Category Archives: Courts

A State Supreme Court

Posted on by
Reply

…gets it right.

A Mississippi judge had held up the state’s recently passed firearm open carry law, insisting that it was unconstitutionally vague.  The law, in a burst of logic unusual for politicians [/snark], says in essence that “adults don’t need a permit to carry a gun that’s not concealed.”  The Mississippi Supreme Court overruled the state judge—by unanimous opinion—and allowed the law to take effect.  Justice Randy Pierce, writing for the Court, had this in part:

This court now finds that the circuit judge erred as a matter of law when he found House Bill 2 to be vague and, therefore, unconstitutional.  He also erred when he stated that a “reasonable person reading the bill could not discern what the law allows and what it prohibits[.]”

Indeed, that judge seems to have simply rubber-stamped the artificial and disingenuous argument that

it has caused confusion about where people may carry guns that aren’t concealed.  They also say it could put law enforcement officers in danger if people with no training are carrying guns.

This, of course, cynically conflates two separate arguments.  The first is deliberately obtuse.  There is no confusion: existing Mississippi laws clearly describe locations where guns are proscribed.  Not requiring a permit to carry a gun openly in no way permits carrying a gun where it’s banned.

The second argument is relevant to the open carry matter only to the extent that the cop who’s “in danger” knows it because the gun is in plain sight.  It’s the cop who’s dealing with a man with a concealed weapon who’s in danger—no matter the training of that man.

As an aside, the state circuit judge seems, himself, to have been willfully obtuse.  That’s dangerous to the rule of law, allowing a judge to overlay his whim on a law.  It’s good that wiser heads prevailed, this time.

A Victory for Labor

Posted on by
Reply

…if not necessarily for organized labor or, more particularly, for organized labor leaders.

Michigan’s right-to-work law applies to 35,000 state employees, a divided state appeals court ruled Thursday in the first major legal decision on the much-debated measure eight months after it passed.

Judges voted 2-1 to reject a lawsuit filed by unionized workers who make up more than two-thirds of all state employees.

In ruling that unions cannot force workers to pay union dues, when they’re not union members as a condition of employment, the majority ruled, in part:

In light of the First Amendment rights at stake, the Michigan Legislature has made the policy decision to settle the matter by giving all employees the right to choose…[and to] remove politics from public employment and to end all inquiry or debate about how public sector union fees are spent.

It’s in fits and starts, but individual liberty is beginning to survive.

Again, Progress

Posted on by
Reply

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

Posted on by
Reply

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

Posted on by
Reply

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.