Nel's New Day

June 5, 2018

Supreme Court Winds Up Year, More Court Cases

Mondays in June mean decisions from the Supreme Court. This week the justices gave extremely narrow rulings on two major case, leaving both sides dissatisfied. The first, dealing with whether religious beliefs can be used to discriminate against others, concerned a Colorado baker who would not sell a wedding cake to a gay couple. The ruling came out on the side of the baker but left no decision for the legality of allowing religious beliefs or free speech rights as justification for refusing services to LGBTQ people. The Supreme Court decision, with only Sonia Sotomayor and Ruth Bader Ginsberg dissenting, claimed that the members of the Colorado Civil Rights Commission showed “religious hostility” which “cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.”

Alliance Defending Freedom Senior Counsel Kristen Waggoner for the baker approved of the statement that “government hostility toward people of faith has no place in our society,” a ruling that may also be used to assert that hostility from people’s faith likewise has no place in the United States. She refused to answer a question about future rulings if the baker again refused to sell a wedding cake to a same-gender couple. Using state anti-discrimination laws requiring public businesses to equally serve all potential customers, several courts have turned down self-identified artists such as florists, bakers, and photographers who claim violation of their rights if they have to give business to same-gender couples, a claim that this ruling doesn’t decide.

Author of the ruling, Anthony Kennedy, wrote that LGBTQ people “cannot be treated as social outcasts or as inferior in dignity and worth.” He added that future cases “must be resolved … without subjecting gay persons to indignities when they seek goods and services in an open market.” According to the ruling, the U.S. has a “general rule” that religious and other objections “do not allow business owners and other actors in the economy and in society to deny … equal access to goods and services.”

In dissension among justices, Gorsuch and Alito asserted that the Supreme Court cannot tell a baker “that a wedding cake is just like any other,” using sacramental bread as an analogy. Elena Kagan and Stephen Breyer disagreed, stating that a wedding cake doesn’t change just because “a vendor like Phillips invests its sale to particular customers with ‘religious significance.’ ” Kagan referenced a 1968 decision requiring a barbecue restaurant owner to serve black customers despite his claim that his religion opposes racial equality.

The cake people failed to get a ruling that the Constitution protects discrimination, but it does give states the right to legislate against discrimination, including against LGBTQ people. The ruling against religious animus is an interesting comparison to the religious animus in DDT’s travel ban, another Supreme Court ruling to be released this month.

In a case about the DOJ imprisoning an undocumented migrant girl so that she could not get a legal abortion, the Supreme Court gave a mixed ruling. It declared the lower court’s ruling to be moot and therefore not binding because the girl had already had an abortion but declined to sanction the opposing lawyers to the DOJ for what the DOJ called deception because the procedure was rushed through before the DOJ could appeal to the Supreme Court. The high court has never before been petitioned to sanction lawyers. The decision in this case does not affect an ongoing class-action case about the rights of immigrant teens in government custody to obtain abortions. DOJ is declaring the case a win for them, but the narrow ruling was for only one girl who had already had an abortion.

The Supreme Court is also due to consider whether to review a Washington state Supreme Court decision that a florist could not legally decline to provide flowers to a same-gender wedding. Major decisions in June concern partisan gerrymandering and DDT’s travel ban.

The Supreme Court refused to address an Arkansas law that ends the use of medication abortions in the state and closes two of the state’s three abortion clinics because they perform only medical abortions. Doctors who provide medication abortions must have a contract with a specialist who has hospital admitting privileges, a burdensome, unnecessary mandate because complications are extremely during the use of two pills in the first nine weeks of pregnancy and can easily be dealt with in an emergency room or hospital. A three-judge panel of the 8th Circuit Court had earlier upheld the Arkansas law, but Planned Parenthood will appeal the case to lower courts. U.S. District Judge Kristine G. Baker temporarily blocked the law, saying that it was “a solution in search of a problem.” Two years ago, the Supreme Court overturned a Texas law requiring doctors performing abortions to have admitting privileges in a local hospital.

In a more positive ruling, the Supreme Court ruled that police need a warrant to search a person’s property, specifically vehicles parted on a driveway or carport. The 8-1 decision followed a 2013 ruling that police may not bring drug-sniffing dogs to the front porch of a home without a search warrant. Samuel Alito said that a search is reasonable because “the vehicle was parked in plain view in a driveway just a few feet from the street.”

Other rulings outside the Supreme Court:

A Manhattan Supreme Court judge has ruled that Donald Trump must have a seven-hour deposition before January 31, 2019, as part of the defamation lawsuit by Summer Zervos, who accused Trump of groping her in 2016. July 13 is the deadline for both parties to issue demands for documents with September 13 the deadline for responses. The case goes to trial after June 7, 2019.

A Maine judge ordered Gov. Paul LePage to start voter-approved Medicaid expansion after he missed the April 3 deadline to file a plan with the federal HHS. After LePage vetoed the expansion in legislature five times, he argued that he couldn’t implement a law not funded by the legislation although the state has a $140 million surplus.

Felony charges have been dropped against ten people arrested protesting DDT’s inauguration because the government failed to turn over evidence it got from Project Veritas, known for James O’Keefe’s doctored videos. The judge barred the government from bringing back the charges in the future. A D.C. jury is deadlocked regarding three others involved in the protest. Forty-seven people of the original 200 charged are still facing court cases, but no defendant has been convicted.

And new cases:

Ambridge Event Center, which managed an event center owned by the Holy Rosary Church in Portland (OR), is suing the church for almost $2 million because its anti-LGBTQ bias hurt business. The negative press from the company’s inability to rent to a PFLAG chapter lost business from government and businesses that believe in equality. If Ambridge worked for the church, the law violation is employment discrimination; if Ambridge is a renter, the church violated the law with housing discrimination. Oregon’s exemption for religious groups applies only if “the use of facilities is closely connected with or related to the primary purposes of the church.” Ambridge has gone out of business.

Rustem Kazazi, a 64-year-old Cleveland resident, is suing U.S. Customs after customs agents at an airport took the family’s life savings–$58,000—that he was taking to Albania to help his family and buy a vacation home. The agency’s website says that there is no limit to the amount of money brought into or taken out of the U.S., but the agents refused to return Kazazi’s money although the family, all four citizens, was not charged with any crime. Agents also refused him a translator, strip-searched him, and gave him a receipt without the amount of money they took. A month after the money was taken, the agency wrote them, claiming that the money was “involved in a smuggling/drug trafficking/money laundering operation.” The letter also reported $770 less than Kazazi had been carrying. The federal government took over $2 billion in assets from people in 2017.

Phoenix is suing the government over the proposed census question on citizenship for fear of losing federal funds and marginalizing residents.

The American Federation of Government Employees, representing 700,000 workers, is suing DDT after he signed an executive order severely restricting the time employees may spend on union activity. The lawsuit claims his order violates the First Amendment and oversteps his constitutional authority. The order restricts “official time” for union leaders to represent workers during work time in grievances about unfair labor practices or disciplinary actions during work time, a guarantee provided by Congress 40 years ago.  The order still allows individuals to work on their grievances while on duty but without union assistance. Administration says that the change could save up to $100 million a year—equivalent to about two-thirds of DDT’s weekend junkets. Other orders instruct agencies to restrict unions in contract negotiations and fire employees more rapidly.

The League of United Latin American Citizens of Iowa and ISU student Taylor Blair are suing Iowa’s secretary of state over the state’s voter ID law “apparently timed to disrupt the June 5 primary elections.” Facebook advertisements had stated that “Iowa voters will be asked to show a form of valid identification,” omitting the information that voters without ID could sign a form swearing to their identity and then cast a normal ballot. Another part of the lawsuit claims that the secretary of state’s website omitted some ID permitted under the law, such as an Iowa student identification plus proof of address.

Worried about getting DDT’s conservative judicial nominations approved after the midterms, Senate Majority Leader Mitch McConnell (R-KY) has reduced the August recess from four weeks to one week. Another theory for the change is that Democrat senators, defending 26 Senate seats this year, will be hobbled by less time to campaign while their Republican opponents have a free field. The GOP has nine incumbents on the ballot, including Nevada’s Dean Heller who is struggling with re-election.

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