Tag archives: Supreme Court

3 Ways in Which Brett Kavanaugh Has Supported Religious Liberty

by Travis Weber

August 17, 2018

In light of Supreme Court nominee Brett Kavanaugh’s impending confirmation battle, Family Research Council conducted an overview of his record and explained how he would likely rule on the issues we are concerned about. From that review, here are three ways in which Judge Kavanaugh has defended religious liberty:

  1. Judge Kavanaugh Has Defended Religious Believers from the HHS Mandate

In Priests for Life v. HHS, he dissented from the D.C. Circuit’s denial of rehearing en banc, arguing that the HHS mandate substantially burdened the organization’s exercise of religion, pursuant to Burwell v. Hobby Lobby. This is a very important conclusion on an important issue and shows Judge Kavanaugh to have a right understanding of the religious freedom burdens that RFRA guards against in this context. While his assertion later in the same case that Hobby Lobby “strongly suggests” that the government has a compelling interest in ensuring broad access to contraceptives seems unnecessary, he did conclude that RFRA protected the claimants because the HHS mandate was not the least restrictive means of achieving any such interest.

  1. Judge Kavanaugh Has Defended Religious Expression in the Public Square

In Newdow v. Roberts, atheists had argued that “so help me God” in the presidential oath violated the Establishment Clause. The D.C. Circuit rejected their argument, and Judge Kavanaugh wrote a concurrence stating that such “longstanding practices do not violate the Establishment Clause as it has been interpreted by the Supreme Court.”

More recently, in Archdiocese of Washington v. WMATA, the Archdiocese of Washington attempted to purchase advertising space on the Washington Metro during the Christmas season, and the Washington Metropolitan Area Transit Authority refused to sell what it deemed a “religious” message for a religious organization. During oral arguments in this case, Judge Kavanaugh told WMATA’s lawyer that this was “pure discrimination” and an “odious” First Amendment violation, showing a keen awareness of potential violations of free speech and free expression with a religious basis.

[In addition], [h]e helped set up a voucher program supporting religious schools in Florida, and also represented the Adat Shalom Jewish group in their legal battle against a Maryland county that was trying to stop construction of a synagogue.

  1. Judge Kavanaugh Has Defended Religious Expression in Schools

During his time in private practice, Judge Kavanaugh chaired the Religious Liberty Practice Group at the Federalist Society, and worked pro bono to write amicus briefs in support of religious expression in schools. He wrote briefs in Good News Club v. Milford Central School, and Santa Fe Independent School District v. Doe, in which he argued that a public school must allow religious student clubs to use its facilities in a similar manner as other clubs, and that student-led prayer at football events did not violate the establishment clause, respectively.

For more, see: https://www.frc.org/issueanalysis/why-judge-kavanaugh-should-be-confirmed-to-the-supreme-court 

Warning to Conservatives from Paul Ryan: Don’t Rely on the Supreme Court

by Family Research Council

July 16, 2014

The Supreme Court is not a hero, and the conservative movement is not a damsel in distress.

This is one concept Congressman Paul Ryan (WI) discussed in his Independence Day Address, which he delivered at Hillsdale College’s Kirby Center this past Tuesday.

In the wake of recent Supreme Court decisions favoring religious liberty, conservatives could fall into the trap of putting their hope in a panel of judicial experts. This is a tendency that Ryan warned against in his final remarks:

Finally, there is the temptation to ask courts to intervene and solve our problems for us. Some conservatives think of judges the way Progressives think of bureaucrats: technical experts with the solutions to constitutional conflicts. But judges, like bureaucrats, are often the problem. We must be mindful of this temptation. It is true the Supreme Court can be an ally in conflicts surrounding the constitution. But, it can also be an adversary.”

Personally, the image of the Supreme Court as an adversary quickly brings the Roe V. Wade decision to mind. This decision legalized abortion and denied millions of Americans their right to life outside the womb. The Pro-Life movement would decidedly argue that, in the case of Roe V. Wade, the Supreme Court was an opponent of fundamental Constitutional and human rights.

Paul Ryan continued his statement, saying, “Let’s remember that under our Constitution of self-government, the court that really counts is the court of public opinion, where the American people hand down their verdict on Election Day.”

Congressman Ryan’s cautionary statements ring true. While each Supreme Court decision that upholds religious freedom and human life ought to be celebrated and encouraged, conservatives must not begin to neglect the importance of public opinion. The battle of ideas—whether concerning abortion, religious liberty or any other hot-button issue—is still taking place every day on Capitol Hill, in schools, and at the family dinner table.

This call to continue working to win the hearts and minds of Americans should leave conservatives throughout the country with a sense of empowerment, not discouragement. Each individual has the opportunity to reach out to his or her neighbor. Through conversations about political or moral dilemmas, acts of service, or prayer, individuals have the ability to impact the culture more fully than any Supreme Court decision.

The truth is that the conservative movement doesn’t need the Supreme Court as its hero. Rather than putting trust in institutions, conservatism draws its strength from individuals who carry out their duty and charity in faith that America will be blessed because of it. Hopefully the Supreme Court will sustain this renewed commitment to honor the Constitution and the American citizens. But whether it does or not, we must continue to stand firm and champion conservative ideals to a nation that desperately needs them.

The Tenth Circuit’s Kitchen v. Herbert Flubs Fundamental Rights Analysis

by Chris Gacek

June 26, 2014

Yesterday, the U.S. Court of Appeals for the Tenth Circuit affirmed a federal district court’s decision striking down the definition of marriage found in Utah’s constitution. That definition limited Utah marriages to the union of one man and one woman. It was approved by referendum in November 2004 with 65.9% of the vote. In Kitchen v. Herbert, a 2-1 majority court struck down that definition by concluding, among other things, that there is a fundamental right to enter into a same-sex marriage. There is much more to the decision, but this note will focus on this key aspect of opinion.

As the U.S. Supreme Court instructed in Washington v. Glucksberg, 521 U.S. 702 (1997), the Due Process Clause of the Fourteenth Amendment guarantees more than fair process. It “also provides heightened scrutiny against government interference with certain fundamental rights and liberty interests.” Id. at 720. But, how does one determine what rights and interests are “fundamental?” Glucksberg is the key case in setting forth the constitutional law in this area.

Paul Linton summarized the Glucksberg standard in the Family Research Council’s amicus brief in Kitchen (pp. 3-5) (edits to text, notes, and citations have been made below):

In determining whether an asserted liberty interest (or right) should be regarded as fundamental for purposes of substantive due process analysis under the Due Process Clause of the Fourteenth Amendment[] (infringement of which would call for strict scrutiny review), the Supreme Court applies a two-prong test. First, there must be a “careful description” of the asserted fundamental liberty interest. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Second, the interest, so described, must be firmly rooted in “the Nation’s history, legal traditions, and practices.” Id. at 710. ….

As in other cases asserting fundamental liberty interests, it is necessary to provide a “careful description” of the fundamental liberty interest at stake. For purposes of substantive due process analysis, therefore, the issue here is not who may marry, but what marriage is. The principal defining characteristic of marriage, as it has been understood in our “history, legal traditions, and practices,” is the union of a man and a woman. Properly framed, therefore, the issue before this Court is not whether there is a fundamental right to enter into a marriage with the person of one’s choice, but whether there is a right to enter into a same-sex marriage. ….

This is the point at which the majority opinion runs off the rails. It dodges the hard edge of Glucksberg requiring a tight, accurate definition of the claimed right. The Kitchen court goes in another direction asserting baldly (p. 35), “But we cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex.” They cannot do so because they will not to do so.

Of course, there is a fundamental right to marry a person of the opposite sex. See Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967). And, homosexuals are not precluded from marrying in any state. But, what is this national debate about? It is about the definition of marriage. Homosexual men and women assert that the laws of over thirty states should be nullified because, among other things, there is a fundamental right to marry members of the same sex. Furthermore, all states must be compelled to recognize male-male and female-female marriages.

Returning to the Glucksberg test it is manifestly clear that there is no such fundamental right, for it must be deeply embedded in “the Nation’s history, legal traditions, and practices.” How can this be possible with the claimed fundamental right to same-sex marriage? There is nothing about it that is firmly grounded in this country’s history, legal tradition, and practices. There were no same-sex marriages anywhere in the United States until the 21st Century.

Google is older than same-sex marriage.

There is a Supreme Court case that is instructive here, and it is Baker v. Nelson, 409 U.S. 810 (1972). Much blood in the same-sex marriage debate has been spilled over this case. In Baker, the Supreme Court dismissed an appeal from a decision by the Minnesota Supreme Court which had rejected arguments for same-sex marriage similar to those being considered presently in our courts. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).

The U.S. Supreme Court declined the invitation to consider the matter stating that there was a “want of a federal question.” It has been argued that Baker precludes lower federal courts from even considering these issues, but federal courts have brushed aside those arguments, especially in the post-Windsor environment. It should be noted that the dissenting judge in Kitchen did accept this argument. Judge Kelly would have dismissed the case and left it for the U.S. Supreme Court to decide whether it wanted to revisit this area of the law. That seems like the correct approach.

Laying aside the argument that Baker requires a dismissal by lower courts, Baker is highly instructive in answering whether any claimed right to same-sex marriage is “fundamental.”

In 1972, the fundamental right argument was presented to the U.S. Supreme Court, and it was rejected – as it had been in Minnesota. Because Glucksberg tells us that fundamental rights must be rooted in our nation’s legal history and traditions, such a right should have been extant only forty-two years ago when the Supreme Court considered the Baker appeal. Fundamental right questions are dyadic – you either have one, a 0, or not, a 1. Baker gives us the Supreme Court’s answer in 1972: 0. Both courts had the constitutional issues presented in a manner we would recognize today. The Minnesota Supreme Court quoted Loving noting “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Baker, 291 Minn. at 315 (concluding the court’s equal protection analysis and discussing Loving).

Thus, the Baker Court had the core legal concepts and precedents before it that we now routinely see in same-sex marriage litigation (e.g., fundamental rights claim, arguments based on Loving), and it dismissed the appeal.

Of course, there are equal protection arguments to also consider, but one must reasonably conclude that the Kitchen majority’s fundamental rights analysis fails badly. This point is underscored by footnote 4 of the FRC amicus brief in Kitchen which provides a lengthy list of courts that have rejected the argument that any fundamental rights (Due Process) analysis supports the claims of the Utah plaintiffs challenging the state’s natural marriage definition.

Justice Kennedy’s Reminder: Some Americans Just Need to Grow Up

by Rob Schwarzwalder

May 5, 2014

In the majority opinion he issued today on public prayer, Justice Anthony Kennedy made a number of arguments with serious implications for religious liberty in the United States.

His opinion and the coincident opinions of Justices Alito and Thomas and the dissenting opinions by Justices Breyer and Kagan all deserve close scrutiny.  Religious liberty is the foundation of all other liberties, and any time the Supreme Court speaks about it, all Americans should listen carefully.

With that said, there is a particularly noteworthy thread of argument woven throughout Justice Kennedy’s opinion.  Several times, he alludes to a fact that needs to be expressed more often, both in our courts and everyday life: Mature adults should act that way.

Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith,” he argues. In other words, rather than wear your religious beliefs and cultural mores like touch-sensitive antennae, act enough like an adult that you don’t take offense unnecessarily or easily.

With respect to public prayer, Justice Kennedy writes:

… the reasonable observer is acquainted with this tradition and understand that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews … That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve of its content.

In other words, respect, decency, civility, and self-control are assumed in a nation that is not only diverse in its religious composition (although the overwhelming majority profess some form of Christian faith) but also composed of self-governing men and women who have the common sense not to take offense too readily.

Kennedy continues:

In their declarations in the trial court, respondents (those who filed suit against the Greece council’s permission of sectarian prayer) stated that the prayers gave them offense and made them feel excluded and disrespected.  Offense, however, does not equate to coercion.  Adults often encounter speech that they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront rom the expression of contrary religious views in a legislative forum, especially where, as here (Greece, New York), any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.

Hear a religious or political comment you don’t like? Justice Kennedy is saying that unless it is personal, disrespectful, or invasive, deal with it: That’s part of being an adult.

Over-dramatization and sensational hand-wringing derive from our media-driven fascination with the morally lurid, even when that luridness is quite isolated.  Consider the responses to the recent repulsive racial comments of Donald Sterling, owner of the Clippers professional basketball team. They were disgusting, but they do not demand an exaggerated inflation of the presence of racism in America.  Commenting on the pervasiveness of racism in light of the Sterling affair, Kareem Abdul-Jabbar said, “More whites believe in ghosts than they do in racism”.

Put another way, does racism exist?  Sure.  But is it representative or preponderant or something about which to be panicked?  No.  Abdul-Jabbar is calling on his fellow Americans not to get carried away, not to magnify a relative anomaly into a

looming crisis.

In the same way, hearing “Jesus” or “the cross of Christ” in a prayer shouldn’t set peoples’ teeth on edge any more than watching a liberal Democrat opine on network television should upset a conservative Republican: You might disagree with the content, but you shouldn’t try to stifle the right of someone to express a profoundly-held belief or conviction as long as it is expressed with adequate civility and courtesy.

Citing Elk Grove Unified School District v. Newdow, Justice Kenney argues that “the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree.”  And as to prayer at public or government-related events, he concludes:

Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy.  And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed.  Neither choice represents an unconstitutional imposition as to mature adults, who “presumably” are “not readily susceptible to religious indoctrination or peer pressure” (Marsh, 1983).

Justice Kennedy’s ruling is a welcome reminder that some of our fellow citizens just need to grow up.  Whether, in our era of political correctness and ready woundedness, they will or not is a different question.

Independence Day on Cook’s Point

by Robert Morrison

July 6, 2012

[caption id=”attachment_8278” align=”alignright” width=”224”] American, Maryland and Gadsden flags on Cook’s Point[/caption]

I hadn’t really expected to see the “Don’t Tread on Me” flag flying at an Independence Day celebration on Maryland’s Eastern Shore. But I knew this would be a special celebration. Peter and Margarete wanted to include a reading of the entire Declaration of Independence at their gathering of family, friends and neighbors. The Chesapeake Bay breezes, very warm, ruffled and flourished the American,Maryland and Gadsden flags on Cook’s Point.

The waters of the bay invited, but we were warned of jellyfish beneath the cooling waves. A boat ride may be better than a swim today. Maryland is just beginning its Bicentennial of the War of 1812. Two hundred years ago, it was stinging British warships that posed a greater danger than jellyfish in these waters. You cannot go anywhere these days, it seems, without pointed reminders of the country’s heritage.

We began our July 4th observance with prayer. A priest reminded us of the rare privilege we have in this country to pray publicly and how this right is the basis for our civil liberty, as well. Then, we all faced the flagstaff as the Star-Spangled Banner was played.

Following this, our hosts’ 13-year-old daughter stood atop a picnic table and read the first two stirring paragraphs of the Declaration of Independence.

She read with the enthusiasm and conviction that only a bright teenager can bring to this venerable 236-year-old document.

I had the honor of reading the middle part, everything from “…pursuit of happiness” to “…let facts be submitted to a candid world.”

My portion of the Declaration included that line stating that “governments derive their just powers from the consent of the governed.” I cannot help but consider the process of passing Obamacare when we talk about consent of the governed.

Sen. Harry Reid (D-Nev.) and the White House rammed through the Senate a bill that did not include protections from abortion coverage—on Christmas Eve, 2009. This in a country that Gallup tells us is increasingly pro-life. (51%-41% in the latest survey.)

Then, they spoke of having to go to a conference committee of the House and Senate to reconcile the different versions of the bill. That was because the House of Representatives in November 09 had passed Obamacare with the famous pro-life Stupak Amendment. Rep. Bart Stupak (D-Mich.) joined with Rep. Joe Pitts (R-Penn.) to attach a pro-life provision to the Obamacare measure that passed the House.

Earlier, on November 7, 2009, the Stupak-Pitts Amendment passed the House by a vote of 240-194. It was the highest vote cast on any measure related to the overhaul of health care. If you were seeking consensus, if you yearned for bi-partisanship, if you cared about the consent of the governed, you must look to this historic vote.

The Senate might have taken up the House-passed version, and passed it, with its pro-life provisions. Or, it might have gone to a conference committee, reconciled the two versions and then re-passed the result.

But the Senate had passed a milestone with the Jan. 2010 special election in Massachusetts. Republican Scott Brown had been elected promising to be “#41” —a decisive vote to stop Obamacare from passing. In that famously liberal state, in a special election to fill the unexpired term of Ted Kennedy (D-Mass.), Massachusetts voters emphatically did not give their consent to Obamacare.

Faced with the possibility of the Senate’s having to swallow the House version, with the Stupak Amendment, Speaker Nancy Pelosi (D-Calif.) pledged to go down the chimney, around the gate, over the wall; in short, to do whatever was necessary to steamroll the bill through. Stupak and most of his pro-life Democratic House colleagues were pressured and arm-twisted into swallowing an Executive Order from President Obama. They were gulled into believing this measure from the most pro-abortion president in history would protect Americans from having to pay for abortions. It wasn’t a fig leaf; it wasn’t even a bay leaf to hide their nakedness.

Dozens of those faux-life Democrats went down to defeat the following November as voters gave a “shellacking” to the president’s party. But not before the whipped and tricked House Members voted through the Senate version of the health care bill, 219-212. It was a hair’s breadth victory, but it met the Pelosi test of doing anything to jam and sham it through.

It was to this dog’s breakfast of a process that Chief Justice Roberts gave his blessing in his infamous ruling in NFIB v. Sebelius late last month. Then, continuing a wholly dishonorable tradition, the Chief absconded to the island fortress of Malta. He left the country perhaps to avoid having to answer any questions about his tortured reasoning and its suspect timing.

The American people at every point had rejected this bill. They had voted in an avowed opponent in the nation’s most liberal state. They had voted out scores of Obamacare backers in the House. And yet, Chief Justice Roberts genuflected to this bizarre legislation as evidence of his judicial restraint. He tells us he is constrained to respect this abuse of power, this rape of the representative process, as the prerogative of the legislative and executive branches.

One of the classic political science texts on Congress is called The Dance of Legislation. This bill might more properly be called the St. Vitus Dance of Legislation. And the four-Justice minority pointed out that if this is a tax, then tax bills have to originate in the House of Representatives (Art. 1, Sec. 7, Clause 1).

The pretzel pundits in many an elite journal are tying themselves in knots trying to see a silver lining in the dark cloud Chief Justice Roberts pulled over us.

He labeled the Individual Mandate a tax, they say, thus making it harder for this administration, or any liberal successors to do anything worse.

If you allow them to keep this scaffold in place, why do they need anything worse? Roberts’ ruling merely takes away one rope. Just as then-Speaker Pelosi swore back in 2010, they will find another rope.

Let’s understand what Obamacare is: It is the largest expansion of abortion since Roe v. Wade. It is the basis for the HHS Mandate against hospitals, schools and para-church ministries. The HHS Mandate is the gravest threat to religious freedom in our nation’s history. It will force all of these private and religious groups, Catholic and non-Catholic alike, to provide coverage that includes abortion-inducing drugs. If they can Mandate abortion drugs now, why not Mandate abortion procedures and sex-change operations after election day? Then, as we’ve all overheard, Vladimir Putin and the rest of the world may see an even more “flexible” administration.

I believe the Roberts Ruling and the media reaction to it reflects a bottomless, Inside-the-Beltway cynicism. The best example of cynicism I’ve read comes not from Washington but from Paris. In 1815, France’s Foreign Minister Talleyrand waited impatiently for the Russian Minister to meet him. When the Russian failed to show up on time, Talleyrand tapped his foot in irritation. Told that the Russian had collapsed and died in his carriage en route to the meeting, Talleyrand stroked his chin pensively and said: “I wonder why he did that.” That’s how I read the pretzel pundits.

Chief Justice Roberts may actually come back to the Constitution when the many lawsuits against Sec. Sebelius’ HHS Mandate get to the Supreme Court. Let us pray he does. But that is no reason to go silent now. If his outrageous ruling of June 28th was a mere maneuver intended to give him more latitude later, that ignoble tactic can only work if conservatives help him out by raising a hue and cry against his unprincipled opinion. We must beat the drums of opposition to this appalling decision.

After he was confirmed in 2005, reporters asked Chief Justice Roberts if he would wear the three gold stripes that the late Chief Justice had added to his robes as a badge of rank. “I think I’ll have to earn them,” Roberts said with becoming modesty then. Now, unfortunately, it is the liberals and the pretzel pundits who are sewing on those gold stripes.

As the sun set over the Chesapeake, I was encouraged by the faith and courage of the good people I met on July 4th on Cook’s Point. Our beloved Declaration was crafted with such folks, the “good people of these colonies,” in mind.

After our reading of the Declaration, I pored over the names of those intrepid Signers of 236 years ago. Two names stood out:New Jersey’s Rev. John Witherspoon andMaryland’s Charles Carroll of Carrollton. Witherspoon was a Presbyterian pastor, a leader among hundreds of clergy in the “Black Regiment” of preachers who rallied to Freedom’s cause. Charles Carroll lived in my home town of Annapolis. A wealthy landowner, he was the only Catholic to sign the Declaration. Witherspoon and Carroll pledged to each other their lives, their fortunes, and their sacred honor. Can we do any less? In that Catholic-Protestant alliance our nation was forged. In such a strong faith coalition, it may yet be saved.

On Being Taxed For Just Standing There: The Roberts Opinion on the Obama Health Care Law

by Rob Schwarzwalder

June 28, 2012

Historian John Steele Gordon makes a compelling point about todays Supreme Court ruling in the Obama health care case:

Never before, that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you dont buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

This seems a proper interpretation of what Chief Justice Roberts wrote in the decision itself. Consider some of his opinions most compelling paragraphs:

… the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.

The Affordable Care Acts requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

… it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congresss power to tax.

Where does Roberts find the linchpin of his argument that the mandate is simply a constitutionally justified form of taxation? He explains:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes … That, according to the Government, means the mandate can be regarded as establishing a conditionnot owning health insurancethat triggers a taxthe required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.

Sure, redefine the meaning of terms like mandate and tax, and the phrase under that theory becomes like the accelerator on a juggernaut. The only consequence a phrase so pregnant and looming its sort of like the old line, Other than that, how did you enjoy the play, Mrs. Lincoln? Accepting that only consequence is like saying we should welcome incoming nuclear ordnance. It just makes a big noise, right?

In summary, heres how Mr. Roberts logic seems to operate:

(1) The mandate is, in fact, a tax.

(2) It is a tax on something people choose not to do, as noted by Gordon above.

(3) Congress has the constitutional authority to tax people at least those whose income Congress decides is adequately high - for something they elect not to do.

This is a phenomenal moment in constitutional interpretation: Now Congress has the power to tax a specific kind of volitional inactivity. This is amazing coming from a self-professed originalist like Mr. Roberts.

Those who believe the Constitution actually means what it says know that the taxing power of Congress extends only to those things (the Enumerated Powers) over which the legislative branch of the federal government has authority. How does something people decide not to do conceivably find its way into the Constitutions limited and specific list of federal duties?

As Gordon observes, the extension of this argument is both unlimited and frightening. If I choose not to exercise, will Congress force me to pay higher taxes because Im not doing enough to sustain my health? If I dont fly in airplanes, will I be taxed for failing to do my part for the American aeronautical industry? If I dont wear brightly-colored shirts, will I be taxed because I am insufficiently supportive of the U.S. vegetable dye industry?

However absurd such scenarios might now seem, their plausibility is strengthened by a Court that has decided that Congress possesses the constitutional authority to tax choices that involve conscientious disengagement from a particular form of conduct.

Abraham Lincoln once noted that we cannot escape history. Indeed. And when the history of this court and of our time generally is written, the new federal power - delivered with a whats the big deal? tone in the Chief Justices opinion - will be an inescapable chapter in the story of libertys diminution.

Supreme Court Declines Mt. Soledad Case: We Live to Fight Another Day

by Chris Gacek

June 26, 2012

  • On Monday, June 26, 2012, the U.S. Supreme Court declined to hear the case of Mount Soledad Memorial Association v. Trunk. The Mount Soledad case involves a First Amendment / Establishment Clause challenge to the presence of a large white cross [that] has stood atop Mount Soledad in San Diego, California, since 1954 as a memorial to our Nations war veterans. The cross and memorial now sits on federally owned land, and the United States Court of Appeals held previously that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.

  • The Courts decision to not hear the case next term is not a defeat for efforts to defend the Mount Soledad Cross. Furthermore, it not a defeat for efforts to correct the extreme turn Establishment Clause doctrine has taken in recent decades.

  • As Associate Justice Samuel Alito made clear in a statement on this decision, the Court chose to wait in this instance because it did not have a final disposition of the case before it. The Ninth Circuit had sent the case back to the district court emphasizing that its decision and remand d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial].

  • As Justice Alito stated, Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Courts decision to deny the petitions [for the Supreme Court to hear the case].

  • In sum, it appears that no member of the Court felt the case was far enough along procedurally for it to be heard at this time.

  • We live to fight another day.

(Thanks to FRC’s Ken Klukowski for all his work on this case and insights about the Court’s decision yesterday.)

Obamacare at the Supreme Court: An Analysis by Ken Klukowski

by Family Research Council

April 2, 2012

For a complete look at last week’s U.S. Supreme Court hearings on the 2010 healthcare law, see Ken Klukowski’s columns at Breitbart.com below. Klukowski, the director ofFRC’s Center for Religious Liberty, was present in the Court for each day’s proceedings. He authoredFRC’s amicus briefs in the various Obamacare lawsuits.

Day 1: Whether the Court has jurisdiction to decide the case

http://bit.ly/Hj2jmK

Day 2: Whether the individual mandate is unconstitutional

http://bit.ly/Hhu4iO

Day 3, morning: Whether the entire law must be struck down (Severability)

http://bit.ly/HgCrWZ

Day 3, afternoon: Whether Obamacare’s Medicaid expansion is unconstitutional

http://bit.ly/H4lZK2

Inside courtroom perspective during argument watching the legal left freak out

http://bit.ly/H2NXHq

Elena What Memo? Kagan: Saletan Got One Big Thing Wrong

by Cathy Ruse

July 8, 2010

Theres a lot of buzz about Will Saletans incisive analysis of Elena Kagans role in shaping, from the White House, the medical conclusions of the American College of Obstetricians and Gynecologists on the partial-birth abortion method. (See full article, below.) The criticism of Kagan and ACOG is certainly welcome, especially coming from this pro-choice writer at this left-leaning magazine.

But Saletan is dead wrong on one central point: Kagan did substantively change the ACOG statement with the sentence she dictated to the organization. Before Kagans interference, the ACOG statement read:

a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman.

Before Kagan, partial-birth abortion was equal to or lesser than other methods in ACOGs view. With the addition of Kagans wording that it may be the best method in a particular circumstance, partial-birth abortion now became potentially better than other methods in the official view of ACOG. Saletan apparently doesnt understand that making it potentially best in some unnamed hypothetical situation was equivalent to making it definitively best in the view of the reviewing courts. Even a cursory reading of the lower court rulings shows that the Kagan best language was absolutely key to the courts reasoning in overturning the bans.

Ultimately, of course, the Supreme Court got past this politicized medicine and got the ruling right. But this revelation should be a permanent black eye for ACOGs reputation on any abortion-related issue in the future, and is proof that Kagan is a zealous pro-abortion political animal trying to disguise herself in judges robes.

http://www.slate.com/id/2259495/pagenum/all/#p2

When Kagan Played Doctor

Elena Kagan’s partial-birth abortion scandal.

By William Saletan

Posted Saturday, July 3, 2010, at 2:12 PM ET

Fourteen years ago, to protect President Clinton’s position on partial-birth abortions, Elena Kagan doctored a statement by the American College of Obstetricians and Gynecologists. Conservatives think this should disqualify her from the Supreme Court. They understate the scandal. It isn’t Kagan we should worry about. It’s the whole judiciary.

Kagan, who was then an associate White House counsel, was doing her job: advancing the president’s interests. The real culprit was ACOG, which adopted Kagan’s spin without acknowledgment. But the larger problem is the credence subsequently given to ACOG’s statement by courts, including the Supreme Court. Judges have put too much faith in statements from scientific organizations. This credulity must stop.

The Kagan story appeared Tuesday in National Review and CNSNews.com. You can read the underlying papers at the Media Research Center. There are three crucial documents. The first is a memo from Kagan on June 22, 1996, describing a meeting with ACOG’s chief lobbyist and its former president. The main takeaway from the meeting, Kagan wrote, was that “there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated,” i.e., abortions in which the partial-birth technique was necessary to protect a woman’s life or health. She explained:

In the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health; another optionwhether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to termis equally safe.

The second document is a draft ACOG statement on “intact D&X” (aka partial-birth) abortions, faxed by ACOG to the White House on Dec. 5, 1996. The statement said that

a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman’s particular circumstances. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women.

The third document is a set of undated notes in Kagan’s handwriting, offering “suggested options” for editing the ACOG statement. They included this sentence: “An intact D+X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination.” This sentence was added verbatim to the final ACOG statement released on Jan. 12, 1997, which read in part:

A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances can make this decision.

The basic story is pretty clear: Kagan, with ACOG’s consent, edited the statement to say that intact D&X “may be the best or most appropriate procedure” in some cases. Conservatives have pounced on this, claiming that Kagan “fudged the results of [ACOG’s] study,” “made up ‘scientific facts,’ ” and “participated in a gigantic scientific deception.” These charges are exaggerated. The sentence Kagan added was hypothetical. It didn’t assert, alter, or conceal any data. Nor did it “override a scientific finding,” as National Review alleges, or “trump” ACOG’s conclusions, as Sen. Orrin Hatch, R-Utah, contends. Even Power Line, a respected conservative blog, acknowledges that ACOG’s draft and Kagan’s edit “are not technically inconsistent.” Kagan didn’t override ACOG’s scientific judgments. She reframed them.

But Kagan’s defense is bogus, too. On Wednesday, at her confirmation hearing, Hatch pressed Kagan about this episode. She replied that she had just been “clarifying the second aspect of what [ACOG] thought.” Progressive blogs picked up this spin, claiming that she merely “clarified” ACOG’s findings and made its position “more clear” so that its “intent was correctly understood.” Come on. Kagan didn’t just “clarify” ACOG’s position. She changed its emphasis. If a Bush aide had done something like this during the stem-cell debate, progressive blogs would have screamed bloody murder.

At the hearing, Kagan said ACOG had told her that intact D&X “was in some circumstances the medically best procedure.” But that doesn’t quite match her 1996 memo about her meeting with ACOG. In the memo, she wrote that

we went through every circumstance imaginablepost- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc.and there just aren’t many where use of the partial-birth abortion is the least risky, let alone the “necessary,” approach. No one should worry about being able to drive a truck through the President’s proposed exception; the real issue is whether anything at all can get through it.

The language in this memo”imaginable,” “let alone,” the quotes around “necessary”depicts a conversation in which nobody could think of a real case where intact D&X was, as Kagan’s revision would later put it, “the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” Indeed, the participants doubted whether “anything at all” could meet Clinton’s standardnamely, a case in which intact D&X would be “necessary to preserve the life of the woman or avert serious adverse consequences to her health.” So Kagan’s statement at her hearingthat ACOG had said intact D&X “was in some circumstances the medically best procedure”considerably stretches the truth as she recorded it. It implies, contrary to her contemporaneous notes, that ACOG had affirmed a specific need for the procedure.

Kagan’s critics see her political meddling as a violation of science. The revised ACOG statement “was a political document, intended to bolster the case for partial-birth abortion, under the false flag of scientific objectivity,” says Power Line. National Review agrees: “Language purporting to be the judgment of an independent body of medical experts” was “nothing more than the political scrawling of a White House appointee.” These complaints are overboard. Science and politics aren’t mutually exclusive. The ACOG statement was largely scientific, and even Kagan’s insertion was more than political scrawling: It reframed but obeyed the constraints of ACOG’s objective beliefs.

But if conservatives are being naive about the relationship between science and politics, Kagan is being cynical about it. “There was no way in which I would have or could have intervened with ACOG, which is a respected body of physicians, to get it to change its medical views,” she told senators on Wednesday. With this clever phrasing, she obscured the truth: By reframing ACOG’s judgments, she altered their political effect as surely as if she had changed them.

She also altered their legal effect. And this is the scandal’s real lesson: Judges should stop treating the statements of scientific organizations as apolitical. Such statements, like the statements of any other group, can be loaded with spin. This one is a telling example.

National Review, CNSNews, and Power Line make a damning case that courts mistook the ACOG statement for pure fact. In 2000, when the U.S. Supreme Court struck down Nebraska’s ban on partial-birth abortions, it cited ACOG: “The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X ‘may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.’” That sentence, we now know, was written by Kagan.

Four years later, when U.S. district judge Richard Kopf ruled against the federal partial-birth ban, he wrote:

I have summarized only the statements of the two leading national medical associationsthat is, the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG)regarding substantive medical questions, but only to the extent the statements reflected the considered medical opinion of such groups after an apparent professional inquiry. I did not summarize the policy views of these or other associations.

Kopf explained why he trusted the ACOG statement:

In forming the task force’s proposed ACOG Statement on Intact Dilation and Extraction, the members relied on their own education and expertise, obstetrics and gynecology textbooks, CDC information, published information on the safety of D&E and the D&X subset of D&E, and information about the safety of available alternatives. The textbooks were referenced for information about specific abortion procedures. The task force did not rely on information received from the public, did not interview or receive testimony from doctors, and did not draft and circulate individual position papers or statements for review and comment by other task force members. … Before and during the task force meeting, neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed in the ACOG Statement on Intact Dilation and Extraction.

Kopf, like the rest of us, was apparently unaware that after the ACOG task force formulated its proposed statement, the statement was politically vetted and edited. Kagan’s memos and testimony confirm that ACOG consulted the White House and altered its statement accordingly. As a result, the statement reframed ACOG’s professional findings to support the policy views it shared with the White House.

All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation’s highest judges. As one of them, she had better make sure they aren’t fooled again.

Tony Perkins Testifying at Elena Kagan Confirmation Hearing

by Carrie Russell

July 2, 2010

As one who has spent a number of years in uniform, as a Marine and a police officer, my remarks will focus primarily on Ms Kagan’s treatment of military recruiters at Harvard Law School.

As has been pointed out while Dean of the law school she defied the requirements of a federal law, known as the Solomon Amendment. Her violation of this federal law was motivated by her vehement opposition to the military’s prohibition against open homosexuality.

This protracted incident, combined with the just made public report of her re-writing of the medical findings of ACOG on partial birth abortion as advisor in the Clinton White House, raises doubts as to whether she possesses the requisite judicial temperament and impartial nature required of a Supreme Court justice.

We do not need a justice on the Supreme Court who sees it as her life mission to write the homosexual version of Roe v. Wade by striking down one-man, one-woman marriage across America. These positions and the temperament accompanying them make her unfit to sit as an associate justice on the Supreme Court. I urge the Senate to reject her nomination.”

Perkins’ complete prepared testimony can be viewed here.

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