of impeachment to the Senate. I’m sorry to have to tell you there is no clear answer to this quandary. Legal experts disagree.
Some of the commentary has focused on House and Senate rules. The Senate adopted its current impeachment rules in 1986. Rule 1 says the Senate impeachment process begins after the House appoints managers to carry the articles of impeachment to the Senate. Rule 3 says the Senate trial generally begins the day after the House formally presents articles of impeachment to the Senate.
Could the Senate change its rules and proceed now? After all, none of these steps are set forth in the text of the Constitution. One argument is that the Constitution gives the House the sole power of impeachment and this implies it includes the power to specify when the act is final. The counter-argument is that all of this puts form over substance and the Constitution does not require formal presentment. The Senate has the sole power to try impeachments and therefore has the power to decide when and how that happens.
If the Senate changed its rules, there would be a constitutional impasse. The Senate would say the President has been impeached and the House would say no, he has not. It’s not clear the courts would have any business wading in. Article I, Section 5 of the Constitution says each house of Congress may determine its own rules. If the courts do wade in, another question would be whether Supreme Court Chief Justice John Roberts would have to recuse himself since he would be presiding over any impeachment trial. That could leave the Supreme Court deadlocked at 4-4 and no way out of the impasse.
I tell you folks, the November election can’t get here soon enough.
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