Religion: The NYT series on special exceptions given to religious institutions that many find go too far cited a Supreme Court ruling that struck down a special dispensation applied to the sale of religious literature. The sort of thing that should guard against not supplying basic oversight rules to day care centers or get tax breaks just because in some vague way your business is religious (e.g., a theme park). Or, not providing basic benefits to your employees, including if they suddenly find out they have breast cancer. The case has a useful footnote that hits to the core of the issue:
All of these cases, however, involve legislative exemptions that did not, or would not, impose substantial burdens on nonbeneficiaries while allowing others to act according to their religious beliefs, or that were designed to alleviate government intrusions that might significantly deter adherents of a particular faith from conduct protected by the Free Exercise Clause.
The line between establishment and free exercise commands is not always easy to draw, but this is a good basic rule. Thus, those who cannot work on Sunday because of religious reasons should not be denied unemployment benefits for not working on that day. This is an "exception" but it is a limited one that is tied to the free exercise of one's religious faith. A more controversial rule would make an exception for religious use of peyote. And, close to the line might be a law that gave special concern for local land use rules applied to religious institutions, including churches and the like. Some, like conservative leaning law professor Marci Hamilton believes the federal law involved is a step too far, but I am somewhat less clear, but the articles do suggest there is some cause for concern.
Voting: Meanwhile, a few voting rights articles. One concerns a federal lawsuit that targets voting discrimination ... against whites. And, it appears to be appropriate -- some local black power broker was involved. This is fairly unsurprising given the nature of ethnic/racial politics over the years, though it might appear a bit ridiculous on first blush. Also, an election blog has some good stuff of late, including underline the various concerns involved in ballot machinery reforms such as "security, transparency, and equality."
Likewise, it cites a report that suggests in-person voting fraud -- concerns that lead to id laws notwithstanding -- is rather rare. If anything, absentee ballots -- suspiciously not equally dealt with by such laws especially since it is less problematic as to black voters -- is where problems might arise. For rather logical reasons, since you need not be there to vote in person. Meanwhile, the NYT notes felon disenfrancishment laws are become more lenient. Given the 14th and 15th Amendment problems such policies bring forth, this is a good thing.
British Libel: Meanwhile, important legal news from across the pond:
Britain’s highest court ruled Wednesday for the first time that journalists have the right to publish allegations about public figures, as long as their reporting is responsible and in the public interest. ... The article said that at the request of the United States, Saudi Arabia was monitoring bank accounts of prominent Saudi businesses and individuals to trace whether they were being used, possibly unwittingly, to siphon money to terrorist groups. ... Under British libel law, newspapers being sued are required to prove the truth of the allegations they print — the opposite of the situation in the United States, where the burden of proof falls heavily on plaintiffs. But that was a practical impossibility in this case, a member of the panel that ruled on Wednesday, Lord Hoffmann, wrote in his decision.
Linda Greenhouse: Interesting discussion involving NYT legal reporter Linda Greenhouse allegedly violating the papers policy against publicly making personal commentary on the things she reports upon. This is so especially since the current public editor disagrees with the past one on the wrongness of her act. Her remarks are striking on their own.
Today's Greenhouse dispatch concerns a case where family members wore buttons to a murder trial with a picture of the deceased. The state court said it was in bad form, but not unconstitutional, so a federal law supported by that pro-terrorist Bill Clinton came into play. You can try to go the federal habeas route but it must be rejected if it is "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States."
Simply put, it is a stretch to say (I'm game) -- as compared to appellate law -- this is the case here. This is far from surprising, since any number of issues are not specifically decided by Supremes that decide eighty cases total per year these days. This is why we have lower courts -- to deal with such issues, somewhat less than "clear" SC law ultimately guiding them. Actually, quite often, a matter has not be dealt with by the Supremes -- there are just too many possibilities. Thus, and a few federal judges raised the point, the law arguably violates Art. III powers given to the lower federal courts to decide basic questions of law.
Federalist sorts are not impressed. They apparently want individual state courts to have the power to decide questions of federal law (ultimately constitutional matters are at stake here) pursuant to their own discretion. Thus, the Ninth Circuit spans let's say eight states (whatever) -- until the Supremes "clearly" (yeah right) decides upon some federal criminal matter, they each can decide the matter differently as to federal law. How exactly is this not a violation of the spirit (if not the text) of the Supremacy Clause in place to supply a united application of federal constitutional law?
Some justices were a bit miffed too -- watch for some arbitrary line drawing and confusion, helped by the fact that finding "clear" law in the micro-decisions prevalent these days something of a joke.