PHOENIX JUSTICE: Romer v Evans

Friday, June 27, 2014

Who Will Decide Hobby Lobby / Conestoga Wood and Why It Matters

Like 99.999999999% of Americans, I am no expert regarding the US Supreme Court (SCOTUS). But, as the saying goes, I know enough about SCOTUS to be dangerous. It is a time honored tradition to try and guess what the SCOTUS will do and I will be partaking in that tradition today. In fact, I am going to try to diving who will write the opinion in Sebelius v. Hobby Lobby aka Hobby Lobby / Conestoga Wood (Hobby Lobby), for who writes the opinion will determine if the decision is (based on your ideology) is good, bad or ugly.

So here we go, starting with the one I think will be the author of the opinion.

Justice Anthony Kennedy: When it comes down to it, Hobby Lobby is about social issues, specifically, the ability of employees to have access to contraceptives through their employer provided health plans. Except with respect to the matters of abortions and voting rights, Justice Kennedy tends to be on the moderate/liberal side of social issues. Take for instance his authorship of the opinions in Romer v. Evans, Lawrence v. Texas and United States v. Windsor. Both decisions expanded equality under the law to gays and lesbians. If Justice Kennedy writes the opinion, which I believe he will, look for the court to decide that corporations, even privately held family owned ones, do not have religious liberty, reversing the 10th Circuit Court of Appeals. The decision would be 5 - 4.

Justice Antonin Scalia / Justice Clarence Thomas: In my view, these two justices are almost interchangable. Based on their history of supporting the concept of "corporate personhood", either Justice would easily vote to give all corporations religious liberty and the ability to use religion as an excuse to discriminate against its employees. Either would affirm the 10th Circuit Court of Appeals. The decision would be 5 - 4.

Chief Justice John Roberts: His potential authorship is what scares the hell out of me. Seeing how much he loves to "split the baby" when it comes to decisions, his authorship could only spell ugliness. Take for instance his authorship of the ACA decision where he upheld the ACA but struck down the provision requiring States to expand Medicaid, thus overturning the "power of the purse" legal concept. This has left millions of Americans in States that refused to expand Medicaid without affordable medical care. If the Chief Justice is the author, look for him to declare that non-publicly traded wholly family owned corporations have religious liberty while publicly traded and/or non-wholly family owned corporations do not. It would be a 6 - 3 decision with Justices Scalia, Thomas and Alito in dissent.

Again, this is all speculation. Who will be the author of the Hobby Lobby decision is anyone's guess, but it is very important as to who will write it.

Tuesday, March 26, 2013

California's Prop 8 at The Supreme Court - Updated - 2nd Update 2:49 pm

As I write this, the United States Supreme Courts is about to begin oral arguments in Hollingsworth v. Perry, better known as the California Prop 8 case. It is a scary proposition to have this particular Court with its conservative majority that seems hellbent on reversing the progress of civil rights in the past century to hear this case. No matter how oral arguments go today (an audio recording will be available later today), we probably won't know until June what the outcome will be when the decision is handed down.

Of course, we will all be trying to read the tea leaves of what is said in oral argument by the Justices via their questions (almost statements). And of course, all eyes and ears will be on Justice Kennedy, the author of Lawrence v. Texas as he is expected to be the swing vote. Will the Court follow in the steps of Loving v. Virginia by reaffirming the fundamental right of marriage and thus striking down gay marriage bans across the nation? Or will the Court deal a staggering blow to the marriage equality movement by declaring that Proposition 8 is constitutional and there isn't a fundamental right for same sex couples to get married?

Or will the Court punt? In my honest opinion, I think they will punt (especially if Chief Justice Roberts is the author) and they will do so in one of three ways:

They could declare that the Plaintiffs (the proponents of Proposition 8) do not have standing which would mean that the Ninth Circuit Courts narrow decision striking down Proposition 8 relying on Romer v. Evans.
They could be California specific and ruling that Proposition 8 is unconstitutional based on Romer v. Evans while holding that the proponents of Proposition 8 do have standing.
They could find that domestic partnerships (of which California has such a law) violates the 14th Amendment and thus those 9 states with domestic partnerships for same sex must allow for same sex marriage.

As I said, it is anybody's guess as to how the Supreme Court will rule, even if my friend Justin is pretty sure the decision will be sweeping and reaffirming Loving v. Virginia. We all be on pins and needles until June and that fateful day. But honestly, I never thought I would see this in my lifetime.

A hat tip to SCOTUSblog for their incredible coverage of the marriage equality cases and also a hats off to Chris Hays who, in his final show as the host of MSNBC's UP, had a full hour discussion on the marriage equality cases before the Court featuring Dan Savage. I am including those videos below.

*UPDATE* Tom Goldstein, over at SCOTUSblog, doesn't have a lot of good things to say about oral arguments today. Kind of scary.

*2ND UPDATE* The audio recording of today's arguments have been released and I am including them here.

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