SCOTUS Deference to Michigan Law vs. VMI

Why did the Court defer to the curricular expertise of the Michigan Law faculty under strict scrutiny, but not to the curricular expertise of the VMI faculty under intermediate scrutiny?

I wonder if Bobby Braddock has an insight on this issue in his song about cultural differences between the "jet set" and the "Chevro-let set":

No, We're not the jet set
We're the old Chevro-let set
Our steak and martinis
Is draft beer with weenies
Our Bach and Tchaikovsky
Is Haggard and Husky
No, we're not the jet set
We're the old Chevro-let set
But ain't we got love

Did the Court defer to fellow academic "jet setters" at Michigan Law while refusing to defer to "Chevro-let setters" on the VMI faculty?

Does cultural power, as opposed to the rule of law, explain at least some of the Court's SDP and Equal Protection decisions?

SCOTUSblog Post today on Roe v. Wade

FYI:

Link

For Thursdays Class: Saenz v. Roe

I will ask you all to apply Saenz v. Roe (p. 924) and the P&I Clause of the 14th to non-resident tuition at state universities. Suppose, for example, a student, (let's call him Jack Bauer) moves to Nebraska from, say, California, to attend law school. The student wishes to become a citizen of Nebraska, and in furtherance of this wish, he registers his car in Nebraska, enrolls his children in the Lincoln public schools, registers to vote in Nebraska, joins a church in Nebraska, purchases a home (and pays property taxes on his home) in Nebraska, and pays "resident" income taxes to Nebraska. Yet, despite all this, UNL insists that he is a nonresident and charges him nonresident tuition (while allowing "resident" illegal aliens to pay in-state tuition). What are Jack's rights under the P&I Clause and Saenz v. Roe?

C-Span Landmark case Video of Slaughter Cases

Here is a link if you would like still more information about the Slaughterhouse Cases:

Link

Historic Disagreement Over the Size and Purpose of Government

As we work through these cases concerning Obamacare and the relative power of Congress vs. the states, we should realize that we are in the middle of an historic debate about how then we should live and how are we to be governed. Here is a excerpt from a recent Wall Street Journal article that I think captures the struggle of our times well:

America's two major political parties have arrived at a point where they hold vastly different views on levels of public spending, the entitlement state and the purpose and structure of the country's tax system. This is not some routine spat over a few line items in the budget. It is an historic disagreement over the role of government.

I would add that there is also an historic disagreement among us over the social issues, over the meaning and purpose of marriage and family, and over which level of government should decide these foundational issues.

It is a privilege to live in interesting times!

RLUIPA and Commerce Clause

Does Congress have power under the Commerce Clause to enact RLUIPA?(link)

Class Schedule--UPDATE

I will be speaking at Detroit Mercy Law School on Thursday Sept. 24 and conducting a CLE at the Nebraska Bar Annual Meeting on Friday October 9. So we will not be having class on those dates.

I plan to make up one of the classes by going 5 minutes over every class (i.e. until 11:50).

Update: In lieu of a physical make-up class for the second class cancellation, I would like you all to view Prof. Todd Zywicki's talk on "Should We Repeal the 17th Amendment." Here is a link to the YouTube video.

We will discuss the 17th Amendment and the Senate next Friday (Sept. 25) so please view this video before then.

For This Thursday's Class--Something More to read

For our discussion on the second assignment about the "Great Debate" (Handout No. 2) regarding original understanding vs. the "Living Constitution," I would also like you to read the Sup Ct's recent same-sex marriage decision. Here is a link:

Obergefell v Hodges (2015)
 

For now, I would like you to focus on the question whether Obergefell is a legitimate interpretation of the Written Constitution or whether it is an exercise of raw judicial power. Are you convinced that the Constitution was written to provide a redefinition of marriage? Is this an issue committed to the federal judiciary by the written Constitution? Or is it an issue that should be decided by the process of democratic self-government in the states?

In other words, let's use Obergefell as a case study of the Great Debate over how the Constitution should be read.

So, to be clear, for Thursday's class the Assignment is Handout No. 2 (on the Great Debate) plus Obergefell.

Friday August 28 What We Will Cover

As I said today in class, on Friday we will conclude our discussion of Marbury and move on to discuss Ex Parte McCardle (i.e. we will cover pages 1-37 and 37-43). I want to skip over Assignment 2 until next Thursday when we will have an entire class to discuss it.

Sorry if I did not make this as clear as I could have today in class.

Abortion and Disability Discrimination

Ohio is about to prohibit "abortions based on a fetal diagnosis of Down syndrome."

A little know fact about abortion in America is that the abortion rate for babies diagnosed with Down Syndrome is approaching genocide (link). Sex selection abortion is also fairly common.

We will study the Supreme Court's abortion jurisprudence at length in a few weeks, but for now here is an article from the NYT critical of attempts to prohibit abortions performed because the pregnant woman does not wish to give birth to a baby with a disability such as Downs.

For now, a few questions for you to mull over:

1. Should the law allow Down selection abortions?

2. What about abortions based upon the race of, say, a biracial unborn child?

3. What about abortions based upon the gender of the unborn boy or girl?

4. If science isolates a sexual orientation gene, should abortions based upon sexual orientation be lawful?

5. Or should a pregnant woman have a right to abortion-on-demand for any reason that she chooses?

Handouts

The Handouts are available in the Handout Racks near the South Faculty Suite on 2d Floor of Law Library.

Monday's Assignmnet: Dariano (flag tee shirt case)

So, I just found out that the link to the Dariano case is not working.

So, don't worry about reading this one. I will give you the facts of the case as a hypo, and we will discuss it as a hypo.


Link

July 4 Thoughts

I am not thinking about 1776 this July 4th, but rather about the importance of religious liberty in this new America, one that is nothing like the America I was raised in.

So let me share a wonderful story with you:

The Rabbi’s Tale

  This is a story told by Rabbi Daniel Lapin in his book The Severed Flower.   I am quoting Rabbi Lapin:

    . . . let me tell you what happened to one of my teachers, a great rabbi.  On a trip to Israel he found himself seated next to the head of the Israeli socialist movement.  As the plane took off, my teachers’ son, sitting several rows behind, came forward and said, ‘Father, let me take your shoes; I have your slippers here.  You know how your feet swell on the airplane.’  A few minutes later, he came and said, ‘Here are the sandwiches Mother sent; I know you don’t like the airline food.’

    This went on in similar fashion for some time, and finally, the head of Israel’s socialist movement turned to my teacher and said, ‘I don’t get this.  I have four sons.  They’re grown now.  But in all my life I don’t recall them ever offering to do anything at all for me.  Why is your son doing all of this?'

    And the rabbi said, ‘You have to understand.  You mustn’t blame yourself.  Your sons are faithful to your teachings, and my sons are faithful to my teachings.  It’s simple, you see.  You made the decision to teach your sons that they are descended from apes.  That means that you are one generation closer to the ape than they.  And that means that it is only proper and appropriate that you acknowledge their status and that you serve them.  But, you see, I chose to teach my sons that we came from God Himself.  And that puts me one generation closer to the ultimate truth, and that means it’s only appropriate that they treat me accordingly.

    Somehow, I think this story is a good capstone for this course because its about the power of ideas and the liberty to live by those ideas and to transmit them to to your children.

    Good luck on your exams next week and have a great holiday weekend.

First Ten--Tuesday June 30

Let's spend the first 10 minutes discussing the "metaphysical forum" issue in Locke v. Davey. In FN 3, Rehnquist just dismisses this issue with a conclusory assertion ("the Promise Scholarship Program is not a forum for speech"). But he gives no reasoning.

So, think about the forum issue. Is this case more like Rosenberger, in which a pool of money is a forum for the3 facilitation of private speech, or is it more like a government cheese program in which the government subsidizes Swiss Cheese but not Cheddar Cheese?

Be prepared to argue both sides of this issue.

Hint: Suppose the Promise Scholarship Program allowed funds to be used to pursue any major except "gender studies from a feminist perspective?" Does this raise any Free Speech issues?

Hobby Lobby Oral Arg Link

link

Remember, this will be our second and final reaction paper assignment. Rather than listen together in class, please access it at home via the link above (or by going to Oyez Oyez's web site).We will discuss the oral argument Tuesday when we discuss the Hobby Lobby decision.

Hobby Lobby Oral Argument

Wow! I just listened to it again.

This is a great argument--from both sides! You can learn a lot fro studying this one.

Susan Stabile on Religious Liberty After SSM Decision

Friday, June 26, 2015

"Serious Questions About Religious Liberty"

By Susan Stabile

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From Justice Roberts' dissenting opinion in today's marriage ruling:
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for 28 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

June 26, 2015 in Stabile, Susan | Permalink

Rosenberger Oral Argument

On Monday, we will listen to the SCOTUS oral arguments in the Rosenberger case.

No reaction paper is assigned for this argument.

Today's First 10 Minutes

I love it when students share their views in class, especially when they dissent from a view I might have expressed.

Today, I want to give dissenting opinions a special opportunity to speak out. As you know, I believe Marsh and Town of Greece are correctly decided. But I bet some of you disagree.

So, please share your dissenting views about legislative prayer and the EC with the class today during the first 10..

Court: Army Must Let Sikh Student Wear Beard in ROTC

Becket Fund press release:

Court: Army Must Let Sikh Student Wear Beard in ROTC

Colorful, detailed opinion reminds government of federal religious liberty protections

Washington, D.C. – A federal court ordered the Army to allow a Sikh college student to join his college’s NROTC unit without having to shave his beard, cut his hair or remove his turban. The detailed and colorful 49-page opinion states that “given the tens of thousands of exceptions the Army has already made to its grooming and uniform policies …. the Army’s refusal to permit him to do so while adhering to his faith cannot survive” the protections in the federal Religious Freedom Restoration Act.  

The court also reminded the Army of the exemptions it had granted, including grandfathering 197,102 soldiers who had non-conforming tattoos as well as issuing 183 exceptions to the current tattoo policy including “a vampire Mickey Mouse” tattoo. 

According to court documents, the student, Iknoor Singh, a junior at Hofstra University, “hopes to serve in Military Intelligence, and he speaks Urdu, Hindi, and Punjabi, as well as English.”

“All this Sikh student wants to do is to serve his country,” said Eric Baxter, Senior Counsel at the Becket Fund for Religious Liberty. “The military cannot issue uniform exemptions for secular reasons but then refuse to issue them for religious reasons. The Religious Freedom Restoration Act was written and passed nearly unanimously by Congress precisely to protect the rights of individuals such as Mr. Singh.”

The opinion, issued last Friday, June 12, relied heavily on the standard for religious protection set out in Supreme Court cases such as Holt v. Hobbs and Hobby Lobby. Both cases were brought to the Supreme Court by the Becket Fund for Religious Liberty.

“When the government singles out religious people and refuses to protect their rights, our democracy is impoverished,” added Baxter. “The court’s opinion is not only good for Sikhs, it is good for our country.”

Sikhs such as Major Kamaljeet Singh Kalsi, an Army Doctor who served in Afghanistan, earning a Bronze Star, have been advocating for their ability to serve in the military. In a Congressional policy hearing in early 2014, Major Kalsi stated:  “I love the Army, I love the military. It’s become a big part of me. Sikhs everywhere are very patriotic. We just want to serve our nation…We just want to serve, to become part of the community, without having to give up what is our religious uniform.”

 For centuries, the bravery and skill of Sikhs has been praised by many leaders. Among the most well known references to their courage is Winston Churchill’s: “British people are highly indebted and obliged to Sikhs for a long time. I know that within this century we needed their help twice [in two world wars] and they did help us very well. As a result of their timely help, we are today able to live with honour, dignity, and independence. In the war, they fought and died for us, wearing the turbans.

Becket Fund attorneys are available to comment on the decision.

For more information or to arrange an interview with a Becket Fund attorney, please contact Melinda Skea at  mskea@becketfund.org or 202.349.7224. 

The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including  Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians. Its recent cases include three major Supreme Court victories: the landmark ruling in Burwell v. Hobby Lobby, and the 9-0 rulings in Holt v. Hobbs and Hosanna-Tabor v. EEOC, the latter of which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”