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Notebook Law

Jocelyn Augustino/Redux

A nun in support of the Little Sisters of the Poor prays in front of the Supreme Court. (Jocelyn Augustino/Redux)


Justices for all

Supreme Court roundup: Recent decisions affirm both LGBT rights and religious liberty

Rodney King offered a plaintive plea in the spring of 1992, hoping to quell deadly riots in Los Angeles. “People,” he said, “can we all get along?” 

A more sophisticated form of King’s plea may be at the heart of an unusual number of U.S. Supreme Court decisions this term that impact religious liberty: Can Americans find a way to live together despite sharp differences in religious beliefs? A majority of the court justices seem to be charting a middle course they hope will settle that question.

Conservatives were shocked in June when the court interpreted Title VII of the Civil Rights Act of 1964 to bar the firing of an employee based on sexual orientation or gender identity. Even though its ruling only addressed private employers, many observers worried the 6-3 decision in Bostock v. Clayton County, Georgia would lead to an avalanche of budget-sapping litigation that would weaken the ability of religious organizations to act in accordance with their convictions.

Two more recent developments will test that prediction. On July 20, 22 states and the District of Columbia, citing Bostock, sued the U.S. Department of Health and Human Services for rolling back an Obama-era regulation for healthcare providers that outlawed discrimination based on gender identity. And in a lawsuit filed in federal court on July 16, Jesse Hammons, a woman who identifies as a man, claims the University of Maryland St. Joseph Medical Center engaged in discrimination by refusing to perform a hysterectomy due to the religious beliefs of the hospital’s administration.

But despite Bostock, a trio of decisions near the end of the Supreme Court’s term signaled strong support for religious liberty among a majority of the justices. These decisions may offer a safe harbor to those with religious convictions.

In Espinoza v. Montana Department of Revenue, the court struck down a Montana constitutional provision that barred public aid for religious schools. If states provide funds to private schools, said the court, they must not discriminate but must also provide funds to private religious schools. The ruling upheld a state tuition tax credit scholarship that did just that.

In Little Sisters of the Poor v. Pennsylvania, the court affirmed the right of a Catholic order of nuns not to offer contraceptive coverage to employees in its group health insurance plan. 

And religious schools were heartened by a decision in Our Lady of Guadalupe School v. Morrissey-Berru, where the court ruled that the “ministerial exception”—a doctrine barring courts from interfering in religious institutions’ internal matters—extends to teachers who perform vital religious duties. That ruling will help protect schools’ employment decisions from governmental intrusion.

While these decisions aren’t groundbreaking, together they reaffirm a constitutionally protected sphere of religious autonomy and liberty—a sense that people, gay or religious, must be free to act upon their deepest convictions. Private employers with religious convictions must still reckon with Bostock’s holding, yet churches and religious institutions are being bolstered by the court’s affirmation of religious freedom. 

“The court has signaled that religious liberty is a crucial part of maintaining a pluralistic society in which people can coexist with deep differences,” says Thomas Berg, a constitutional law scholar at the University of St. Thomas School of Law in Minneapolis. Berg notes that while the court in Bostock extended civil protections to gay, lesbian, and transgender persons, the majority in that case said it remained “deeply concerned” about protecting the rights of religious organizations.

Two cases to be argued in the court’s term beginning in October offer the justices opportunities to further strengthen religious liberty. 

In Fulton v. City of Philadelphia, the court will determine whether the city can cut ties with Catholic Social Services over the organization’s faith-based objection to placing foster children with same-sex couples. The city is relying on a neutral public accommodations law that bars most businesses from discriminating based on sexual orientation or gender identity. The court’s ruling in Espinoza suggests it may similarly rule that Philadelphia cannot discriminate against religious agencies. 

In the other case, State of Washington v. Arlene’s Flowers, Inc., the court will consider whether the state can punish florist Barronelle Stutzman for her Biblical beliefs about marriage, which preclude her from making custom floral arrangements for a same-sex wedding. The state cited Stutzman for violating a public accommodations law barring discrimination based on sexual orientation or gender identity.

With these religious liberty cases, the court is dealing with deeply polarizing issues that Congress, also polarized, is unable to resolve, says Berg: “A key historical purpose of religious liberty is to reduce cultural conflict by giving people assurance that their deep commitments will be protected.”

Societal peace may be beyond the purview of the Supreme Court. But a majority of the justices appear to be attempting some measure of judicial peace—and hoping we can all get along.

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The trouble with traffic stops

Multiple studies point to racial disparities in policing across the U.S.

Prosecutor Tom Kidd was working for the city of Dayton, Ohio, when he observed a troubling pattern in the cases that crossed his desk. “I noticed there were a lot of turn signal violations,” Kidd says. Police officers were issuing the minor traffic infractions in only one region of the city, a predominantly black area. No white, middle-class drivers were being pulled over for turn signal violations.

According to Kidd, the traffic stops had a purpose: “You had law enforcement looking for opportunities to pull over vehicles in the hopes of being able to smell marijuana, for example. If you smelled marijuana, you then have a right to search the entire vehicle in the hopes of finding drugs, firearms, whatever.”

The days of Officer Friendly rescuing a cat stuck in a tree seem long gone. So-called active policing demonstrates how the role of law enforcement has changed. The shift partially stemmed from the war on drugs that began in the 1970s, but Kidd says today’s aggressive police engagement often isn’t beneficial to society. 

A 2019 investigation of three Ohio cities—Cleveland, Columbus, and Cincinnati—showed racial disparity in police stops in all three places. In Cincinnati, for example, police made 120 percent more stops per resident in black communities than in white ones. Also, once stopped, black individuals made up 75 percent of the city’s traffic stop arrests. That doesn’t mean every stop or arrest was unwarranted or that racial profiling was necessarily involved: On the contrary, investigators said they ruled out bias at the personal level as a factor. 

But according to Eye on Ohio executive director Lucia Walinchus, it’s doubtful the differences in traffic stop rates were due solely to higher traffic infraction rates in black neighborhoods. Instead, the differences are more likely due to police departments placing more patrols in those areas. “Concentrating officers in one area based on the number of arrests creates a vicious feedback loop,” Walinchus said. “Police hang out there more, pull more people over there, and thereby search more people there and then arrest more people there.”

The death of George Floyd in Minnesota and similar police-involved deaths in recent weeks thrust the issue of racial disparities in arrests into the spotlight, with mass protests on streets across the nation. After Floyd’s death, The New York Times looked at Minneapolis city data and reported that although blacks make up only about 20 percent of the city’s population, they make up about 60 percent of arrests where force is involved. Washington Post writer Radley Balko has compiled an extensive list of data examining racial disparity across the United States, not only in policing, but also in areas such as bail practices, death sentences, and inmates held in isolation. (Balko includes any contrarian studies he found, too.)

One example: According to a 2017 report by the National Registry of Exonerations, the rate of drug use is roughly the same among black people and white people, but blacks are almost five times as likely to go to prison for possession. Another example: A 2013 U.S. Department of Justice report showed that, among black drivers stopped by police, 19 percent were stopped for a vehicle defect, like a burned-out tail light, compared with 13 percent of white drivers. Yet another: Stanford University researchers analyzed 95 million traffic stops from 21 state patrol agencies and 35 municipal police departments. The study, published in Nature Human Behaviour, found that black people were less likely to be stopped after sunset when skin complexion is harder to see. 

On the other hand, a 2006 study of that “veil of darkness” hypothesis in Oakland, Calif., didn’t show racial profiling in traffic stops. A handful of other studies also challenge the notion of racial disparity in policing. Still, most suggest the practice is widespread.

Everyone breaks the law, probably every day. Civil liberties lawyer Harvey Silverglate suggests the average American commits three felonies a day. (His book Three Felonies a Day argued “vague laws are the lynchpin” that allows the government to go after whomever they want to target.) Whether or not it’s accurate that everybody is a repeat felon, America unquestionably has a lot of laws on the books. According to researchers at the Library of Congress, there are so many federal laws that no official count exists. That contributes to the overcriminalization of behavior, says Kidd, the lawyer who noticed the turn signal violations. 

Kidd is a criminal defense attorney today. He switched sides after being influenced by Prison Fellowship founder Chuck Colson and theologian Francis Schaeffer. Both were proponents of criminal justice reform that includes victim-criminal mediation, restitution, and second chances. Kidd says jails and prisons are overpopulated and aren’t always the best place for rehabilitation, especially for nonviolent offenders. The answer isn’t to demonize all police. But the police brutality that has come to light in recent weeks raises more awareness that changes are needed.

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A San Francisco Police Department vehicle is visible patrolling during a shelter in place order in San Francisco, California, March 23, 2020. (Smith Collection/Gado/Getty Images)


Liberties in tension

Emergency declarations test the limits of constitutional rights in the United States

As the United States continues to battle the coronavirus, Americans in 41 states are under orders to stay home. Every state and the federal government have declared an emergency, and enforcement efforts are escalating.

Four small towns in south Texas, for example, have announced police patrols and checkpoints. Edcouch city manager Victor De La Cruz said officers would cite those who cannot provide written documentation that they are an “essential employee.” In one instance Edcouch police escorted a citizen who was picking up prescriptions to ensure that he returned home immediately after the errand. 

The nation’s state governors have issued over 760 executive orders pertaining to the coronavirus. Those orders, limiting citizens’ movements and ability to meet together and conduct business, raise a significant legal question: What are the constitutional limits of governmental powers during an emergency?

In Washington state, Gov. Jay Inslee last Thursday extended a stay-at-home order to May 4. Washington statute permits the governor to proclaim a state of emergency without consulting the Legislature for up to 30 days. During an emergency, he may impose a curfew, suspend state laws, and ban gatherings in open spaces provided the restrictions do not “conflict with the rights, under the First Amendment, of freedom of speech or of the people to peaceably assemble.”

“It’s very clear that state governors have, as a matter of federal constitutional law, extraordinarily broad authority,” said Joel Ard, an attorney based in Washington state. The Bill of Rights has never been interpreted to be absolute in its protections, he explained: “It has always been understood that state governments have the authority to quarantine to protect public health.”

However, Tony McDonald, an attorney in Austin, Texas, is concerned about the long-term precedent the latest executive orders may set. He says that prohibitions on the suspension of laws—a common feature of many state constitutions—are at the core of our constitutional order: “Restrictions on the king’s power and authority to suspend laws were the very first element of the English Bill of Rights from the 1600s.”

Dozens of governors and the Trump administration waived various laws in March. New waivers fast-tracked the licensing process for medical professionals and allowed retired healthcare professionals or medical students to begin working. Others permitted restaurant delivery services to offer alcohol or eased trucking regulations.

U.S. officials are also eyeing surveillance techniques in the coronavirus fight: The Washington Post reported that Google, Facebook, and other tech companies are in talks with the federal government about sharing users’ anonymized, aggregated mobile phone location data with federal officials. Such information, which Google and other data analysts have already begun to publish, reveal to what extent Americans are abiding by stay-at-home orders.

Public restrictions are not new in the United States. During the 1918-1920 influenza pandemic that killed half a million Americans, municipalities removed communal drinking cups in public spaces, closed dance halls and salons, and sometimes quarantined the households of the sick.

Nancy Bristow, author of American Pandemic, said that officials during that time didn’t restrict the movement of healthy citizens. “But public gatherings and events were frequently prohibited, and many public spaces were closed, such as schools, bars, and restaurants.”

Consumed with the war effort and not wanting to cause alarm, President Woodrow Wilson never publicly mentioned the pandemic, and Congress passed no legislation addressing it. 

Today, a dirty secret of U.S. emergency powers is their longevity: Thirty-one national emergency declarations continue to be renewed annually, including declarations regarding the 1979 Iran hostage crisis and the 9/11 terrorist attacks.  

But the courts would likely overrule an emergency order that restricts American liberties indefinitely, said Ard: “It almost certainly does have to be exercised in a way that’s rationally related to the problem they perceive and time-limited.”

Attorneys say that a growing number of lawsuits, including First Amendment suits in at least five states, could soon become a deluge.

McDonald is unsure they will meet success. “Courts have proven throughout history that they are unwilling to confront the executive in times of public emergency,” he said.

“Is this situation unlawful? I’m not sure.”

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