Someone Was Paying Attention (Hint: It Wasn't The NSA)

As we all know, there are two cases coming before the Supreme Court (Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp v. Sebelius) that argue the novel (if not insane) concept that corporations/businesses have religious liberties.  Both Hobby Lobby and Conestoga Wood ground their arguments in the 1993 Religious Freedom Restoration Act (RFRA) that the contraception mandate in the Affordable Care Act (ACA aka Obamacare) places a non-acceptable burden on the religious liberties of these two corporations.

A coalition of organizations* were paying attention though and have filed an amicus brief asking the Court to rule whether or not the RFRA is even constitutional.  In my view, this is a very welcome game changer.  Let us hope the Supreme Court takes the brief seriously and considers the constitutionality of the RFRA.

I want to thank Lyle Denniston over at the SCOTUSBlog for writing up an easy to read article regarding this amicus brief.

*The coalition that filed the amicus brief is made up of the following organizations:

1.  Freedom From Religion Foundation

2.  BishopAccountability.org

3.  Children's Healthcare Is A Legal Duty, Inc (CHILD, Inc)

4.  Child Protection Project

5.  Foundation To Abolish Child Sex Abuse

6.  Survivors For Justice

7.  Survivors Network Of Those Abused By Priests

Let The Frivolous Lawsuits Fly

It didn't take long.  It was only a little over a month ago when it was disclosed the Internal Revenue Service (IRS) did their job by giving extra scrutiny to groups applying for tax exempt status as 501(c)(4) organizations.  And now, conservative "tea party" and "patriot" groups have, as Lyle Denniston over at SCOTUSBlog states, filed suit against the IRS for violating their rights due to this extra scrutiny.

Let's be clear, in order to be tax exempt as a 501(c)(4), you are to engage exclusively as a "social welfare" organization.  By law, you are not allowed to be involved in politics, period.  Let's also be clear, even though these conservative groups received extra scrutiny, not one of them was denied tax exempt status.  Not one.  Some did withdraw their applications, but not one was denied.

One would think, by watching and reading the "mainstream media" (MSM), that the IRS only gave extra scrutiny to conservative groups and only groups with "tea party" or "patriot" in their name.  You would be sadly mistaken.  According to the IRS Inspector General, over 300 organizations were given extra scrutiny.  Of those 300, less than 100 of them were conservative groups.  Plus, of those 300 groups, only one was denied tax exempt status under 501(c)(4) and it was a liberal organization.

So even though these conservative organizations were clearly political organizations, they knowingly conspired to break tax law and be subsidized by the American tax payer.  To add insult to injury, they now file law suits against the IRS for giving them extra scrutiny.  To be fair, none of them should have been given tax exempt status and the real scandal is that clearly political organizations are regularly given tax exempt status.

In my view, the federal judges hearing these cases should throw them out as being frivolous, as the "offended" parties clearly broke the law.  Short of dismissal, these judges should rule that the law clearly states that to receive tax exempt status and the IRS has for years "misinterpreted" the statute and that these groups lose their tax exempt status.

Sadly, I don't think either will happen.

Marriage Equality Update

Even after the victories for marriage equality in Maine, Washington and Delaware (and to a lesser extent Minnesota), all eyes will be in the US Supreme Court this Friday as they head into a long delayed private conference to tackle 6 petitions related to marriage equality.  Two of the cases involve a right previously recognized and then removed by either popular vote, Proposition 8 in California, or by legislative action as in regards to the case out of Arizona.  The remaining petitions deal with the notorious so called Defense of Marriage Act or DOMA which denies federal recognition of same-sex marriages.

The question they will answer in conference is which, if any, of the cases they will hear oral arguments on.  They could deny cert and let the lower courts' decisions to stand without comment, they could decide to hear each of the individual cases, combing those asking the same basic constitutional question or they could remand to the lower courts with or for clarification.

After talking to a friend who has experience with the Supreme Court and considering the ideologies of the individual justices, I believe the following decisions will be made:

• Prop 8 and Arizona - Both cases basically come down to can a right that was recognized be taken away.  In both cases, the 9th Circuit ruled that no, you can't take a way a right previously recognized.  I think the Supreme Court is going to deny cert in both cases.  As much as certain justices might be biting at the bit to rule one way or the other, I believe that they don't want to delve into this issue just yet.  By denying the cert, they don't have to rule on the broader issues and the decisions of the lower courts are narrow enough for the Justices to feel comfortable in denying cert.
• DOMA - I think the Justices will agree to hear the cases, but in a combined format.  I also think that the Justices will punt by deciding which standard of scrutiny the various courts are supposed to use in regards to marriage equality without dealing with whether or not DOMA is constitutional.

As anyone knows with the Supreme Court, any guess as to how the Justices will decide is just that, a guess.  What we can be assured of is that President Obama will most likely have the opportunity to appoint three, maybe even four justices.  This fact could way heavily on the Justices or it may not matter at all.

Lyle Denniston over at SCOTUSBlog is doing a great preview of the cases.  Be sure to check it out for more views.

The Milquetoast Evolution

The day after voters of North Carolina approved an amendment (Amendment 1) which bans same sex marriage, civil unions and some protections for single mothers, the headlines blasted that President Obama supports gay marriage.  My fellow gays, lesbians and our allies cheered with gleeful abandon.  Conservatives had a conniption fit.  All but a few on both sides act as if President Obama came out in full, unequivocal support of marriage equality.

But, in true Milquetoast President fashion, President Obama gave only qualified support for same sex marriage.  Instead of saying, “I personally support the right of same sex couples to marry and I believe the U.S. Constitution does as well”, he said this:

“At a certain point, I've just concluded that-- for me personally, it is important for me to go ahead and affirm that-- I think same-sex couples should be able to get married. Now-- I have to tell you that part of my hesitation on this has also been I didn't want to nationalize the issue.

… And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what's recognized as a marriage.”

In other words, our Milquetoast President has evolved enough to support same sex marriage, but thinks it is a state’s rights issue and not a civil rights issue.  He doesn’t think that this should be a national issue, but a local and state issue.  This is how the President operates.  He can’t be for something 100%, he has to try and split his support to try and appease everyone.  He could have come out in support of gay marriage before the voters of North Carolina went to the polls, but he didn’t, he waited until the day after and the results were negative.  That’s not leadership, that’s cowardice.

I understand that as President, one has to make compromises on some issues, such as the budget, national security and such.  When it comes to civil rights though, compromise is not an option.  You are either for or against.  There is no fence sitting, as President Obama was previously doing, and there is no attempt to create “separate but equal” constructs such as “civil unions” which leaves a segment of the population as second class citizens.

I understand the desire by my fellow gays and lesbians around the nation and our allies to stand and cheer the President’s “support” of gay marriage.  It’s the desire to believe that the most powerful man in the world supports our equality.  That desire, though, blinds them to the realities of our Milquetoast President and one of those realities is that President Obama will pander just as much as Mr. Romney in order to be reelected.

I thank the President for his evolution in regards to same marriage equality, I just wish it wasn’t such a milquetoast evolution.

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The full transcript and video of President Obama’s interview can be found here.

For further reading, please check out Lyle Denniston’s write up on SCOTUSBlog.