You Say Tomato; The Court Says No Dealio!

A few years back, Carol Bond decided to literally burn her husband’s lover, a woman who had figuratively burned her. Besides carrying on (or as a direct consequence of) an affair with Mr. Bond, the lover carried Mr. Bond’s child. To balance the scales of justice, Carol Bond used a concoction of potassium dichromate and 10-chloro-10H-phenoxarsine to paint door nobs, mail boxes, and sundry other objects the lover might touch. Lover girl suffered a thumb burn as a result. Mrs. Bond? Well, her troubles had just begun.

Federal prosecutors charged Bond with two counts of mail theft and, surprisingly, two counts of possessing and using a chemical weapon, in violation of section 229(a) of the Chemical Weapons Convention Implementation Act, a law Congress enacted pursuant to a chemical weapons treaty. Bond was convicted on all counts but appealed her conviction under the Chemical Weapons law–all the way to the Supreme Court, as they say. Twice. Today the Court overturned her conviction, saying

In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.

Unfortunately, the Court did not see fit to use this opportunity to rein in Congress’s power, something on which Justice Scalia had a few things to say in his concurring opinion, the gist of which you can get by reading his opening salvo (citations omitted):

Somewhere in Norristown, Pennsylvania, a husband’s paramour suffered a minor thumb burn at the hands of a betrayed wife. The United States Congress—“every where extending the sphere of its activity, and drawing a ll power into its impetuous vortex”—has made a federal case out of it. What are we to do?

It is the responsibility of “the legislature, not the Court, . . . to define a crime, and ordain its punishment.” And it is “emphatically the province and duty of the judicial department to say what the law [including the Constitution] is.” Today, the Court shirks its job and pe forms Congress’s. As sweeping and unsettling as the Chemical Weapons Convention Implementation Act of 1998 may be, it is clear beyond doubt that it covers what Bond did; and we have no authority to amend it . So we are forced to decide—there is no way around it—whether the Act’s application to what Bond did was constitutional.

Of course, Scalia (and Thomas and Alito) would have ruled the law unconstitutional. Justice Roberts, writing for the majority thought otherwise–he seems to be re-writing a lot of laws for Congress these days. And so, Congress, expansive power at the ready, lives to ride another day.

Court or Steamroller? When Rights Conflict

I don’t care which side you are (were) on in the recent outcry over Arizona’s SB1062, but I assume you are interested in the facts of what the bill did and did not do. From what I’ve read, the bill was badly misrepresented. And in the process, its proponents were labeled haters and homophobes, while Jon Stewart called the bill repugnant–even though SB1062 did not even mention same-sex marriage or homosexuality and even though it essentially copied laws that are already on the federal books and on the books of 18 states.

In fact, the proposed law would have come into play if, say, the government attempted to force a small business to provide birth control. It would have applied to a government’s attempt to compel a business to pay for abortion services for its employees. If you can think of a case where the government–state or federal–might impose a burden on someone’s sincere religious belief, the proposed law would apply. Yes, it could have come into play had a baker refused to bake a cake for a same-sex wedding.

But the bill WOULD NOT have decided the case. The bakery would still have to pass GO. The owner would still have to demonstrate that he or she was acting out of a sincere religious belief. The same-sex couple would still be able to argue that the baker’s belief was less than sincere and did not justify refusing them service. And a court would ultimately have to decide between the two parties—based on the rules set out in the proposed law. In other words, the bill did not create an exception, so religious people could discriminate willy nilly. It simply sets the standards by which a court would adjudicate such a case.

Don’t believe me? Here, for your reading pleasure, is the best description of the proposed law I’ve read. It’s written by 11 prominent law professors, some of them Republicans, some Democrats; some of them support same-sex marriage, some don’t. Nine of them felt that Gov. Brewer should have signed the bill. Two were unsure. Among the 11 are Mary Ann Glendon of Harvard and Michael McConnell of Stanford, two of the brightest lights in the legal academy.

You can read what they wrote at the link–without any filtering by the press or Comedy Central or by me. The following are three key paragraphs:

SB1062 would amend the Arizona RFRA [Religious Freedom Restoration Act] to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger. (Emphasis supplied)

A few paragraphs later, the 11 law professors summarize the bill’s impact as follows:

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision. (Emphasis supplied)

Did you catch that? Those who are refused service by a business can still sue. Those who are sued can assert the defense of sincere religious practice. And the courts get to sort it out–just like they would have done prior to the bill becoming law. The only difference is that the evidentiary rules governing that courtroom exercise would be codified.

And that’s repugnant? My eye.

Cross posted to PartialPosts.com.

Were the Founders Shredders?

Four snowboarders are suing Alta Ski Resort in federal court for the right to destroy moguls and cut in lift lines. (Okay, I’m a skier.) Will this case turn on the standard of review the court uses or on whether the judge rides a snowboard? Should the plaintiffs win? Depends on who you ask.

The ban excludes a “particular class of individuals from use and enjoyment of public land based on irrational discrimination against snowboarders,” [attorney Jonathan Schofield] said.

It pits those who stand sideways on a single “snowboard” against those who stand forward on “skis,” creating hostility and divisiveness, according to the lawsuit filed in U.S. District Court.

Diane Harrington–a boarder and a skier–seems to agree:

“I think it should be figured out in the courts. I think it’s OK that Alta restricts use of the lift, but I don’t think it’s fair that they keep people off (U.S.) Forest Service property,” she said. “Our taxes pay for it equally. It’s almost like discrimination of sorts.”

Not so fast says Kevin Hurley:

“It’s the only place left. Give it to ’em. Snowboarders go anywhere else you want to go, but leave Alta for the skier. Where we live, we gotta deal with snowboarders, and we’d rather deal with skiers.”

Stay tuned.

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