Supreme Court gets around "establishment of religion" prohibition by allowing tax credits for religious tuition

By Michael J.W. Stickings

And so the right-wing Supreme Court continues to erode the First Amendment:

The Supreme Court on Monday let stand an Arizona program that aids religious schools, saying in a 5-to-4 decision that the plaintiffs had no standing to challenge it.

The program itself is novel and complicated, and allowing it to go forward may be of no particular moment. But by closing the courthouse door to some kinds of suits that claim violations of the First Amendment's ban on government establishment of religion, the court’s ruling in the case may be quite consequential.

Justice Elena Kagan, in her first dissent, said the majority had laid waste to the doctrine of "taxpayer standing," which allows suits from people who object to having tax money spent on religious matters. "The court's opinion," Justice Kagan wrote, "offers a road map -- more truly, just a one-step instruction -- to any government that wishes to insulate its financing of religious activity from legal challenge."

The decision divided the court along the usual ideological lines, with the three other more liberal members -- Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor -- joining the dissent.

The Arizona program gives taxpayers there a dollar-for-dollar state tax credit of up to $500 for donations to private "student tuition organizations." The organizations are permitted to limit the scholarships they offer to schools of a given religion, and many of them do.

The question comes down to whether a tax credit is essentially the same as a government expenditure -- in this case with respect to government financial support for religious institutions (if not for a specific religion). Justice Kennedy, writing for the conservative majority, said no, but I'm really not sure there's a substantive difference. As Justice Kagan wrote: "Taxpayers experience the same injury for standing purposes whether government subsidization of religion takes the form of a cash grant or a tax measure." And so what the Supreme Court is saying -- or, rather, its majority -- is that government subsidization of religion, through organizations that are not religion-neutral, is constitutional.

As BooMan notes, this is all "rather clever." Handing out tax credits instead of direct subsidies (which even this court might object to) is a way for conservatives, and for conservative states like Arizona, to circumvent the First Amendment's "establishment of religion" prohibition. It's theocracy through the back door, and, because "standing" was taken away from you, there isn't a damn thing you can do about it.

The chill in the air

By Carl 

Yesterday, the SCOTUS made one of the single biggest boneheaded decisions from a court full of them (Citizens United, anyone?): 

The Westboro Baptist church were sued for emotional distress by the family of Lance Corporal Matthew Snyder, after members of the church picketed his funeral with signs that read: "Thank God for Dead Soldiers" and "You're Going to Hell".

But the US Supreme Court ruled 8-1 against the family and said that the church was entitled to protest under the Constitution's First Amendment, the right to free speech. 

In those two paragraphs are all you need to know to understand the dire predicament the right to privacy is facing in the United States with the Roberts court. There can be no more private moment in a person's life than the moment at which the friends and family gather together to say goodbye, to mourn the loss of a human life.

Yes, free speech is important and should be encouraged at all times, but the right of an American to be free to be where he wants, to do what he wants (within the boundaries of the law) and to be left alone trumps the sole right to shout obscenities, 3 to 1.

This ruling has implications beyond that of some rude speech by evil people. Privacy and the right to it is on shaky legal ground in a strict constuctionist court. See, it's not in the original Constitution per se. Yes, freedom from undue search and seizure, and stuff like that, all point to a Constitutional basis for a right to privacy, but the right is not delineated in the document, and according to the children on the right who act like demented fifth grade crossing guards, it cannot possibly exist.

This means sodomy laws can and will be enforced. Abortion can and will be under dire assault nationwide. It means fifty separate lawsuits defining what consenting adults may or may not do behind closed doors (the case that brought about the implied right to privacy, Griswold v. Connecticut, was about the use of contraception... contraception!... by a married couple).

The Roberts court has opened the barn door on all the horses now, guaranteeing itself a long run as arbiter of America's moral code.

(Cross-posted to Simply Left Behind.)

Scalia says Constitution allows discrimination against women, gays

By Michael J.W. Stickings

As HuffPo's Amanda Terkel is reporting, right-wing Supreme Court Justice Antonin Scalia gave an interview recently during which he said that the Constitution does not prohibit discrimination against women and gays:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that.

Scalia went on to say that regardless of what is, or is not, in the Constitution, laws may be passed prohibiting such discrimination:

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

To a certain extent, Scalia is right. The Constitution obviously does not, and cannot possibly, address every single matter of public policy, and it is the responsibility of democratically-elected legislators and executives (the president, governors) to enact laws within the general framework established by the Constitution (along with individual state constitutions). 

But on this matter, Scalia is simply wrong. As Terkel writes:

For the record, the 14th Amendment's equal protection clause states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." That would seem to include protection against exactly the kind of discrimination to which Scalia referred.

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them."

In other words, while Scalia asserts that the Constitution doesn't currently require discrimination (it would if many Republicans had their way and an amendment prohibiting same-sex marriage were adopted) and that legislatures can prohibit discrimination, what he is saying, essentially, is that discrimination is up to "society," with no legal recourse whatsoever for those facing discrimination.

So if a legislature passed a law, say, barring homosexuals from government employment, that would be that. Or if a legislature passed a law, say, keeping women with children out of the workforce, that would also be that.

But, again, Scalia is simply wrong -- either that, or he knows better and is being disingenous. Indeed, based on his view here, why even have a Constitution at all?

As Tristero writes over at Digby's place:

I realize that this flies in the face of widely held conventional wisdom but I can't escape the conclusion that when it comes to understanding the founding documents of the United States, Scalia is a mediocre intellect. If that.

On the other hand, if we were to agree that this man really is as brilliant as everyone says, then that can only mean that Scalia is deliberately misreading these documents to make them say the very opposite of what Jefferson, et al, clearly wrote. Furthermore, it can only mean that a justice of the Supreme Court is, for reasons we can only guess at, consciously adopting a distinctly un-American, if not blatantly anti-American, bias both to his judicial philosophy and to his rulings. In other words, to believe that Scalia really is smart enough to understand the founding documents, and therefore deliberately misread them, is to believe that he is an activist, a reactionary, and a royalist openly seeking the destruction of this country.

I tend to believe that both are true. Scalia holds a limited, right-wing interpretation of the 14th Amendment, and of the Constitution generally, basically because he holds a right-wing, anti-American judicial philosophy and political bias. In a way, he is both brilliant (in a nefarious way) and mediocre at the same time.

Is this possible? Well, perhaps he is "brilliant" enough to distort the Constitution to suit his own partisan and ideological ends, while the intellectual limitations of right-wing ideology render his distortions "mediocre," at least in terms of the accuracy of Constitutional interpretation.

In this sense, he's a lot like Karl Rove and Bill Kristol, two very smart men who are wildly wrong about just about everything. Now, in all three cases, and even more so with respect to Rove and Kristol, I suspect that what drives them is partisan cynicism. Perhaps they all know better, more or less, or at least knew better, at some time, but I suspect that their right-wing delusions have blinded them to the very possibility of truth. The question is whether they actually know any better. Or at this point whether they are even capable of knowing any better.

Regardless, such delusion, however deep, should not be allowed to exonerate them, to rid them of all responsibility. Ultimately, they are fully responsible for their beliefs -- there's no false consciousness here.

And when it comes down to it, I'm on the side of brilliance over mediocrity. Which is to say, I tend to think they know what they're doing. In Scalia case, I tend to think he knows his interpretation (or misreading) of, say, the 14th Amendment is a limited, right-wing one, even if he wouldn't put it that way.

But, again, it's not clear whether he thinks he holds the right interpretation, one of multiple equally legitimate interpretations, or a distorted partisan interpretation. And so it's not clear whether he's being deliberately misleading or whether he's just plain wrong.

Who's to say what goes on inside such a brilliant mind? Then again, maybe that mind is so sick, so polluted, so twisted, so distorted, that he himself doesn't know what's going on, and what he's really all about.

Quote of the Day: Arlen Specter on Justices Roberts and Alito

By Michael J.W. Stickings

Ex-Republican Sen. Arlen Specter of Pennsylvania voted to confirm both John Roberts and Samuel Alito, but the outgoing Democrat, in his last speech on the Senate floor, rightly took aim at both:

The Supreme Court has been eating Congress' lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedent.

Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising -- thus effectively undermining the basic Democratic principle of the power of one person, one vote. Chief Justice Roberts promised to just call balls and strikes and then he moved the bases.

Specter was referring to the notorious Citizens United decision, a 5-4 ruling (with the conservatives, including Kennedy, with the swing vote, in the majority) that essentially opened to the door to unlimited corporate spending on election advertising. As Justice Stevens wrote in his dissent:

At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

In other words, the decision paves the way for the corporate takeover of American politics -- as if the system weren't already corporate enough.

Of course, Specter could not have known this when he voted for Roberts and Alito, but he knew full well that such right-wing judicial activism was likely. If nothing else, he should have known after Bush v. Gore that what drives conservative judges these days is not adherence to the letter of the Constitution, as they self-righteously claim, but adherence to a generally partisan right-wing agenda and to a view of the judiciary as a key instrument for enabling the implementation of that agenda.

Yes, Specter should have known this, and maybe he did, but at least he's saying the right things on the way out.