Religious Liberty, Right-to-Work Decisions @ SCOTUS

images(photo credit:

The US Supreme Court today delivered its rulings in the two cases that ranked among the biggest legal “blockbusters” for this term: Burwell v. Hobby Lobby and Harris v. Quinn.

The Hobby Lobby decision involved a particular provision of the ObamaCare law that mandated US employers provide birth control free of charge to their employees. The Green family, which owns the arts and crafts store Hobby Lobby, sued the government arguing that this section of the law violated their religious liberty under the First Amendment and the Religious Freedom Restoration Act of 1993, which states that if the government is going to infringe on core religious expression it must have a “compelling government interest” and act only in the “least restrictive way.”

And while Hobby Lobby doesn’t oppose all contraceptives (their employee insurance plans cover most varieties), the company specifically abstained from covering certain medications that it believes induce abortions, such as Plan B.

On a 5-4 decision, with the four so-called conservative justices plus swing vote Anthony Kennedy, the Court agreed with the Green family and the other plaintiffs in the case that the contraception mandate went too far in burdening closely-held companies with threat of either violating the owners’ religious conscience or violating the law.

Unfortunately, the decision apparently leaves open the opportunity for the Obama administration to create a government program that directly distributes birth control at taxpayer expense.

This and other factors have prompted some Republicans, most recently Colorado Representative and US Senate candidate Cory Gardner, to float the idea of legalizing the sale of contraceptives over-the-counter so as to appease both factions in the debate.

The decision does not grant such religious exemptions to publicly-traded companies. It only applies to “closely-held” corporations like sole and joint proprietorships and nonprofits.

In Harris v. Quinn, an Illinois law that conscripted home health care workers into public sector sector unions, or at least forced them to pay union dues, because, the state argued, all medical providers compensated with Medicaid funds count as “public employees” and thus obligated to be represented exclusively in union collective bargaining agreements.

The court again split 5-4 in a decision which distinctively separated Medicaid reimbursement recipients from actual public state employees, arguing that private patient assistants are responsible solely to their customers, not to the state. In so doing the justices have invalidated about a dozen and a half other similar state laws around the US with similar inclusions of home health care workers.

And while the Court’s decision has liberated many thousands of PAs from compulsory union representation, many had wished, or feared, that the it would have gone farther and invalidated all mandated collective bargaining schemes as unconstitutional infringements on First Amendment-protected rights to free association and expression. However, the highest judicial body in the land may be gearing up for such a case in the coming term(s) and plenty of pro-Right-to-Work litigants are eager to test how far they can push the justices in that direction.

Sometimes When I’m Bored…

I write model legislation correcting overreaches of power by government. Totes awesome, right? Like peeing your pants in “Billy Madison,” it’s the coolest!

The problem of too little economic freedom and protection for the economic rights of the American people is twofold: 1) Too many people realize that most infringements, including the most egregious, on a day-t0-day basis come from state and local government and 2) most Americans fail to realize that the Bill of Rights and the Fourteenth Amendment unambiguously protects their rights as much in the economic realm as it does in the personal non-economic realm.

As someone who vigorously believes in the so-called “Incorporation Doctrine,” or the idea that the the Fourteenth Amendment broadly applies the Bill of Rights to the states, which has been used in recent cases involving the First and Second Amendments, this principle unambiguously means that the 14th Amendment protects economic rights.

This makes it imperative for Congress to intervene to protect some of the most basic and important of these American liberties under what I call the Economic Civil Rights Act. The reader’s mind will undoubtedly jump to the original Civil Rights Act of 1964 passed by Congress as a response to the out of control efforts of racist state governments violating the lives and liberties of blacks in their jurisdictions. I think the invoking that image, while not exactly the same, is no less necessary.

You have states that barely recognize private property rights and seize it from innocent citizens almost at will; governments restrict the ability for citizens to seek gainful employment in the careers they want by placing wage floors which mandate unemployment for all those not productive enough to justify receiving such a wage; in the 1960’s, only 1 in 20 occupations required some kind of government license, now that number is 1 in 3, which has monopolized so many industries, reduced competition, and most importantly, infringed on fundamental economic rights.

While I could come up with an endless list of protections, I recognize that too much federal power, even in the pursuit of protecting individual rights, is always a bad thing and also that knowledge of local affairs is equally limited in Washington.

Accordingly, I’ve limited the document to five items that I think are the most important and basic to economic freedom and flourishing. If any of you fellow forgotten beards would like add any you think are more important or delete any you think are not, let me know in the comments.

Economic Civil Rights Act of 2014

  1. The right to engage in a lawful trade or occupation, with only minimal and justifiably necessary interference from government in order to carryout a necessary public interest like public health and safety, shall not be infringed.
  2. The right to liberty of contract in the negotiation of terms of the contract or financial compensation between the parties shall not be infringed, including in the form of minimum or maximum compensation, or minimum and maximum working hours.
  3. No political body, or body associated with the government, shall have the power to seize private property for anything but constitutionally obligated public use. Seized property, or the value thereof, shall in no way be transferred to or used by private persons or entities.
  4. The First Amendment of the United States Bill of Rights shall not be construed as to deny the right of commercial and otherwise economic-oriented speech.
  5. No citizen of the United States shall be made to join any organization of any kind as a condition of employment in a lawful trade or occupation.


Dept. of Homeland Security grants German homeschooling family asylum

In a victory for homeschooling and educational freedom, the Department of Homeland Security today, reacting from yesterday’s Supreme Court’s denial to hear their case, has granted asylum to the Romeike family, a German family that fled persecution from a Nazi-era compulsory school law that bans homeschooling.

This dramatic decision reverses the U.S. Supreme Court’s refusal to hear the family’s plea for asylum, granting the family “indefinite preferred status,” meaning that they can stay in the US permanently.

The decision comes at a time when the German school system’s rigid ban on homeschooling has been coming under fire in the international community.

In November of 2012, the first annual holding of the Global Home Education Conference to place in Berlin to affirm the natural human right for parents to educate their children independent of the state. Among the documents cited supporting this right was Article 26, Section 3 of the 1948 UN Declaration of Human Rights, which says that “parents have a prior right to choose the kind of education that shall be given to their children.”

Unfortunately, however, the same article also declares that education shall education, in at least the “elementary and fundamental states” (whatever that means), must be “free” and “compulsory.”

SCOTUS should strike down Mass. state abortion clinic ‘buffer zone’ law

The Supreme Court heard oral arguments today on a Massachusetts law that creates a so-called “buffer zone” of 35 feet between legal abortion clinics and pro-life protestors outside that extends onto public streets and sidewalks.

At issue, POLITICO reports, is that the law gives an exemption to employees speech outside but punitively restricts the activists from their famous “sidewalk counseling” where they try to persuade, very passionately at times, potential mothers and parents that they are making a very big mistake in seeking an abortion.

POLITICO writes:

A key issue in the case, McCullen v. Coakley, is whether Massachusetts can differentiate between people who want to peaceably protest or consult people outside of the facility and those who intend to be violent or disruptive. Miller, as well as the Obama administration, argued that it is “enormously difficult” to make that distinction, so everything from loud protests to quiet conversations must be restricted.

The problem with this kind of reasoning being put forth by Massachusetts and the Obama administration, who is backing the law in the court, is that it is impermissible for the federal or state governments to restrict core political speech–or any peaceful speech–during reasonable hours on public property that is neither violent nor threatening.

Even more galling is that the law doesn’t even allow for conversational “quiet” speech. That is patently ridiculous on its face and demonstrably so when Justice Kennedy asked, “Do you want me to write an opinion and say there’s no free speech right to quietly converse on an issue of public importance?”

This is the first major case that this writer knows of to come before the Court since the 2000 case Hill v. Colorado that created an eight foot “floating” barrier in that state between protesters and clinics, which a majority of the justices upheld.

But the composition of justices has changed since then. Neither Justice Roberts, Alito, Sotomayor, nor Kagan were on the court at that time. And with Kennedy likely going with the conservatives on this ruling, it appears that those Republican-appointed justices will strike down the law.

But this is really not a case about abortion or abortion rights. It’s more about free speech. And this court, to the pleasure of this writer, is a very pro-free speech court relative to the Rehnquist court or others that have come before.

This is the court that has struck down laws banning the watching of animal cruelty videos, the picketing of soldiers’ funerals, and the funding of independent political advertising by by corporations and unions.

In this case, McCullen v. Coakley, the court should do the right and constitutional thing and strike another blow for First Amendment political speech.