Hearings for Supreme Court Justices

          Some interesting findings from Professors Lori A. Ringhand and Paul M. Collins Jr. about Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009:

Senators have engaged minority and female nominees in more substantive questioning than white male nominees.

Senators pressed minority and female nominees much more heavily with regard to their judicial philosophies. As such, it is evident that senators are particularly interested in grilling female and minority nominees regarding their approaches to constitutional interpretation.

Minority nominees were interrogated with respect to criminal justice issues substantially more often than white nominees. 

While minority nominees received fewer questions involving court administration and access to courts than did white nominees, female nominees were at the receiving end of more court administration and standing questions than male nominees. 

Texas Republicans Oppose Sodomy, U.S. Constitution

          The Texas Republican Party Platform has called for sodomy to become illegal:  We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy. 

          I guess the Texas Republicans haven't read Lawrence v. Texas, the Supreme Court's 2003 decision invalidating a Texas sodomy law. According to the Texas statute struck down in Lawrence,  “A person commits an offense if he engages in deviate sexual intercourse with another individual of    the same sex.” The statute defines “[d]eviate sexual intercourse” as follows: “(A) any contact between any part of the genitals of one person and the mouth or anus of another person; of “(B) the penetration of the genitals or the anus of another person with an object.”

          Justice Anthony Kennedy's important opinion in Lawrence explained that adults enjoy a Fourteenth Amendment Due Process right to engage in intimate sexual relations that was violated by the statute and Lawrence's arrest. Many lawyers had argued that the statute should be invalidated on Equal Protection grounds because it prohibited same-sex, but not different-sex, sodomy. Kennedy, however, warned that were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Then Justice Kennedy explained that the Constitution protects same-sex and different-sex sexual intimacy from government intrusion:

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

The Texas Republicans should be more sympathetic to Lawrence, because any anti-sodomy agenda violates one of the Party's core principles -- Limiting the expanse of Government Power--and suggests that the commitment to limited governmental power is not authentic.

          In a concurring opinion in Lawrence, Justice Sandra Day O'Connor invalidated the statute on Equal Protection grounds, arguing that Kennedy's broad Due Process holding was unnecessary. Whether a sodomy law that is neutral both in effect and application, she wrote, would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society. I am confident that the people of Texas will be more protective of individual privacy from government intrusion than the Republican Party of Texas. 

Hastings and Non-Discrimination Survive

          Despite her husband's death yesterday, Justice Ruth Bader Ginsburg was at the Supreme Court today to announce the decision in Christian Legal Society v. Martinez, the Hastings Law School case in which a Christian student group sought official recognition while denying membership to gay students. Hastings, however, had an all-comers policy that required official student groups to accept all students who wanted to be members. Consistent with her long career defending civil rights and equality, Ginsburg ruled for the law school.   

          Ginsburg posed the legal question narrowly--May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?--and answered it yes. In First Amendment terminology, Hastings' policy was a reasonable, viewpoint-neutral condition on access to the student-organization forum.  In common-sense language, the Constitution does not require the law school to fund student groups that discriminate against gays in the name of religious freedom. Ginsburg was direct in identifying what the case is really about: CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy. 

          CLS remains free, as it always was, to define its membership by excluding gays, non-Christians, and advocates of homosexuality as a student group without official recognition. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities, reminded Justice John Paul Stevens' concurrence. 

          A factual issue awaits possible future resolution in the district court. Although CLS stipulated to Hastings' all-comers policy before the litigation, on appeal it argued--contrary to its own stipulations--that in practice the policy discriminated against religious groups only. Fortunately Justice Ginsburg reject[ed] CLS's unseemly attempt to escape from the stipulation. The dissenters did not, and wrote an opinion contrary to the stipulations. 

          CLS remains free to argue in the district court that the all-comers policy was pretextual. They lost by a 5-4 vote. Will someone ask former Harvard Law School Dean Elena Kagan if she would have voted for the school or the students? 

Smith in Danger from Kagan

          On the eve of the confirmation hearings, Religion Clause has posted numerous stories concerning Elena Kagan's record on religion. Melissa Rogers of Brookings argues that Elena Kagan's appointment to the Supreme Court could mark the first time a critic of the 1990 Smith decision and its weak reading of the Free Exercise Clause replaces a supporter of that decision. This is good news for Rogers, who wants additional protection for religion, but bad news for defenders of the rule of law. Smith requires churches to follow the laws applicable to everyone else. Religious opponents of Smith pretend that Justice Antonin Scalia, the author of  Smith, and Justice Stevens, who joined the opinion, undermined the Free Exercise Clause with their ruling that religious groups must obey the law. What is really happening is that the religious opponents of Smith want special rules for religions--exemptions from the antidiscrimination laws, e.g., or special status in local zonings laws. 

          According to Rogers, although President Obama admires Justice Stevens, given President Obama’s religious freedom commitments, this is one area where he would be likely to see a break with Stevens as a welcome change. This is the danger posed by Rogers, Obama and now Kagan: they start with their commitment to religion and push that commitment so far that they value religion more than the rule of law. They pretend that this is a defense of religious liberty, but it is really religious tyranny to exempt the country's religious citizens from the law. The Secular Coalition of America has listed all the reasons to be worried about Kagan's nomination. If the Senate were really committed to its constitutional duty, it would ask Kagan if she is ready to defend the Constitution instead of religion.

Ministerial Exception

          The courts have handed religious employers a dangerous exemption from the law. The exemption, known as the ministerial exception, is dangerous because it allows religious employers to avoid their obligations to obey the law and frees them to mistreat their employees. A recent case from Washington State demonstrates the problem. Cesar Rosas and Jesus Alcazar were two Mexican seminarians studying for the priesthood in the Roman Catholic Church. Their church superiors sent them to Washington State to continue their studies for the priesthood. When they got to Seattle, they were hired to do maintenance work at the church. Rosas later sued under Washington's minimum wage act alleging that he worked overtime hours without pay. 

          If a jury heard the seminarians' case, it could focus on one central question: did the seminarians perform maintenance work without pay? Maintenance work and wages are easy concepts for any  jury to understand. The Ninth Circuit Court of Appeals, however, did not allow the case to go to a jury. The court ruled that the church's freedom in choosing its ministers cannot be intruded upon by the courts. 

          The court's reasoning was too protective of the church. Rosas argued that the district court should not have dismissed the case absent a determination that requiring the Catholic Church to pay Rosas overtime wages would actually burden the Church's beliefs. In other words, if the church believed that paying workers fair wages violated its religious freedom, then there might be a First Amendment problem in holding the church liable. The church, however, has long proclaimed its belief in a just wage for every worker. Rosas also argued that paying the minimum wage is not a religious practice that deserves First Amendment protection.

          The court, however, rejected all these arguments on the grounds that courts are not allowed to intrude upon the churches' ministerial decisions. Churches thus remain free to mistreat their employees without legal sanction. In other ministerial exception cases, organists, secretaries and math and language teachers have been held to be ministers who cannot sue their religious employers. The rule has kept disabled employees who are fired for their disabilities, older employes who suffer age discrimination, women who suffer sex discrimination, and African-Americans who face race discrimination from getting their cases before a jury.

          A perceived lesson of the sex abuse scandal was that prosecutors and courts had for too many years protected the churches instead of their victims. The courts have not learned the lesson. They continue to protect the freedom of the churches to mistreat their employees and violate the law in the name of the First Amendment. 

Jon Stewart Mocks Obama's Prayer

Watch through to the end!


Mr. President, YOUR hands are supposed to be guiding us.

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Nomad

          Ayaan Hirsi Ali's new book presents a powerful portrayal of how women's equality suffers under Muslim rule and rules. Hirsi Ali travels with personal bodyguards because her life is under constant threat due to her criticism of Islam. Explaining how little Muslim girls are "rendered voiceless"by Islam, she loudly calls for a new alliance of feminists and Christians to combat Islam's opposition to equality. 

Among Hirsi Ali's interesting arguments are the following:

          It happens here. Honor killings of Muslim girls for perceived sexual misconduct happens in the United States and not only in Muslim countries. So does cutting girls' sexual organs so that their virginity can be assured: Muslim families "will cut off the clitoris and cut the lips of the vagina so that it scars shut, to create a built-in chastity belt."

          American Liberals "appear to be more uncomfortable with my condemning the ill treatment of women under Islam than most conservatives are." A wrongheaded multiculturalism has kept American liberals from speaking out against abuses of power by men of color. According to the author, "when well-meaning Westerners, eager to promote respect for minority religions and cultures, ignore practices like forced marriage and confinement in order to 'stop society from stigmatizing Muslims,' they deny countless Muslim girls their right to wrest their freedom from their parents' culture. They fail to live up to the ideals and values of our democratic society, and they harm the very same vulnerable minority whom they seek to protect."

          American Feminists receive especially strong criticism for failing to defend the universal value of women's equality. The author says feminists must abandon their "dreary cultural relativism" and recognize that cultures that defend women's rights are superior to those that do not.  Hirsi Ali even charges that some American feminists are more concerned about racism than sexism, again emphasizing that men's oppression of women must be criticized in all cultures.

          Individual v. Group Rights. The Constitution should protect individual rights, and not be used to give special protection to groups so they can mistreat individuals. "All human beings are equal, but all cultures and religions are not." It is the worst kind of condescension to think immigrant groups deserve lesser legal protection than other groups.

          Vive le pope. In a surprise finish the atheist author urges Westerners to join forces with the pope and other Christian leaders to reclaim Western civilization. This "strategic alliance" is necessary to confront the antiegalitarian forces of Islam. Christianity is more "open to criticism" than Islam and should be an ally for enlightenment principles. She concludes: "So long as we atheists and classical liberals have no effective programs of our own to defeat the spread of radical Islam, we should work with enlightened Christians who are willing to devise some. We should bury the hatchet, rearrange our priorities, and fight together against a much more dangerous common enemy.

          It is hard for me to believe that Pope Benedict will be much help in defending women's rights. But there is a shrewd point in thinking that it is better to put Christianity at feminism's service than to let Christians and Muslims join to defeat women's rights.