Category Archives: Courts

Again, Progress

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EEOC v Freeman concerned an events company that used [criminal and credit] background checks in employment decisions between July 2006 and August 2011. The company had experienced problems with employee drug use, embezzlement, and workplace violence, and saw background checks as a legitimate way to screen applicants.

US District Judge Roger Titus scored the agency for…putting employers “in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.”

And if that wasn’t a clear enough message, he continued: “Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks.  To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.”

There’s more to this:

[T]he [EEOC] didn’t show that Freeman Co discriminated against black applicants by using criminal-background checks or credit checks in its hiring process.

Well, duh.  The judge went on:

The story of the present action has been that of a theory in search of facts to support it.  But there are simply no facts here to support [the EEOC’s claim that black applicants were improperly discriminated against].

Freeman has 4,100 full-time and 25,000 to 30,000 part-time employees; that part-time to full-time ratio is a potful of turnover—which puts a premium on those background checks.

Progress, indeed.

Corporations and Religion

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On Friday, the Philadelphia-based US Court of Appeals for the Third Circuit ruled that “for-profit, secular corporations cannot engage in religious exercise….”

The case centered on a complaint concerning the HHS/Obamacare contraceptives mandate brought by Conestoga Wood Specialties Corp,

a manufacturer of wood cabinets based in East Earl, PA, and its owners…Mennonite Christians [who] say the requirement violates the Free Exercise Clause of the First Amendment as well as the Religious Freedom Restoration Act, which guards against laws that substantially burden that right.

The majority held that

while there is a history of the courts protecting the rights of for-profit companies to engage in speech, the same can’t be said for religious rights.

“Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion[.]”

Judge Kent A Jordan dissented, noting that Supreme Court decisions, in fact, have recognized corporations’ right of free exercise of religion.  Further,

The government takes us down a rabbit hole where religious rights are determined by the tax code, with non-profit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant.
…
It is the profitmaking character of the corporation, not the corporate form itself, that the Majority treats as decisively disqualifying Conestoga from seeking the protections of the First Amendment or RFRA.  That argument treats the line between profit-motivated and non-profit entities as much brighter than it actually is, since for-profit corporations pursue non-profit goals on a regular basis.
…
[I]t said that…any harm to the Hahns’ religious liberty is “too attenuated to be substantial” because it is Conestoga, not they, that must face the Mandate.

Charles Proctor, who was among those representing Conestoga, asked an important question:

How do you parse separate those three sentences in the First Amendment?  They are only separated by a semicolon. In my opinion, you can’t.

The answer is plain: in fact, they aren’t three sentences; they’re one sentence, and the clauses are “not even separated by a longer pause than a semicolon[.]”

Moreover, too many on the Third Circuit plainly do not understand the concepts of ownership or property.  Companies are nothing more than agents of their owners.  Religious rights—and free speech rights and any other rights—denied men’s agents are rights denied the agents’ owners by constricting those owners’ capacity to act through their agents.

It’s also clear, on a point not raised in the WSJ Law Blog article, that the contraceptive mandate also violates the Establishment Clause by placing the government’s determination of appropriate religious behavior above the agent company’s—or individual’s.

The full appellate opinion can be seen here.

Know Betters Who Know Better

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Supreme Court Justice Ruth Bader Ginsberg had a few things to say, in the context of an AP interview about the Supremes’ VRA ruling last month, about voter ID and the sanctity of the individual vote.

Texas’ decision to implement its voter ID law hours after the court struck down a key provision of the Voting Rights Act last month was powerful evidence of an ongoing need to keep states with a history of voting discrimination from making changes in the way they hold elections without getting advance approval from Washington.

Because acting on being newly freed from the shackles of government is somehow nefarious.

The notion that because the Voting Rights Act had been so tremendously effective we had to stop it didn’t make any sense to me[.]

Because we’re irretrievably beyond redemption, men cannot change away from the mistakes of a distant past, and it takes an enlightened Progressive to instruct and guide us.

It’s inconceivable to Know Betters that such seigniory might not actually be necessary.

A Disgusting Court

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A while ago, I wrote about racism on the Supreme Court.

The Supreme Court wrote in its DOMA ruling

What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.

And

…no legitimate purpose overcomes the purpose and effect [of DOMA] to disparage and to injure….

And so on.

Chief Justice John Roberts wrote in dissent of this ruling [emphasis in the original],

At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.

Justice Antonin Scalia wrote in his dissent [emphasis in the original, cites omitted],

[T]he majority says that the support­ers of this Act acted with malice—with the “purpose” “to disparage and to injure” same-sex couples.  It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose…a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliat[e]”their children, (emphasis added).

I am sure these accusations are quite untrue.  To be sure (as the majority points out), the legislation is called the Defense of Marriage Act.  But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to con­demn, demean, or humiliate other constitutions.  To hurl such accusations so casually demeans this institution.

The Supreme Court wrote in its California Proposition 8 ruling that the private group bringing the case to the Court had no standing to do so, even though this is the group that was instrumental in getting Proposition 8 onto the ballot and passed in the first place.  Only State Government officials had standing to defend the proposition in court, and they had refused to mount a defense.

The Court thereby ruled that the people have no standing to defend their own voice, only the State can (not just may) do this.  The Court has thereby ruled that the people no longer are sovereign; Government is sovereign.

This is a disgusting Court, and Chief Justice Roberts and Justice Scalia are justified in their seeming embarrassment.

What He Said

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The following, via The Weekly Standard, is excerpted from Justice Antonin Scalia’s dissent in US v Windsor.

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Let the People Decide

By ANTONIN SCALIA, FOR THE EDITORS

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former….

[In its holding, the Court] accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose” “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose…a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliat[e]” their children.

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race….

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.

As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy.

Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State,” approved by a popular vote, 61% to 39% on May 8, 2012, are offset by victories in other places for others, see Maryland Question 6 (establishing “that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license,” approved by a popular vote, 52% to 48%, on November 6, 2012). Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting “the State of Maine to issue marriage licenses to same-sex couples,” approved by a popular vote, 53% to 47%, on November 6, 2012) with Maine Question 1 (rejecting “the new law that lets same-sex couples marry,” approved by a popular vote, 53% to 47%, on November 3, 2009).

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

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What he said.