Tuesday, August 29, 2017

Masterpiece Cake Shop v. Colorado Civil Rights Commission Amicus Brief (Part IV)

The Assault on Religion:

The assault on religion started in the 1947 case Everson v. Board of Education. The Establishment Clause says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It should come as no surprise that the first 160 years of our history there was little controversy over the Establishment Clause. The controversy only started over the past 70 years due to hurt feelings and people being offended by religious practice. In Everson, the Court sided with the New Jersey state government reimbursing student’s bus fare to attend religious schools, but Hugo Black’s majority opinion introduced Thomas Jefferson’s “wall of separation between church and state” comment from a “courtesy” letter written to a Danbury Connecticut Baptist Church. Separation of church and state is not in the constitution and Jefferson did not participate in the writing of the Constitution nor in the Bill of Rights (He was in France working as US Ambassador). Therefore, Jefferson’s interpretation of the Establishment Clause does not show the true intent or meaning of the clause. James Madison drafted the Bill of Rights and his interpretation of the clause should hold more weight. But the Court has taken this one Jeffersonian statement, uncorroborated by other founders as the true meaning of the Establishment Clause. The separation of church and state comment does not even corroborate Jefferson’s actions as President who would regularly attend Church services held in the House of Representatives chambers. The Establishment Clause’s true intent was to prevent what happened in England when they established the Church of England. In fact, the Establishment Clause does not stop states from establishing religion. States, like Massachusetts, were founded and established by the Puritan Church. Hence, the goal of the clause was to prevent a National Church and religion. Bruce Fein, former associate deputy attorney general said this of Black in his Emerson decision “Black, however, seemed to sense the absurdity of his categorical prohibition, which would have required public ambulances to deny service to a cleric who suffered a heart attack which preaching from the pulpit. Accordingly, he immediately retreated from his unbending stance – but without saying so.”

The separation of church and state doctrine opened the flood gates to dozens of cases of people claiming to be tormented by religious practice. In 2002, the Court held in Zelman v. Simmons-Harris that the state of Ohio could issue education vouchers for students to attend private religious schools. The Court held that the vouchers could be used for any religious school and therefore did violate the Establishment Clause. However, in 2004 the Court held in Locke v. Davey a Washington State scholarship program could bar funds to students majoring in Theology. In 1992, the Court held in Lee v. Weisman that graduation prayers were unconstitutional because it “psychologically coerces” prayer on students who do not practice religion. In other words, prayer made non-religious persons feel uncomfortable. This decision essentially elevated the right “not to feel uncomfortable” to over the practice of religious liberty.

In 2004, the Court held in Elk Grove School District v. Newdow that the phrase “under God” in the Pledge of Allegiance did not violate the Establishment Clause. However, stare decisis from Weisman should have led the Court to strike those words out of the Pledge (Using the Ninth Circuit’s logic). The only reason Newdow did not change the words of the Pledge was because a majority of liberal justices said Newdow did not have standing to file suit otherwise our Pledge would have fallen victim to political correctness. The obvious next step of religious intolerance groups would have the words “In God We Trust” stricken from our currency. Justice Kennedy wrote the Weisman decision and then dodged his precedent by claiming “no standing” in Newdow because he saw how unworkable and dangerous his precedent in Weisman was.

There have been numerous cases contesting the display of the Ten Commandments on public property such as in state capital government buildings. In McCreary County v. Kentucky ALCU (2005) the Court held that a Ten Commandments display was unconstitutional while in Van Orden v. Perry (2005) the Court held a Texas capitol Ten Commandments display was constitutional. It is just a matter of time before the Declaration of Independence is a banned document on public grounds and in our schools because it makes many references to God.

The bottom line is that separation of church and state by building a wall between the two is completely unworkable. In Chief Justice Rehnquist’s opinion in Wallace v. Jeffree (1985) he outlines a dozen’s examples of how the Court’s jurisprudence conflicts such as “parochial students may receive counseling, but it must take place outside the parochial school” or “A state may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects.” Separation of church and state is nothing more than political correctness where atheists or non-believers may feel offended, annoyed, or have some hurt feelings. This is no different than what is happening in the Masterpiece Cake Shop case. There is no longer any tolerance or patience for religious beliefs in our country. Religious Liberty has been under assault for decades. The Colorado Anti-Discrimination Commission’s decision to classify Masterpiece Cake Shop as a discriminatory business in the same sense that a White Supremacist’s discriminates is not just unfair, but it demonstrates how little tolerance and patience government laws have for religious liberty.

The Court and Political Correctness:

The Constitution does not distinguish between genders or races. However, that has not stopped the Court from introducing gender (Roe v. Wade, abortion) and race (Grutter v. Bollinger, diversity) into their opinions. What does diversity say about our country? It not only endorses reverse discrimination, it wrongly asserts that African-Americans are not equal to other Americans which stigmatizes the accomplishments of African-Americans who will always be seen as benefitting from skin color than on merit. But conversely, this Court has ignored the word “citizen” in the Constitution to provide aliens and illegal aliens the same rights as citizens. This is wrong for several reasons. First, the Court has no say over immigration laws since Article I, Section 8 states Congress has the power “to establish a uniform Rule of Naturalization.” Secondly, the Court has ignored earlier precedent in Heim v. McCall (1915, New York could hire citizens over aliens for transit projects) and Ohio v. Clarke Deckenbach Auditor (1927, once again the Court rejected a Fourteenth Amendment Equal Protection Clause argument making aliens equal to citizens). However, in Graham v. Richardson (1971) the Court held minimum residency requirements for aliens to receive welfare benefits were unconstitutional. In Hampton v. Mow Sun Wong (1976) the Court held citizenship was not required to hold a government job under the Equal Protection Clause. In a 1973 case Sugarman v. Dougall, the Court invalidated a New York statute requiring civil servants to be citizens. In Plyler v. Doe (1982), the Court held illegal aliens had a right to a public-school education.

This Court has provided enemy combatants equal rights as U.S. citizens. In the 2004 cases between Rasul v. Bush and Hamdi v. Rumsfeld the Court decided war criminals who kill American soldiers and hide behind innocent civilians have the right to have their detention cases heard in federal court. These are rights that are not even afforded to our own military personnel who must use military tribunals for justice, not the federal court system. Time and time again, this Court sides with non-citizens over our own citizens. The Supreme Court has no jurisdiction over war decisions, and it once again ignored previous precedent in Johnson v. Eisentrager (1950) when affording prisoners of war more rights. These decisions endanger national security because sensitive information must be made public at trials. Can anyone imagine the circus if the Court made a similar ruling during World War II? Prisoners of war would be making hundreds, if not thousands of appeals to federal courts. If the goal is to make it easier for the enemy to be released so they can return to the battlefield and resume killing Americans, then the Court succeeded.

The moral of the story is that the Court will use Social Justice and Political Correctness to “protect” perceived disenfranchised groups of people at the expense of more qualified persons or actual US citizens. The Court finds color or race in the Constitution where there is none, and omits citizenship from the Constitution where there are nearly a dozen references including in the Fourteenth Amendment used to invalidate citizenship rights while elevating illegal aliens’ rights. In fact, the Court has provided enemy combatants more rights than our own military personnel. This practice of social justice and political correctness has carried over into state statutes such as the Colorado Anti-Discrimination Act (CADA) to protect classes of people unidentified in the Constitution at the expense of people practicing rights (free speech and religious liberty) enumerated in the Constitution. Justice Thurgood Marshall said this of White people, “You guys have been practicing discrimination for years. Now it is our turn.” The Court should not be in the business of inventing minorities to protect, promoting vengeance over past wrongs, or discriminating for any reason. Justice Scalia said it best “To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.” [Adarand Constructors Inc. vs. Peña, 1995]

Saturday, August 26, 2017

Masterpiece Cake Shop v. Colorado Civil Rights Commission Amicus Brief (Part III)

4. Fundamental Rights

Fundamental Rights elevated by this Court via the Ninth or Fourteenth Amendments, should not conflict with enumerated Fundamental Rights. Nor should elevated Fundamental Rights be controversial. This may be a necessary evil, but conflicting and controversial rights work to polarize the general public instead of uniting them. For instance, abortion and gay marriage rights conflict with natural enumerated rights such as Life and Religious rights. Abortion and gay marriage conflict with previously elevated rights such as procreation (Skinner v. Oklahoma, 1942). For these reasons, abortion and gay marriage have moved from state rights issues to national issues literally dividing the country in two. Troxel v. Granville is an example of a properly elevated Fundamental Right (the right of parents to make decisions for their children) because it is not controversial or conflicts with other Fundamental Rights. Troxel is good law because it widely accepted and has not created any national polarity or divisive politics.

When Fundamental Rights collide, in the absence of discrimination, the Court should side in favor with the enumerated right. The Constitution and Bill of Rights have lasted over 200 years without any serious modifications. The Court could consider some type of jurisprudence standard to overcome such conflicts which undoubtedly will continue to occur. The Court faced a similar dilemma when medical advancements made late term abortions safer, but at the same time made the viability of the fetus earlier in the pregnancy. In Webster (1989) and Casey (1992) the Court disregarded the trimester system formulated under Roe and created the “undue burden” standard which exists today to deal with the conflicting Fundamental Rights of Life and Abortion.

The natural law due process philosophy (freedom of contract) founded in Lochner v. New York (1905) and enforced in Adkins v. Children’s Hospital (1923) was repudiated in West Coast Hotel v. Parrish (1937) and finally revitalized in Loving v. Virginia (1967), Griswold v. Connecticut (1965), Roe v. Wade (1973), Troxel v. Granville (2000), Lawrence v. Texas (2003), Raich v. Gonzales (2007, Ninth Circuit), and Obergefell v. Hodges (2015). In all the above cases Meyer v. Nebraska (1923) was cited by the Court. The Court held in Meyer, “without doubt, it denotes not merely the freedom from bodily restraint but also the right of the individual to contracts to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally enjoy those privileges long recognized as common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” In Adair v. United States (1908) Justice Harlan declared “the right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor the person offering to sell.” This can be read to be the freedom of contract between employer and employee (repudiated in West Coast Hotel v. Parrish), but the same contract conditions exist between a business and customer (and this has not been repudiated by the Court). Although freedom of contract between employer and employee have been repudiated, the contract between business owners and customers “to engage in any of the common occupations of life” is still good law in Meyer.

Since CADA does not address the rights of business owner’s religious or free speech liberties it is a flawed law. In United States v. Fisher (1805) the great Chief Justice Marshall declared “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.”

This Court needs to decide what is more important: natural and enumerated First Amendment rights or elevated conflicting and controversial social rights.

5. Scrutiny (Rational Test) In Hobby Lobby v Burwell the Court held that a company can deny certain contraceptives (abortifacients) from women in their healthcare plans. In fact, a vast majority of states have statutes protecting pharmacists from handing out abortifacients if it opposes their religious beliefs. Most states also exempt doctors and nurses from performing abortions if it is against their religious beliefs. Abortion is held to the rational basis test of “undue burden” decided in Casey v. Planned Parenthood (1992). The courts in these states and in Hobby Lobby say abortion fails to meet the “undue burden” test for two reasons. First, there are literally a dozen of other types of contraception available to women other than abortifacients. Secondly, there are a far greater number of healthcare plans, doctors, nurses, and pharmacists willing to cover, prescribe, or handout abortifacients or perform abortion surgeries. In other words, it is not an “undue burden” because women have many more choices than exclusions for these services. The Masterpiece Cake Shop case is not much different since homosexual partners can choose from a wide range of products except for a gay wedding cake and there are literally dozens of bakeries in the Denver Metroplex that would be willing to make a gay wedding cake.

The precedent in Atlanta Hotel v. United States and Katzenbach v. McClung in 1964 using the Commerce Clause to eliminate discrimination in public places (in these cases: hotels and restaurants) does not really apply. Although it is easy to see how these cases could be used to apply to a bakery business, these cases used a low level rational base scrutiny since no liberties of the business owners were violated. However, in Masterpiece Cake Shop, the business owners Fundamental First Amendment Religious and Freedom of Speech liberties were violated. Hence, strict scrutiny is required to uphold CADA.

RFRA calls for the Court to protect religious discrimination using strict scrutiny. Also from Gonzales, the Chief Justice outlines the test for a state or federal law to abridge religious liberty: “1. Is in the furtherance of a compelling government interest 2. Is the least restrictive means of furthering that government interest”. If prevention of discrimination for protected groups is the compelling state interest for CADA, then it must be the least restrictive way to further that interest. Based on the “undue burden” test listed previously, CADA fails on both points. First, if CADA is to prevent discrimination, then it should protect both customers and business owners equally. It should not protect customers at the expense of store owners. Secondly, with absolutely no exceptions to CADA, it is impossible it may be enforced in the least restrictive manner since it treats true discrimination and religious liberty as one of the same.

In Gonzales, Chief Justice Roberts says RFRA protects people and business from “’neutral’ laws toward religion may burden religious exercise [conduct] as surely as laws intended to interfere with religious exercise”. Furthermore, the compelling test “strikes a sensible balance between religious liberty and competing prior governmental interests”. This case is no different: a neutral law on its face prohibits the exercise of religious beliefs. The state should therefore, be able to “strike a sensible balance” between religious liberty and perceived discrimination.

Consider an example of a cake maker whose schedule is full but gets a request to make a gay wedding cake. In fear of refusing to make the cake or face discrimination claims, the cake maker notifies a non-protected class customer he erred by taking their order and cannot make their cake due to schedule limitations. Is this fair? Is this discrimination? Is this the type of owner reaction the commission wants from CADA?


CADA is bad law because every instance of denial leads to hurt feelings and offended persons claiming discrimination when in fact we are seeing nothing more than political correctness. The law has proven to be hypocritical in its application and it fails to protect the rights of business owners. We are at a crossroads in America. We see our new generation of young Americans who refuse to respect the First Amendment at our colleges. They refuse to tolerate other opinions and open debate over issues. This generation does not respect the peaceful transfer of power already wanting to impeach a president with no chargers or crime. To deny both the enumerated rights of free speech and religious liberty to elevated social justice rights rising from perceived discrimination from political correctness would be an injustice. It would further the assault on our First Amendment in America. The Court needs to take a stand and show our First Amendment is still valued over political correctness. Hurt or offended or annoyed feelings does not constitute discrimination. Please put an end to the insanity of this never-ending convergence between Social Justice and Religious rights once and for all with some sound jurisprudence.

We live in the greatest country on the face of the earth. We are all lucky to be Americans. In over a third of the nations around the globe Christians and gays are still persecuted and have no rights. Masterpiece Cake Shop realizes this fact and that is why they will not make any anti-American cake – anything that portrays America in a bad light. There will be no cakes celebrating 9/11 or anything supporting the message conveyed by Westboro Baptist Church. Our country is so special that Christians and gays can argue a case about a wedding cake in front of the Supreme Court. That is special and it needs to be protected without infringing on Religious and free speech liberties that our country was founded.

The Fifth Amendment says, “nor be deprived of life, liberty, or property without due process of the law”. In Dred Scott v. Sanford (1857) Taney interpreted this as denying property to slave owners without due process of the law. Taney never considered the denial of liberty without due process of the law to slaves. Taney provided slave owners with preferential treatment over slaves. When Fundamental Rights collide and the Court favors one side over the other it never ends well. It will be controversial. One Hundred and Sixty years following Dred Scott and we still have not learned our lesson. The Colorado commission has failed to seriously consider Masterpiece Cake Shop religious or free speech liberty and instead labeled them as a discriminatory and a racist business. This is similar to what happened in Dred Scott. The Colorado commission provided preferential treatment to one class of individuals over the other without seriously considering the consequences of their actions. In McMullen v. Coakley (2014) the Court held to discriminate against one group of persons at the expense of another is never warranted for any reason. Speech laws are to be neutral and therefore business owners also deserve equal protection under the law. Justice Harlan in his dissent in Plessy v. Ferguson said, “In respect to civil rights, all citizens are equal before the law.” Instead, the Colorado Anti-Discrimination Commission has a history of siding with the perceived most disenfranchised group. In his dissent in the Civil Rights Cases of 1883 Harlan said, “No government ever has brought, or ever can bring, its people into social intercourse against their wishes.” Harlan was on the right side of history in these cases.

Tuesday, August 22, 2017

Antifa is why We Should not Erase History

What in the world is going on? I have never lived in such turbulent times. Politics are crazy with Trump firing someone every week. The media continues to paint fake narratives to neutralize the Trump presidency. Major terrorism attacks seem to happen every week. North Korea and Iran have nuclear bombs and are threatening to use their power.

The assault on free speech is simply concerning. Most of the free speech assault is a complete overreaction to the Trump Presidency. For instance, many and the media are convinced Trump is a White Supremacist, so now there is an assault on free speech. How do people make this connection? Well, Trump only disavowed all types of hate and did not single out White Supremacists. Therefore, Trump must be a Nazi. The Left’s answer to Trump and his supposed White Supremacist followers: Antifa.

The past decade there have been dozens of cases of conservative pundits being silenced at our public and private higher education institutions. But since Trump has taken office, the assault on free speech has evolved to another critical level. Now it seems the many that are unhappy with our history simply want it erased from our memories. The first step is to remove confederate statutes. But what is the next step: eliminating the Confederacy from our history books and then omitting our founding fathers who were slave owners? That is not a big leap. It was not long ago that many schools banned books such as Huckleberry Finn because it used the “N word”. So why would it be a surprise to ban books about people who were slave owners? Yet, liberals have no qualms with basic cable TV shows with nudity and graphic language. Or kids video games that includes all levels of graphic violence and killing. We cannot pick and choose which free speech we can tolerate and which we cannot. It does not work that way.

We have left the realm of realism. One day I was discussing the movie Good Will Hunting with some religious folks who would have enjoyed the movie if it did not have so much profanity and crime. I told them the movie would not have been realistic if it did not contain those elements. I told them not everyone lives in a Leave it to Beaver shell of a life. Well, Huckleberry Finn would not be realistic without the N-Word and history would not be realistic if only “good events” are told.

So, what is the liberal answer to Trump and his supposed White Supremacist backers? Antifa. Antifa is a radical militant leftist group that may stand for good causes such as defending people from racism, homophobia, and sexism in our society. However, Antifa is also on the wrong side of issues such as being anti-capitalism or on sex issues such as abortion. Violence is not the answer to solve complex problems such as hate and bigotry in our country. Violence will actually have the reverse effect because it pours gas on the fire. Antifa violence will only help to indoctrinate more White Supremacists. Antifa bully tactics to erase history will also work to indoctrinate more White Supremacists. I have never understood how groups of people that may have been the target of violence use violence to gain revenge. This is liberal righteousness. This is what happens when a person or a group of people believe they are on the right side of history. Of course, Hitler thought he was on the right side of history. Eugenicists thought they were on the right side of history. And the South thought they were on the right side of history. Antifa is over the top hiding behind the guise of righteousness. Antifa is also a hate organization who hates capitalists, hates people that oppose climate change, hates people who are anti-abortion, and they hate Americans who fly the United States Flag in their yard. Antifa has basically turned into an anti-American organization. Antifa has replaced the confederate flag of hate with their own flag of hate. This is precisely why we should not erase history, because history has a way of repeating itself. For example, we should never trust any group, organization, or faction within a republic who dons their own political flag. Beware, Antifa is no different than the hate groups they denounce. Trump is right to denounce all groups of hate which includes Antifa and White Supremacists. Why aren’t media outlets denouncing Antifa and why are they giving them a platform? What in the World is going on? This is dangerous and we should all be leery of what is going on in this country.

Beware of groups, like Antifa, who want to erase history. Beware of groups, like Antifa, who don a political flag. Beware of groups, like Antifa, who hide behind hoods. Beware of groups, like Antifa, who want to silence free speech. Beware of groups, like Antifa, who resort to violence. Beware of groups, like Antifa, because they are mostly anti-American. This is no different than tactics used by the Slave owning South, the Ku Klux Klan, or Nazism in Germany.

Saturday, August 19, 2017

Masterpiece Cake Shop v. Colorado Civil Rights Commission Amicus Brief (Part II)

2. First Amendment: Free Speech and Expression

Masterpiece Cake Shop has faced government intervention and restraint for practicing its Fundamental Right to protest on its own property. Why should Masterpiece Cake Shop be denied the right to protest what it perceives as being an attack on its Religious Liberty? Masterpiece Cake Shop has a Fundamental Right to protest gay marriage through the denial of service even if people find their actions to be repugnant and repulsive. This type of speech is protected. In Snyder v. Phelps (2011) this Court held that a hateful and repugnant protest at the funeral of a military soldier was lawful. The difference between these two cases is that Snyder took place on public property. But shouldn’t persons be allowed to practice their religious liberty by showing their views, opinions, and personalities on their own property? This Court has always sided on the side of free speech and expression unless the state has a “compelling interest” to abridge that right: Flag Burning (Texas v. Johnson, 1989) and Cross Burning (R.A.V. v. St. Paul) are a few cases where despicable conduct was protected. Of course, the speech in this case is not even remotely controversial as the cases highlighted above.

A wise man said, “Where the First Amendment is implicated, the tie goes to the speaker, not the sensor” (FEC v. Wisconsin Right to Life, 2007). James Madison said, “the censorial power is in the people over the government, and not in the government over the people” [New York Times v. Sullivan, 1964]. We also know the speech conducted in this case by Masterpiece Cake Shop was of the public form. In Snyder v. Phelps the Court held, “Speech deals with matters of public concern when it can be ‘fairly considered as relating to any matter of political, social or other concern in the community’ [Connick v. Thompson, 2011] or when it ‘is subject of legitimate new interest; that is a subject of general interest and of value and concern to the public’ [San Diego v. Roe, 2004]”. Public speech has more protections than private speech since this Court said this of public places: “such space occupies a ‘special position in terms of First Amendment protections’” [United States v. Grace, 1983]. Furthermore “the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided or hurtful” [Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 1995]

I would also argue that the speech used by the Colorado Commission to enforce CADA has little Constitutional value because it is a false factual statement defaming a private citizen of being discriminatory when in fact they have no proof of any such conduct. The Court does not protect such speech: “There is no Constitutional value in false statements of fact” [Gertz v. Welch, 1974]; “The erroneous statement of fact is not worthy of Constitutional protection” [Time Inc v. Hill, 1967]; “False factual statements possess no intrinsic First Amendment value” [United States v. Alvarez, 2012]; and “of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements” [Herbert v. Lando, 1979]. The reason false statements are not protected is because “False statements of fact are particularly valueless; they interfere with truth-seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot be easily repaired by counter speech, however persuasive or effective” [Keaton v. Hustler, 1984]. Also, religious groups or persons facing consequences from CADA “might well conclude that the safe course is to avoid controversy” which would “dampen the vigor and limits the variety of public debate” [NY Times v. Sullivan, 1964] cited in [Miami Herald v. Tornillo, 1974]. In other words, religious folks may not practice their free speech in fear of bad publicity of being labeled as a racist for defending their religious beliefs. No law should stifle free speech. After all, “The right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” [Stanley v. Georgia, 1969] Furthermore, Justice Marshall said, “Our whole constitutional heritage rebels at the thought of giving government the power to control our minds” [Stanley v. Georgia, 1969]. One can extrapolate the meaning of that statement to include legal actions or expressions such as a protest. Finally, “But whatever the reason, it boils down to the choice of the speaker not to propound a particular point of view, and that choice is presumed to lie beyond government’s power to control” [Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc., 1995]. Sure, “over time, the public accommodations laws have expanded to cover more places” [Boy Scouts of America v. Dale, 2000] and businesses of all kinds to prevent discrimination of protected groups. But these laws never considered the equal protection rights of business owners when customers express public speech opinions and viewpoints that differ from their creed. Accommodation laws never considered the Fundamental natural rights of business owners to protect themselves from customer political, social, and legal opinions.

In United States v. Stevens (2010) the Court outlined exceptions to free speech: Obscenity [Roth v. United States, 1957], defamation [Beauharnais v. Illinois, 1952], fraud [Virginia Pharmacy Board v. Virginia Citizens, 1976], incitement [Brandenburg v. Ohio, 1969], and speech integral to criminal conduct [Giboney v. Empire Storage and Ice Company, 1949]. The CADA civil rights commission, by making false factual statements defamed the character of a private citizen without any proof is certainly not protected by the First Amendment for two reasons: 1. False factual statements are not protected and 2. Statements that defame private citizens are not protected (Gertz v. Welsh, 1974).

The question is: do we want to live in a country dictated by social justice and political correctness or do we want to live in a country where the Constitution and tolerance are the rule of the land. “In public debate we must tolerate insulting, and outrageous speech in order to provide more ‘breathing space’ to the freedoms protected by the First Amendment” (Boos v. Barry, 1988). “Speech cannot be restricted simply because it is upsetting” (Snyder v. Phelps, 2010). “The government may not prohibit the expression of an idea simply because society find the idea itself offensive ore disagreeable” Texas v. Johnson, 2003).

This Court would not have accepted this case if Masterpiece Cake Shop was not sincere about their Religious beliefs and rights. And let’s not forget that most people would not turn away business if it was not an important issue to them. If true, this would rule out discrimination or any equal protection violations that CADA may imply against Masterpiece Cake Shop.

Most customers going to places of business do not put forth social, racial, and political opinions. Customers generally go to businesses and buy their products without expressing any controversial opinion or viewpoints. But when customers place forth opinions that violate the creed of businesses, they should have the right to deny service. Equal protection of the laws should also apply to business owners, not just customers as specified in CADA. The Court made a similar decision in Boy Scouts of America (BSA) v. Dale (2000). Since Dale’s lifestyle conflicted with the creed of the BSA, the Court held the BSA was not discriminating by refusing a job to Dale. Although accommodation laws did not apply to the BSA case, it is still relevant since the customer is voicing an opinion in disagreement with the creed of the business in the Masterpiece Cake Shop case. Accommodation laws simply do not consider customer opinions and viewpoints, and that is wrong. And the Colorado Anti-Discrimination Commission is the wrong avenue to decide these cases because it is political and not legal panel. The commission has a history of siding with what they perceive as the most disenfranchised group. That is not justice, it is social justice and political correctness at work in our society denying business owners and unprotected classes of their Fundamental Rights.

3. First Amendment: Religious Freedom and the Free Exercise Clause

Social justice and political correctness have absolutely no tolerance for religious freedom of any kind. There is a simple reason for this: Controversial social and political Fundamental Rights elevated by this Court conflict with enumerated rights such as religious freedom. Should elevated rights conflict with enumerated rights? Perhaps it is a necessary evil. But laws and the Court have a sworn duty to protect religious liberty.

This country was founded on Religious freedom and it is “deep rooted in American history and tradition” (Glucksberg, 1997). Religion has been on the right side of discrimination issues throughout our history (slavery and woman’s suffrage). For these reasons, natural rights like the freedom of speech and religious liberty must be judged using strict scrutiny and therefore there must be a “compelling state interest” to abridge these rights.

This Court has routinely sided with both religious beliefs and conduct. The Court has recognized Saturday as the day of Sabbath (Sherbert v. Verner, 1963); the use of hallucinogens for religious customs (Church of Lukumi Babalo Aye v. City of Hialeah, 1993); and the right for animal sacrifices for religious customs (Gonzalez v. O Centro Espirita Beneficente Uniao do Vegeta, 2006). Hence, it is not uncommon for the Court to find exceptions to state and federal laws to accommodate religious liberty.

The defense argues: people will use religion to justify discrimination against sexual orientation. This argument has been refuted by this Court in Sheerbert and Gonzales. In Gonzales, Chief Justice Roberts said “in Sherbert, for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as ‘no more than a possibility’ that the state’s speculation ‘that the filing of fraudulent claims by unscrupulous claimants feigning religious objection to ‘Saturday work’ would drain the unemployment fund”. Besides, most business owners would never turn away business, even on principle. Case in point, during the Jim Crow Period Southern businesses rarely turned away black customers, they had them accept “separate” accommodations. African-American money was acceptable, it was their skin color that was objectionable.

Justice Scalia outlined his fear of people using the guise of Religious liberty to avoid criminal laws in Human Resources of Oregon v. Smith (1990). Scalia’s fears do not apply to the Masterpiece Cake Shop case for several reasons. First, Gonzales does not overrule Smith but Chief Justice Roberts says the Courts are obligated to decide religious freedom cases one by one, not in general as Scalia did in Smith. Secondly, all the exceptions (fears) outlined by Justice Scalia are crimes, generally with the violator profiteering. Masterpiece Cakes is not profiting by turning away business. Finally, the Religious Freedom and Restoration Act (RFRA) was passed to supersede the precedent set in Smith.

The power of the RFRA is not absolute. In City of Boerne v. Flores (1997) the Court held a city statute to protect historic landmarks did not violate RFRA or the Religious Liberty of a Catholic Church being denied an opportunity to expand it facilities: “it does not follow that the person’s affected have been burdened anymore than other citizens, let alone burdened because of religious beliefs.” Furthermore, zoning laws “burden a large class of individuals”. In other words, the statute in Flores was both congruent and proportional because there was neither a pattern of discrimination and the penalty for failing to meet the statute was proportional for everyone. I would argue that CADA is neither congruent or proportional. CADA has been shown to discriminate against religious customers and finally is it proportional or fair for a religious person to be classified in exactly the same light as a white supremacist?

In Lee v. Weisman (1992) the Court held “The Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise”. I would contend the opposite is also true that government policy cannot coerce person’s to abandoned their religious beliefs. In Van Order v. Perry (2005) the dissent contends “suing a state over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy; the risk of social ostracism can be a powerful deterrent.” The same applies to Masterpiece Cake Shop in this case. They are being criticized by a large populous of the public as being haters, racists, and bigots. They have received far more negative press than positive press for standing up for their Religious principles. And, of course, this case has not put a penny in Masterpiece Cake Shop’s registers.

Tuesday, August 15, 2017

Erasing History

The events this past Saturday makes me sad to be an American. It is hard to believe this much hate still exists in our country. It is even more puzzling the whole ordeal started over a Robert E. Lee statue. Apparently, the local government decided to remove the statue because it represents “hate” which I found ridiculous, but unfortunately White Supremacists validated the local government’s concern. Both sides are wrong, it is not right to erase our history over political correctness and of course any argument to keep the statue for reasons of racism, bigotry, and hate is just plain stupid.

The debate over the removal of a Robert E. Lee statue should not have been about “hate”, but the precedent this sends by erasing a portion of our history. It is dangerous to erase history because these are events we should never forget, but yet most Americans are unaware or ignorant about our historical past. We should never forget the struggle of the Civil War and we should never forget the issues over which the Civil War was fought. Slavery is a brutal fact about America’s scared past and that is something we should never forget.

Robert E. Lee was a slave owner and by many accounts he was a harsh one at that. But Lee was a big part of our national history. Nobody gave the South a fighting chance to defeat the North, but it was Lee’s extraordinary leadership skills that turned the Civil War into a four-year struggle that killed over 600,000 Americans. Lee outclassed one Northern General after another. Finally, Ulysses S. Grant realized the biggest advantage the North had was in numbers. Grant used this advantage to defeat Lee (at the expense of enormous casualties). Lee made history, even if it is was negative history that we all would like to forget.

If we decide to erase all the Confederate statues around the country, what is next? Where do we draw the line on erasing history? Do we eliminate Confederate references in our history books? Of course, four of our first five presidents are easy targets because they too were slave holders (Washington, Jefferson, Madison, and Monroe). Do we eliminate their statues and erase their names in our history books to be politically correct? But to be fair, we cannot stop there. Why not eliminate the following persons from our history: Teddy Roosevelt (Eugenics believer), Margret Sanger (Eugenics believer), Oliver Wendell Holmes (Eugenics believer and all around racist and bigot), Woodrow Wilson (He segregated the government), Franklin Delano Roosevelt (internment of Japanese Americans), and Harry Truman (Dropped two atomic bombs intentionally killing hundreds of thousands of innocent civilians). Sure, these men and women may have done some good things for society, but many of their actions were controversial to say the least. This would leave only Lincoln left on Mt. Rushmore. Of course, many of Lincoln’s actions as President were also questionable because they violated the Constitution such as suspending a writ of habeas corpus. Lincoln used this power to detain people for no reason and deny them due process of the law (not much different than slavery). Anyone could make an argument to eliminate anyone from our history. Where is line drawn? Selectively erasing history is a dangerous precedent.

Today, it is easy for most Americans to see slavery for what it was: a brutal and racist institution that violated the rights of millions of slaves in our history. But, that distinction was not so easy to make for a vast majority of Southerners throughout a large portion of our history. I would suspect a vast majority of person’s living today that view slavery as evil would have a completely different view of the institution if they were born in the 1800s in the American South. The environment and culture would negatively and incorrectly shape our thoughts and point of view on the subject. This is why history is important and why we should never forget. History has a way of repeating itself and we surely do not need that. Removing the Robert E. Lee statue is not going to change the minds of White Supremacists to all the sudden love their neighbors and accept a diverse culture. That is simply wishful thinking. That statue is now a reminder, to me, the scary fact that people who had no ties to slavery and the Civil War still defend those policies in modern America. That is why the statue must remain so we never forget the evils of our past and present.

Saturday, August 12, 2017

Masterpiece Cake Shop v. Colorado Civil Rights Commission Amicus Brief (Part I)

The Colorado Civil Rights Commission enforcing the Colorado Anti-Discrimination Act (CADA) fails to meet its burden of proof when it decided Masterpiece Cake Shop discriminated against a gay couple wanting a wedding cake for five reasons (other than those reasons being contended on behalf of the Cake Shop’s legal counsel: Free speech cannot be compelled and free speech covers artistic views).

First, the actions of Masterpiece Cake Shop were not discriminatory in any way. It is instead an example of social justice and political correctness gone horribly wrong. Unfortunately, it is not uncommon to have discrimination claims over simple moral and ethical disagreements. If Masterpiece Cake Shop is discriminating than it can be easily conferred that CADA is also discriminatory.

Secondly, this case is about clashing Fundamental Rights. The elevated Fundamental Right of gay marriage and equal protection versus free speech and religious freedom. If there is no discrimination then equal protection does not apply. Hence, it becomes a case between a controversial and conflicting elevated right versus natural law enumerated rights.

Third, this is a case about a person’s First Amendment right to protest which cannot be abridged without a compelling government reason. CADA is flawed for several reasons. First, it only protects customers from discrimination and not business owners (only customers can claim discrimination). Secondly, CADA fails to address the issue of customers putting forth controversial opinions and viewpoints that are in direct violation of the religious beliefs or creed of business owners. Finally, since the Colorado Anti-Discrimination Commission is political their history is to side with the most perceived disenfranchised party and not the law. Their motive is to protect against discrimination and not protect Constitutional rights of unprotected classes. For this reason, the speech of the Colorado Commission is comprised of many false factual statements that can defame the character of private citizens. For instance, since Masterpiece Cake Shop practice of its religious and free speech liberties are classified in the same manner by the Colorado Commission as someone who truly discriminates, this is a false factual statement and can unnecessarily defame the character of a private citizen.

Fourth, Religious liberty is not truly protected by CADA and fears of unscrupulous use of religious freedom to deny protected classes their Fundamental Rights are unfounded. CADA fails to pass congruent and proportionality tests since the commission has a history of siding with the most disenfranchised group. Religious liberty cannot be denied without a compelling government reason.

Finally, CADA fails to meet a simple rationale basis test of undue burden when it should be required to meet strict scrutiny demonstrating a compelling state interest to abridge both freedom of speech and religious liberty.

1. Discrimination

The day after a horrific act of terror attack killed 49 persons at an Orlando Night Club I was watching CNN’s Anderson Cooper (he was on site covering the story). Cooper interviewed Florida Attorney General, Pam Bondi, and I am paraphrasing the conversation that followed. Cooper asked Bondi about the events and to reflect. Of course, Bondi responded in a shocked, surprised, and mournful manner. She was hurt and upset over both the hate and waste of life. Cooper followed up by asking Bondi “how can she be so upset over these events when she does not even support gay marriage?” That folks, is unfortunately where we are at in our society. We are so embroiled in our public debate over social issues we have become brainwashed into believing conservatives, religious followers, and Republicans who do not agree with gay marriage must want gay people to be slaughtered. It is extremely disconcerting that a respected news anchor would ask such a question. Does Cooper really believe that people disagreeing over gay marriage want the LBGT community slaughtered in cold blood? I do not think Cooper would be happy if someone shot up a Church even though they disagreed with his views over gay marriage. Can’t Cooper distinguish between a disagreement over moral and ethical standards and true hate and terrorism? I find it hard to believe that any true Christian would find any gratitude in the events that transpired in Orlando. I cannot name a single American who saw anything positive in that tragedy. I saw lots of tears, but not a single cheer. But this type of vitriol is not uncommon and exists in this case: a conflict between religious and social-civil rights. Many of the comments and remarks over this case have devolved calling Masterpiece Cake Shop racist, bigoted, and hateful. I have a growing concern that many in the LBGT community believe that the denial of a wedding cake is nothing more than some deep-rooted anger, hatred, racism, and bigotry by religious followers towards gays that simply does not exist. It a disagreement over moral and ethical standards between religious and social-civil rights, and that is it. The fact that the gay couple in this case could not see this difference and even filed a complaint is even more concerning. Why would the gay couple want to force the religious owner to alter their beliefs to accommodate their needs? This country has a history of following a vicious cycle of events. Generally protected classes of citizens in America have forgotten their struggles and over time commit the same types of discrimination on others. Shortly after feminist won suffrage they supported eugenics in the twenties and in the seventies tried to overturn laws providing veterans (men) better job opportunities and healthcare. The reason Proposition 8 failed in California was because the vast number of the religious African-American population sided against gay marriage. We fail to have self-awareness to understand that we are doing the same thing we did not like being done to us to someone else. Two wrongs do not make a right. Vengeance is never the answer. The answer is to have patience and tolerance and to understand that a lot of people will have different viewpoints and opinions that differ from our own and that does not mean they are discriminating. We need to accept our point of view is never 100% correct nor will ever be 100% accepted.

Does the First Amendment prohibit discrimination? No, it does not. Most discrimination is protected speech. In fact, many groups of people depend on discrimination for their existence: female athletics, women’s groups and schools, men’s organizations and schools, military combat restrictions on women, age limits to qualify for certain activities and so forth. The equal protection clause of the Fourteenth Amendment and the Commerce Clause have been used by the Court to curb discrimination, not the First Amendment.

The Colorado Anti-Discrimination Act (CADA) prohibits discrimination in public accommodations including businesses of all kinds. CADA defines discrimination against protected classes of citizens on the basis of color, national origin, marital status, creed, race, gender, religion, and sexual orientation. The dictionary defines discrimination similarly, “the unjust or prejudicial treatment of different categories of people or things especially on the grounds of race, age, religion, or sex.” CADA’s marital status designation conflicts with the Colorado Constitution which defines marriage as being between one man and one woman. CADA allows no exceptions to its statute and therefore, expects a business owner to forgo their Fundamental Religious Liberty and be compelled to uphold practices they do not believe. In this sense, CADA conflicts with the Religious Freedom and Restoration Act of 1993 (RFRA) which applies to all federal, state, and local laws. Masterpiece Cake Shop was merely practicing its ideals, which are the same ideals found in the Colorado Constitution and RFRA. Chief Justice Roberts said, “Congress had a reason for enacting RFRA, too” (Gonzales v. O Conto Espirita Beneficente Unioa do Vegetal, 2006). In today’s world of social justice and political correctness discrimination is a harsh label to apply to any one person or group. Being labeled as discriminatory is the same as being labeled as a bigot or racist by today’s standards even though that is not how the word is defined. Discrimination and labels that are associated to the word are often thrown around recklessly. To discriminate there must be a pattern and history of that behavior for definitive proof. Every instance of political correctness mistakenly places a label of discrimination, hate, bigotry, and racism on a person or group. For instance, someone referring to terrorism as “extreme Islamic terror” is labeled as an Islamaphobe bigot, racist, and hater of Muslims. Americans supporting actions against illegal immigrants are also considered bigots and racists. Americans supporting a temporary ban on immigration from Muslim countries are also all classified as haters by a vast number of our populous. Sure, some of the people supporting these measures may be true discriminators, but a vast majority are not. Most simply want to keep America safe from terrorism and see illegal immigration as a drain on our economy. We need definitive proof before we go around labeling someone as Hitler. This case is no different. The label of discrimination placed on the Masterpiece Cake Shop has devolved into other unfair labels and comparisons without any proof and without a history or pattern of any such behavior. Differing viewpoints, morals, or ethical standards does not necessarily constitute discrimination although it may violate what someone may perceive as being political correct. This case involves the conflict between two Fundamental Rights (Religious Liberty and Equal Protection), it is not a battle over discriminatory views. Maybe the word abridge can be used instead of discrimination. Abridge means to curtail rights or privileges, it does not mean to prohibit rights as discrimination implies.

Social justice to put an end to discrimination is a necessity. But social justice can also be an evil by wrongly asserting every act of political correctness constitutes some form of discrimination. It is just as discriminatory to force or compel someone to practice what they do not lawfully believe. Discrimination claims in this case cut both ways. The only reason this is a complicated case is due to the fact that unfair labels associated with discrimination can make religious liberty conflicts with social or civil liberties ugly and polarizing on the national level. It would be prudent to have a fair definition of discrimination (maybe abridge). A definition that would not label most of our populous as haters, bigots, and racists, but one that distinguishes between real political and legal debates over morals and ethical standards and true acts of discrimination. Since Roe v. Wade, this Court has had to deal with conflicting civil or social Fundamental Rights with natural or traditional enumerated Fundamental Rights. This trend will continue with the Obergefell v. Hodges decision. I believe the Court has a right to elevate Fundamental Rights through the Ninth or Fourteenth Amendments (although I believe the privilege and immunities clause makes more sense to elevate rights over the due process clause, but that would take overruling the Slaughter House cases). The problem in this case, and others like it, is when elevated rights, that are not overwhelming supported by the public, conflict with other enumerated or elevated rights. This issue needs to be addressed by the Court.

Social justice and political correctness confuses anything that may “offend”, “annoy”, or “hurt feelings” with discrimination. Ruling against Masterpiece Cake Shop will open a flood gate of frivolous lawsuits confusing every act of political correctness with discrimination. In Bray v. Alexandria Health Clinic (1993) the Court faced a similar situation. In that case the Court held that the Ku Klux Klan Act of 1871 could not be used against anti-abortion protestors. The Court rightly understood the difference between discrimination against free African-Americans and the dispute between differing moral and ethical views about abortion. The Masterpiece Cake Shop case is no different, it is dispute over differing morals and ethics and is not discrimination. To discriminate Masterpiece Cakes must show a consistent pattern of denying service to gay persons for ANY reason, not just for wedding cakes. Masterpiece Cake Shop would also deny service to a customer wanting to promote anti-American or any anti-religious activity. Would anyone disagree if Masterpiece Cake Shop denied service to a communist group wanting a cake showing the American Flag in flames? Would this also be considered discriminatory against one’s creed?

Would a gay cake shop owner be allowed to deny making a cake for Nazi Parade celebration? A Nazi parade, if peaceful and with a lawful permit, is a legal activity. Would anyone blame the gay or even straight bakery owners for turning away that type of business? It is bad business to have your product associated with controversial groups that would yield bad publicity. But if CADA wants to treat all citizens equally, then the creed of White Supremacist should not be discriminated against either, right? Would a black baker be discriminating to deny making a Confederate Flag cake for a White Supremacist group? Would an Islamic baker be compelled to make a cake for a church group who wants to depict Allah in a bad manner? Would an Atheist cake maker discriminate by refusing to make a Ten Commandants Cake? Maybe not, based on how the CADA commission has ruled on some prior cases. Three Denver Cake bakers were found not guilty of violating creed discrimination of CADA for declining to bake a Christian Cake in opposition to same sex marriage. Social justice and political correctness hysteria in America has declared poor grades discriminate against the intellectually challenged; bad credit discriminates against the poor and unwise spender; and criminal laws discriminate against criminals. It seems everything discriminates.

Obergefell v. Hodges (2015) was a decision that went against the beliefs of a vast number of religious followers from many different religions. This is true for a number of reasons. First, the law changed the traditional definition of marriage found in the Bible that marriage is between a man and a woman. It is always hard to accept when something people believe in with strong conviction is altered. Secondly, Obergefell was not a case about love, but one about government entitlements attached to marriage. For religious follower’s marriage does not discriminate, instead it is the government entitlements attached to marriage are what discriminates. Would gay people still want to be married if government entitlements were not attached to marriage? This question was not answered satisfactorily to religious followers in Obergefell. Marriage is about love, and not about tax breaks. Marriages based on financial tax breaks will not last the test of time. Without love, marriages will eventually end in divorce. Finally, religious followers see Obergefell as a symbol of the Court using social justice and political correctness to justify its decision, not the law. For these reasons, one can understand why Masterpiece Cake Shop is protesting the elevated Fundamental Right of gay marriage.

In Roemer v. Evans, the Court held a Colorado referendum denying the gay community preferential treatment was unconstitutional. If this Court finds that someone who is offended or has hurt feelings deserves protection via social justice and political correctness, then the dissent in Roemer was correct. This would yield preferential treatment to one class of citizens at the expense of another class of citizens. Preferential treatment to protected classes of persons may have the unintended effect of discriminating against another group of unprotected classes.

Wednesday, August 9, 2017

The Most Underrated Chief Justice: Salmon Chase (Part II)

Although he would only serve 9 years as Chief Justice before his death, nearly every one of his decisions was the proper one. In United States v. Dewitt decided in 1869, Chase delivered the unanimous decision restricting the usage of the Commerce clause and the Necessary and Proper clause by denying restrictions on buying certain oil products because it would be beneficial for the government to collect and lay taxes. The Legal Tender cases were a huge part of the Chase legacy. In 1869, the case Hepburn v. Griswold, Chase delivered the majority opinion with a very narrow reading of the Necessary and Proper clause. Chase ruled that although the Federal Government has the enumerated power to “coin money”, that power did not imply that the Federal Government has the power to make “paper money”. Chase argued that in following Marshall’s opinion in McCulloch v. Maryland that using the Necessary and Proper clause would not be “consistent with the letter and spirit of the Constitution.” Since “the States are expressly prohibited by the Constitution from making anything but gold and silver coin a legal tender” Chase argues “This seems decisive on the point that the power to issue notes and the power to make them a legal tender are not the same power, and that they have no necessary connection with each other.” Also, Chase understood as being Secretary of the Treasury, that legal tenders (paper money) were not always redeemed at face value making Chase to proclaim “It is difficult to conceive what act would take private property without process of the law if such and act would not.” Just two years later, for the first time in history, the Court over turned Hepburn in Knox v. Lee. Chase would write in his diary “The consequences of the sanction this day given to irredeemable paper currency may not soon manifest themselves but are sure to come.” In Knox, Justice Strong wrote the majority opinion saying “It is incumbent, therefore, upon those affirm the unconstitutionality of an act of Congress to show clearly that it is a violation of the provisions of the Constitution.” In other words, Congress is Judge and Executioner of ALL laws with no oversight. Legislators need not have to find the words in the Constitution for them to have power of things outside its writings. Strong further argues the Amendments to the Constitution are “powers not enumerated, and not included incidentally in any one of those enumerated”, the amendments “are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers.” In other words, something may not have to be an incidental power of an enumerated power for it to be “necessary and proper”. Strong cites the National Bank as being convenient to lay and collect taxes, but the Court still found it “necessary and proper.” In Strong’s view for the legal tender act to be unconstitutional it would have to be both inappropriate and prohibited. Strong cites the Civil War as an emergency requiring Congress do what is “necessary and proper” to keep the war effort funded. Finally, Strong says “The degree of the necessity for any congressional enactment, or the relative degree of its appropriateness, if it have any appropriateness, is for consideration of Congress, not here.” In his dissent Chase rightly points out that if “the legislature is the sole judge of the necessity for the exercise of such powers, the government becomes practically absolute and unlimited.” Chase was right, by 1884 in Juilliard v. Greenman (after Chase’s death) the Court ruled that Congress can issue paper money for any reason, not just an emergency such as war stating any sovereign power has the power issue paper money. Note how Chase’s decisions do not allow for expansion of government whereas his comrades allow the government unlimited power to expand.

Chase’s two most important decisions were decided shortly before his death in 1873. Although he was too sick to write a dissenting viewpoint in the Slaughter House Cases or in Bradwell v. Illinois once again Chase sided against discrimination. In Bradwell, Chase was the only dissenter in the 8-1 decision that held a woman, Myra Bradwell, was not entitled work as a lawyer simply because she was a women and was therefore, inferior. In the Slaughter House cases, similarly a discriminatory statute placed all butchers in the City of New Orleans under a monopoly of one owner. In both cases, it was held that the privileges and immunities clause of the Fourteenth Amendment did not apply to the practice of a profession. In fact, these decisions practically wrote the clause out of the Amendment making it moot. These were the first Fourteenth Amendment cases. The privileges and immunities clause was there to not only protect blacks against racism but to apply all the Bill of Rights to the states to protect the liberties of all citizens. Chase would die a few weeks later. Chase stood up for blacks, women, and minorities at a time when it was not popular. Chase stood up against discriminatory laws and statutes. Chase stood up for the Constitution at a time when federal government was starting to grow in size and scope and the Court was allowing it. Four years following the death of Chase, the Chase Bank was named in his honor.

Sunday, August 6, 2017

The Most Underrated Chief Justice: Salmon Chase (Part I)

Salmon Chase is underrated both as a Chief Justice and as a citizen fighting for the abolishment of slavery. In 1837, at the age of 29, Chase defended a women named Matilda. Matilda was a runaway slave and her owner wanted her returned to bondage. Chase argued that the Fugitive Slave Act of 1793 was unconstitutional and beyond the enumerated powers of Congress. However, Article IV of the Constitution contains the “Fugitive Slave Clause” stating: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation thereof, be discharged from such service of labor; but shall be delivered up on claim of the party to whom such service may be due.” Chase astutely argues “Does this clause confer any power on government, or on any officer or department of government?” Clearly it does not, “The parties to agreement” in this clause “are the states.” Chase says that the government cannot claim the “necessary and proper” clause to carry out the Fugitive Slave Act because that power is not enumerated in the grants of power given to Congress. Hence, Chase says such power is delegated to the states through the Tenth Amendment. Another clause in Article IV of the Constitution says “Full faith and credit shall be given, in each state, to the public acts, records, and judicial proceeding of every other state.” Chase argues that this clause is similar to the Fugitive Slave clause because it also confers no power to the federal government. Why would the founders confer legislative power in one clause of Article IV but not the other? Of course, Chase also argues to free Matilda in the “name of justice, of liberty, and of our common humanity.” Chase lost his case and Matilda was returned to bondage.

In 1842, the Supreme Court upheld the legality of the Fugitive Slave Act in Prigg v. Pennsylvania. Even though the Constitution does not refer to “slaves” the majority in Prigg states that the clause in Article IV is about “slaveholding”. Therefore, the Court ruled that Congress has “exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby” to uphold the Act. Of course, in 1857, the Taney Court held in Dred Scott v. Sanford that slave owners could not be deprived of “property (slaves)” without due process of the law. When Chief Justice Roger Taney died in 1864, Abraham Lincoln replaced him with Salmon Chase.

Before becoming Chief Justice, Chase contended that Congress had the power to abolish slaver in the District of Columbia and any U.S. territories. When Chase was unable to make headway into abolishing slavery as lawyer he turned his focus to politics. Chase was instrumental in the formation of the anti-slavery Republican Party. The Republican Party platform in 1856 and 1860 adopted Chase’s views on slavery. Chase was elected governor of Ohio in 1855 and lost the 1860 Republican presidential nomination to Abraham Lincoln. Lincoln would appoint Chase as the Secretary of the Treasury from 1861 to 1864, a position he would hold until being named Chief Justice. Secretary of the Treasury was a tough job during the Civil War but first on his agenda was to hire thousands of women and blacks to serve in the department.

Wednesday, August 2, 2017

The Warren Court: Rightly Decided, but Wrong Rationale

The Warren Court is in many ways an enigma. You have to applaud them for overturning Plessy v. Ferguson in Brown v. School Board which finally ending the “separate but equal” discriminatory practices. This was accomplished using the Fourteenth Amendment’s equal protection clause. However, two cases a decade later, in 1964, the Courts rationale can leave one scratching their head wondering what was the Court thinking. In Heart of Atlanta Motel v. United States and Katzenbach v. McClung the Warren Court rightly upheld the Civil Rights Act of 1964, but did so in a very peculiar fashion. Their decision was consistent with Brown in ending discriminatory practices in the South, but they used the “commerce clause” to reach their verdict instead of applying the Fourteenth Amendment.

The clause in question of the 1964 Civil Rights Act reads: “All persons, shall be entitled to the full and equal enjoyment of the good, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the grounds of race, color, religion, or national origin”. Those facilities include inns, hotels, motels, restaurants, cafeteria, and movie theatres. Congress passed the Act by insinuating discrimination in any of the above mentioned facilities “affects commerce”. That is a reach at best since commerce means the trading of commodities. The Atlanta Motel case applied to lodging and the Katzenbach case applied to restaurants since both refused to serve African-Americans. It is worth noting a similar clause in the 1875 Civil Rights Act was deemed unconstitutional in 1883.

In Atlanta Motel, Justice Clark says “the conditions of transportation and commerce have change dramatically, and we must apply those principles to the present state of commerce”. This is just another way of saying the Court is about to expand the Federal Government’s power. After all, people travelled between states all the time when the Constitution was drafted and at no point was that considered commerce. However, up to the date of this decision the commerce clause had been held constitutional to regulate: gambling (Lottery Case, 1903), insurance (Underwriters case), individual crop control (Wickard v. Filburn, 1942), regulate labor unions (Labor Board v. Jones and Laughlin Steel, 1937), and economic activity including wages and hours (United States v. Darby, 1941). The Court decided that since Congress had a “rational basis” to end discrimination using the commerce clause it was an “appropriate” law. Clark correctly points out “Congress could have pursued other methods” to end racial discrimination (Fourteenth Amendment). Both Justices Douglas and Goldberg concurred with the decision but also correctly add that the Court could have made its decision to end discrimination in both cases via the fifth clause of the Fourteenth Amendment which says: “The Congress shall have power to enforce, by appropriate legislation, the provisions in this article.” The first clause of the Fourteenth Amendment saying everyone has a constitutional right “to be treated as equal members of the community with respect to public accommodations” would be provision enforced by the fifth clause.

In Katzenback, Clark says interstate commerce includes the “movement of persons, goods or information from one state to another.” Clark also contends that Congress has the power to regulate “intrastate activities”. Clark would go on to cite the most controversial commerce clause case, Wickard v. Filburn: Congress has the power to regulate any “substantial economic effect” on interstate commerce. This vague and ambiguous statement has never been clearly defined as to what constitutes “substantial”. The Court merely has to decide whether a Federal law is “rational” to deem it constitutional. Hence, the Court concludes that the law “had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of commerce”. “The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this court” to uphold these laws.

So instead of properly applying the Fourteenth Amendment for its intended purpose: to stop discrimination; the Warren Court decided to further expand the powers of Congress by redefining the commerce clause. What can’t Congress regulate if they have the power to control local businesses for whatever reason they may see fit? Notice the interstate commerce clause has gone from meaning regulating trade among the states to controlling all aspects of economic activity well beyond trade. The Court had other options to decide this case such as reinstating the “privileges and immunities” clause in the Fourteenth Amendment. The Court could have decided that the “liberty” of American citizens was being violated or restricted. However, instead of giving more power and sovereignty back to the people, the Court decided to yield more power to the Federal government.