Archive for the ‘Religious Freedom’ Category

Monday was a bad day for the KGB Spies, as the Supreme Court decided to hear the Travel Ban case, modified the existing stay, and gave kids attending a church day care a significantly less chance of cracking their skulls open.  Brett and Nazim sift through the wreckage to determine if the amended stay of the Travel Ban is more harm than good, and whether Trinity Lutheran is a blatant Constitutional violation or just a sign of the times.  Law starts at (03:47).

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Last week, news began circulating about a U.S. registry for Muslim immigrants. Although this idea had been floated out by Trump during his campaign, the idea gained additional traction when a Trump advocate defended the registry on grounds that the U.S. Supreme Court had upheld a similar classification based on race in the 1940’s.  Factually, this last statement is true.  In 1944, the Supreme Court held in Korematsu v. U.S. that Japanese internment camps survived Constitutional scrutiny on grounds that national security warranted extreme measures during times of “emergency in peril”.   It is also true that this is one of the only cases not explicitly overruled where the Court permitted a governmental classification based on race.   That being said, any other statements, inferences or arguments that Korematsu is valid precedent to support a registry in 2016 are idiotic propositions that serve to only raise the bar for idiotic propositions during a time when idiotic propositions are something of a cottage industry.

To start, the concept of precedent stands for the position that new cases should be ruled in conformity with old cases to ensure that the law is consistent, predictable and fair.  Consider the following hypothetical, where the greatest person alive gets a DUI on the way home from a X-Mas party.  This person is generous, philanthropic, and humbled by their mistake.  The Court recognizes these factors and spares this person any punishment, reasoning that the embarrassment of the charge is punishment enough.  Now, imagine this same person is instead a dead-beat dad who has accumulated his 5th DUI charge on the way home from a child pornography party.  The Court is not only unsympathetic to this person’s concerns, but doubles the maximum sentence to set an example.  Although this particular situation may seem fair, it becomes much less palatable if the difference between these two people is only based on race, gender, religion or nationality.  In addition to the broader policy concerns, there are also practical benefits to a consistent application of the law.  If precedent applies evenly to everyone, lawyers can give better advice and civilians can better plan their conduct with a fixed idea of how the law is applied.    A good example of the value of uniform laws is in the great State of Delaware, where highly developed precedent in corporate law has made the First State the premier place to incorporate your business since the outcome of any dispute is more easily predictable.  It is also important to note that precedent serves to apply the law evenly, and is not just based on the individual facts of the case.  In the hypothetical above, it is not that all deadbeats are treated the same, but instead that DUI law applies evenly to every person regardless of who they are.      Therefore, the classification in Korematsu is not an open-gateway for any type of racial classification, but it merely sends the groundwork for how today’s Court would view a racial classification under the Constitution.

To that end, it is hard to see how Korematsu could serve as precedent because the legal reasoning underlying the Korematsu decision is inapplicable to a Muslim registry in 2016.  The legal basis for the Koretamtsu decision was under the Equal Protection Clause of the 5th and 14th amendment, which applies a two part test whenever the government classifies individuals differently.  The test, which considers (1) the government’s reason supporting the classification, and (2) how connected the classification is to the government’s stated purpose, becomes harder to pass depending on the classification.  If the government is classifying individuals based on an immutable characteristic (race, creed, nationality, religion), the test is called Strict Scrutiny and it is almost impossible to pass.  The reason the word “almost” is included in that last sentence is because of Korematsu, as this is one of the only government actions that has passed a racial classification under Strict Scrutiny.

While that sounds foreboding, note the following factors that played into the 6-3 Korematsu majority decision.  First, the government’s stated purpose for the internment camps were highly influenced by U.S. military relations in 1944.  Koretmatsu was issued approximately three years after Pearl Harbor and six months after D-Day.  To that end, the Court believed that the government had a compelling interest in the protection of national security by preventing espionage during a time of active war.   Regardless of how you feel about immigration, ISIS, or the Middle East, this concern is not present today.  The U.S. is not involved in a military conflict similar to the scale of World War III and the purpose behind the Muslim registry is not to prevent the same type of espionage.  These differences may become blurred depending how the World turns, but at present day, these differences invalidate Korematsu as precedent as under the first element of Equal Protection because today’s government does not have the same compelling reason to set up a registry that classifies immigrants by their religion.

The second element of strict scrutiny, considering whether the government’s policy is related to action, is another area where Korematsu can be distinguished based on how the mechanics of the internment camps related to the government’s concern.  In addition to highlighting the active conflict of World War II, the Court noted two specific elements of the Japanese internment camps that influenced its decision.  The first was the short of amount of time the government had to make a full and complete decision before evacuating Japanese citizens, out of fear that Pearl Harbor was the first sign of a West Coast invasion.  Once again, this concern is not present today since the Muslim registry is not a knee-jerk reaction to a suspected invasion of Muslim immigrants.  The second influencing factor was the temporary nature of the internment camps, where the Court noted that the evacuation was not meant to be permanent, but only until the active military situation could be resolved.  Although this may seem like a minor detail, the fact that a Muslim registry is permanent is a significant distinguishing factor, since the government’s specific burden under this element is whether the government’s action is the “least restrictive method” of carrying out the policy.  When applying this test, the Court has not been afraid to suggest alternatives to vet out a better way for the government to carry out its policy.  While the Court in Korematsu deferred to the government’s decision in active war, it is hard to see this Court, which repeatedly invalidated George W. Bush’s decisions on Guantanamo Bay following September 11th, would give the same deference.  Simply put, the surrounding factors and mechanics of the government action do not equate to surviving the same test under the Equal Protection Clause.

Lastly, it is important to note that although Korematsu has not been overruled, the belief that it still serves as binding precedent is the kind of stupidity that can only result from a higher education.  The Supreme Court does not overrule precedent by its own accord, but must be presented with a case that warrants overruling the decision.  The famous case of Brown v. Board of Education overruled Plessey v. Ferguson because there was a case warranting such a decision, and the same thing goes for anti-miscegenation statutes and criminal sodomy laws.  The only reason Korematsu has not been expressly overruled is that the United States government has not proposed a full-scale racial classification in the last 40 years, which I should note, IS A GOOD THING.  In addition, not every bad Supreme Court case needs to be overruled the way that Michael Scott declared bankruptcy in the Office, as many bad cases are simply eroded over time to show that the law has changed in a different directly.  To fill the void that a lack of government deportations created in the last six decades since Korematsu, Equal Protection law has developed to such a degree that the Court is now invalidating inferred racial classifications because governments no longer makes outright classifications based on immutable characteristics.  So no, Korematsu has not been overruled, but if there is any good thing that can come from this registry, it would be that the Court could finally clear the last major black eye from the history books.



For each case in the podcast and the Fantasy League, we will provide of a brief summary of what is at issue and what you need to worry about.

WHAT HAPPENED: Trinity Lutheran is a daycare facility located in the State of Missouri.  Missouri has a clause within their Constitutional that bars the State from providing funds to religious institutions.  The rubber meets the road (pun intended) in this case when Trinity is rejected for a grant under a Missouri program that uses recycled materials to help repave blacktop, under the guise that Missouri cannot provide any government funds to religious institutions.
WHY IS THIS BEFORE THE SUPREME COURT: While this case may seem ticky-tacky, this is exactly the kind of bullshit that comes before the Supreme Court when it comes to religion and government.  The seminal First Amendment religion cases of the last ten years have dealt with Ten Commandment statutes, Christmas displays and the pledge of allegiance, so this fits right in line with the Court dealing with massive social issues through the highly sophisticated prism of playground supplies.
WHAT ARE THE RAMIFICATIONS: The ramifications of this case depend on how you view the Establishment and Free Exercise Clauses of the First Amendment, which in turn bar the government from adopting religion and punishing you for practicing your religion respectively.  If you believe the First Amendment serves as the referee in the battle between people and the Church influencing government, this case could signal less restrictions on government funding of religion.  If you believe the First Amendment serves as the referee in the battle between Satan and the soul of mankind, this case could signal the governments godless march to eternal damnation.  If you are sort of indifferent either way, than this case determines whether a day care gets a new playground.
ROOT FOR TRINITY if (a) you believe that the current state of the First Amendment ignores the cultural reality of a spiritual United States, and/or (b) your kid goes to this day care and it would be nice to have new blacktop.
ROOT FOR PAULEY if (a) you believe that politicians using funds on beliefs you do not subscribe to is the antithesis of the Constitution, and/or (b) you don’t want this day care to get new black top.
PREDICTION- 6-2 in favor of Trinity Church


Okay, the laws reviewed below are not technically blue laws, but the insane liquor distribution system in Pennsylvania is close enough. Here, to buy a few cans of beer, you go to one store. If you want a case of beer, you have to go to a different store. And, finally, if you want wine or liquor, you have to go to a state-run store. Thank goodness, the latter is about to change: soon, grocery stores will be able to sell wine, and other laws that loosen up this structure are on the legislative agenda.

The Supreme Court has frequently ruled that laws based on custom, as opposed to laws aimed at the goals of Safety and Happiness enshrined in our recently celebrated Declaration of Independence, are fine. This, despite the fact that they are often based on one religion’s tenets, which, you’d think, would run afoul of the Establishment Clause. Perhaps this is due to the fact that these laws have some moral alibi in trying to curtail consumption, but this argument might even fail a rational basis test, since there is no limitation on the amounts of alcohol that can be purchased at once, as far as I know.

The law may set us free, but sometimes it just confuses me.

via Pinchot’s Legacy: Pennsylvania’s Liquor Control System | History’s Headlines – Home

WHAT HAPPENED: The Petitioners in this case are private same sex couples (“same sex marriage” for purposes of this summary) who seek the equal State-specific marriage rights as traditional couples of a man and a woman (“traditional couples” for purposes of this summary). The Respondents are States who want to refrain the term “marriage” only to couples with a man and a woman.

WHY IS THIS BEFORE THE SUPREME COURT: There are two key Constitutional arguments at play. The first is federalism, which is the concept that State governments have the freedom to craft their own laws independent of the federal government. Those who oppose same sex marriage being on equal footing as traditional marriage argue that forcing States to recognize both marriages as equal quells the State’s natural right to determine issues of marriage and family law. The second issue is equal protection under the 14th Amendment, which prevents State or Federal governments from treating people differently without just cause. Proponents of same sex marriage argue that there is no legitimate reason to treat the two types of marriage differently, nor is banning same sex marriage related to that purpose.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION: Hellfire and brimstone if you were reading this twenty years ago, but in a practical sense, nothing that extreme, which is why the Petitioners will probably win. If you remove morality out of the equation, there are few consequences in permitting same sex marriage outside of the erosion between the link between religion and the government’s definition of marriage.   On the flip side, allowing same sex couples to be on equal footing would provide tax and estate credits, real estate benefits, and evidentiary privileges that are currently restricted to only traditional marriage.

WHAT WAS THE RULING: No ruling as of yet.

YOU SHOULD ROOT FOR SAME SEX MARRIAGE IF YOU: Like to see stodgy government institutions evolve against their will.

YOU SHOULD ROOT AGAINST SAME SEX MARRIAGE IF YOU: Just arrived in a time machine from twenty years ago. Btw, how crazy are things right now?!?! Isn’t weird how much we like football??

WHO WAS RIGHT: Brett and Nazim both believe that we are going to get a 6-3 decision, although Nazim covered his butt and said that it’s possible we get a 5-4.

WHAT HAPPENED: This case comes before the Court as a result of Abercrombie and Fitch failing to hire a Muslim teenager who wore a headscarf during her interview. After the interview concluded, the interviewing employee for A&F noted on the interview form that the headscarf violated A&F’s “look policy” which was the reason the girl was not hired. This case went to the EEOC, which is a government agency that investigates employment discrimination, who argued that A&F was required to provide an accommodation that would allow her to wear the Muslim headscarf during work.

WHY IS THIS BEFORE THE SUPREME COURT: Employment Discrimination has a complicated procedure when it comes before the Court, in which both sides have burdens of proof that bounce back and forth between the parties. These burdens are often factually specific, and consider the interactions with the parties as a basis for whether or not the case proceeds. In the present case, the Court must determine whether or not the applicant, who appeared for the interview with a headscarf, has an affirmative duty to ask for an accommodation, or if the employer should just assume based on the applicant’s appearance.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION: This decision could affect the factual burden that faces both employees and employers during discrimination actions. Putting the burden on a potential employee who is unaware of his/her responsibility to ask for an accommodation, or is too afraid to ask, could chill a person’s personal expression. On the other hand, requiring an employer assume that an accommodation is necessary could be an unreasonable burden when hiring new employees. The hyperbolic conclusion argued by employers is that an employer would have to assume accommodations are necessary for religious tattoos or even a cross on a necklace.

WHAT WAS THE RULING: This case is not yet decided.

YOU ARE ROOTING FOR EEOC IF: you harbor deep-seeded resentment toward kids you went to high school with and/or kids who go to high school now.

YOU ARE ROOTING FOR THE ABERCROMBIE AND FITCH IF: you’re sick of nerds and geeks ruining it for all the cool kids.

WHO WAS RIGHT: Brett believed that A&F would win, as the Court would consider the broader ruling as opposed to the specific application of the rule to this case. Nazim believed that EEOC would win this specific case, but that the law would not be broadly construed to apply to all future discrimination cases.

Holt v. Hobbs

Posted: February 22, 2015 by beguide in case summaries, Religious Freedom


WHAT HAPPENED: Holt is a criminal defendant who is incarcerated for a host of violent, extreme crimes. During Holt’s stay in federal prison, Holt requested the right to grow a one-half-inch beard as part of a necessary practice in his religion. Hobbs is, for lack of better qualifier, a representative of the prison that denied Holt the right to grow his beard. The prison has a grooming policy that prohibits inmates from growing facial hair, which is based on prison safety.

WHY IS THIS BEFORE THE SUPREME COURT: This case revisits the a different form of the Religious Freedom and Restoration Act covered in the Hobby Lobby case, which is a federal statute that protects citizens from government action that infringes upon private religious beliefs. The Religious Land Use and Institutionalized Persons Act of 2000 prevents government actors from unfairly inhibiting an inmate’s exercise of religion, unless the government is able to show a compelling purpose in favor of the law and that the law is the least restrictive means of interfering with the inmate’s religion. Hobbs was therefore required to show that the prison policy preventing Holt from growing a beard had a compelling reason that was the least restrictive means of achieving that goal.

WHAT WAS THE RULING: The Court ruled 9-0 in favor of Holt and struck down the prison grooming policy as it applied in this case.   Justice Alito wrote the majority opinion which stated primarily that preventing inmates from growing short beards for sincerely held religious beliefs was the least restrictive means of achieving prison safety. The Court furthermore held that providing different religious accommodations to Holt did not excuse the prison’s ban on facial hair. Justice Ginsberg, she of the blistering dissent in Hobby Lobby, stated that Hobby Lobby had nothing to do with this case because Holt’s request only affected his own beliefs, and not the beliefs of others.


THE GOOD GUYS WON IF YOU: appreciate the irony of the Hobby Lobby decision, which is generally considered a case favoring right-wing Christian beliefs, allowing a Muslim extremist to grow a beard in jail.

THE BAD GUYS WON IF YOU: were hoping that the religious accommodations in Hobby Lobby were restricted to just that case.

WHO WAS RIGHT: This was a bit of a slam dunk in favor of Holt, as both Brett and Nazim believed that Holt was going to win. Brownie points go to the podcast for addressing the Hobby Lobby connection which the majority touched on and Ginsberg downplayed in her concurring opinion.

Hobby Lobby

Posted: January 3, 2015 by Nazim in ACA, Dissent, Equal Protection, Religious Freedom

Brett and Nazim break down one of the more controversial decisions of 2014, by discussing their initial thoughts on the case and then expanding on those thoughts after actually reading the decision for the first time. Libsyn link

Image source: the progressive pulse.