Supreme Court Sampler

It’s that season, when all of us watch, with nailbiting expectation, to see who the winners and losers are.

No, I’m not referring to World Cup Soccer. That’s for normal households. In the Spherical Model household, we’re watching the Supreme Court rulings come in. (If I had a graphic arts team here at Spherical Model, I'd have justices in robes kicking around a soccer ball in a grand stadium. Please imagine that here.)

The biggies for this session (Hobby Lobby and others who don’t want Obamacare to force them to purchase things against their religious views) have not shown up yet. There are still a few more days.

But there are a few things that appeared so far this week.

Recess appointments--Canning v. NLRB (National Labor Relations Board)

This was a 9-0 decision, slapping the president’s hand for reaching into the power cookie jar. But it isn’t as strong a rebuke as it could have been. The Constitution expects presidential appointments to be subject to Senate approval or disapproval (advise and consent). The president doesn’t like to submit to that—even though he has a Democrat Senate, because there are enough Republicans that might bring up the inappropriateness of many of his appointees. He is not the first president to misuse the recess appointment procedure.

It’s in the law because, at the time of the founding, when the legislative branch took a break and people returned to their home districts, it could take weeks to call them back to reassemble. If a need came up during their absence, it made sense to make a temporary appointment, so work would not be held up.

It doesn’t take weeks to recall the Senate now. But the Constitution doesn’t include reasons and intentions, so presidents have used this clause for their own political purposes—more so as transportation becomes less and less an issue. The SCOTUS today ruled that, while the president can indeed appoint during breaks in session, he can’t decide that a long weekend is a break. Even 10 days is probably too short a break. The justices fell short of defining the length of the break, but clearly ruled that the president shouldn’t be doing what he’s been doing.

The more conservative members of the Court held that the rule should be when the legislature is actually not in session—probably just during their annual August break. I’m with them. My son Political Sphere suggests that they ought to have also added the requirement that the appointment be urgent, couldn’t have been made in time before the legislative session ended, or couldn’t wait until the legislative session was to meet again. And of course such appointments ought to be approved or disapproved as soon as the legislature meets again—rather than just letting the appointment stand. In other words, change the expectations for Senate approval of appointments back to what the Constitution requires. What a concept.

I heard several times today that this ruling was the 12^th (maybe 13^th) time SCOTUS has ruled unanimously against Obama’s executive power overreach.

Buffer Zones at Abortion Clinics—McCullen v. Oakley

In this Massachusetts case, there was a rule that within a 35-foot buffer zone, no one could enter the space near an abortion clinic except patients, workers, and anyone with business in the vicinity. In other words, no one could approach someone who might be going for an abortion and offer them “counseling,” or information that might sway their behavior.

This is a free speech argument. We’re talking about public sidewalks, which are traditionally places where demonstrations of speech are legal. And here the restriction is on specific speech on a specific topic—to prevent anti-abortion speech. Why that speech? Why is that targeted, but other speech could be allowed other similarly public locations? What makes the public space around an abortion clinic a non-free-speech zone?

The Obama administration supported censorship. The plaintiff asked for support of free speech rights. While there could be a safety issue to consider, the government must choose the least intrusive alternative. The Court could see that banning all free speech in a specified area, mainly to prevent speech on a specific issue, was not the least intrusive means. (A good discussion was on Hugh Hewitt's The Smart Guys segment Thursday--available by subscription.)

Here are a couple more of the rulings, with links to read further:

·         EPA Greenhouse Gas Regulation—Utility Air Regulatory Group v. Environmental Protection Agency (read here and here).

·         Cell phone searches require warrant—Riley v. California (read here and here).

Meanwhile, in the Tenth Circuit Court, the state of Utah has been disallowed to define marriage. You’ll probably read errant headlines that the state’s ban on same-sex marriage has been found unconstitutional. That’s not really accurate. The 3-judge panel of the 10^th Circuit ruled against the state, in a 2-1 split, based on the Windsor ruling of June 2013, which decided that the US DOMA law was wrong to define marriage as between one man and one woman if other entities (i.e., state governments) defined it differently. In other words, the Supreme Court was leaving the defining of marriages to the states. But every time it has come up since then, some court has decided that states do not have the right to define marriage as between one man and one woman, because it’s unconstitutional. Hmm.

So, the courts are ruling that defining a term in a contract cannot be done at the federal level nor at the state level. That is very troubling. So how can governments define terms in a contract? The way the unelected and nebulous but powerful politically correct police say they can, according to the whims of the day—of course.

In this case, Kitchen v. Herbert, the steps may include appeal to the 10^th Circuit en banq (the full panel of 10^th Circuit Court judges). That may or may not be tried or accepted. If it is, then that court will hear the case first. If not, it could go to the Supreme Court as early as this coming fall. In the meantime, the Court stayed its ruling (will not in the meantime allow same-sex “marriages” to take place while the issue isn’t ultimately settled).

Legislating Morality Part III

The Flaw in the "Right to Privacy"

In Part I, I exposed the fatal contradiction in Windsor. In Part II, I followed the “right of privacy” from its creation through its expansions to Lawrence. Today, I will conclude by exposing the logical end of this line of reasoning.

Of course, if the “liberty protected by the constitution” allows homosexual persons to choose to engage in sexual conduct that the state has prohibited, then where can that possibly end? Would that not mean that prostitutes and johns are protected in their rights to enter a relationship with each other where “sexuality finds overt expression in intimate conduct” and an exchange of money? It may be argued that this relationship is prevented by the phrase “within the liberty of persons to choose without being punished as criminals,” but why is prostitution not “within the liberty of persons to choose without being punished as criminals?” Does this mean that homosexual conduct would not protected if states had commonly prohibited not just the actions, but the relationship of homosexual persons, just as states commonly do for prostitution?

I watched the August 10, 2013 episode of The Wonderful World of Stu on The Blaze TV. During the episode an interesting analogy was made during a discussion with the guest, who was outspoken in favor of legalizing prostitution. Stu Berguire pointed out that, according to the Supreme Court, prostitution is the only sexual conduct that is somehow not protected by the Constitution. Of course sex inside marriage is constitutional; after all, the purpose of state recognition of marriage is to promote the ideal situation for raising children. As we discussed in part II, the court expanded to say the constitution protected unmarried sexual relations, without providing a method to distinguish between a long-ongoing relationship or a one-night-stand, recognizing no criteria but the sexual component of the relationship. Then the court ruled that the first amendment allows for sex without any but a monetary relationship, as long as it is recorded and distributed as porn. Thus, all types of consensual sexual conduct are protected except prostitution.

If homosexual conduct is involved in a relation in which men are free to engage without being criminally punished, then how is prostitution not also protected? Indeed, if homosexual conduct is protected by the constitution, how, really, can legislatures be allowed to prohibit any conduct?  Kennedy opines, in Lawrence, “The issue is whether the majority may use the power of the State to enforce these views on the whole society through the operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.”

As I discussed in part I, it is undisputable that the majority may indeed use the power of the state to enforce ethical and moral principles through criminal law. What is any law except the moral requirements of the majority? If society is prohibited from enforcing ethical and moral convictions on those subject to society, then how can society prohibit, for example, an untrained, unlicensed individual from providing legal advice and acting as counsel for another? How can society require that people pass a driver’s test before receiving a license to drive? How can society prohibit the use and distribution of “controlled substances”?

The way law works, I may not agree with a decision to prohibit the distribution or sale of contraceptive devices, but that doesn’t mean I have a “right,” protected by the constitution, to contraceptives. Instead my options are either to lobby the legislature to change the law, or move from the state that is prohibiting my use of contraceptives, if I still desire to use them. To say that all people have a “right” to contraceptives can only mean that all people have a “right” to whatever they want, including wanting to engage in prostitution, and polygamy, and homosexuality, and bestiality, and pedophilia, and incest, etc. etc. etc.

And that is why the entire line of reasoning behind the Windsor and Lawrence decisions is erroneous.

Legislating Morality Part II

The Brief History of the "Right to Privacy"

Part I discussed the fatal contradiction within the Windsor decision, allowing the federal government to define marriage different than state definitions in other instances, but not for DOMA. Today, I wanted to discuss the line of cases leading to Windsor to provide a backdrop for part III, where I will explain how the reasoning behind this line of cases is problematic. In Windsor, the majority opinion states that section 3 of DOMA served no other purpose than to “demean the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558.” As Scalia correctly points out in dissent in both Windsor and Lawrence, the constitution nowhere provides protection for homosexual conduct. In reality, the constitution protects no sexual conduct at all.

In Lawrence, Justice Kennedy explained the path that led to the decision that homosexual conduct is protected by the Constitution, despite clear precedent in decisions such as Bowers v. Hardwick that sodomy is not protected conduct. As Kennedy observes, the line of erroneous reasoning began with Griswold v. Connecticut.

In Griswold, the court chose to invalidate a state law prohibiting the use of contraceptive drugs and devices. The court defined a new “right to privacy” as the interest protected in their decision, specifically emphasizing the marital relation and the protected space of the marital bedroom. It should be noted that this new “right to privacy” is in no way connected with the long accepted “right to privacy” granted by the fourth amendment against unreasonable searches and seizures.  Instead, the new “right to privacy” is based off “substantive due process rights,” or rights by the fact that the protected thing is deeply rooted in this Nation’s history and tradition.

But the court soon expanded this newfound “right” to include certain decisions regarding sexual conduct beyond the marital relationship. In Eisenstadt v. Baird, the court determined a law prohibiting the distribution of contraceptives to unmarried persons was unconstitutional, because it denied unmarried people “equal protection” of sexual conduct. The Eisenstadt court exclaimed, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Further expanding on this new “right to privacy,” the court then decided the infamous Roe v. Wade. In Roe, the court struck down a Texas law prohibiting abortions, recognizing a woman has a right “to make certain fundamental decisions affecting her destiny.” Apparently, such fundamental decisions extend beyond choosing to engage in conduct which may result in a child and/or choosing to use contraceptive measures to prevent fertilization. Roe instead provided women the option to choose not to live with the consequences of their actions. (A right by the way which somehow men are not equally entitled to, but that is a discussion for another day).

Following Roe, the court again expanded the new “right to privacy” to include decisions made by persons legally unable to make decisions. In Carey v. Population Services Int’l, a plurality decision struck down a New York law prohibiting the sale or distribution of contraceptive devices to persons under 16 years of age. Subsequently, persons who could not even purchase spray paint, for fear the person might misuse it, are protected from “governmental intrusion into matters so fundamentally affecting [that] person as the decision whether to bear or beget a child.”

This line of reasoning led Kennedy to determine that the “right of privacy” to engage in sexual conduct extended beyond the marital relationship to include even homosexual conduct, which had been prohibited by state laws for “hundreds” of years, though rarely prosecuted due to a lack of evidence.  Kennedy summed up the sentiments to say that

Adults may choose to enter upon [a relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals] in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

So far, we’ve seen that there is a fatal flaw in the Windsor ruling. And we’ve followed some of the linkage from case to case as the Court somehow discovered additional “rights” to sexual behavior protection in the Constitution. But we have not yet reached the end of connecting the dots. I am again at my word limit, so I will continue this for one more day to show the logical conclusion to this line of reasoning.

Legislating Morality Part I

This is Political Sphere. Mrs.Spherical Model is out of town and has asked that I guest post for her. I have been working on this series in my spare time, as was mentioned in a recent post. I have split up the series into three parts. Today exposes a fatal flaw in United States v. Windsor. Part II will discuss the history of decisions which led to Windsor. And Part III will discuss flaws with Windsor's precursor, Lawrence v. Texas.

United States v. Windsor and the Congressional Power to Define Terms

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretations of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.” 1 U.S.C. § 7.

The case of United States v. Windsor was an interesting attack on the right of Congress to define terms and to legislate morality. I have often heard the argument that a person should not legislate morals on others. But “morality” is simply a doctrine or system of moral conduct, and “moral” is defined as of or relating to principles of right and wrong in behavior. So, if a system of laws punishes or encourages different types of behavior, then that system of laws is legislated morality, whether it is legislating thou shalt not murder or requiring that all fast food restaurants post calorie counts on their menus. Because the United States is a representative democracy, that set of legislated morality, then, is meant to represent society’s moral ideals as codified by our elected representatives. Therefore, it is beyond argument that a society must legislate morality, or it falls into anarchy.

This brings us to the erroneous logic in Windsor. According to the opinion in Windsor, the history leading to the passage of DOMA was that, while no state in the union accepted such a definition at the time DOMA was passed, Hawaii was considering allowing people of the same gender to be married under state law. To protect states that did not accept this definition as morally acceptable, the Republican Congress passed DOMA which was then signed by Democratic President Clinton. DOMA allowed for states to determine the definition of marriage within their borders, and allowing the state to limit acceptance of marriages performed in other jurisdictions to those between one male and one female, the commonly accepted definition for “hundreds,” if not thousands, of years. Further, because it was the universally recognized definition, instead of addressing the definition in every act ever passed by the United States Congress separately, DOMA included a blanket definition limiting the definition of “married couple” to that of the traditionally, universally accepted definition, and defining spouse as a member of a married couple of the opposite sex.

The majority in Windsor recognizes the United States Congress has the power to define terms as used in statutes, citing that the court had accepted this in regards to marriage just this term in Hillman v. Maretta. Indeed, it is well-established that a statutory definition supersedes the common meaning of the term when applied to the law. For example, if Congress passed a statute defining “fish” as a young goat, then, for the purposes of the law, any time the term “fish” came up it would in fact be referring to a young goat and not apply to a creature with gills that swims in the water, as the dictionary defines the term. How then did the court determine that it was unconstitutional for the Congress to do something that settled law allows Congress to do?

The answer to that question comes from the majority’s reliance on previous erroneous opinions, specifically Lawrence v. Texas, as well as an incorrect statement that while “Marriage laws vary in some respects from State to State... these rules are in every event consistent within each State.” I say this is an incorrect statement, because the statement directly contradicts what the majority opinion previously noted. In addition to the citation of Hillman v. Maretta, the court observes that other statutes (8 U.S.C. § 1186a(b)(1) and 42 U.S.C. § 1382c(d)(2)) define marriages and spouses regardless of the State’s view on the marriage for the purpose of federal laws.

While this contradiction undercuts any validity of the majority opinion, more dangerous reasoning comes from the statement “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558.” Of course Lawrence v. Texas is the landmark case which ruled that anti-sodomy laws were unconstitutional, overturning Bowers v. Hardwick. Because this blog is already way over a decent word count for a blog, I will leave the discussion of Lawrence for later.