Conflict Between The Circuits: Gay Marriage Back On The Supreme Court’s Table

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A month ago, the U.S. Supreme Court refused to hear a collection of cases that raised the question of traditional marriage vs. same-sex unions. Now, a Sixth Circuit Court of Appeals decision may have changed all of that. By voting 2-1 to uphold same-sex marriage bans in four states under the appellate jurisdiction of the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee—the panel has now created a conflict between the circuits. This conflict exists because four other federal circuit courts had found bans on same-sex unions to be unconstitutional. We know now, at least according to statements from Justice Ruth Bader Ginsburg, that a lack of a conflict between the circuits was the reason the Supreme Court balked at hearing the earlier cases from five other states.

The Sixth Circuit majority opinion in DeBoer v. Snyder, written by Judge Jeffrey Sutton, is worth reading because it carefully discusses the major points of disagreement. The key question is whether “the 14th Amendment prohibits a State from defining marriage as a relationship between one man and one woman.” Judge Sutton zeroes in on the essential issue:  “Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic process?” The majority answer is quite clear. Today’s marriage laws should be allowed “to stand until the democratic processes say they should stand no more.”

Sutton’s opinion uses a “rational basis” review in assessing the marriage laws of Michigan, Ohio, Kentucky, and Tennessee. This is a common approach followed by courts to evaluate if state laws pass constitutional muster. Basically, the court must determine if there are good reasons for a state to protect traditional marriage. Does the law “rationally advance a legitimate government policy?” Yes, clearly, says the opinion. The states in question established “ground rules” needed to create “stable family units for the planned and unplanned creation of children.”  The court continues, saying that “one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.”

The court acknowledges that in this day and age, that is not the only way some view marriage. Yet, the fact that there are other more expansive or inclusive views of marriage does not dictate that states “suddenly must look at this policy issue in just one way on pain of violating the Constitution.” Sutton later writes that “[o]ne of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.” Sutton writes that the States are wise to exercise a “Burkean sense of caution” when it comes to redefining such a fundamental and long-standing institution as marriage–and that, ultimately, such decisions are better left to “elected legislators, not life-tenured judges.”

In DeBoer v. Snyder the court addresses the claim, sometimes raised by supporters of same-sex unions, that the resulting state laws or constitutional initiatives succeed because of “animus” against homosexuals; and those motivations make the resulting bans on gay unions constitutionally suspect. Judge Sutton reminds readers that assessing the motivations of millions of citizens who voted for gay marriage bans in Michigan (2.7 million), Kentucky (1.2 million), Ohio (3.3 million), and Tennessee (1.4 million) “strains judicial competence.” Some favored the ban for some reasons, others for other reasons; but the courts are ill-suited to delve into the complicated “aggregation of factors” that motivates voters.

It is likely that the Supreme Court will abide by its own rules and accept one or more of the traditional marriage/same-sex union cases for review. Then the question becomes whether there will be five justices who: 1) graciously defer to democratically determined outcomes on this issue; 2.) respect American federalism, which recognizes that states retain the power to act in this highly-charged area; and 3) will be reluctant to judicially remake two of the central institutions of organized society: marriage and family.

Editor’s Note:  The Chief Judge of the Sixth Circuit, the Honorable Alice Batchelder, is a trustee of Grove City College.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Supreme Court Slows Obamacare’s Abortion Agenda

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The Supreme Court waited until the last day of its term to issue its highly anticipated opinion in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties.

The narrow 5-4 decision negates the “contraceptive mandate” of the Health and Human Services (HHS) regulations issued to implement the Affordable Care Act (i.e., Obamacare). Heretofore, these regulations required the owners of so-called “closely held” business enterprises to include insurance coverage for abortion-inducing drugs and devices, even when that kind of coverage violated their religious convictions. The holding is an important victory for religious liberty and a blow to pro-choice advocates who painted opposition to the mandate as a women’s rights issue.

Justice Samuel Alito delivered the opinion of the high court with his usual clarity. The court’s majority relied upon the Religious Freedom Restoration Act (RFRA) which Congress passed in 1993 and which President Clinton signed into law. The RFRA requires the Supreme Court to use a particular three-point approach to religious liberty cases involving the federal government. If federal governmental action: 1) substantially burdens the free exercise of religions; 2) and its purpose is not compelling, or; 3) if it fails to use the least restrictive means to its end, then the RFRA brands it illegal. Justice Alito’s opinion worked its way through the requirements of the RFRA.

The court first found that the federal contraceptive mandate imposed a “substantial burden” on the religious exercise of the two families, the Hahns and the Greens, owners of the companies in question. If they refused to comply with the HHS contraceptive fiat, they faced fines for “as much as $1.3 million per day, or about $475 million per year.” It was either pay up or forfeit one’s religious beliefs. Alito said: “If these consequences do not amount to a substantial burden, it is hard to see what would.”

Next, the court assumed without deciding that the government may have had a “compelling interest” in issuing the regulations. It stresses that it was “unnecessary to adjudicate this issue.”

Thirdly, since the federal government had “already devised and implemented a system that seeks to respect the religious liberty of religious non-profit corporations while insuring employee access to contraceptives,” President Obama and his HHS had a “less restrictive means” of achieving their end; but they failed to make it available to for-profit enterprises owned and operated by persons with religious convictions. Therefore, said the majority, “The contraceptive mandate, as applied to closely held corporations, violates the RFRA.”

Justice Alito cogently refutes one of the central claims of the government’s opposition to Hobby Lobby and Conestoga. That assertion was that corporations do not have free exercise of religion rights. First, Alito explained that the language of the RFRA refers to the religious liberty of “persons” being protected from federal proscription. Federal law unambiguously includes “corporations” in the definition of “persons.” Secondly, “protecting the free exercise rights of corporations like Hobby Lobby, [and] Conestoga … protects the religious liberty of the humans who own and control these companies.”

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

9 Out Of 9 Supreme Court Justices Agree: Obama’s Actions Are Unconstitutional

Obama and Roberts

In a rare unanimous decision, all nine justices of the U.S. Supreme Court agreed with the outcome in NLRB v. Canning. The Supreme Court found that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. However, the judicial reasoning of the court’s majority (Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan) and that of the four concurring justices (Scalia, Thomas, Roberts, and Alito) were significantly different.

The facts of the case involved a soft drink distributor, Noel Canning Company, which had been found by the NLRB to have committed certain unfair labor practices. The finding of unfair practices, however, was rendered by an NLRB that contained three appointees who had been placed on the labor board by President Obama using what he claimed was his recess appointment power. His claim of this power has now been found to have no lawful basis; the appointments have been nullified.

Besides agreeing that Obama’s appointments were unconstitutional, where do the majority and concurring members agree? The justices agree that the normal method of appointment requires Senate approval of the president’s nominations. Principal offices in the government should not be filled by executive action alone, but instead with the concurrence of the Senate. Moreover, all nine justices agree that the Constitution does provide for the president to “fill up all Vacancies that may have happened during the Recess of the Senate…” [Article II, Sec. 2, clause 3]—the recess appointment power.

From that point on, the members of the high court are not in agreement. The first judicial fissure concerns what exactly constitutes a “recess.” There is no doubt that the term includes the traditionally designated breaks between one called session of Congress and the next called session. Each Congress spans two calendar years. For example, we are more than half way through the 113th Congress. The first session began in January 2013, and the second began in January 2014. The period of unavailability—the break between called sessions—is a recess. The concurring justices say that this is the only kind of recess intended by the Founders to trigger the president’s recess power. The meaning of the term “recess” in the Constitution is clear, they say.

The majority justices, by contrast, say that the term “recess” is broader. Periods in which business is not being conducted, even if occurring within a called session, should also be regarded as a recess. These five justices cite historical occasions when past presidents made appointments during such breaks without those appointments being challenged. The concurring members counter that past historical appointments were unauthorized by the text of the Constitution and therefore should not serve as a basis for a judicial amendment of the unambiguous language.

Furthermore, the concurring members of the court say that a proper reading of the recess appointment clause requires that the vacancy itself must have arisen during a traditional recess. The majority disagrees, saying that a vacancy which occurs before a recess but continues into a period of recess can be filled by the president.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom