Posts Tagged ‘Supreme Court’


Skeptics or logicians reading the title of this post may recognize an inherent logical fallacy, the tu quoque (literally, “you, too”). This is an informal fallacy which means that the logic is flawed, but that doesn’t mean the conclusion reached is flawed.

Many on the far right wing over the past several months have pointed to the fact that both Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan have presided over same-sex marriage ceremonies. Therefore, the thinking goes, they have pre-judged any same-sex marriage case that would go before the Supreme Court and therefore they should recuse themselves. I wrote about this once before back in 2013. Since I wrote about it before, I’ve generally ignored follow-up WND posts on it.

But, I decided to knock out an easy one today and let you know that it’s still A Thing over at WND, such as this latest story by Bob Unruh quoting the vehemently anti-gay Brian Brown of the National Organization for (straight-only, two-people-only, God-fearing-only) Marriage (NOM) (who also has a WND column): “Calls for Ginsburg to Drop Out of Marriage Case Escalate.”

The issue of judicial recusal is a tricky one. I don’t understand all of the details, but I do know that it is often very much up to the jurist to decide their own conflict of interest and make that determination themselves. I also know that it has long been held that a jurist’s makeup (such as gender, race, sexual orientation, political affiliation) is not grounds for recusal.

Public statements specific to the case? Perhaps. I’m not sure. In which case Ginsburg – who stated this week that people need to get over it, same-sex marriage is going to happen (that’s me paraphrasing) – might be considered as someone who should recuse herself.

That said, if she does, then Clarence Thomas and Antonin Scalia also must recuse themselves. Interesting that I don’t see WND or anyone else on the right pointing this out.

Why do I say this? Because of the tu quote or, “what’s good for the goose is good for the gander.” While Kagan and Ginsburg have both made their general personal position on marriage equality fairly clear, so have Scalia and Thomas. Thomas has been a bit more cagey in his remarks, but as a strict textualist and very much a person seeking to limit the federal government, his opinions have pretty much always sided with restricting individual rights when those are rights not explicitly enumerated in the Constitution. And, he’s seen as one of the most conservative members of the Court and voted against the majority opinion in the decision to strike down anti-sodomy laws. As for Scalia, he has been very outspoken against same-sex marriage and made his opinions on the issue very clear. He has been the primary dissenter in any legalization or striking down of anti-legalization of pro-homosexual issues, including the anti-sodomy laws and DOMA. In addition to that, both Scalia and Thomas frequently associate with vehemently anti-gay groups.

Do I actually think any of these four will recuse themselves? No. But if you call for one side to do so, you must call for the other. But, WND and its ilk want to stack the deck and know that the ruling this year is likely to be a 5/4 decision, but if both Kagan and Ginsburg recuse themselves, then the Court will uphold marriage equality bans.

Surprisingly, at the moment, the top-rated of the 147 comments on the 18-hrs-old WND story is by “BobSF_94117” and he points this out: “Scalia goes around the country offering his opinion on SSM and, far worse, his legal opinion of it.” You have to scroll through many, many other comments (when ranked form “Best” on down) to find one expressing similar ideas.

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Well, perhaps not “dazed,” but certainly very split in their opinion. This was one of those stories, just a few hours old as I’m posting it, that I clicked on just to see how people would react: “Supremes Rule for Bearded Muslim Inmate.” The rule was in place in Arkansas and 9 other states based on the idea of easy inmate recognition amongst guards and ability of inmates to hide contraband in their beards.

On the one hand, the Supreme Court of the United States (SCOTUS) ruled 9 to 0 that a prison in Arkansas (and among all Arkansas state prisons) that prohibited inmates from growing facial hair could not prohibit that. The Muslim inmate, Gregory Holt, wanted to grow it as part of his religious observance.

But on the other hand … he’s a Muslim!! And that’s enough for WND commenters to just hate it. Well, that and he’s a prisoner (“TruBluAmerican” wrote: “You’re in prison you pig, you have no rights beyond 3 squares and a roof over your head, which is MORE than a lot of law abiding people have!”)

And so, on the one hand, you have “kingdad” who wrote:

Be Glad that they chose to uphold Religious Liberty as their are more and bigger Religious liberty cases coming down the pike. Important cases compared to this minor case of insignificance. All the other states have rules that permit State Prison inmates to grow beards esp. if it is a part of their Religious beliefs. Other religions have beards that are also mandatory, some Jews, the Sikhs for example.

But you have a reply by “Elena” who wrote: “You think the SCOTUS will come to the rescue of the former Atlanta Fire Chief? Keep dreaming. Only non-Christians are protected.” (This is in reference to an Atlanta fire chief who was fired by the mayor because of his virulently anti-gay statements.) A view echoed by “SATCitizen” who wrote: “OK Supreme Court. . .now you better remember this ruling when it comes to CHRISTIANS’ beliefs and the violation of.”

Or, you have “freedom defender” who wrote: “The rules on beards is rediculous to say the least. But once again, these liberal judges side with the muslim. This country has gone to hell in a hand basket, to use an old term.”

It’s interesting, sometimes, to see how cognitive dissonance plays out with this sort of thing.


“Corporations are people, my friend.”  –former Presidential nominee, Mitt Romney

The Roberts Supreme Court may be known for many things when looking back on it in a century, but I expect that one of them will be taking broad steps to give the same rights to corporations that are enjoyed by individuals. Yesterday (Monday, June 30), the Supreme Court of the United States issued a ruling that many of us more progressive folks, and almost certainly non-religious folks, had been watching closely, and dreaded: In Burwell et al. v. Hobby Lobby Stores, Inc. et al., SCOTUS in a 5-4 decision ruled for Hobby Lobby.

At issue, to the layperson like myself, was whether the federal government could force a publicly owned corporation to provide a service to its employees just as all other corporations, but against this corporation’s religious beliefs. SCOTUS ruled “no.”

I opened over two dozen stories about this yesterday and today, and it’s actually not quite as bad as I thought. The “real” issue, or at least the legal justification of this much narrower decision than it could have been, is that the mandate to provide contraception as part of the health care plan offered to employees actually conflicts with a 1993 religious freedom law (“Religious Freedom Restoration Act”):

The legislation said that “governments should not substantially burden religious exercise without compelling justification.” It went on to say that the measure’s purpose was “to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” –NY Times

SCOTUS decided that requiring Hobby Lobby to provide contraception under the 2010 Affordable Care Act, against those in charge’s religious feelings, violated the 1993 Religious Freedom Restoration Act. They did not issue a blanket ruling saying that the ACA was unconstitutional, that the 1993 law is constitutional, or anything like that.

Which means that there are two very clear ways around this. First, the government could subsidize birth control for women who do not have it covered by their employer. Second, Congress could repeal the 1993 Act. I think that the former via Executive Order is much more likely to happen in this political environment than the latter. Though they may be trying for the latter at the moment.

So now that you’ve suffered through my legal opinions, let’s go for some linky-dinks (the “dinks” because we’re talking WND here):

You can get a good idea from the headlines where they’re headed with this, and among the hundreds of comments (435 alone on Bob’s), most are quite pleased.

Most liberals are not. There are many implications, and perhaps the most scathing dissent from the majority was by Justice Ruth Bader Ginsburg. But before I get to that, the LGBT community is particularly worried about the implications.

Top-rated comment by “GeorgiaPeachie” on Bob Unruh’s article tells you why: “WOOHOO!!! This ruling can be used by Christians when sued by HOMOSEXUALS. The Wedding Cake, Wedding Photography and others related small businesses now have a ruling in their favor!!! HAPPY HAPPY HAPPY DAY!!!”

Yeah … now, I’m no “law-talkin’ guy” (lawyer), but it seems to me that if the justification for the mandate being illegal (not unconstitutional) is that employers can impose their religious beliefs on the kinds of services offered their employees, then what’s to stop a Christian-bent company owner from refusing to honor the marriage (and therefore spousal plans for health insurance) to a same-sex couple that is legally married in that state? Or innumerable other things. RightWing Watch has already pointed to many of the leaders of the anti-gay movement saying as much.

With that taste in mind, here are several other articles that have a more liberal feeling on the ruling, generally in temporal order from when I found them:

There are many things in these other writings that I like, and I’m going to quote several of them. From Hemant (first link):

Congratulations, conservative Christian business owners. You win. You can finally legally discriminate against women by denying them access to certain kinds of birth control normally available through their insurance.

Just remember this, Green family: While you’re reveling in victory, millions of young people are fully aware of what you’re really celebrating. It’s not about “religious liberty” because your rights were never up for debate. We know you’re happy because, once again, Christianity has been used as a weapon of discrimination. Enjoy your Supreme Court victory while it lasts because, in exchange, you’re about to lose even more of your social power.

This is just a continuation of all those other times you used your power to make others’ lives worse. Every time you stood in the way of marriage equality, more people left their churches, vowing never to return. For years now, we’ve known that the reputation of Christians is that they’re anti-science, anti-gay, and anti-women. You’ve only solidified those stereotypes and churches will pay for that as they lose members fed up with being associated with an organization that takes joy in denying others freedom and happiness.

The Center for Inquiry:

“This is not a decision that advances religious freedom — it is a decision that enshrines religious privilege over and above employee well-being,” added Lindsay. “This decision defies common sense, lacks compassion, and has the potential to harm us all.”

From RightWing Watch:

Writing for the majority in the Hobby Lobby case, Justice Alito emphasized [PDF] that the ruling, which partly overturned the Obama administration’s rules on birth control coverage, does not apply to other cases involving religious objections to government regulations.

… While Alito stresses that only closely-held corporations are involved in this case, what about a company board dominated by Jehovah’s Witnesses, Christian Scientists, or evangelicals like David Barton who believe “that the Bible opposes the minimum wage, unions and collective bargaining, estate taxes, capital gains taxes, and progressive taxation in general”?

With Congress currently debating the Employment Non-Discrimination Act, what if Hobby Lobby’s owners cited their religion as a reason to discriminate against LGBT employees? Or refuse to cover HIV/AIDS treatments?

The Washington Post, who showed a lot of different poll results:

It suggests that Americans’ opinions on the topic are quite malleable and — by extension — pretty soft. If Americans can offer such different responses based on just a few words being changed in the question, they probably don’t feel all that strongly about the issue or haven’t really paid attention.

That doesn’t mean that there aren’t people who feel very strongly. It just means they they are probably in the minority.

Which means today’s Supreme Court ruling is probably a lot more about precedent and legal wrangling than about the 2014 election.

The Washington Post’s Q&A article:

Does this mean I will no longer get free birth control through my company insurance plan?

It probably does not mean that — unless you work for Hobby Lobby or Conestoga Wood Specialties, or one of the more than 40 other companies that have filed similar complaints. Other companies might jump on the bandwagon, but a deluge is unlikely.

For one thing, the justices were specific that a company dropping this coverage had to be motivated by sincerely held religious convictions. Most companies, even if their owners are religious, are secular in their day-to-day operations.

Also, even before the law, most employers covered contraception, suggesting they do not have to be compelled to offer the benefit.

George Takei:

“In this case, the owners happen to be deeply Christian; one wonders whether the case would have come out differently if a Muslim-run chain business attempted to impose Sharia law on its employees. As many have pointed out, Hobby Lobby is the same company that invests in Pfizer and Teva Pharmaceuticals, makers of abortion inducing-drugs and the morning after pill. It also buys most of its inventory from China, where forced abortions are common. The hypocrisy is galling.

“Hobby Lobby is not a church. It’s a business — and a big one at that. Businesses must and should be required to comply with neutrally crafted laws of general applicability. Your boss should not have a say over your healthcare. Once the law starts permitting exceptions based on ‘sincerely held religious beliefs’ there’s no end to the mischief and discrimination that will ensue. Indeed, this is the same logic that certain restaurants and hotels have been trying to deploy to allow proprietors to refuse service to gay couples.”

Finally, from Justice Ginsburg’s dissent (copied from TFA):

Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.

… The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.

… the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contraceptives.

… Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? According to counsel for Hobby Lobby, “each one of these cases… would have to be evaluated on its own… apply[ing] the compelling interest-least restrictive alternative test.”… Not much help there for the lower courts bound by today’s decision.


The Supreme Court (of the United States) handed down several rulings last week, many of them truly significant in their reach. These included limits and capabilities of what the EPA can regulate, limits on Executive Orders, limits on Recess Appointments, a unanimous decision for civil liberties in that police now need a warrant to search the contents of your cell phone (which SCOTUS pointed out was now a “mini computer” with your life stored on it), and they eliminated the buffer around abortion clinics on First Amendment grounds (another unanimous decision, and one that I’m less happy with).

World Net Daily was ecstatic about the last one, posting no fewer than four stories about it. My view is perhaps best characterized by their snippet from The Guardian, which they included under their “Out of Left Field” section: “Supremes’ Ruling Protects Gauntlet of Horror.” Basically, a woman is going to have an abortion, making a very difficult decision, and she is harassed in the last few feet trying to get in the doors of the clinic. Harassed by people showing photos of bloody infant corpses, saying she’ll burn in hell, being screamed at through a megaphone, etc. What many states (16, I think, including Massachusetts which was the subject of the SCOTUS decision) have tried to do – to strike a balance between right to free speech and right to access to the abortion clinic – is to establish a buffer zone. You can scream and rant outside that zone, but those last few feet are off-limits. So at least you can get to the door without needing to fight through people.

Now, SCOTUS has ruled that buffer zone unconstitutional. Though I don’t think the decision invalidates the “bubble zones” that they upheld as constitutional, that are 8 ft from the clinic’s door. Personally, I don’t see how 35 ft is that much different from 8 ft — you can still see all the signs, hear all the protests, etc. It seems like more of a free-access and anti-violence thing to me, which was the whole point of the Massachusetts law (enacted in the wake of violence at a Boston clinic).

WND did a three-paragraph snippet from NBC News when it first came out (“Supremes Hand Huge Victory to Pro-Lifers”), and then Bob Unruh published his column on it (“Pro-Life Forces Consider Next Step in Free-Speech Fight”), and later in the day, Greg Corombos did his (“‘Huge’ Supreme Court Ruling ‘Boggles the Mind'”).

Sigh.

Interestingly, Unruh’s column only has nine comments, which is very surprising to me. His stuff about The Gay typically gets 20 times that. Corombos’ column got many more comments, with 164 when I wrote this post. I’m not going to get into the comments, they are what you would expect from WND.

What I’ll end with is what some of the more liberal bloggers (and Rachael Maddow) have somewhat ironically pointed out: SCOTUS’ hypocricy in this issue. The Supreme Court itself forbids all protests on the plaza to their building, roughly 252 feet wide. To quote Boston Magazine:

The court’s rules about protests on their grounds don’t apply to the sidewalks surrounding the building, but those areas are roughly 252 feet from the court’s doors. The buffer zone separating the plaza from the sidewalks is meant to keep the area clean and safe, and maintain “suitable order and decorum” on the property, according to the regulations.


On March 7, World Net Daily became one of many conservative outlets to lament that a New Mexico couple, who had stated they would not photograph a lesbian couple’s commitment ceremony because it violated their religious beliefs, had lost their appeal to the Supreme Court of the United States. SCOTUS wouldn’t take their appeal after they had lost at every level in the court system. So, Elaine and Jonathan Huguenin, and their lawyer Jordan Lorence of the Alliance Defending Freedom, are SOL. WND’s Greg Corombos wrote the article, “Supremes ‘Serious’ About ‘Gay’ Suits vs. Christians.”

As usual, missing the point. The point is that states have public accommodation laws. If you open your business to the public, you must abide by them. The states include in those laws non-discrimination rules, such as against gender, nationality, or religion. Over half the states also include sexual orientation, including New Mexico. So, since this was clearly a refusal of service based on sexual orientation, they were violating the law by refusing service.

Whether or not those laws are Constitutional in light of the First Amendment I think remains to be seen / tested, though this rejection by SCOTUS would seem to indicate they think the laws are okay. And, as usual, I must ask the question if we’d even be talking about this if Elaine Photography had refused an interracial couple.

The reason I’m writing about this on the blog is that it has garnered 1421 comments. And, for the first time ever that I’ve seen, WND’s comment moderators actually wrote in someone’s comment.

The comment is by “moms4patriots,” and she wrote:

I saw one suggestion on another thread that I thought was brilliant. It may have some hidden flaws that I haven’t thought through yet, but at frist glance I don’t see any. These religious buisness owners could say to the same sex couple, “Look, the courts have ruled that I must serve you even if it violates my conscience, so I will do the job (whatever it happens to be) for you. However, because it does violate my conscience, I will not be able to keep any of the money that you pay me. Therefore I have decided to donate the profits from this job to the Family Research Council to fight for traditional marriage at the national level. If you still want me to photograph your wedding knowing this, then I will do the job for you, to the best of my ability.”

It got 52 up-votes. The moderators appended this to her comment: “Exceptionally rare Moderator’s note: We all agree this is brilliant! One thought: Make sure you tell the unhappy “couple” that you’ll be making the donation in their name.”

So, this is where I depart from perhaps my more liberal compatriots. Do I think people should be able to discriminate? No. You get into the slippery slope of letting them discriminate for “non-essential” services (wedding photography?) but not for “essential” services (hospital care?) but then needing to legally define whether every single service out there is essential or non-essential. It is much easier to just blankly say that public accommodations of any type can’t discriminate.

That said, I kinda like “moms4patriots”‘s suggestion. The reason is that I don’t understand why, if you know someone is only giving you a service like this (such as wedding photography, or baking a cake) because they legally must, and there are dozens of other businesses out there that provide the exact same service that don’t hate you because they think their invisible sky fairy says they should, why go to them? Go somewhere else.

I recognize that’s not always a possibility, especially in smaller towns and rural areas. But, for many of us, it is. Let bigots be bigots. Leave bad ratings for them on websites like Yelp, and tell your friends and rant about it on Facebook. But if the baker down the street does just as good a job and is flying a rainbow flag, why insist on the baker with the Jesus fish making your anniversary cake?


The article is pretty basic — a simple excerpt from a FOX “news” source entitled, “Supreme Court Blocks Abortion Ban.” The US Supreme Court simply let stand a 9th U.S. Circuit Court of Appeals decision that determined an Arizona law that banned most abortions after 20 weeks of pregnancy was unconstitutional.

For those who don’t remember, or who aren’t in the US and don’t know about how our government works, we have three branches: Executive (President), Legislative (Congress), and Judicial (Supreme Court). This structure is duplicated in pretty much all jurisdictions at all levels across the United States.

The basic roles are that the executive runs things, implementing the laws; legislative passes laws that set rules for how things should be run; and judicial ensures that both the executive and legislative follow the laws, especially within the context of the Constitution. It’s called “checks and balances” where each branch both supports and keeps the other branches in check (such as the executive nominates people for judicial, but legislative has to approve those nominations, and can impeach them once on the bench, but once in, the judicial branch can throw out stuff the executive has tried to do or is doing and stuff the legislative has done).

Make sense? Sure … in a very fast top-of-my-head way.

That basic civics lesson, however, was apparently lost on some WND commenters on this article. “MarvLS1” with 11 up and 1 down-vote (the highest-rated) wrote, “How can they legitimately refuse to hear the appeal?”

In response, “gertd” with 6 up and 3 down tried to inform him/her: “If they feel the issue has been addressed already and the law is clear, they will not re-open the matter.” Yup. If you agree with the lower court ruling, you don’t have to revisit the issue.

But, “MarvLS1” didn’t like the response, and with 8 up and 1 down vote, wrote: “In other words, judicial rule by fiat is the law of the land. No wonder this country is in decline.”

Um, no. The SCOTUS (Supreme Court of the United States) doesn’t have to hear an appeal. They exist to protect the rights of the people and keep Congress and the President (and governors and state legislators, etc.) in check. And if they act contrary to the Constitution, then Congress can impeach them. It seems only to be “judicial rule by fiat” when a ruling goes against what you want it to.

That’s all … it’s really not worth getting into the completely ignorant comments by others, like “dude911” who seems to think that all pregnancy is a choice (“Face it, if you didn’t want to get pregnant, you should have made that choice.” or “Women have a choice. But when they act, and become pregnant, that choice has already been made, the consequences being the creation of life. After that, a womans right is forfeit to the child, whom she owes a duty to protect.”)


A logical fallacy is a logical flaw in someone’s argument. As in, the argument is not based on on facts/data or sound reasoning, but on something that is a known flaw. For example, if I say “ghosts are real because lots of people believe they are real,” hopefully regardless of whether YOU think ghosts are real, you can spot the flaw in this argument: I’ve provided no real evidence they are real, just an opinion of many people. This is known as the “argument from popularity” or, to use the Latin, “argumentum ad populum.”

It should also be stated in this discussion preface that just because one makes a logical fallacy does not mean their argument is wrong. To say so would be the “fallacy fallacy.” But, it does mean that the person making the argument should re-state it without committing whatever fallacy they did. (Many of these are actually sub-types of the “non sequitur” fallacy, meaning “it does not follow.”)

Such is the case that Jerry Newcombe makes in his WND article, posted yesterday, entitled, “The Non-Jesus Religion.” Jerry writes about the case before the Supreme Court now, Galloway v. City of Greece (which is not in Greece, but rather near Rochester, NY). The city opened council meetings with very strong, very Christian prayers. The American Civil Liberties Union (ACLU) is suing, and it has made its way to the Supreme Court because different circuit courts have issued different rulings.

In his article, Mr. Newcombe commits at least three logical fallacies that I noticed. The first two, and most obvious, are the argument from antiquity and argument from authority. He spends the majority of his article talking about how the Founding Fathers (an authority figure, hence the argument from authority) would often open legislative sessions with prayers. He also noted that this practice has been going on for hundreds of years (hence the argument from antiquity, meaning that you’re making the case for something just ’cause it’s been done that way for a long time).

The third logical fallacy is a straw man. This is an argument where you misrepresent (deliberately or by mistake) your opponent’s argument and then argue against that. The straw man argument that you argue against is usually a weaker one than was actually made. In this case, David Gibbs III of the National Center for Life and Liberty is the lawyer (or a lawyer) who is arguing this case against the ACLU. To quote from Mr. Newcombe’s article: “David told me, “What the ACLU is arguing is that praying in Jesus’ name is establishing a religion. The reality is that their goal is to establish a non-Jesus religion.” David noted the ACLU is advancing cases only against anybody praying in Jesus’ name, not in any other tradition.”

That’s a straw man. Their goal is not to establish a non-Jesus religion. It just so happens that it’s the Christians who are the majority in this country so nearly every single example of legislative session opening prayers is done by Christians (or “a Jesus religion,” anyway). Most counter-examples only exist because they were originally Jesus-only, but the town was sued and told they had to either let any religion do it or stop ’em all together.

The reason that David’s argument is weaker than the ACLU’s is because the First Amendment prohibits government establishment of religion. If the ACLU were arguing that Jesus should be out in favor of non-Jesus religions, then clearly that’s just as bad as Jesus-only. And (I would argue) unconstitutional. It’s harder to argue the constitutionality of public money being spent to hire chaplains for prayers, or, at the very least, to pay public officials out of public money to waste their time listening to those prayers.

Not that either of the two commenters pointed these logical fallacies out. And the three ratings are all 5/5.