Christian Legal Society v. Martinez

The Supreme Court will hear oral arguments in Christian Legal Society v. Martinez on Monday. Hastings Law School denied funding to CLS, a student group, because it did not allow LGBT students as members. State law in California requires all student groups at public universities to allow any student to participate. So, in this case we see a clear conflict between free exercise (Hastings is a public school following state law so the necessary state action for a free exercise claim is in effect) aspects of religious equality and non-discrimination policy. It is a difficult case in many ways and raises substantial issues related to the things we have been discussing in both classes over the last 4-5 weeks.

Video from Federalist Society and American Constitution Society sponsored panel discussions on the case are here.

Oral arguments may appear at Oyez.

Abortion rights links

A couple of relevant links for the discussion of the abortion rights cases.

Data on abortion rates since 1974 from the Guttmacher Institute.

The new Nebraska law on abortion restrictions raises several issues that have not been addressed by the Supreme Court in any previous case, as well as several that are more similar to restrictions that have already been tested. We will discuss this new law in light of the precedents that we have been reading and see how the Court might decide the cases that are sure to emerge once the law goes into effect. According to the Times account the law bans "most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain"

Another Nebraska law signed at the same time requires "health care providers to screen women seeking abortions for possible physical or mental risks."

Also see the report from ABC News.

Update: Amanda Marcotte has a good explanation of the new constitutional issues raised by the Nebraska law and some of the implications of these changes. Fetal pain, rather than viability, would be an entirely new consideration and one that fundamentally challenges Roe v Wade while opening up a great deal of space for states to impose new legal limits on abortion.

Supreme Court vacancy

So, per our discussion yesterday, I think this clip gives some sense of why representation on the Court matters regardless of the outcome of the cases. Read the language of the opinion in Gonzalez v Carhart and then watch Pamela Karlan comment on the case and imagine the conferences on the merits of future cases if she were to be nominated to the Court.

Olmstead for the 21st century?

Privacy is a hotly contested political concept, and not just in the area of abortion rights and sexual freedom. From Olmstead on, the Supreme Court has tended to lag behind the public's expectation of privacy in new technology. Current law regarding electronic privacy is out of date in many surprising ways and there is a great deal being written, litigated, and legislated regarding the proper balance between electronic privacy and other social interests.

More marriage links

Marriage laws state by state - in which states are same sex marriages legal and which states have DOMA provisions in their constitutions.

Divorce rates by state, sorted based on availability of same sex marriage.

Public support for same sex marriage, state by state including change in support over time.

These graphs are easier to read, public opinion on same sex marriage, a Federal Marriage Amendment, and anti-discrimination laws broken down by age of respondent.

A useful exchange between Andrew Koppleman and Robert George - these posts and the linked papers should give you a good sense of the contours of the debate over the natural law position on marriage.

Marriage equality links

Just a few items of interest as we move to marriage equality and privacy.

Robert Bork "Neutral Principles"

Select documents in Perry et al v Schwarzenegger et al (Prop 8 case)

Trial coverage of Perry

Wedding photographer can't refuse to work same-sex weddings under New Mexico anti-discrimination law.

Scientology in the news

Since Scientology has come up a few times in our discussion of the religion clauses, I thought some of you might be interested in this account of the experience of some people who have sought to leave the religion and the response of Church officials.

Raised as Scientologists, Christie King Collbran and her husband, Chris, were recruited as teenagers to work for the elite corps of staff members who keep the Church of Scientology running, known as the Sea Organization, or Sea Org.

They signed a contract for a billion years — in keeping with the church’s belief that Scientologists are immortal. They worked seven days a week, often on little sleep, for sporadic paychecks of $50 a week, at most.

But after 13 years and growing disillusionment, the Collbrans decided to leave the Sea Org, setting off on a Kafkaesque journey that they said required them to sign false confessions about their personal lives and their work, pay the church thousands of dollars it said they owed for courses and counseling, and accept the consequences as their parents, siblings and friends who are church members cut off all communication with them.

The article also includes a summary of some of the key tenets of Scientology.

Scientology is an esoteric religion in which the faith is revealed gradually to those who invest their time and money to master Mr. Hubbard’s teachings. Scientologists believe that human beings are impeded by negative memories from past lives, and that by applying Mr. Hubbard’s “technology,” they can reach a state known as clear.

They may spend hundreds of hours in one-on-one “auditing” sessions, holding the slim silver-colored handles of an e-meter while an auditor asks them questions and takes notes on what they say and on the e-meter’s readings.

By doing enough auditing, taking courses and studying Mr. Hubbard’s books and lectures — for which some Scientologists say they have paid as much as $1 million — Scientologists believe that they can proceed up the “bridge to total freedom” and live to their full abilities as Operating Thetans, pure spirits. They do believe in God, or a Supreme Being that is associated with infinite potential.

Problems in determining tax exemptions for religious organizations

Two current examples of the problem of trying to determine whether an organization warrants the tax exemption granted to religious organizations.

Liberty University and political endorsements.

Christian crashpad for Congressmen.

Public Opinion and the Supreme Court

So Citizens United was tremendously unpopular across the political spectrum. This is really interesting to me since people usually don't pay that much attention to the Supreme Court and rarely coalesce around opposition to a decision so quickly. Perhaps that says something about the Washington Post poll involved as well as the issue of corporate political speech, but off hand, these are the sorts of poll numbers you might expect on a case about flag burning, not campaign finance law.

Indecency in musical form

Eric Idle took up the FCC indecency regulations issue with a short song that some people find amusing. Warning: it is meant to be indecent so it does contain a good deal of profanity. Ummm, it contains only profanity, so don't listen near your mom or if you don't find that sort of thing amusing. In any event, it is an illustration of the way in which indecent songs might be intended as a contribution to political debate.

Ellsberg at the Oscars

Daniel Ellsberg, a key figure in the Pentagon Papers case that we studied last week, is the subject of an Oscar nominated documentary. Here is a bit of information about what Ellsberg is up to these days and some of his favorite movies of the last year.

No cameras in Prop 8 trial

The US Supreme Court has blocked cameras for the Proposition 8 trial in California, overturning the decision by the Chief Judge of the 9th Circuit to allow those cameras.

Linda Greenhouse has an interesting column about the cameras issue both in the Prop 8 case and more generally, then turns to several other first amendment cases related to the politics of same-sex marriage. She concludes:

The issue of cameras in the courtroom, presented by the California case the court ruled on this week, is itself of long standing. But it has typically been seen as posing a free-press-versus-fair-trial question — in terms of First Amendment doctrine, a claim by those behind rather than in front of the camera. This week’s development suggests that a merger of two separate lines of First Amendment precedent, one on freedom from compelled disclosure and the other on access to government proceedings, may not be far off. In fact, in this media-saturated age, it may be overdue. Whether this deeply divided court can navigate the contested terrain of same-sex marriage to arrive at a useful synthesis is another question.

The column also has some gossip-y info about intrajudicial squabbling, check it out.

Gun rights case

For those of you who are interested, the oral arguments in DC v Heller, the Second Amendment case over DC's nearly complete ban on personal, functioning guns, has now been posted at Oyez. Don't expect a decision in the case before the last week of the term in June.

Science education and religion

Would a bill like the "Religious Viewpoints Antidiscrimination Act" be constitutional? Which cases are most relevant to this law? Which principles? Are the potential consequences of such a law for students in Oklahoma relevant to the constitutional question?

The bill requires public schools to guarantee students the right to express their religious viewpoints in a public forum, in class, in homework and in other ways without being penalized. If a student's religious beliefs were in conflict with scientific theory, and the student chose to express those beliefs rather than explain the theory in response to an exam question, the student's incorrect response would be deemed satisfactory, according to this bill.

The school would be required to reward the student with a good grade, or be considered in violation of the law. Even simple, factual information such as the age of the earth (4.65 billion years) would be subject to the student's belief, and if the student answered 6,000 years based on his or her religious belief, the school would have to credit it as correct.

Loyalty oaths and religion

Headline from the San Francisco Chronicle "Quaker Teacher Fired for Changing Loyalty Oath."

Updated 3/10/08: And now she has been rehired with a clarification that the oath does not require part time math teachers to use violence in defense of the US and California constitutions.

George Carlin

Just a quick reminder, here is a recent version of George Carlin's "Seven Words you Can Never Say on Television" which was broadcast on the Pacifica network leading to the case FCC v Pacifica.

Those of you who read this blog at work will probably want to turn the sound down before watching the video as the language is definitely not work (or, for that matter, library) safe.

More obscenity

OK, I don't want this whole blog to be about butts, but today I said obscenity convictions are rare and now authorities in Virginia Beach are going to show you why.

Police, saying they were responding to citizen complaints, carted away two large promotional photographs from the Abercrombie & Fitch store in Lynnhaven Mall on Saturday and cited the manager on obscenity charges.

If you have been in an Abercrombie Store lately, I am sure you saw the same pictures. Click through on the link to see one of the two pictures, I think I can confidently say that you will not find it patently offensive, at least not in the way that would make you want to throw up or turn away in disgust.

Obscenity

The Miller test for obscenity is vague and subjective, perhaps this can give some insight into what it is trying to get at.

Journalists' sources and free speech

Does a government subpoena issued to a journalist to demand that he turn over the name of a source restrict free speech? How would New York Times v US (Pentagon Papers case) affect your answer in this particular national security related case?

More libel

This is an interesting suit - Subway v Quiznos. The suit concerns consumer generated Quiznos ads that Subway contends defame their sandwiches - particularly the quantity of meat on those sandwiches. Does Subway have a case? Is an "Italian BMT" a public figure? Can people trying to win a Quiznos prize have actual malice against a "meatball marinara?"

A second point - why do advocates of tort reform never discuss cases like this one?