Kali Worship: Why An Immigration Ban Based On Religious Identity Can Be Constitutional

I love to include supporting links and such with my posts. They provide readers with much needed support for my arguments and claims. So I thought I'd find out just which politicians and pundits had slammed as un-American and un-constitutional Donald Trump's proposed temporary ban on migration into the USA of Muslims.

WOW!

If the response had been scripted by the Jeb Bush (failing) campaign for president, it could not have more breadth and depth than, in fact, it has:

• Second Tier Republican Presidential candidate George Pataki: It's “so un-American. I think he’s driving the conversation over the edge. It is not the way Americans think. We want to protect ourselves, not discriminate. The idea that all Muslims who are coming to America pose a threat is absurd.”
• Governor Nikki Haley: It's "unconstitutional" and "un-American". "It's just an embarrassment to the Republican Party. It defies everything this country was based on and it's just wrong."
• Representative Dan Kildee: "Donald Trump's call to block all Muslims from entering the United States flies in the face of the values that make our country great. His comments are offensive and un-American."
• NH State Republican Party Chair Jennifer Horn: "There are some issues that transcend politics. While my position (as party chairwoman) is certainly political, I am an American first. There should never be a day in the United States of America when people are excluded based solely on their race or religion. It is un-Republican. It is unconstitutional. And it is un-American."
• Dick Cheney, former Vice President of the United States, 2001-2009: “I think this whole notion that somehow we can just say no more Muslims, just ban a whole religion, goes against everything we stand for and believe in. I mean, religious freedom has been a very important part of our history and where we came from. A lot of people, my ancestors got here, because they were Puritans.” 
• Second Tier Republican Presidential Candidate Sen. Lindsey Graham said, Trump should "go to hell."
• Ohio Governor and son of a postman, John Kasich, is seeking signers for an online petition to call out Trump. Kasich remarked, "America needs a leader that will unite us, not divide us." 
• New Jersey Gov. Chris Christie called Trump's comments "ridiculous" and "a sign" that the real estate mogul "lacks experience to lead."
• Homeland Security Secretary Jeh Johnson called Trump's idea, "irresponsible, probably illegal, unconstitutional and contrary to international law, un-American." 
• Republican Representative Barbara Comstock: “Well it’s unconstitutional, it’s un-American, and religion is something that’s internal, it’s nothing that you necessarily wear on your sleeve. It demonstrates his lack of understanding of you have to deal with the terrorist threat. It shows a lack of understanding of our basic constitutional systems, but also a lack of understanding of the terrorist threat and how they operate.”

Each of these pundits and politicians is angling for the spotlight. Some for their own presidential aspirations. Others to secure the ongoing support of their own base. Some, modeled after Charles Schumer, just cannot believe that any voice sounds better on any topic than their own. And to a man and to a woman, they claim Trump's proposal is "un American, unconstitutional."

None of them explain why it was pro American and completely constitutional when Jimmy Carter responded to Islamic Revolutionaries seizing US Embassy in Tehran and taking Americans hostage by barring entry to the US by Iranians and expelling Iranian students in the US on study visas.

Sure, we remember his malaise speech, his employing prepubescent Amy Carter as a nuclear deterrence consultant, his brother Billy and Billy's beer (and his cushy Libyan consultancy fees), and his failed Iranian hostage rescue efforts.

But how short the memory comes when it is time to ask, "How in Sam Heck can Trump think it is a good idea, a decent idea, an American idea, to suspend admission of individuals to the USA based on their religious affiliation."

Well, let's pull that question apart in more ways than one.

First, let's remove the skin of offense by pretending we are talking about some other religion than Islam.

Take Kali worship, for example:

Suppose that you're a Customs officer, at Kennedy International Airport.

"Good afternoon, passport please."

The Indian gentleman passes his passport over to you.

You examine the passport. It shows that Khudu Karmakar has a tourist visa and that his passport does not expire for two years.

"Mr. Karmakar, the purpose of your visit to the USA?"

Mr. Karmakar replies, "I have studied America for years. I have greatly admired the high esteem with which your Nation treasures personal liberties. I am here to study and participate in these liberties, to practice them myself, and then to carry word of them back to my home country, where, unfortunately, religious liberty, in particular, is not nearly so highly prized."

You consider his admiring words and his obvious appreciation of the Nation. Truthfully, it warms the cockles of your heart. Obviously, this admission will be an easy one.

"I think we can make this rather quick, Mr. Karmakar. Do you have anything to declare?"

Mr. Karmakar calmly replies, "no sir, only my personal belongings, including my notebooks, religious books, and sacerdotal objects."

Your perfunctory search concluded, you welcome Mr. Karmakar and send him on his way.

You didn't see the ceremonial knife, the incense, the razor, and the River Ganges holy water.

A week later, as you're enjoying a rare Saturday morning at home, you are surprised, well, really, shocked to read that an Indian national had been arrested for the ritual murder of a young American teen, Sue Doe.

Sue's body had been found in front of what, for all intents and purposes, appeared to be a makeshift shrine to the Indian goddess, Kali. Sue had evidently been drugged with rohypnol. Her body had been shaved of all hair. It showed evidence of being freshly washed, although the water did not appear to be tap drawn. And she had been killed in a manner highly suggestive of a ritual killing.

Now, at this point in the narrative, let's step outside your nightmare. You are fairly certain that what you did, your review of Karmakar's passport, your perfunctory inspection of his person and belongings, may have contributed to his admission to the USA, and the subsequent slaughter of Sue Doe.

You flip on the television. Damn Fox News, always being sensationalists, particularly the morning show, in this case, Fox and Friends Weekend. They are interviewing an Indian Studies professor, Doralee Schmirtz. Professor Schmirtz is way too chatty and catty for your tastes. But she says something that drills down into your brain.

"Although the police are continuing their investigation, the description of the scene reported in the news, along with items seized from Mr. Karmakar, have me convinced that this killing was a religiously inspired, ritual sacrifice to the Indian goddess, Kali."

The morning hosts prefer a much lighter fare, to be truthful. It looks and sounds like they'd like to find a way to discover that there was some joke in all of what Professor Schmirtz has just told them, particularly the uncomfortable looking Tucker Carlson.

He interjects. "Just a second, Professor, you make this sound like something out of Indiana Jones and the Temple of Doom!"

The professor, ready for the comparison replies, "fictional accounts like the Indiana Jones movie do lend a certain theatrical air to such things. The fact remains, however, that Kali worship, which is generally suppressed under Indian law and disapproved broadly among the Indian people, has a long and rich history there. That movie undoubtedly exagerated the basic story. The killing of poor Ms. Doe, however, reflects the much more common reality of how Kali devotees seek to acquire spiritual blessings and powers."

Off camera, Carlson's co-host is signalling to the floor director. She'd clearly like to move on.

The professor is not quite so aware, however, and she makes a further point that shakes you up.

"I have it on authority -- the person spoke to me on condition of anonymity -- that this deranged madman entered the USA just a week or so ago, and that, when he entered the country, he brought with him this knife that he used, incense, and a small container of water from India's most sacred river, the Ganges. Forensic scientists are currently testing materials at the crime scene to determine whether Ms. Doe's body was subjected to a ritual washing after being shaved. If it was, and if they can match the materials to the water of the River Ganges, then it seems an undeniable fact that Mr. Karmakar came to the USA intent on committing this horrible atrocity."

At this point, you're feeling fairly sick to your stomach. You're also contemplating a call to your union steward, and pursuit of legal representation in the investigation of your conduct, an investigation likely to follow, and, frankly, not likely to go well.

Let's step out of the narrative again.

The Republican debate is the scene. This debate features all the leading candidates, including Trump, Rubio, Cruz, Carson, Christie, and Bush.

Based on polling, the debate host, MSSYNBC has invited the second tier Republican candidates each to pose one question to a candidate of their choice.

Lindsey Graham: "My question is for Donald Trump. Mr. Trump, you've already shown how un-American you are by saying that we should reconsider the admission of Muslim immigrants to the USA. I have been told that, based on the insane acts of a madman in New York City, you are now calling for a hold on the admission of Kali worshipers to the USA. Have you ever even read the Bill of Rights? Do you have any respect at all for freedom of religion?"

Trump: "Senator Graham, I want to start by saying I appreciated each of the lovely thank you cards you've sent for my donations to your senatorial campaigns over the years. Obviously, I don't expect I'll get any more in the future, because I doubt I could find a good reason to support your continuation in the Senate."

"What you find impossible to believe, difficult to understand, and unmanageable to accomplish has been done by this nation before, to protect its people and its territorial integrity. Even Jimmy Carter excluded Iranians after the radical Muslims overthrew the government there and took Americans hostage. He even threw Iranian students out of the country!"

"The tragic case of Sue Doe should never have happened. It isn't hard to figure out what religions are the source of actual, real, threats of danger to the lives of others. And all I'm calling for here is to take others at their word when they say they mean us harm, and to use their own words and intentions as the basis of excluding them from something they DO NOT HAVE THE RIGHT TO IN ANY EVENT:  entry to our nation!"

The crowd rises to its feet, stomping, shouting, cheering. The noise forces MSSYNBC to cut away to a commercial. In pubs, bars, living rooms, and other locations around the country, Americans join in, "Yes, damn it, yes!"

The start of the Fourth Reich?

Only if it is Nazism to seek to preserve and protect your life, your family, your neighbor, your community from the murderous intentions of others.

With any luck, Mr. Customs Officer, the video loop recording of your station will have recorded over your haphazard disregard for the safety of Americans, and no one will be the wiser to your small part in the death of Sue Doe.

The question remains, why media elites, government officials, and the generally uninformed illiterati make folks who like Trump's call for a pause on immigration the 21st century equivalent of Hitler's Holocaust, rather than of Jimmy Carter's apparently sensible ban on travel to America by Iranians.

In case you do not recognize Mr. Karmakar, his story was told in a 2002 issue of Time Magazine, which related his grisly murder-sacrifice of a young girl as a form of ritual offering to Kali. You can read the story here.

Now, let's consider a second point, namely the supposed unconstitutionality of such a temporary suspension of admissions to the United States by individuals identified by their religious affiliation.

To fully grasp why it is patently wrong to charge that such a policy would be unconstitutional, you need to slip on your gayest apparel and simply think back to matters domestic and judicial over the summer, here in America.

As a result of the ongoing press for the legalization of marriage between persons of the same sex, we have all had some exposure -- at the most general level -- to something called the Religious Freedom Restoration Act. That statute created a right to sue the federal government for restricting religious freedoms -- as exemplified by religiously motivated actions.

RFRA, as the law is called, does not prohibit every action of the government that interferes with religious freedom. Government actions impacting religious freedom regularly survive scrutiny under the act. Some actions, courts find, are not substantially interfered with. Some prohibitions, courts find, are animated by a compelling government interest and accomplished by the most narrowly drawn practical policies.

As a general rule, most actions not specifically targeted by a religious characterizations can be subjected to the government's reasonable regulation. This reality has led to bakers of cakes being told that their religion does not justify discriminating against a same sex couple that requested that they bake a wedding cake for their gay wedding. This reality has led to similar impositions on the religious preferences and beliefs of florists, wedding planners, renters of reception facilities, etc.

The power of the State in all those cases has been directly dropped on religious liberty in the name of some larger (or perceived to be larger) principle. Many who today are condemning Trump, whose use of the Muslim identity as a screen has raised such consternation, oddly lacked a voice when bakers, florists, and owners of banquet halls got shat on by various government agencies.

Here's your "tough to swallow" truth of the day:

Protection of life, liberty, and property counts among the highest orders of government duty. It can, without doubt, be expressed as an interest that is compelling in nature. At that point, we are one third of the way to the ability of the government to successfully fend off a religious liberties challenge to such a policy.

Assuming that Trump's proposal took an appropriately narrow form, such as a ban on travel for a limited period, or subject to a level of screening not currently being used, or only for travelers from stated nations, I have no doubt that such a policy could be described as having been drawn to accomplish its objectives by the least restrictive means. Now we are two thirds of the way to a successful defense of such a policy.

The fact is, though, that the last third of the trip comes first, and it is that third of the trip that would DOOM a CHALLENGE by an excluded immigrant. For a government policy or practice to be successfully challenged, the claimant would have to show that the injury was to a religiously compelled or motivated practice.

The category of folks that can assert that their religion compels them to migrate into America, as a foreigner, is, I harbor the suspicion, quite small. America is not Mecca, nor Rome, nor is it split by the sacred River Ganges, I suppose the adherents of the Church of Jesus Christ of Latter Day Saints -- travelling to Salt Lake City for a celestial marriage ceremony -- might be among the very few that could successfully mount such a challenge.

And, truth is, even asserting such a religiously motivated action has been impacted by such a policy, that is when the two other questions -- compelling government interest and least restrictive means -- come into play.

No, such a temporary policy is not so easily relegated to the ash heaps of unconstitutionality, and that is a thankful thing -- whether we are talking about the real dangers of radicalized Islamic extremists infiltrating among refugees, or the imagined danger of a Kali worshiper coming to America to perform a human sacrifice.

The Judge, the Clerk, The Governor and the General Assembly: How to Understand the Incarceration of Kim Davis on Charges of Contempt

Recent developments in Kentucky have captured the attention of the Nation. Even the ominous stare down between BarryO the Boyking and a melting glacier could not displace the story from the headlines.

There have been many opinions expressed on the topic – from speaking of the martyrdom of Kim Davis to calling for the martyrdom of her – there seems to be no end of opinions on the matter. As with most things, though, many of the opinions rest on a shaky foundation of poor, or no, understanding of important underlying principles of law.
A local jail in Kentucky picked up a new detainee yesterday. Mind you, virtually every county jail in America likely picked up a new detainee or two. But this detainee is a breed apart: not a drunk driver pulled from the mangled wreck of her auto, nor a post-partum-depressed mother that just drowned her baby in the bathtub, not even the local chemist operating a meth lab from his basement workshop. No, this new occupant, Kim Davis, is an elected official, the County Clerk for Rowan County.

Unlike the drunk driver, the homicidal mad-momma, or the meth-matician, Ms. Davis has not been sentenced to a term of years in jail or prison. Indeed, unlike those criminals, Ms. Davis has not been tried by a jury consisting of her peers and found guilty of any crime whatever. Instead, Ms. Davis has been ordered confined indefinitely in jail by a United States District Court Judge, David Bunning.

Davis, a Democrat, ran for, and was elected to, office in Kentucky. Judge Bunning, on the contrary, was appointed to the federal bench by George W. Bush, a Republican. Judge Bunning’s name may ring familiar to some of you. His father, Jim Bunning, served as a US Senator from Kentucky for a couple terms after having served six terms as a member of the House of Representatives from Kentucky. Of course, David Bunning may not have been chosen as a favor by a stalwart Republican president. (I’m sure that all Presidents from both parties only pick the best available candidate and never use their appointment powers to cement relationships or repay favors. Wink Wink Nod Nod.)

So, here we have had a federal judge handling a federal lawsuit over the refusal of a State Court Clerk to issue State marriage licenses.

Now, ordinarily, a clerk refusing to perform a duty of office could be subjected to a suit in state court. There is an old English lawsuit, something called a Petition for Writ of Mandamus. That suit can be filed by affected persons asking a state court judge with the appropriate level of authority to order the clerk to do their duty.

But here we are talking about a same sex couple that tried to get a marriage license. Having been frustrated in that effort, rather than seek an equally valid license from the clerk of another county, and rather than filing a petition for a writ of mandamus with a Kentucky court, the couple, represented by the Kentucky chapter of the American Civil Liberties Union, sued in federal court.

Now please, don’t misunderstand me. I am not suggesting that it was improper at all for such a lawsuit to be filed in federal court. Congress endowed federal trial courts with jurisdiction to hear and decide lawsuits involving claimed violations of federal civil rights. Congress also created a statute-based cause of action for the violation of federal civil rights. Abraham Lincoln addressed the duty of courts to decide cases, in his First Inaugural Address. He said, “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”

So, no, I’m not criticizing Judge Bunning from acting as Judge in the case.

Prior to becoming a disgraced former Senior Counsel for the American Center for Law and Justice, that organization described me (I had nothing to do with how they chose to describe me) as one of the Nation’s leading religious liberties advocates. I have filed many federal civil rights actions as an attorney, representing street preachers, anti-abortion protestors, students treated unequally based on the religious content of their speech. For injured clients, whose recognized constitutional rights had been denied, I have asked federal judges to issue orders stopping government officials from interfering with my clients’ rights. I have asked judges to award damages to my clients for the loss of those rights. So, on the level of general principles I cannot be understood in this post to be claiming that filing the lawsuit in federal court was wrong. I have also represented clients in cases where others tried to stretch federal civil rights laws beyond their design and intention, in order to accomplish a plainly political objective.

That the Judge Bunning had legal authority (what lawyers call “jurisdiction”) granted to his court by Congress is not subject to dispute. That the same sex couples – like other citizens of the United States – are entitled to assert and to prove if they can that their federal civil rights have been violated, is not subject to dispute.

For my purposes today, the questions in dispute are whether Kim Davis should have been fired for refusing to issue marriage licenses and whether she should be incarcerated for contempt of court.

Kim Davis ran for office. The People of Rowan County elected her clerk.

That was an act of popular democracy. Kim Davis, a Democrat, being elected by the People of Rowan County is a matter of some moment. Because under Kentucky law, the Governor cannot simply call her office and tell her she’s fired. Well, he certainly could. But that statement would be followed by a chortle, and perhaps a question, such as, “Been hitting the Makers’ Mark, Governor?” No, the Governor cannot fire her.

The Kentucky Supreme Court cannot fire the Clerk. The Courts of Kentucky are quite jealous of their distinct constitutional stature. They do not brook even the making of rules of court by the legislature – that rule-making is quite common in other States and at the federal level. But, as the Kentucky Courts are quite sensitive to questions of their separate sphere of power and authority, it is well-known to them that they possess no power to discharge from office an elected clerk.

In fact, what the Commonwealth of Kentucky faces with a clerk that is refusing to perform duties of her office is the exact conundrum the American people face with a president that refuses to perform the duties of his office. Because, you see, whether she sits in jail for the balance of her elected term of office or not, the only way that Davis can be removed from office is by impeachment by the Kentucky General Assembly. That is it. She cannot be fired. Stop assuming that she can be. Stop insisting that she be.

Now, as to the question of whether Ms. Davis should be incarcerated for contempt of court, I think Judge Bunning went way overboard in jailing Davis.

I can prove that he did.

I have represented persons charged with contempt. I have read the federal law on contempt and researched the cases and made written interpretations and analysis of it. But I do not need to engage in a fine legal analysis to show why Judge Bunning’s contempt confinement order is a Bridge Too Far. You see, the same sex couples and their ACLU attorneys prove that the Judge went too far. Here is what the couples stated in their petition to hold Davis in contempt:

Plaintiffs do not seek to compel Davis’ compliance through incarceration. Since Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform, Plaintiffs urge the the Court to impose financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay.

You see it, right? “Plaintiffs do not seek to compel Davis’ compliance through incarceration.”

Rather than confinement, the Plaintiffs “urge[d] the ... Court to impose financial penalties[.]”

Question resolved.

The judge, Judge David Bunning, a Republican appointed by George W. Bush has ordered a Democrat, Kim Davis, the elected clerk of Rowan County to be incarcerated. Why? Not because it was asked of him by the Plaintiffs.

We have not heard the end of this matter. The Kentucky General Assembly is highly unlikely to impeach Davis. In fact, if the Assembly does anything, what it is likely to do is change the marriage licensing statute to protect the rights of conscience of county clerks. In the meantime, if Kim Davis does not change her mind, then it will be up to the unjust judge to relent and to release her from confinement.

In fact, as a matter of federal law, Judge Bunning should release Davis because his decision to confine Davis may have violated her rights under the federal Religious Freedom Restoration Act. That’s right. Judge Bunning may well have violated federal law by imposing incarceration as the method of coercing Kim Davis to submit to his will in this matter.

Many readers will recall the teapot tempest earlier this year – it seems ages ago given how the legal landscape shifted in June – when an Indiana pizzeria stirred up a kerfluffle by announcing that it would not agree, if asked, to cater a wedding reception for a same sex couple. Memories Pizza actually closed its doors because of the hostile reaction of some members of the public. Remember that? Back then, one of the hotly disputed issues was the scope of Indiana’s Religious Freedom Restoration Act. Many voices cried out about the injustice of protecting religious freedom if it meant denying two gay men the right to have pizza served at their wedding reception.

For my part, I suspected that ordering pizza for a wedding reception would constitute proof positive that a couple was only faking gay.

In any event, the disputed statute is one modeled on the federal Religious Freedom Restoration Act. That law applies to every federal official and every federal action. So when Judge Bunning put Kim Davis in jail, he should first have determined whether she had a sincerely held religious belief regarding same sex marriage, then decided whether jailing her to compel her compliance with an order that violated her religious scruple constituted a substantial burden on those religious beliefs, and then, finally, if they did, he should have made sure that his acts constituted the least restrictive means to accomplish those purposes.

Where the other side argues that a person should be fined, not jailed, and the judge jails the person, I think the case is easily made that the judge did not employ the least restrictive means to serve the interest in compelling compliance with the court’s order.

So now, like Alice’s tumble into a strange hole, things get curiouser and curiouser, as the clerk defies the judge that defies the law. Judge Bunning was advised that the federal RFRA statute impacted what he did. I read the papers filed by Davis’ attorneys. They cited a federal appeals court decision that threw out 19 contempt citations because the decisions to impose them violated RFRA.

This matter will continue to develop. Perhaps, at some point, Judge Bunning will be brought to task for disobeying federal law. Meanwhile, stop talking about how Davis should be fired. She can’t be fired. Instead, enjoy the show, and the many folks discomfitted by the possibility that every step they take is fraught with opportunities to err.

Obamacare Round 4? Round 5?

The Patient Protection and Affordable Care Act has come before the Supreme Court on three occasions for full briefing and argument. As we begin the run-up to the October 2015 Term of the Supreme Court, it is worth noting and watching for the possibility that the Court may take on at least two additional categories of cases involving Obamacare. Based on petitions already filed, or that will likely be filed near the beginning of the Court's next Term, the Court may have to confront further arguments for religious exemptions from Obamacare's contraceptives mandate, and may have to decide how a clause of the Constitution that requires tax legislation to be offered first in the House of Representatives plays into the Capitol Hill hi-jinx that preceded enactment of the law.

In Round One, in the case called National Federation of Independent Businesses v. Sebellius, Chief Justice Roberts, writing for a 5-4 majority, held that the "Shared Responsibility Payment" imposed on individuals that chose not to comply with the Individual Mandate to purchase health insurance was a tax. The decision conflicted with the claims and arguments of the Democrats who enacted Obamacare. While Roberts and the majority found the Shared Responsibility Payment to be a tax permissibly imposed by Congress, rather than a penalty.

In Round Two, in the case called Burwell v. Hobby Lobby, Justice Samuel Alito, writing for a 5-4 majority, held that small corporations could claim an accommodation under Obamacare from requirements of Obamacare that would have resulted in the corporation providing abortifacient contraceptive coverage as part of employer-provided health insurance. The accommodation protecting the corporations was required by another federal statute, the Religious Freedom Restoration Act ("RFRA"). RFRA imposes on the federal government an obligation to use the most narrowly crafted means of serving even compelling government purposes when the government's regulation limit or interfere with the free exercise of religion. The corporations, including Hobby Lobby, satisfied the Supreme Court that the obligation to fund abortion-inducing contraceptives violated their religious faith.

In Round Three, in King v. Burwell, writing for a 6-3 majority, Chief Justice Roberts rejected the obvious and plain meaning of a provision of Obamacare that provided federal tax subsidies to cover the cost individuals subscribing to health insurance through health insurance exchanges "established by the State[s.]" The IRS and the Obama administration had enacted rules by which individuals buying insurance through federally operated exchanges in the 34 States that refused to establish exchanges would still qualify for the tax subsidies to cover the costs of premiums. Roberts rejected the actual meaning of the plain words of the statute, essentially on the ground that, had the Court held Congress and the administration to the text of the statute, the purpose of Congress in adopting Obamacare would be frustrated by the resulting failure of the entire program.

Perhaps, though, the Court has had enough of Obamacare.

Perhaps the Court needs a break from the rancorous debate and the heat. Justice Scalia certainly did not pull any punches when he remarked the statute had been rescued enough times by the Court that it should now be known as SCOTUS-care, a result he concluded was obtained by a tortured process of "interpretative jiggery-pokery."

We should know, perhaps sometime in early October, or shortly thereafter, whether the Court will again revisit the crown jewel of the Obama crown. By then, the Justices will have had the opportunity to look at petitions involving another round of disputes over the Obama administration's efforts to force employers to fund health insurance coverage for services against which they maintain a religiously based, conscientious scruple. In addition, shortly after the Court resumes its work, another constitutional challenge, a systemic attack on the entire Act, will be presented to it, in a petition filed by the Pacific Legal Foundation.

In a series of cases involving religiously affiliated colleges and universities, the Supreme Court may have the opportunity to further refine its thinking on whether the federal government violated rights of religious freedom when it imposes obligations on private parties, in this case, Catholic and Baptist affiliated schools and colleges, to provide coverage for contraceptive services against which they hold a religious scruple of conscience. The first Obamacare contraceptives case involved, as noted above, small, closely held corporations. These cases, if the Court takes one or more of them for decision, involved religiously affiliated institutions of higher education but not religious societies as such.

In another case, about which I posted a series of blog entries a year ago, the Court will be asked to consider whether the entire Obamacare statutory framework was enacted in violation of a provision of the Constitution known as the Origination Clause. Under the Origination Clause, all bills that raise revenue must originate in the House of Representatives, although the Senate is permitted to offer amendments to such bills.

As I explained in the previous post introducing the Sissel case:

Litigation raising the Origination Clause argument against Obamacare has been pending in the Nation’s Capitol for some time now.  Matt Sissel, the plaintiff, claimed that, because the penalty for failing to purchase health insurance is a tax, the Origination Clause required that the House of Representatives originate the legislation. Obamacare, however, was an invention of the Senate.

In fact, the Democrat-controlled Senate took a pending House bill – one regarding tax credits for home ownership by members of the military -- stripped out every jot and every tittle of it including its title, and inserted the Affordable Care Act in place of its original text and title.  This, on Capitol Hill, is called an amendment in the nature of a substitute.

A decision on the Sissel case out of the US Court of Appeals in Washington, DC, on Friday, August 7, may provide the set-up for the Origination Clause challenge to Obamacare to be considered at the Supreme Court.

In a strange twist, as the most recent development in Sissel case, Democrat appointed appellate judges all rejected Matt Sissel's claim that Obamacare was a tax and therefore unconstitutional because it originated in the Senate. Republican appointed judges on the same court rejected the majority's view that Obamacare was not a bill for raising revenue. Nonetheless, they agreed with the outcome of the case because, while, in their view Obamacare, which will raise some 490 billion dollars in revenue for the general fund of the United States, was clearly a bill for raising revenue, the bill that became Obamacare actually did originate in the House.

Of course, the original legislation that became Obamacare was a proposal to provide relief on home financing to veterans and service personnel. After that bill passed in the House, the Senate took the bill and gutted everything to do with assisting veterans and service members. In place of the veterans' assistance language, the Senate substituted the text that became the health care insurance overhaul legislation. F

The Supreme Court grants review in fewer than 100 cases most years. The number is substantially lower than under Chief Justices that preceded William Rehnquist. Still today, the likelihood that a case will be reviewed is substantially greater where the federal appeals courts are of a divided view on the legal question at issue in the case.

In the contraceptives cases, the division of the Circuit Courts of Appeal make the likelihood of a further decision from the Court substantial. At the same time, the Court has the power to decide cases only on the papers -- without full briefing and argument -- this is what the Court calls summary disposition. The contraception cases require the Court's attention to resolve the division among the Courts of Appeal. The Court could, however, summarily dispose of the cases by invoking its earlier decision in Burwell v. Hobby Lobby. (That summary disposition is not highly likely, but is at least possible.)

In the Origination Clause case, the chances of review are substantially lower. I say that, not because the argument is wrong, or the case unworthy of consideration. It just reflects the reality of a limited resource -- the Court's time and attention -- and the need to accomplish such ends as maintaining a uniform application and understanding of federal law. At this point, the appeals court in Washington, DC, is the only one to have ruled on the Origination Clause. [In Hotze v. Burwell, a case from Texas and decided by the federal appeals court there, a physician offered the same Origination Clause argument as did Sissel. In Hotze's case, however, the Fifth Circuit dismissed the appeal and directed the trial court to dismissed the lawsuit. The appeals court did not decide the Origination Clause argument because the court concluded that Hotze was not a proper party to bring the lawsuit.]

While court watchers may wonder whether the justices wince when requests for review in highly contentious cases keep returning to the Court, Abraham Lincoln explained once that it was the Court's unavoidable duty to decide cases properly before it:

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

In like vein, though it might pain them to undertake the process so soon again, the duty of the justices is to decide these cases. It would be nice, however, if, from time to time, they would decide them correctly. Perhaps by next Spring we will have reason to congratulate the Court on doing so.

ACTION ITEMS: A Tear Sheet of Congressional Responses to Obergefell v. Hodges

The Supreme Court says the Fourteenth Amendment requires States to license same sex marriages. Senate Majority Leader McConnell says its the law of the land. House Speaker Boehner wishes the Court had respected the People. From the failing voices of Republican Leadership in Washington to the celebratory hoopla at Rainbow House (formerly the White House), one gets the definite impression that NOTHING will be done to respond to the unlawful decision of the Supreme Court on the question of same sex marriage.

I have noted the problem here, and provided a full explanation of Congressional power here.

Today, I'm just offering you a checklist of Congressional actions, think of it as a "To Do List" for your representatives. Use this list to challenge your Representative and Senators. Use it to demand action from them.

The list is broken out in four parts. Those parts correspond with the mnemonic: B.O.I.L. Those four letters stand for four different kinds of action CONGRESS should take in response to the Supreme Court. Those actions are BUDGETING, OVERSIGHT, IMPEACHMENT, and LEGISLATION. Tell your elected representatives you are BOILing mad at the Supreme Court's usurpation, and that you will be BOILing mad if they do not take seriously their power to act:

BUDGET ACTIONS:

1. Strip Supreme Court Justices of paid law clerkships.

2. Impose building temperature controls to save heating costs in winter and cooling costs in summer.

3. Eliminate any subscription payments on behalf of the Court, its justices, or its library, to any publication not directly related to the work of the Supreme Court (newspapers, weekly or monthly magazines, etc.)

4. Freeze judicial salaries exactly where they are, eliminate any COLA provision in law that would increase judicial pay.

OVERSIGHT ACTIONS:

1. Conduct hearings on the constitution and demographics of the Supreme Court

2. Conduct hearings on Obergefell v. Hodges
     a.  Examine the Court's treatment of the Fourteenth Amendment
     b.  Examine the standards used by the justices to determine whether they should recuse themselves from particular matters and examine whether Justices Ginsberg and Kagan should have recused themselves for officiating at same sex marriages while Obergefell was pending.
     c.  Examine the Court's treatment of the Defense of Marriage Act, and its treatment of the Article IV power of the Congress respecting Full Faith and Credit.

3. Conduct hearings on the response of the Internal Revenue Service to the decision in Obergefell to determine whether the IRS takes a position regarding the status of Obergefell as deciding a question of public policy for the Nation, from which the IRS could then take negative action against the tax exemptions of religious organizations, churches, and their affiliates, based on a determination by the IRS that policies of such religious organizations, churches and their affiliates that do not recognize or provide equal treatment to same sex marriages are contrary to public policy (Bob Jones University v. United States).

4. Conduct hearings on any change proposed by the Obama administration to federal contracting programs that seek to coerce federal contractors to comply with Obergefell in their HR services to qualify as contractors, including the availability of the Religious Freedom Restoration Act to protect contractors from negative actions by the administration.

5.  Conduct hearings to assess the state of accommodations law in the United States, the interplay of such accommodations law and the religious and economic liberties of individuals, businesses, religious organizations, churches and their affiliates.

IMPEACHMENT ACTIONS:

1. Impeach Justices Ginsburg and Kagan based on the participation in, and decision of, Obergefell v. Hodges despite obvious personal interest in the determination and outcome of the case, based on their having officiated at same sex weddings while the case was pending at the Court.

2. Impeach Justices Kennedy, Breyer, Ginsburg, Sotomayor and Kagan based on their lawless invasion of the Tenth Amendment reserved rights of the States to define marriage, along with their lawless disregard for the singular role of Congress under Article IV to define how States comply with the requirement of Full Faith and Credit.

LEGISLATION ACTIONS:

1. Propose a constitutional amendment to the States
    a. defining marriage as between one man and one woman; or,
    b. reserving expressly to each State the power to define marriage according to its State laws and constitution, and determining for itself whether to afford Full faith and credit to same sex marriages recognized under the law of a sister State.

2. Enact restrictions on the appellate jurisdiction of the Supreme Court and the jurisdiction of federal trial and appeals courts to restore the determination of issues related to the creation and dissolution of marriages solely to the courts of the States.

3. Enact a provision of the Internal Revenue Code expressly stating that the decision of the Supreme Court in Obergefell v. Hodges does not state a public policy of the United States and expressly stating that the IRS is not authorized to deny or revoke 501(c)(3) exemption based on its determination that a policy or practice of a 501(c)(3) exempt organization is inconsistent with Obergefell or its conclusion that the Fourteenth Amendment guarantees a right to same sex marriage.

4. Enact a provision amending RFRA expressly to provide that the Act protects religious persons and organizations from federal governmental actions that interfere with, or deny, their religious freedom rights to teach and practice their faith, with respect to the nature of marriage.

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Share this action list with your social media contacts. Tweet a link to this post to your Senators and Representative. Tell them you expect action and will remember theirs at election time.

Congress Has the Power to B.O.I.L. the Supreme Court

[This is Part Two of my answer to the question: Is there anything that Congress can do to address the recent Supreme Court decision in Obergefell v. Hodges? 

In this second segment, I provide a list of possible actions of various kinds available for Congress to undertake. I am not providing likely, practical, or certain to succeed tactics. I’m providing here a list of available options. I’ll allow Majority Leader McConnell and Speaker Boehner explain why none of these is worth exploring.]

As I closed part one of this blog, we watched Sheriff Buford Pusser (played by Joe Don Baker) use his recently discovered legal authority to punish an uncooperative trial judge. Of course, the scene shows what happens when the judge interfered with his efforts to clean up the county in that fictionalized account, Walking Tall, based on Sheriff Pusser’s true life story. The film, of course, employed staff writers who created the humorous device of revenge depicted. In real life, our limits, however, are no different.

First, we have to know what power Congress might have to bring to bear in this circumstance. Second, we have to know whether Congress might exercise that power. Remember, this discussion is focused particularly on whether Congress is stymied by the Supreme Court’s same sex marriage decision, Obergefell v. Hodges.

Pusser made the task look easy. One minute, he’s being verbally rebuked by a judge over his lack of knowledge of the law. The next minute, he’s relocated the judge to his new basement bathroom chambers, after having reviewed at least one full volume of the law. I’d like to tell you that our task -- discovering whether Congress is stymied -- is so simple, so easily accomplished.

I’d like to tell you that . . . so I will.

Even if you are beginning this post with virtually NO KNOWLEDGE on the topic, in a short period of time, you will understand the extent of power the Congress holds over the Court. I will warn you: such knowledge can be maddening. You may not be happy to discover what you will learn today.

Both Congress and the Courts Answer to the Constitution

The US Constitution sets the parameters of power and authority for each of the branches of the federal government. Article III of the Constitution creates the Judicial Branch, endows that branch with all the judicial power of the federal government, and provides a basic framework for the branch.

Article III, section 1 provides that there will be one Supreme Court, and then delegates to Congress the question of whether and how many inferior courts to establish. That section also provides lifetime tenure for judges and bars the government from ever reducing the compensation paid to a judge while they are in service.

Section 2 establishes the extent of the judicial power and sets out the parties and matters in controversy reached by the judicial power of the United States. This section also sets out a limited category of cases in which the Supreme Court has original jurisdiction, as though it was the original trial court in such matters, and those in which it hears appeals from decisions of lower courts. Section 2 also subjects the Supreme Court’s appellate jurisdiction to “such regulations” as Congress shall make. Section 2 also sets out a limited set of principles regarding the trial of federal crimes, particularly the requirement that crimes committed within a State must be tried in that State.

Articles I and II of the Constitution contain provisions relevant to our subject.

Article I, Section 2, grants to the House of Representatives “the sole power of impeachment.” Article I, Section 3, grants to the Senate “the sole power to try all impeachments,” requires the vote of two-thirds of the Senate to convict on impeachment, and limits the effect of impeachment to “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” Article I, Section 8, Clause 9 grants to Congress exclusive power “[t]o constitute tribunals inferior to the Supreme Court[.]” Article II, Section 4 subjects all civil officers of the United States to impeachment and removal from office based on treason, bribery, or other high crimes and misdemeanors. Article I, Section 2 bars the President from granting pardons or reprieves to persons convicted of impeachment.

What Congress Can Do: B.O.I.L. The Supreme Court

B.O.I.L.: BUDGET, OVERSIGHT, IMPEACHMENT, and LEGISLATION Offer Four Distinct Categories of Responses by Which Congress Can Answer the Obergefell Decision

If a Representative’s or Senator’s sole defense against legislative action is that there is little likelihood of success in any of these efforts, and if you are content to leave your Representative and Senators in peace when they let slip the “wolf” cry of “futility,” then read no further. Simply accept that there is nothing that Congress will do in response to what many perceive to be a lawless decision of the Court.

On the other hand, if you recognize that the Constitution has equipped the Congress with important tools for the maintenance of the separation of powers, and for the maintenance of federalism, then read on. I will offer you a framework of available kinds of Congressional actions, and several specific proposals to be pursued. To make the tools easy to recall, I’ve even devised a mnemonic to summarize them. The mnemonic is B.O.I.L. Those letters stand for four distinct powers of Congress relevant to the maintenance of the separation of powers and the accomplishment of the duties assigned to Congress.

“B” stands for Budget.

With only one exception, the power to allocate funds for spending by the federal government is entirely and completely in the hands of the Congress. The scope of that power is extensive, and includes the ability to adjust virtually every penny spent in the Supreme Court and the inferior federal courts, except the salaries of current judges.

“O” stands for Oversight.

The Congress has extensive powers to conduct hearings and investigations. The scope of oversight power includes everything that could be the subject of Congressional action, as well as the actions of the Executive Branch as it fulfills legislative policy.

“I” stands for Impeachment.

The power to impeach is exclusive to the House of Representatives, and the power to try an officer of the United States that has been impeached is exclusive to the Senate. The Executive Branch and the Judicial Branch have no authority to interfere with this power of the Congress.

“L” stands for Legislate.

Congress has the power to enact legislation relevance to this issue.

In fact, Congress had already done so when it enacted the Defense of Marriage Act, and when it enacted the Religious Freedom Restoration Act. Congress also has power to enact legislation affecting the jurisdiction of the Supreme Court and of the inferior federal courts.

These powers of Congress – budgeting, oversight, impeachment and legislation – are considerable. These powers, too, are effective when actually employed. In fact, knowing how considerable they are, how effective they can be, might make you BOIL with anger at the failure of Congress to begin immediately deploying these powers in answer to the Court’s decision.

Budget Actions

Congress has the power of the purse.

If Congress clamps the federal purse shut, monies cannot be spent by the Executive Branch. Few limits at all exist on that Congressional power, so long as the spending to which Congress commits us falls within constitutional categories, such a promotion of the general welfare. Congress has the ability to establish policies across a broad expanse of human activity simply in the decisions it makes about how to spend funds. South Dakota v. Dole, which I discussed in another post, shows how Congress can reach into areas of even severe constitutional limitations on its powers (the 21st Amendment grants plenary authority over issues related to the sale, distribution, and use of alcohol to the States; yet, South Dakota affirmed the Spending Clause power of Congress to induce the States to choose to raise their legal drinking ages in order to maximize receipt of federal highway funding).

There are limits on the power of Congress with respect to budgeting. One is directly relevant. The Judicial Article, Article III, provides that judges of the Supreme Court and lower federal courts have life tenure, on their good behavior, and that their compensation may not be decreased during their service:

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Thus, while Congress has a broad power over the budget, the Congress is bound by the Constitution to provide for the compensation of appointed federal judges. That limitation, however, only directly bars Congress from reducing pay. Neither taking away a future increase in judicial salary nor applying generally applicable tax provisions to federal judicial salaries violate the Compensation Clause.

Congressional control over the budget of the Judiciary is a substantial power. One of the curiously satisfactory moments on Capitol Hill each year is the annual visit by Supreme Court justices presenting to Congress their justification for the Court’s proposed budget:

 

The budget for the federal judiciary includes program costs, payroll costs, and capital costs. While, constitutionally, payroll for Justices and Judges may not be diminished, the same is not true for other employees within the Judicial Branch. While such picking of nits may seem petty, the problem that Congress faces with a resolute Judiciary may require it to make important, and to the Judiciary, painful decisions.

For example, while the Congress cannot diminish the salaries of the Justices (approximate annual salary totals 2.27 million dollars), it could ELIMINATE paid law clerk positions at the Court, reducing federal expenditures there by 2.6 million dollars. Supreme Court law clerks are NOT part of the constitutional framework of the United States. They are an asset for federal judges for whom they serve as research assistants, ghost writers, and sounding boards.

The Constitution, however, knows no such position as a Supreme Court law clerk. In fact, the Court’s justices went without clerks for the first century, nearly, and when they got their first clerks, the clerks were, purely, stenographic clerks. Clerks were not the seeming “junior justices” whose influence over various justices today is occasionally hotly debated. There is a significant lifetime value to a Supreme Court law clerk resulting from having held that position and the connections it provides. Consequently, I have no doubt that the Justices of the Supreme Court (and of the inferior courts) could fill their needs through programs of voluntary clerkships.

Other elements of the budget of the Courts could be taken in hand by the Congress.

When Jimmy Carter faced the twin evils of inflation and energy shortages, he imposed rules adjusting temperatures in all federal buildings. The rules demanded lower thermostat settings in the winter to reduce heating costs, and higher thermostat settings in summer to lower cooling costs. Carter’s rule was not a well-loved program. It did, however, help the federal government in pursuit of desired cost-savings.

Back then, a federal judge unsuccessfully sought to resist the rule. Essentially, he claimed that the changes were a reduction in judicial compensation and that the rule violated his separation of powers. His argument failed.

Congress – properly incensed by a lawless judiciary – could induce savings in the budget by requiring that the ambient temperatures in the Supreme Court be raised by a few degrees in the summer months and lowered by a few degrees in the winter months. Perhaps you consider such action petty? No, it is not petty. Just as the Court seems to conclude that Congress should simply recognize that, the Court has only done what the Constitution empowers it, and requires it, to do, the Court would and should recognize that the Constitution empowers the Congress to make decisions regarding budgeting.

In addition, the Supreme Court has a library. When I used that library while working on cases we had pending at the Court, I noticed a variety of subscription publications in the library. The Court’s magazine and newspaper subscriptions can be, and should be, closely reviewed.

In the 1980s, the House passed a budget amendment that stripped funding from a Braille services program of the Library of Congress. That budget reduction matched the costs incurred by the Library of Congress’ creation in its creation of Braille versions of Playboy magazine. A federal trial court found that particular decision to be a form of viewpoint discrimination against speech related to sex, and unconstitutional. That decision, however, would not implicate a viewpoint neutral evaluation by Congress of such expenditures.

Based on its power of the purse, the Congress could review the subscription expenses of the Supreme Court and make appropriate cost cutting there. The New York Times or the Washington Post might wince, but there is nothing wrong with, and a lot to be commended in, bringing a close eye to determining precisely the publications necessary to the completion of judicial tasks. No others should be funded by Congress.

Now, against the idea of using the power of the budget, and in particular making reductions in the budget for the Supreme Court or the inferior federal courts, I suspect that the key argument is that such a reaction constitutes a kind of petty recrimination. I suppose it could be viewed that way. But then, these kinds of tit-for-tat if an American citizen with reasonable income declines to subscribe to a health insurance policy, she is required to pay into the federal government an annual, ever increasing, “Shared responsibility fee,” for the privilege of doing so. Nor is such pettiness limited to individual taxpayers. In South Dakota v. Dole, the Supreme Court sustained a federal funding program requirement that a State refusing to raise its legal drinking age to 21 would forgo a petty 5% of federal highway funding.

As it turns out, Congress, through its enactment under Democrats of Obamacare and its enactment under Democrats of the inducement to the States to raise the legal drinking age to 21, has demonstrated a perfect willingness to engage in what some might consider rather petty power plays. So, here, where the cause is just, and the means exist, Congress has EVERY RIGHT and EVERY REASON to use the Spending Power to express its displeasure with the Court for it decision.

The principal drawback to BUDGETARY recriminations is that Congress must demonstrate political will. To prevail, the Republican Leadership must possess resolve, they must have real commitment to the purpose. While Congress may want to bring the Court to heel, the current President celebrated the Obergefell decision by illuminating the White House with a rainbow of colors. It is altogether unlikely that Barack Obama will accede to such Congressional acts. So if Congress were to pass spending legislation with limitations on the budget for the Judiciary, it would need to have the political will to stand by their enactment, even if the President threatens to, or actually does, veto such legislation.

Oversight Actions

Justice must not only be done, it must be seen to be done.

Congress can use its power of investigation and review -- its oversight power -- to illuminate whether Obergefell is an instance in which justice has been done.

Justice Scalia, dissenting in Obergefell, noted something quite disturbing about the Obergefell Court:

Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.

In the past week, I have seen recriminations on line against Twitter due to the under-representation in its labor force of African Americans. And, within the current year, there have been voices calling for a change to Army Ranger School training standards after EVERY FEMALE RANGER CANDIDATE FAILED.

These stories show that the racial composition of the workforce of private employer such as Twitter can be made a matter of public concern, and that the gender composition of a government unit like the Army Rangers, too, can be made a matter of public concern.

Can it fairly be claimed that the religious affiliations, schooling, geographic origins, and schooling of members of the Judiciary, in particular, of the Supreme Court, are not of concern to the American people? In fact, how can it be unreasonable to suppose that the very real difference between the demographic composition of the Court, when compared with the composition of this Nation’s People, is significant?

It would be perfectly within the power of Congress to conduct oversight hearings on the “railroad track” that leads from one or two Ivy League law schools to a select federal trial and federal appellate clerkships, thence to which Supreme Court clerkships and to which law firms and/or government agencies and then to which administrative appointments and then judicial appointments, and, in a select set of cases to which Supreme Court appointments. Why shouldn’t the American people learn that the seeming disinterest of the Judiciary in the topics upon which it is called to rule is actually, or may be, the product of a careful career of grooming by institutions not necessarily in sync with the views of the American people on various matters of policy?

Beyond inquiring into how a law student becomes a clerk becomes a federal employee becomes a federal appointee becomes a judge, there are some real, important, and helpful matters of oversight that could be made the business of the Judiciary Committees of the House and the Senate.

For example, the Obergefell decision itself could be examined by the Constitution Subcommittees of Judiciary Committees of the House and the Senate.

Justice Kennedy’s opinion for the Court lays the foundation for same sex marriage within both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Congress could certainly examine the body of law and logic, both historical and current, to evaluate the quality of the decision. Indeed, as each Branch of the government must judge for itself the meaning of the Constitution, it is appropriate and necessary that they do so.

Oversight could also bring before the Judiciary Committees questions about the Defense of Marriage Act, and the power of the Congress exercised adopting DOMA. When Congress enacted DOMA, it employed its authority under Article IV of the Constitution to confirm that each State would have the right to decide for itself how, and whether, it would recognize same sex marriages created under the law of sister States. It also employed its Legislative power to define marriage as being between one man and one woman for purposes of federal law.

The Obergefell decision finished off DOMA by concluding that States were required to give “full faith and credit” to the acts and judgments of other States with respect to the creation of, maintenance of, and dissolution of, same sex marriages. Two Terms ago, the United States v. Windsor decision from the same Court struck down that portion of DOMA by which Congress limited the definition of marriage for federal law purposes to opposite sex marriage.

Both Windsor and Obergefell implicate powers of Congress. Both are worthy of particular evaluation and consideration by the appropriate Committees of Congress. Oversight hearing would afford the Congress with important opportunities to review the impact of decisions of the Supreme Court on the powers of Congress.

Finally, there are post-Obergefell ramifications that must be taken into consideration, and it would be appropriate for Congress to begin the process of assessing those ramifications. Here I have particularly in mind the impact of the decision on individuals who, by reason of religion or conscience cannot provide services or support for the formation of, and celebration of, same sex marriages.

First, because there is a real risk that the Internal Revenue Service might treat Obergefell as determining a national question of policy, not merely on same sex marriage, but on discrimination based on sexual orientation, Congress should conduct oversight hearings of the Internal Revenue Service. Congress should inquire of the IRS how it interprets Obergefell in relation to a determination of national public policy. [For those who may not know why this point is important, the IRS revoked income tax exemptions from a private college and a private school based on racially discriminatory policies. I have explained the implications of the Bob Jones University case previously.]

Second, Congress should conduct investigative hearings to assess the state of the law regarding public accommodations requirements around the Nation, and how non-discrimination requirements in the States interplay with conscientious objection. Such hearings can inform how Congress decides to proceed with respect to strengthening the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, the Defense of Marriage Act, proposed constitutional amendments regarding marriage (either defining marriage as between one man and one woman or confirming that the States alone have the power to determine for themselves the definition that governs marriage in their borders).

Impeachment Actions

For those who’ve watched over six years of criminality and incompetence of the present administration without Congress ever taking any step toward consideration of impeachment, it will be, perhaps, frustrating and pointless to be reminded of that the sobering tonic of impeachment belongs to the House of Representatives. The House has the power to draw up Articles of Impeachment against the Justices of the Supreme Court and judges of the inferior federal courts. If the House were to do so, and were to approve Articles of Impeachment by a sufficient margin, the Senate would have the power to conduct trials of justices or judges so impeached.

This power has been exercised by Congress before. More importantly, in the only instance in which the House ever actually impeached a sitting Justice of the Supreme Court, Justice Samuel Chase, the impeachment resulted entirely from political disagreement between Chase, a staunch Federalist and supporter of the Alien and Sedition Acts, and supporters of Thomas Jefferson, who bested the Federalists in the 1800 Presidential election and ardently opposed the same Alien and Sedition Acts. While Chase was acquitted in the Senate, he has that curious asterisk by his name in the annals of history, indicating his status as the only justice of the Supreme Court to be impeached by the House.

There are good reasons to look at impeachment.

Before the Supreme Court decided Obergefell v. Hodges, while the case was pending there, two justices of the Supreme Court, Ruth Bader Ginsburg and Elana Kagan, officiated at same sex marriages. Their “dispassionate participation” of Obergefell can be reasonably doubted. Indeed, only a cynic could conclude that it was proper for these two justices both to officiate weddings that the Court might well find were not constitutionally required and to decide whether, in fact, the weddings they officiated were constitutionally protected. Ginsburg and Kagan ought to have recused themselves from deciding Obergefell. Their decision to participate may well constitute misbehavior in office. A reasonable observer would find the task of distinguishing their involvement in that case from another justice deciding cases involving corporations in which that justice holds investments.

Nor should Congress ignore that the Obergefell majority trespassed boundaries on the judicial power set out in the Constitution. The States created the federal government by ratifying the Constitution. They bounded the power of that federal government by limiting its powers to those donated by the States expressly to it. Nothing in the Constitution empowers the Supreme Court to make policy regarding marriage for any State or, as it did in Obergefell, for the entire Nation.

Such trespassory invasions of State powers – reserved to the States the Tenth Amendment – constitute misconduct in office. To be sure, we could simply categorize such matters as disputes over outcomes. Doing so, however, explains in substantial part how we have arrived at a place in time and policy where politicians and citizens are unsurprised at the notion that the final word on the power of States to define marriage belongs to the Supreme Court. Congress can curb the aggrandizement of power at the Supreme Court by examining the institutional abuse that Obergefell constitutes.

Impeachment is not just for “crimes” like murder or theft. Political wrongs can be answered by impeachment. Impeachments of that sort have been done before, and they should be considered here again.

Legislative Actions

Congress has significant power to curb the Supreme Court by legislation.

The Constitution states:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

While we are accustomed to viewing the United States Supreme Court as the nation’s court of last resort for a panoply of issues, that is so only because the Congress has expanded the reach of the Court through legislation. Truth be told, Congress has the power to strip the Supreme Court of jurisdiction over questions related to marriage, or other matters.

The Supreme Court typically exercises its power of judicial review to review decisions of the inferior federal appeals courts, and  to review certain decisions of State courts. The Supreme Court exercises that power because Congress has granted it to the Court in accord with Article III.

The idea of limiting the jurisdiction of the Supreme Court is neither new nor untested. In fact, Congress has limited the jurisdiction of the Supreme Court in the past. In fact, in the era of Reconstruction, after the Civil War, while the Court was actively considering a case, Congress stripped the Court of its jurisdiction in the matter. The Court acknowledged that they could not decide a case then currently pending before it:

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Nearly a century later, Justice Owen Roberts, writing in the ABA Journal, Volume 35, at 1, proposed an amendment to the Constitution to strip Congress of this power to limit the jurisdiction of the Supreme Court. Roberts explained the need for such an amendment by describing the existing power of Congress:

I do not see any reason why Congress cannot, if it elects to do so, take away entirely the appellate jurisdiction of the Supreme Court of the United States over state supreme court decisions.

As Justice Roberts understood (and feared) Congress can reconsider the scope of review on appeal and on certiorari available in the Supreme Court.

[If you want to get down into the fascinating weeds of the stripping of jurisdiction by Congress of the Supreme Court’s appellate review, here is a dated, but relevant consortium worth the time taken to read.]

In addition, Congress can limit the availability of the inferior federal courts for litigation of the kind that led to the Obergefell decision. In fact, current federal statutes include restrictions on the jurisdiction of lower federal courts in a variety of matters. When the design, placement, and building of the now-complete World War II Memorial was underway, Congress enacted a statute stripping the federal courts of jurisdiction to entertain challenges to the site selection process.

Congress also used its jurisdiction-stripping power when it enacted three federal laws related to crime, to illegal immigration and to terrorism. In those cases, Congress restricted the power of federal courts to review various questions that were previously within their jurisdictional reach. Those three laws are the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Prison Litigation Reform Act of 1996, and the Antiterrorism and Effective Death Penalty Act of 1996.

Congress can, and should, examine the role of the inferior federal courts in the judicial sweep that preceded the Supreme Court’s decision in Obergefell. In light of how the federal courts became embroiled in questions properly ones for the political branches of State government, or to the People of the States, Congress should strip the inferior federal courts of jurisdiction to entertain such cases.

In addition, Congress should address topics indicated in previous sections of this blog:

Congress should expressly state that tax exempt 501(c)(3) status may not be stripped from an organization based on policies that may be considered by the IRS (or complainers) as inconsistent with “national policy” regarding same sex marriage expressed in Obergefell.

Congress should expressly state that the Religious Freedom Restoration Act protects religious bodies and individuals in the maintenance of their practices related to marriage, even if viewed as inconsistent with, or contrary to, Obergefell.

Congress should expressly state that the RFRA protects those in private enterprises who contract with, or provide services to, the federal government (that latter point anticipates that the Obama administration is likely soon to embody a nondiscrimination provision in federal contracting) against violation of their religious conscience with respect to same sex marriage.

* * * *

Indeed, Congress is not powerless in the face of the Supreme Court. To permit it to claim powerlessness requires that the People ignore the Constitution. The tonic for a Court that ignores the Constitution will not be found in a People that do so, or that tolerate a Congress that does so.

Ultimately, we must ask, not does Congress have power, but is Congress willing to act? Will they use their power over the budget, their right to conduct oversight, their power to impeach, and their legislative power to reprove the Supreme Court in answer to the Obergefell decision? Let that question stew in your mind. Then insist that Congress BOIL the Supreme Court.