The ACRU Blog

On August 18th, the California Supreme Court ruled on Benitez v. North Coast. This case tests the Freedom of Religion Clause of the California Constitution on the issue of whether a physician has a constitutional right to refuse on religious grounds to perform a medical procedure for a patient because of the patient's sexual orientation.

The American Civil Rights Union filed an amicus brief supporting North Coast Women's Care Medical Group.

Unfortunately, the California Supreme Court ruled in favor of Benitez, with Justice Joyce Kennard writing,

"A religious objector has no federal constitutional right to an exemption from a neutral and valid law of general applicability on the ground that compliance with that law is contrary to the objector's religious beliefs" (italics in the original).

The American Civil Right Union was mentioned in several articles, including the Los Angeles Times, World Net Daily, and The Med Guru.

On 25 June, the Supreme Court decided the case of Hein v. Freedom from Religion Foundation. As the name of the appellee suggests, they seek to remove all references to religion from all public places. They filed suit seeking a court order that the White House Office of Faith-Based and Community Initiatives (directed by Mr. Hein) was an unconstitutional use of federal funds.

The ACLU did file a brief in this case, supporting the effort of the Freedom from Religion Foundation to shut down the White House Office of Faith-Based ... Initiatives.

The trial court, however, dismissed the case for lack of standing to sue. The Seventh Circuit Court of Appeals reversed. But the Supreme Court reversed again, dismissing the case. Justice Alito, joined by the Chief Justice and Justice Kennedy, concluded that the Seventh Circuit was in error in reading broadly the Supreme Court precedent of the Flast case. Justices Scalia and Thomas would have gone further, and overruled the Flast case. Justices Souter, Stevens, Ginsburg and Breyer would have agreed with the Seventh Circuit, and expanded Flast to mean that any taxpayer at any time could file suit if he thought any reference to religion in public, was excessive.

Because Justice Scalia combines a logical mind with an acid tongue, a brief quote from his Concurrence is appropriate:

"If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen, 392 U. S. 83 (1968) , should be applied to (at a minimum) ALL challenges to the governmental expenditure of general tax revenues in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated. For me, the choice is easy. Flast is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing." [Emphasis in the original.]

His comment is telling. The Supreme Court should always decide cases "by rule of law rather than show of hands." Yet in this very case, seven Justices went by show of hands. Only two can claim a logical, legal basis for their conclusions.

Arizona Wins, Tree-Huggers Lose

On 24 June, the Supreme Court decided the case of National Association of Homebuilders v. Defenders of Wildlife. At issue was the interplay between the Environmental Protection Agency and the Endangered Species Act, as they jointly affected a water discharge plan in Arizona, which in turn affected the ability of contractors to build houses. Justice Alito wrote the Opinion of the Court, joined by Justices Scalia, Kennedy and Thomas, and the Chief Justice, approving the Arizona plan. There was a Dissent by Justice Stevens, joined by the other three Justices, and a separate Dissent by Justice Breyer.

The ACLU did not participate in this case. However, several of its political allies filed briefs on behalf of the Defenders of Wildlife.

Under the EPA law, the federal agency initially regulated pollution discharges, however, once a State had met nine specific criteria, the regulation was shifted to a State agency. Under the Endangered Species Act, the Fish and Wildlife Service was to be "consulted" before final EPA action. It was consulted, here, and concluded that the transfer of this power to Arizona would not adversely impact any species.

The tree-huggers, otherwise known as the Defenders of Wildlife, wanted the courts to order that Fish and Wildlife would remain in the decision loop after the transfer. The Ninth Circuit Court of Appeals in San Francisco agreed. The Supreme Court reversed.

Five Justices of the Court concluded that when the law is constitutional, and the parties have obeyed the law, the Court has no further business in the matter. Four Justices of the Court wanted to order more than the law required, because they wanted a particular outcome. Instead of being even-handed judges, they wanted to force the outcome in the direction they preferred.

This case demonstrates why the judicial philosophy of the various candidates for President is a very important factor in electing anyone as President of the United States.

On 21 June, the Supreme Court decided the case of Rita v. United States. There were a total of four Opinions in the case, the majority Opinion by Justice Breyer, two Concurrences by Justices Stevens and Scalia, and a solitary Dissent by Justice Souter. The question was marvelously simple, and didn't seem to justify the time and firepower devoted to it. (The ACLU did not file a brief in this case, but several of its legal and political allies did, on behalf of the criminal.)

Victor Rita bought a "gun kit" from InterOrdinance which apparently when assembled produced an operating machine gun, contrary to federal law on the selling of such guns. Contacted by agents of Alcohol, Tobacco and Firearms, Rita showed them the kit. When the agents came back, he had returned the kit and presented a different one to them. He also lied under oath to a federal grand jury about these matters.

After conviction, the issue became sentencing. Under the federal guidelines, his offense as a first offender (he had a prior firearms conviction, too old to consider) should have been 22 to 41 months. Rita's attorney argued for a shorter sentence because of Rita's health problems, and because he had "served in the US Military for 25 years." The judge gave him the minimum guideline sentence of 31 months, and refused to reduce it.

The question was whether the trial and appellate courts should presume that any sentence within the guidelines was "reasonable" unless proven otherwise. Eight of the nine Justices agreed with this point, though they advanced different reasons for reaching the conclusion. The ACLU position on this case - go easy on the criminal - garnered the vote of only one Justice.