Religious Institutions Must Pay Abortion Coverage in NY (Part 1a--addendum)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

Before advancing to the New York decisions, it probably makes sense to first address the three rulings just handed down by the Supreme Court dealing with religion. One dealt with discrimination against religion, another with discrimination by religion, and the third one with a regulation accommodating religion. None of these affect what we've been discussing. But to avoid any possible confusion, let's clarify.

Recall that in Part 1, we reviewed the federal constitutional and statutory protections for free exercise of religion. First, the only 1st Amendment constitutional protection is Scalia's opinion in Oregon v. Smith. Under Smith, there is no protection at all if the law is "generally applicable" and "otherwise valid." So religious liberty is protected under the 1st Amendment only when the law singles out religion or religious organizations for disparate treatment, or when the law happens to be illegal for some other reason than religious liberty.

Second, the federal statutory protection for free exercise of religion is the Religious Freedom Restoration Act (RFRA). That legislation applies the "compelling interest/strict scrutiny" test to interference with religious liberty--i.e., the same test that had been applied under the 1st Amendment before Scalia's opinion in Smith denied that was so. Under that test, the government must prove that it has a really, really important reason ("compelling interest") to do what it's doing and that there is no other way to do it without burdening religious liberty. But remember, RFRA and its statutory "compelling interest/strict scrutiny" test does not apply to state laws.

Again, none of that has been changed by the three decisions just rendered by the Supreme Court?

So then, what exactly did the Court decide?
OK, here they are.

Discrimination against Religion
Espinoza v. Montana Dept. of Revenue, June 30, 2020.
The state of Montana was subsidizing tuition scholarships which, under its own law, could not be used to attend religious schools. In an opinion by Chief Justice Roberts, a 5 to 4 majority held that Montana was unconstitutionally discriminating on the basis of religion. The dissenters, on the other hand, viewed Montana's exclusion of religious schools as consistent with, and even compelled by, the constitutional separation of church and state.

The decision in Espinoza is the latest in a long line of Supreme Court precedents that have prohibited government from treating religious activities and institutions less favorably than others. For example, almost 40 years ago in Widmar v. Vincent (1981), the Court held that it was unconstitutional discrimination for a public school to allow all student activities to use its classrooms after hours, but not student groups that were religious. More recently, in Trinity Lutheran Church v. Comer (2017), the Court held the same for a state program that subsidized safety improvements in children's playgrounds, but not those owned by religious institutions.

In short, the Montana program in Espinoza even failed the minimal protection of Smith: the program was not "generally applicable" and "otherwise valid" because it singled out religion and did so for discriminatory treatment. (Whether such disparate treatment is actually permissible under the Constitution's non-establishment mandate, or even required to keep church and state separate, is another way the case could have been viewed--thus, the 4 dissenters.)

Discrimination by Religion 
Our Lady of Guadalupe School v. Morrissey-Berru, July 8, 2020.
Two teachers sued Catholic elementary schools for employment discrimination when they were fired. In an opinion by Justice Alito, a 7 to 2 majority dismissed the lawsuits on the basis of the so-called "ministerial exemption." That doctrine, emerging as far back as the Court's 1952 decision in Kedroff v. Saint Nicholas Cathedral, generally prohibits government from interfering in internal church affairs, including church employment decisions--think the Catholic Church's limiting the priesthood to men.

The majority in this latest decision extended the "ministerial exemption" to employment decisions about teachers whose responsibilities include religious instruction. Regardless of the age or disability discrimination that might have been involved in the firings, the Court explained that the 1st Amendment prohibited the entanglement with church governance that interfering with employment decisions would entail. (The 2 dissenters objected to the extension of the "ministerial exemption" to clear violations of employment anti-discrimination laws involving teachers who were not ministers.)

In short, the decision in Our Lady of Guadalupe School dealt with the extent to which the constitutional guarantees of non-establishment and free exercise restrict government intrusion into church decisions about who shall carry out its religious activities. The majority favored rigorous restrictions; the dissenters favored rigorous enforcement of laws prohibiting employment discrimination.

Contraceptive Coverage Exemptions
Little Sisters of the Poor, Saints Peter and Paul Home v. Pennsylvania, July 8, 2020.
The issue in this case was not whether religious objectors must be granted exemptions. Rather, it was whether recent federal regulations that do grant exemptions--and do so very broadly to all religious and moral objectors--are valid.

In an opinion by Justice Thomas, another 7 to 2 majority held that the federal agency that promulgated the regulations had the authority to do so under the Affordable Care Act, and that the agency did follow the proper procedures in doing so. (The 2 dissenters noted that "all agree" that the 1st Amendment does not require such exemptions, and they complained that the broad scope of the regulatory exemptions conflicts with the purpose of the Affordable Care Act's contraceptive coverage.)

Recall that in its 2014 decision in Hobby Lobby v. Burwell, the Court held that certain religious objectors were entitled to an exemption under RFRA. According to the majority in that case, the federal government had failed to satisfy that RFRA's "compelling interest/strict scrutiny" test to justify burdening the objectors' religious freedom. This new Little Sisters of the Poor case was not about that. It was about the new regulations which provided for exemptions beyond those that the Court had required in Hobby Lobby--or what, if any, would be required under Scalia's "generally applicable/otherwise valid" standard in the Smith decision.


So, you ask, what does all this mean?

Well, none of this alters the minimal 1st Amendment constitutional protection for religious freedom set forth in Scalia's opinion in Smith. And non of this extends the reach of the much more rigorous statutory protection in RFRA.

What these decisions do, however, is to demonstrate that the current Supreme Court is more sympathetic to claims of religious liberty--or, flip side, less sympathetic to other competing interests. In these decisions, the majority of the Justices have extended the precedents that prohibit the disparate treatment of religion and religious institutions--or, flip side, diluted the precedents that prohibit government aid to them. The majority have extended precedents that insulate religious institutions from government interference--or, flip side, weakened laws that protect against employment discrimination. And the majority have approved expansive regulatory exemptions for religious objectors--or, flip side, undermined the ready availability of contraceptive health care.

There are always competing interests in cases that reach the Supreme Court. Oftentimes, those interests that compete are each quite compelling. One possible decision might be more consistent with legal provisions or precedents than another. A different decision might be more consistent with overriding principles or simply wiser. Every once in a while, the Court's decision is just dead wrong. It might be patently dishonest or downright foolish or otherwise contrary to those overriding principles that should guide all Court decisions. But most of the time, these cases are close, and they're tough to resolve. Someone who denies that--who is constantly insisting that the right answer is clear in these close cases--is likely clouded by a hyper-partisan or over-ideological perspective.

OK, enough of my sermon, which likely reveals a nagging uncertainty about most things. Or as extolled by Learned Hand: The spirit of liberty is the spirit which is not too sure that it is right.

Now, while I'm claiming Judge Hand's imprimatur, let's proceed in the next post to the ultimate destination of this series--this month's decision by New York's Appellate Division in Roman Catholic Diocese of Albany v. Vullo, with the 2006 ruling of New York's highest court, the Court of Appeals, in Catholic Charities v. Serio, as the background.

Trump's Justices: Gorsuch to Date (Part 3)

Pandemic restrictions, transitioning to remote teaching, exams, grading, other projects, preoccupation with breaking news, etc. Now back at last.

In the first post in this series, we took a look at Justice Niel Gorsuch's voting record immediately following his appointment in the final few months of the 2016-17 term. As shown in that post, Gorsuch voted for the politically conservative side of every politically charged issue in cases involving the death penalty (pro), campaign finance restrictions (con), gun rights (pro), gay rights (con), workers' rights (con), separation of church and state (con), President Trump's travel ban (pro), and similar politically divisive matters.

Yes, there were legitimate (or semi-legitimate) arguments that supported each side in these cases. A reasonable, good-faith judge might have voted either way. But Gorsuch always chose arguments that supported the politically conservative side. Never the other side. In short, connect the dots! Moreover, Gorsuch's 100% politically conservative record was more than double the 41% conservative decisional record of the Court as a whole.

Juxtaposing his record with that of the other conservatives on the Court, as well as of the Court as a whole, in that spring of 2017 looks like this (click to enlarge).


Then, in the second post in this series, we saw that Gorsuch continued to amass a very politically conservative record throughout the 2017-18 term, his first full term on the Court. As noted in that post, in cases involving highly charged matters, Gorsuch voted for the politically conservative side virtually every time: Trump's travel ban (again, pro), immigrant rights (con), abortion rights (con), gay rights (con), union representation (con), worker rights (con), voting rights (con), ending gerrymandering (con), search and seizure protections (con), and international human rights (con). Again, connect the dots.

And again, let's juxtapose Gorsuch's voting with that of the other conservatives on the Court, as well as of the Court as a whole. His record for the first full term on the Court, the 2017-18 term, looks like this (click to enlarge).


Now, let's take a look at Gorsuch's record for the last completed term, 2018-19, his second full year on the Court. Among the cases involving those "hot-button" or politically charged issues, these were his positions:

• American Legion v. Amer. Humanist Assn. (2019) [re: the 40 Foot Cross maintained by Maryland state government]--the majority approved the cross; Gorsuch's separate concurring opinion would have lowered the separation of church and state even more by disallowing concerned groups even to complain.

• Dept. of Commerce v. New York (2019) [re: the Trump administration's proposed citizenship question on the census form]--the majority, in an opinion by the Chief Justice, disallowed the question because the administration's claimed justification was a lie; Gorsuch joined the dissenters' argument that the administration did have some legitimate reasons.

• June Med. Servs. v. Gee (2019) [re: the Louisiana abortion services restriction law]--the majority summarily blocked the law from going into effect; he joined the dissenters to approve the law until it actually resulted in unduly burdening the right to choose.

• Rucho v. Common Cause (2019) [re: partisan gerrymandering]--he voted with the majority which held that the Court should do nothing about it.

• Bucklew v. Precythe (2019) [re: lethal injection]--he authored the majority opinion to approve the use of a method of execution on an inmate, despite the inmate's particular's medical condition that would make that method excruciating.

• Moore v. Texas (2019) [re: intellectual disability of a death row inmate]--in this and several similar cases, the majority (which included Chief Justice Roberts and Justice Kavanaugh) halted the execution because the state applied outdated mental health standards which the Court had previously invalidated; he joined the dissent in each case to nevertheless allow the executions.

• Murphy v. Collier (2019) [re: the Buddhist chaplain case]--the majority (which again included Roberts and Kavanaugh) halted an execution until the state honored the inmate's request to be visited by a chaplain of his faith; he joined the dissent to excuse the state and allow the execution to go forward.

• Garza v. Idaho (2019) [re: ineffective counsel]--the majority (once more including Roberts and Kavanaugh) ruled that the defense counsel's failure to file an appeal violated the defendant's right to effective counsel; he joined the dissent arguing that the defendant's waiver of appeal upon his guilty plea disposed of the question.

• Flowers v. Mississippi (2019) [re: race-based juror discharges]--the majority (which this time included Roberts, Alito, and Kavanaugh who authored the opinion) condemned as unconstitutional the “relentless” use of peremptory challenges by the prosecution to strike all black jurors, throughout 6 trials and retrials; he joined the dissent which declined to condemn the pattern.

Well, speaking of patterns, Gorsuch's voting pattern should be quite evident. Whether it's church and state, abortion rights, the death penalty, race-related questions, the Trump administration's initiatives, and other politically charged issues, Gorsuch voted like a conservative Republican partisan. And he did so even more than some other conservatives on the Court.

Take a look (click to enlarge):

Gorsuch's 89% politically conservative voting record for the 2018-19 term contrasts dramatically with the 50% decisional record of the Court as a whole. And remember, this is a Court where a majority of the Justices are political conservatives--who worked in politically conservative Republican administrations before being appointed by Republican presidents. It is compared to just such a politically conservative Court that Gorsuch's record is so extreme!

Indeed, Gorsuch's record for the 2018-19 term is not only significantly more politically conservative than that of conservative Chief Justice Roberts, 89% to 58%. But his record is notably more politically conservative than that of the second Trump appointee to the Court, Brett Kavanaugh.

The difference between the two Trump appointees, 89% politically conservative for Gorsuch, 74% for Kavanaugh, is underscored by the sorts of politically charged issues on which they disagreed. Take a look at some of them (click to enlarge):

Church and state, racial discrimination, the death penalty, an accused's right to effective counsel--these are among the critical areas of constitutional law in which Gorsuch took the more politically conservative side of the issue than did Kavanaugh.

To be sure, there are many many other areas of constitutional law, as well as non-constitutional but still highly charged political issues, about which we do not yet have Supreme Court decisions in which both Gorsuch and Kavanaugh participated. There are some of those in cases to be handed down by the Court within the next few weeks. That will give us more evidence of the individual and the comparative ideological leanings of the two Trump appointees. Stay tuned!

The Travel Ban Decision

The shouting has largely subsided. The Court's ruling has settled in, and the outward manifestations of euphoria and despair have largely moved on to other issues. Despite what has been said--both leading up to the decision and immediately thereafter--it was neither one of the very best or very worst decisions in recent memory. Not even among this past term's collection of 5-4 rulings.
[Disclosure: I do think that this case was close on the legal validity of "Travel Ban #3." That being said, I do not think it's at all close whether President Trump's language and behavior on this matter have been disgraceful, dangerous, and contrary to basic American constitutional principles. I would have voted with the dissenters.]

As the world knows, the Supreme Court upheld the 3rd version of President Trump's so-called "travel ban." After several courts had invalidated the first and second versions, a third one was drafted. This executive order--Proclamation No. 9645 (as later amended by Proclamation No. 9723)--suspended the entry into this country of nationals from seven foreign nations. Five of the seven mostly-Muslim countries from the original executive order remained on the list; North Korea and Venezuela were then added.

In a 5-4 decision, the Court ruled that the Proclamation was within the "extraordinary" authority given to the President under the Immigration an Nationality Act, specifically, §1182(f).

Let's get a sense of the majority opinion, authored by Chief Justice John Roberts, and the main dissent by Justice Sonia Sotomayor. The Chief Justice's opinion for the Court included the following:

A “total and complete shutdown of Muslims entering the United States” is needed.

“Islam hates us.”

The United States is “having problems with Muslims coming into the country."

”Europe has instituted plans to “ban Muslim immigration…You know my plans. All along, I’ve been proven to be right.”

The first executive order was a needed “Muslim ban."

The second executive order, regrettably, is “watered down."

”The “travel ban . . . should be far larger, tougher, and more specific [but] stupidly that would not be politically correct.”

Justice Sotomayor's dissenting opinion included these lines:

A "total and complete shutdown of Muslims entering the United States" is needed. 

"There is great hatred towards Americans by large segments of the Muslim population."

"They believe that "violence against Americans here in the United States is justified as a part of the global jihad." 

"Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts." 

"It is obvious to anybody the hatred is beyond comprehension." 

"Our country cannot be the victims of the horrendous attacks by people that believe only in Jihad." 

"Islam hates us." 

"We can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” 

“We’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” 

Muslims “do not respect us at all.” 

“You know my plans [to“ban Muslim immigration”]. All along, I’ve proven to be right.” 

"The lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” 

“Study what General Pershing . . . did to terrorists when caught [i.e., the apparently apocryphal story about General Pershing’s massacre of Muslims in the Philippines]. There was no more Radical Islamic Terror for 35 years!” 

Of course, both the Chief Justice and Justice Sotomayor were quoting Donald Trump, while he was a candidate and after his election. Also, of course, neither one of them were endorsing a single word. But then, what to make of those words and the sentiments that they expressed when assessing the legal validity of the travel ban?

For all 4 dissenting Justices, the travel ban was based on little more than Donald Trump's clearly manifested bigotry against Muslims. The President's hostility toward a religion violated fundamental American constitutional traditions and principles and, as such, rendered the resulting travel ban invalid under the 1st Amendment. That was one side of the controversy. The one-vote short-of-winning side.

The 5-vote winning side emphasized that the power vested in the office of the President with regard to immigration and other travel into this country is "extraordinary." First, however, Chief Justice Roberts dealt with Donald Trump's anti-Muslim outbursts and other fits of fury. He didn't try to ignore them, and he left no doubt that he found them shameful.

Addressing presidential authority and how that authority has been nobly used in the past, the Chief Justice remarked:

Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.” President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.” And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike—to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.” 

Then the Chief Justices added:

Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days—performed unevenly in living up to those inspiring words.

Hmmmm, "unevenly." Roberts then went further, albeit implicitly:

But the issue before us is not whether to denounce [Trump's] statements.

The denunciation to be inferred could hardly be missed. Still, explaining his majority's view of the case, the Chief Justice continued:

We must consider not only the statements of a particular President [as in the current one], but also the authority of the Presidency itself.

Roberts then outlined the reasons for upholding travel ban #3:

• it does have some legitimate basis in national security interests
• religion is nowhere mentioned
• only a small fraction of the world’s Muslim population is covered
• it covers only countries that Congress and prior administrations designated as national security risks
• it is the result of a comprehensive review process by multiple Cabinet agencies

For the majority, those factors placed "Travel Ban #3" well within the previously emphasized "extraordinary" constitutional and statutory authority the President has over such matters. For the four dissenters, however, the clear religious hostility motivating the travel ban undermined any ostensibly legitimate purposes. As Justice Sotomayor summed up the dissenters' view at the outset of her opinion:

Based on the evidence in the record [i.e., Donald Trump's language and behavior outlined by both the majority and dissent], a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. 

So, the extremely broad power given to the office of the President, by the Constitution and by legislation, versus the unanimously acknowledged recurrent manifestations of religious bigotry by a particular president. That was the question. It was a close one. And one vote made the difference.

Now, for one final observation. What about that 1-vote difference? That 5-4 vote? All 5 Republicans on one side. All 4 Democrats on the other. Come on! What are the mathematical odds that such a partisan split in the vote could result if this case were actually considered in a neutral, detached, non-biased, non-partisan manner by each of the nine Justices? To pose the question is to answer it.

Not a single Republican Justice saw merit in the Democratic Justices' position? And vice-versa? Regardless of one's personal view of this case, it seems impossible to deny that the outcome in this case was the result of partisanship more than any independent, impartial judicial review. Ugh!--again for this current Court.

Okay, allow me one additional "final" observation. In her dissenting opinion, Justice Sotomayor compared the Court's decision to Korematsu v. United States (1944), where the Court had upheld the internment of Japanese-Americans during World War II. Naturally, Chief Justice Roberts disputed that comparison in his majority opinion.

But the Chief Justice then took "the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” (Quoting from the dissenting opinion in that case of [Albany Law School's favorite son] Justice Robert H. Jackson.)

Gorsuch, Part 6: The Now-Justice Like the Then-Judge

We've seen how Neil Gorsuch's record as an appeals court judge was ultra-conservative. Reviewing those cases where he stuck his neck out to disagree publicly with his colleagues by writing a dissenting opinion--presumably because he felt strongly that his colleagues were wrong on an important issue--reveals a clear ideological pattern. (See Part 4 and Part 5.)

In civil cases, he repeatedly sided against the worker and for the employer; sided against consumer protection; sided against Planned Parenthood; sided against the separation of church and state. In criminal cases, he argued that correction and police officers should be immune from liability despite majority findings that the vindicated suspects' constitutional rights had been violated; and he argued that convictions should be upheld despite findings that the defendants' lawyers were ineffective, or that Miranda rights were violated, or that the incriminating evidence was unconstitutionally obtained.

Perhaps most notable (and in my view most worrisome), is that even when Gorsuch sided with the defendant, he set forth the very narrow, literalist view of the 4th Amendment that it does not prohibit unreasonable searches or seizures. Rather, it only prohibits unreasonable searches and seizures if they involve one of the few particular items mentioned in that amendment--i.e., "persons, houses, papers, and effects." But nothing else. This is a view, by the way, based on long-overruled decisions of the Supreme Court from an earlier era. This also just happens to be the same narrow, literalist view of search and seizure protections taken by Gorsuch's hero, the late Justice Antonin Scalia, to whose vacancy he was appointed. And it is the view condemned in recent years by, among others, conservative Justice Samuel Alito, whose separate concurring opinion in U.S. v. Jones, 565 US 400 [2012] exposed the dangers of that view which was embraced in Scalia's opinion in that case.

Sooooooo, has Gorsuch's record on the federal appeals court been reflected in his record to date at the Supreme Court? He has been a justice for only a short time. Confirmed by the Senate in April, he has only participated in those cases which the Court considered as it was wrapping up its term. And yet....

Let's take a look.

Death Penalty
McGehee v. Hutchinson: In Gorsuch's first public vote, he sided with execution. He broke the Court's 4-4 tie to allow Arkansas to proceed with several executions that the state wanted to complete before its supply of lethal drugs expired. Each of the death inmates had already been imprisoned for 10 years; a few for more than 20. Each of them had legal claims challenging their convictions or sentences or even insisting on innocence. State and federal courts at various stages of the litigations had found some merit in their claims. But the Supreme Court declined to review the claims and, with Gorsuch's vote making a bare majority, approved the executions.

Campaign Finance
Republican Party of Louisiana v. FEC: The Supreme Court majority summarily affirmed--in a four word entry--the decision of the court below to uphold a particular provision of the federal campaign finance law (the Bipartisan Campaign Finance Reform Act of 2002, aka “McCain-Feingold”). The provision in question prohibits the use of unregulated contributions made to political parties for federal election activities. Gorsuch, together with Justice Thomas, noted his disagreement with the majority's disposition of the case and would have proceeded with the full review process.

Indigent Criminal Defense
McWilliams v. Dunn: The Alabama courts had denied the death penalty defendant the assistance of a mental health expert. By a typical 5-4 ideological split, with Justice Kennedy casting his vote with the liberals, the Court held that indigent defendants who have raised serious mental health issues do have such a right, and it sent the case back to the lower courts to apply the law correctly. Gorsuch joined Justice Alito's dissenting opinion, taking the position that the decision of the state courts should have been affirmed, because the Supreme Court had not previously "clearly establish[ed] that a defendant is entitled to an expert."

Employee Grievance
Perry v. Merit Systems Protection Board: A 7-2 majority of the Court ruled that an employee could seek judicial review of his "mixed" grievance (i.e., discrimination underlying a civil service grievance) in federal district court; significantly, such a court is not required to defer to an administrative ruling which, in this case, was adverse to the employee. Gorsuch dissented. In an opinion joined by Thomas, Gorsuch argued that an employee seeking judicial review of an adverse administrative ruling on his civil service grievance can do so only in the Federal Circuit Court. And, again here's the significance: that court must affirm the employee-adverse administrative ruling unless it is utterly irrational.

Trump's Travel Ban
Trump v. Int'l Refugee Asst Project: The Court unanimously agreed to review the constitutionality of President Trump's executive order that suspended the entry of certain foreign nationals into the United States. At the same time, by a  6-3 majority, the Court mostly upheld the orders of the courts below that had temporarily barred enforcement of the executive order. The Court did, however, partially reverse the courts by allowing the executive order to be enforced "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." Gorsuch joined Thomas's dissenting opinion, arguing that the executive order should be allowed to be enforced in its entirety--i.e., including its enforcement against those with "a close familial relationship" with an American--because the "Government’s interest in preserving national security" outweighed the resulting hardships to affected individuals.

Church-State Separation
Trinity Lutheran Church v. Comer: By a 5-2-2 majority, the Court held that Missouri engaged in unconstitutional religious discrimination when it denied the church's request for funding for its playground--which funding was generally available to non-religious institutions. [Missouri is one of those state's with an strict (originally anti-Catholic immigrant) prohibition against aiding religious institutions.] Chief Justice Roberts' majority opinion, in a footnote, underscored that "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Gorsuch, joined by Thomas, wrote a separate concurring opinion disassociating himself from that limiting footnote. Anticipating other applications of law to religious institutions, he wrote that "general [constitutional] principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else." [Hmmm, such as laws requiring equal treatment of gays and lesbians and same-sex married couples, even in the face of religious objections? And see immediately below!]

Gay Rights
Pavan v. Smith: This case involved Arkansas's refusal to include the name of a biological mother's same-sex spouse as a parent on the child's birth certificate. By a 6-3 majority, the Court summarily granted review and reversed on the ground that, in accord with the Court's 2015 decision in Obergefell v. Hodges, same-sex married couples are equally entitled to “the constellation of benefits that the State has linked to marriage.” Gorsuch dissented. In his opinion joined by Thomas and Alito, Gorsuch insisted that "nothing in Obergefell indicates that a birth registration regime based on biology...offends the Constitution."

Gun Rights
Peruta v. California: The Court declined to review a decision of the 9th Circuit that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” The California law, which generally prohibits concealed guns in public places, was thus upheld. Gorsuch joined Thomas's dissent. The dissenters complained that the majority's decision not to take the case "reflects a distressing trend: the treatment of the Second Amendment as a disfavored right." They were also unequivocal about their position on the California law. As Thomas concluded for himself and Gorsuch: "the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right."

Well there it is. By his votes and separate opinions in these ideologically-laden cases, Neil Gorsuch has in short order left little doubt about his strong ideological leanings. And beyond ideology or political philosophy or jurisprudence, consider his partisan bent. How would a typical Republican politician vote on these issues? Not a judicially retrained judge or strict constructionist or believer in federalism (i.e., states' rights) or any other actual, coherent judicial or political philosophy. But a partisan Republican.

What's the common thread through his positions on issues as varied as gun rights and gay rights, Trump's travel ban and campaign finance, worker rights and rights of the accused? That's right, connect the dots. His record on the Supreme Court already screams "ultra-conservative partisan Republican."

Some--like the Federalist Society and the Heritage Foundation and other very conservative groups and individuals who recommended him to Trump--undoubtedly are pleased with Justice Gorsuch's record thus far. Others, more moderate or liberal, much less so. But whether pleased or not with Gorsuch's Supreme Court record to date, it is undeniably what it is: politically partisan, conservative Republican.

Supreme Court, 2013-14 Term: Quick Recap (Part 1: civil rights and liberties)

The Court finished its term Monday. The decisions announced that morning, in the cases dealing with the contraceptive mandate and union dues, were the final two in a veritable whirlwind the past few weeks.

Out of the 70 or so decisions rendered this term, let's take a quick look at some of the most significant. "Quick" as in a very brief bare-bone recap of each. And "significant" as in cases involving issues of liberty and order, rights and responsibilities, equality and justice that are basic to a free society--the ones most of us are interested in, not just lawyers and businesses.

We'll do this quick recap in 2 parts, civil and criminal. Later, we'll look at these cases more closely. I.e., votes, meaning, impact, precedential ramifications, etc.
(We'll also be reviewing some of the significant decisions rendered by the New York Court of Appeals this year .)

Albany Law Professor discusses SCOTUS prayer decision

Albany Law Professor discusses SCOTUS prayer decision

Supreme Court's New Term: Headliners & Possible Blockbusters (Part 1)

The Court's new term has begun in full swing. Since the first Monday in October--the Court's traditional opening session of arguments--the Justices have been confronting headline issues that could generate blockbuster decisions.

Campaign finance. Abortion clinics. Town prayers. Affirmative action. Warrantless home searches. Presidential recess appointments. Those are among the controversial matters already on the Court's docket.

Let's take a quick look at those cases. We'll start with a few that pose questions under the First Amendment.

[I've been talking a lot about these cases. So, for those who'd prefer--or would like to supplement this post--I've placed links to a couple of radio and TV interviews at the end.]

Campaign Finance (McCutcheon v. Federal Election Commission)
In the 2010 Citizens United decision, the Court upheld a First Amendment right to spend money to finance political communications--in that case, a documentary critical of Hillary Clinton. By a bare majority, the Justices ruled that the restrictions on such expenditures, imposed by the McCain Feingold Law, violated free speech.

The McCutcheon case this term deals, not with expenditures per se, but with contributions to political parties or candidates. The McCain Feingold Law imposes various limits on the amount of such contributions allowable.

Are the restrictions on contributions also invalid? Do they violate free speech just as the restrictions on expenditures were held to do in Citizens United?

The decision may well rest on whether any of the conservative Justices believe that unlimited contributions made directly to political parties or candidates create a much greater risk of corruption than do expenditures made for independent communications.