Politics and American Business: Adversaries or Allies?

Are business and government allies or adversaries? What is the proper relationship between the two? These questions are important issues for the upcoming presidential, congressional, and state elections. They are also the subject of my new book, Politics and American Business: The Growth of Industrial America, 1860-1960, just published by WingSpan Press. The book is now available for orders at Amazon.com and BN.com in both soft cover and electronic versions. The electronic version is also available on other sites selling ebooks.

In researching and writing this book, I have drawn on my more than 40 years of experience representing businesses in litigation and counseling, as well as on my seven years of teaching American History at the University of Pennsylvania and Chestnut Hill College. My teaching experience showed me that the previous books typically assigned in survey courses on American History placed too little attention upon the proper relationship between politics and business, tending to demonize business and failing to appreciate its importance to the economic vitality of this country.

We outline in this book exactly how government can either assist, or hinder, the appropriate growth of American businesses. We identify five critical factors which recur over history, including alternating cycles of regulation and deregulation; the critical importance of infrastructure; the impact of armed conflicts as a business stimulant; the government role in funding and protecting technology; and the key importance of providing ready access to the courts to protect business from excessive and unwarranted regulation.

By focusing on the time period from the Civil War to the Cold War, it is possible to identify the political and other factors which contributed to the United States assuming worldwide industrial dominance in that time period. We bring this analysis up to date in the Conclusion, pointing out how, in several critical respects, current governmental policy has fallen short. As such, attention to the five key factors we identify is highly relevant to evaluating the respective platforms of the various political parties in this important election year.

The book begins with a review of how the Civil War removed the obstacles placed by the Southern Slave Power on the development of industry in the country, tracing how the Republican Administrations in the latter part of the 19th century facilitated industrial growth by imposing tariffs and building infrastructure, particularly in railroads. We then examine the opposition to business dominance of politics by the Populists, and then by the Progressive Movement, which inaugurated tighter regulation on business growth and operations.

The height of regulation of business during this time period was reached during the three full terms of Franklin Delano Roosevelt, particularly in legislation enacted in his First and Second New Deals. Roosevelt instituted what has now become the Administrative State, under which business is heavily regulated by alphabet agencies which promulgate detailed regulations constraining business operations.

The book also details how wars and defense spending have had the incidental effect of assisting industrial development by creating new markets, by facilitating technological improvements, and by increasing employment. We examine the relationship between government and business in World War I, World War II, and the Cold War, detailing how the need to enlist business in the war effort softened government regulation and greatly improved business profitability, as well as fueling government expenditures to fund research leading to development of materials to assist in prosecuting wars. These same developments would later be utilized by businesses, including IBM, Google, and Apple, to create new products and to expand operations.

Finally, the book examines in detail how legislation protecting all varieties of intellectual property, including patents and trade secrets, as well as providing ready access by business entities to the courts as a safety valve against oppressive regulation, have both been critical factors in protecting business in this country.

Politics and American Business provides a concise treatment of an important subject. It is a work written for a general audience, totaling slightly under 200 pages of text, with an additional Chronology and References for Further Reading. If you work in or own a business, or are involved in politics, you will gain new insights into the proper role of government when it legislates in areas affecting the growth and health of American businesses.

 

 

 

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Whole Woman’s Health v. Hellerstedt and the Future of Abortion Restrictions

In Whole Woman’s Health v. Hellerstedt, No. 15-274 (June 27, 2016), the Supreme Court struck down two provisions of a Texas law relating to the regulation of abortion clinics in that state. Those provisions required, first, that abortion doctors have admitting privileges at a hospital located within 30 miles from their facility, and, second, that the facilities themselves satisfy the minimum standards for ambulatory surgical centers under Texas law. By a 5 to 3 margin, the court found that both provisions placed substantial obstacles in the paths of women seeking pre-viability abortions, and thus constituted an undue burden on their access to abortion.

Whole Woman’s Health marks a notable change in emphasis in the Supreme Court’s abortion jurisprudence. In two important ways, it shifts the focus from the approach taken in Gonzales v. Carhart (2007), the court’s previously most recent abortion decision. To begin with, Justice Breyer’s opinion for the majority repeatedly refers to the need for the trier of fact to weigh the burdens imposed upon access to abortion against the benefits flowing from the regulations in question. This risk-benefit type of approach requires detailed findings of fact, and those supporting the challenged regulations will need to present detailed evidence regarding the specific benefits of those provisions. This evidence would include identifying deaths and serious injuries experienced by women attending abortion clinics in the particular state, and further indicating how the legislation at issue will address those types of incidents. Such detailed evidence will be particularly important given the fact that the majority opinion puts two thumbs on the scale against upholding any abortion regulation of the type involved in Whole Woman’s Health. Thus, the majority emphasized the safety of abortion compared to other procedures (abortion is “safer… than many common medical procedures”), and dismissed the contention that the Texas law would address the type of gruesome infanticides experienced in Kermit Gosnell’s  Pennsylvania abortion clinic. On the latter point, Justice Breyer opined that while “Gosnell’s behavior was terribly wrong…, there is no reason to believe that an extra layer of regulation would have affected that behavior.”

A second significant change from prior Supreme Court abortion decisions relates to the level of deference that should be afforded state legislation. Gonzales v. Carhart held that fact-finding is subject to a “deferential standard,” indicating that “where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” By contrast, Whole Woman’s Health substitutes a burdens versus benefits analysis, cautioning that it “is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.”

These changes made by Whole Woman’s Health are particularly important because of the solid five justice majority in the case, including the joinder of Justice Kennedy, author of the Gonzales opinion, in the majority opinion. As such, it makes little difference as to the jurisprudential approach to abortion regulation of the new justice who eventually replaces Justice Scalia. In light of these changes, particular emphasis in future cases will be placed upon the factual findings relating to burdens and benefits made by the trial court. Thus, it is unlikely that the Supreme Court will review more abortion cases in the near future, but will, in all probability, simply vacate and remand other cases for reconsideration under Whole Woman’s Health.

One critical question that does remain open, however, is the type of cases as to which the burdens versus benefits approach is mandatory. Thus, for example, will state legislation mandating that a woman undergo an ordinary ultrasound before she procures an abortion be subject to this standard? In addition, if that standard does apply, what are the relevant “benefits” to be weighed in such a case? Should, for example, those benefits include the benefits to both the state and woman regarding making an informed choice as to whether she wishes to abort the life she sees on the ultrasound? Thus, Gonzales v. Carhart implies that, even if the burdens versus benefits approach does apply, the state has a legitimate interest in promoting “respect for life, including life of the unborn.” Finally, is any burden imposed upon the woman by the requirement that she undergo an ultrasound a “substantial” one which also places a “burden on access to” abortion?

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Supreme Court Declines to Hear Pharmacists’ Religious Exemption Claim

Regulations issued by the Washington State Board of Pharmacy require all pharmacists to provide emergency contraceptives, specifically mandating that no one may refuse to do so based on religious grounds. In Stormans, Inc. v. Wiesman, No. 15-862 (June 28, 2016), the Supreme Court declined, over three dissents, to hear  a local grocery store and pharmacy’s appeal, joined in by two other pharmacists, from a Ninth Circuit decision upholding the regulations against a First Amendment challenge. The appellants based their challenge on their religious belief that life begins at conception and that employing emergency contraceptives  “is tantamount to abortion.”

In an opinion dissenting from the denial of certiorari on behalf of himself, Chief Justice Roberts, and Justice Thomas, Justice Alito observed that the case provided “an ominous sign,” reasoning that “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”

There were several key factors identified by Justice Alito which made the case a good candidate for Supreme Court review in the eyes of the dissenting justices. First, the importance of the case was underlined by the fact that some 38 national and state pharmacy associations urged the court to hear the case, contending that the regulations at issue constituted “a radical departure from past regulation of the pharmacy industry,” and might cause small, independent pharmacies to close, reducing patient access to medication. Second, the case placed “important First Amendment interests at stake.” Third, there was strong evidence of a discriminatory legislative intent aimed at religious believers. Thus, for example, the State Human Rights Commission made threats of personal liability against the board members if they passed a  regulation permitting referral to another pharmacy for religious or moral reasons. In addition the Governor indicated that she could remove the Board members after the Board initially voted to permit a conscience exemption. This, plus additional evidence, persuaded the trial court after a 12 day hearing to issue an injunction against the enforcement of the regulations.

Justice Alito’s dissenting opinion provided additional reasons for the Supreme Court to review the case. He pointed to several factors indicating that women seeking emergency contraceptives could obtain them with ease, given the presence of more than 30 other pharmacies located within 5 miles of the appellant, and the widely-utilized and -accepted practice of “facilitated referral,” under which all types of pharmacies referred patients to other pharmacies to obtain a drug they did not stock. The record in the trial court indicated that other pharmacies not involved in the litigation used the facilitated referral option “at least several times a day.”

Finally, even though the authorities vigorously and successfully lobbied against providing a religious exemption recognizing the conscience rights of some pharmacists, the regulations did provide certain other, secular exemptions, including a pricing provision which would permit pharmacists to decline to provide drugs to Medicaid patients because of low reimbursement rates.

While Justice Alito therefore provided strong grounds for the court to hear the case, it is likely that such Supreme Court review would have resulted in an opinion upholding the Ninth Circuit. In all likelihood, the Supreme Court would, at this time, refuse to mandate a conscience exemption under the First Amendment, particularly where the liberal cause of providing contraceptives, at all times and under all circumstances, was implicated. Indeed, the cause of religious liberty may have been severely compromised based on several factors. These include the death of Justice Scalia, and his likely replacement at some future time by a more liberal justice, and the unpredictable views of Justice Kennedy, who stated in Obergefell that opposition to same-sex marriage might be limited to advocacy or teaching. The prior voting records of the four dependably liberal justices would further darken the prospects for a Supreme Court opinion upholding conscience rights. On this point, one need only read the Hobby Lobby  dissenting opinions, which would have required closely-held corporations to provide contraceptives despite religious objections to doing so by their owners.

There is no doubt that this important issue of conscience rights will ultimately reach the court in a different case if, as, and when the Supreme Court again reaches its full complement of nine justices.

 

 

 

 

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Caravaggio and the Knights of Malta

To become a great artist does not guarantee that one will also become an admirable person. A prime example of this was Michelangelo Merisi, better known to history by the name of the Italian town where he spent some of his childhood: Caravaggio.

Caravaggio was widely recognized as Rome’s greatest artist at the beginning of the 17th century. Some of his most famous religious paintings were done in this period, including Judith Beheading Holofernes, Supper at Emmaus, St. John the Baptist in the Wilderness, and The Calling of St. Matthew. Unfortunately, despite his artistic successes, Caravaggio was also known for his hot temper, and he participated in a number of brawls not only in Rome, but also thereafter in virtually every place in which he lived. One of the Roman altercations resulted in the death of a young man in a sword fight in May of 1606, following an argument over a gambling debt owed by Caravaggio to that man. Fearing potential prosecution as well as retribution from the family of the dead man, Caravaggio was forced to flee from Rome.

He next took up residence in Naples in 1606, where his artistic career continued to flourish. During this period, he produced more magnificent paintings, including Seven Acts of Mercy, Christ at the Column, and David with the Head of Goliath.

Caravaggio’s next move was the most significant for this post. In 1608, he took up residence in Malta, where he made several paintings for the Order of Malta, including one of its Grandmaster. For his artistic efforts, Caravaggio was invested as a Knight of Malta in the Order of St. John of Jerusalem. His most famous painting for the Order, and one which many consider his masterpiece, was the Beheading of the Baptist, which still is on display in the St. John Museum in Valletta, Malta’s capital city. The Beheading was the only painting Caravaggio ever signed, and he did it in a most graphic way, beneath the blood from the severed head of St. John.

Why is it that Caravaggio, at the height of his artistic powers, left Italy for Malta? While the answer is not free from doubt, it is likely that Caravaggio believed that the Knights of Malta could assist him in clearing his name and obtaining a pardon for him for the Roman homicide, and could also give him aristocratic status as a Knight of Malta. Unfortunately for him, another brawl in which Caravaggio injured a fellow Knight in yet another sword fight led to his expulsion from the Order “like a rotten and putrefying limb.” Caravaggio was incarcerated for his offense, but somehow escaped from the virtually impregnable fortress prison at Castel Sant’Angelo in Valletta, using a rope supplied by an unknown ally to scale the prison wall.

Caravaggio’s next port of entry was Syracuse in Sicily. His painting successes continued, including The Death of the Virgin and The Burial of St. Lucy. Moving next to Messina, he again was forced to leave for Palermo because of another brawl.

Eventually Caravaggio returned to Naples where he produced more famous paintings, including David with the Head of Goliath, Salome Receiving the Head of John the Baptist, and The Martyrdom of St. Ursula. It was also at Naples that he finally received his long-sought pardon for the Roman homicide.

Caravaggio’s luck finally ran out in Naples. Under circumstances that remain unclear today, he died in 1610, perhaps by foul play, or perhaps from lead poisoning from the paints he had used all his career. Caravaggio was 38 years old when he died.

References:

For a comprehensive biography, see Peter Robb, M: The Man Who Became Caravaggio (Henry Holt, 2000)

For a short biography, see Francine Prose, Caravaggio: Painter of Miracles (Atlas Books, 2005)

For excellent reproductions of Caravaggio’s paintings, see Giorgio Bonsanti, Caravaggio (SCALA, 2014)

For additional reproductions, see www.caravaggio.com.

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From Cain to the Good Samaritan: The Conversion of Ivan Karamazov

The Brothers Karamazov, by Fyodor Dostoevsky, is generally considered one of the greatest novels ever written. It tells the story of three brothers, Alexei (Alyosha), Dmitri, and Ivan. Alexei is the good brother, a follower of the saintly Orthodox priest and monk, Father Zosima. Dmitri is a drunk, a military man, and a womanizer who loves poetry. Ivan is a nihilist who, at first, believes everything is permissible. Much of the plot revolves around the murder of their father, Fyodor, a thoroughly depraved and highly unsympathetic character. Dmitri is arrested, tried, and unjustly convicted of the murder, which actually was committed by Pavel Smerdyakov, who lived in the father’s household, serving as a cook, valet, companion, and general handyman, and who may have been the father’s illegitimate son.

While each of the sons, as well as the father and several other characters, has been analyzed by many commentators, this post looks at Ivan, focusing particularly on his movement from nihilism to compassion.

How Ivan Was:

At the beginning of the book, Ivan is committed to a position of extreme nihilism. He believed that every man was a law unto himself, and rejected the concept that he was his brother’s keeper: “What have I to do with it? Am I my brother Dmitry’s keeper?” Moreover, he did not believe in life after death or immortality. In his view, this absence of a future life meant that “nothing then would be immoral, [and that] everything would be permitted.”

How Ivan Changed:

Ivan’s metamorphosis occurs in the context of discussions with Smerdyakov regarding why the cook killed Ivan’s father. Smerdyakov tells Ivan that he was only Ivan’s “instrument,” and that Ivan is “the only real murderer” because he convinced Smerdyakov that all it is permitted, and that nothing is wrong. As such, “it was following your words I did it.” This accusation strikes Ivan to the core, and he admits that he wanted his father’s murder and perhaps was even prepared to assist in it. Ivan says “I put him up to it,” and “I am the murderer too.” He even goes so far as to testify at Dmitri’s trial that “I am not mad. I am only a murderer.”

Based upon these self accusations, Ivan changes. This change is shown most dramatically by his actions after he confronts a peasant and knocks him into the snow-covered ground, leaving him unconscious. At first, he simply goes away, leaving the peasant in the snow. But later, on his way back, he sees the peasant still lying there. Instead of leaving him on the ground again, he lifts the peasant up, takes him to a police station, and pays for a doctor to see the peasant. In these actions, Cain becomes the Good Samaritan.

How Ivan’s Conversion Reflects the Themes of the Book:

The change in Ivan demonstrates the force of Father Zosima’s teachings in Book VI, Chapter 3. He cautions that we cannot view our actions in isolation. Instead, “all is like an ocean,” and “a touch in one place sets up movement at the other end of the earth.” As such, each person is responsible for every other person: We are our brothers keeper. There is only one way to salvation, and that is to “make yourself responsible for all men’s sins.”

Ivan’s metanoia is graphically captured in another teaching of Father Zosima: “No one can judge a criminal until he recognizes that he is just such a criminal as the man standing before him, and that he perhaps is more than all men to blame for that crime.” Nevertheless, God will save the sinner Ivan because God “loves you with your sin, in your sin.”

In starting on his journey of conversion, Ivan mirrors the path of Saint Augustine, who said “See who I was in myself and by myself. I have destroyed myself, but He who made me remade me.”

 

 

 

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When The Knights of Malta Saved Christian Europe

September 8 commemorates the 450th anniversary of the end of the Siege of Malta by the Ottoman Turks in 1565. The Turks laid siege to Malta as a key ingredient of their plan to invade and take over Europe for Islam. The critical island of Malta in the Mediterranean provided then, as it did also in World War II,  a gateway to Italy and thus to the rest of Europe from the south. The Turks called Malta “this cursed rock” which functioned as “a barrier interposed between us and [our] possessions.” The English Queen Elizabeth aptly noted that had the siege of Malta been successful, “it is uncertain what further peril might follow to the rest of Christendom.”

Beginning in May of 1565, a Turkish fleet comprised of 200 vessels and 40,000 men at arms began their siege of the Knights of Malta’s island fortress. The Siege would last some four months, and cost the lives of 30,000 on the Turkish side, and 7000 of those fighting along with the Knights of Malta. By the end of the Siege, the 9000 defenders of the island were reduced to only 600 who were able to fight under the leadership of the Knights of Malta. The Knights themselves lost 250 of their 541 members and aides who defended the island, and those who lived were incapacitated for the rest of their lives.

The Battle of Malta was a bloody and vicious one on both sides. Knights who were captured were brutally tortured, and beheaded, with their trunks crucified and then floated out to the Mediterranean on their crosses. Turks who were captured were beheaded, and their severed heads used as cannonballs which were fired at the Turkish fleet.

Had Malta fallen to the Turks, the rest of Europe might have followed. Europe owed its temporal salvation then to the Knights of Malta and their Maltese comrades. While the Turks would try again to invade and conquer Europe, they were conclusively defeated six years later at the Battle of Lepanto where the Knights of Malta again played an important role.

When the Siege of Malta ended on September 8, 1565, the surviving Knights and the people of Malta celebrated a Mass of Thanksgiving commemorating the Feast of the Nativity of the Virgin Mary, a feast which continues to be celebrated today as well in Catholic churches throughout the world. The Knights of Malta worldwide also celebrate today the Feast Day of their patroness, Our Lady of Philermo, by attending masses and offering praise and thanksgiving to God and to Mary throughout the day.

While the Knights of Malta have put aside their swords, choosing instead to devote their efforts to defending the Catholic religion and assisting the poor and the sick through a worldwide network of hospitals and charitable endeavors, their past sacrifices of their blood and treasure must be remembered and praised by all, not only in Europe, but also throughout the world.

 

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Are There Limits to Birthright Citizenship?

In the recent political debates among the various candidates for the Republican nomination for the presidency, Donald Trump has raised the issue of whether there are limits on the individuals who are entitled to be afforded birthright citizenship. On that point, the Fourteenth Amendment to the Constitution specifically provides that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of United States and of the State wherein they reside.” The critical constitutional issue revolves around the meaning of the “subject to the jurisdiction thereof” clause of the amendment.

On that issue, I suggest that there are different categories of individuals “born… in the United States,” and that their right to citizenship varies according to the category into which they fall. Here are some examples:

1. Children born to Native Americans and to foreign diplomats.

This is the easiest of the three categories. The Congressional Debates on the Fourteenth Amendment made it clear that Native Americans were not covered by its citizenship language. The Supreme Court confirmed this in Elk v. Wilkins (1884), when it ruled that a Native American born on a reservation was not an American citizen because he was not “completely subject to [the] political jurisdiction” of the United States, but instead was an individual “owing immediate allegiance to” his tribe. (It should be noted that Native Americans received the rights of United States citizenship thereafter in the Indian Citizenship Act of 1924.) Likewise, it has long been settled that children of foreign diplomats are not entitled to American citizenship when born in the United States, since their allegiance is owed to a foreign power. See Akhil Reed Amar, America’s Constitution: A Biography (Random House, 2005), at 381.

2.  Children born to foreign nationals who travel to the United States for the purpose of  conferring citizenship on their children.

Several articles and news reports have reported that wealthy foreigners, particularly those from China and Russia, have traveled to the United States to permit their wives to give birth to children in this country in order to obtain American citizenship for them. Mr. Trump has also contended that many Mexican parents travel over the border to permit their child to be born in the United States. After these children are born, their entire families then return to their respective foreign homes. It stretches logic to contend that the children of such individuals are entitled to American citizenship since their allegiance was, and is, to a foreign sovereign, and their stay in this country was carefully limited, with no intent to subject themselves generally to American jurisdiction.

3.   Children born to parents who are long-term residents of the United States, but have not applied for American citizenship.

This category would seem to be determined by the Supreme Court’s majority opinion, over two dissents, in  United States v. Wong Kim Ark (1898). Many commentators have relied upon this decision in concluding that any child born to illegal immigrants within the United States is entitled to American citizenship. A careful reading of Justice Gray’s majority opinion, however, reveals some critical facts which do not mirror the situation of many children born in the United States to illegal immigrants today. Thus, Wong Kim Ark was born to Chinese parents who were subjects of the Emperor of China, but had a lawful permanent domicile and residence in United States before they moved back to China. The parents were also conducting a business in the United States and had no official ties to China when they were domiciled in this country. Thus, when a child is born to parents who are long-term residents of the United States, that child should be entitled to birthright citizenship so long as his parents have no ongoing ties with their country of citizenship.

Not all commentators accept this reading of the Wong Kim Ark case. Thus, Professor John C. Eastman of Chapman University School of Law contends that the “subject to the jurisdiction” language of the Fourteenth Amendment requires “complete, political jurisdiction,” and would not cover the children of illegal immigrants born here. See John C. Eastman, “We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship,”  National Review, August 24, 2015. In addition to pointing out the limiting facts of the Wong Kim Ark decision noted above, Professor Eastman also relies upon dicta from the Slaughterhouse Cases (1873), which read the “subject to the jurisdiction” language as excluding “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” It should be noted, however, that Justice Gray takes pains in Wong Kim Ark to characterize this language as careless dicta, and therefore not binding.

Given the different circumstances applying to the different categories outlined above, the argument made by Donald Trump and others that congressional legislation could clarify the situation has some merit, particularly for category two. To begin with, Section 5 of the Fourteenth Amendment provides that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” While the Supreme Court may very well take the position that interpretation of the “subject to jurisdiction” language is a legal matter exclusively within its purview, the current confusion as to just who is entitled to birthright citizenship could be cause enough for the court to defer to a reasonable clarification through congressional legislation.

 

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The Supreme Court and Same-Sex Marriage: An Analysis of the Three Opinions

Click on the link below for my summary and analysis of the opinions in Hollingsworth, Windsor, and Obergefell:

Obergefell Summary and Analysis

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Obergefell and the Free Exercise of Religion: Some Initial Thoughts

In the considerable wake of the Supreme Court’s decision finding a constitutional right to same-sex marriage in Obergefell v. Hodges (June 26, 2015), people of faith have suggested  a number of different responses, many of which seem unwise to me. Here are my initial thoughts on those suggestions, as well as some of my own.

1. Professor Robert George has suggested that people of faith should treat the decision the same way President Abraham Lincoln dealt with the Dred Scott decision, treating it as “anti-constitutional and illegitimate,” and refusing to “treat and regard it as a binding and settled matter.” Other commentators have called for a new Constitutional Convention to ban same-sex marriage. By contrast, still others have called for religious people to withdraw from the public sphere altogether. In my view, all of these approaches fail as an effective response to the Obergefell ruling. Thus, those opposing the ruling will not be compared to Abraham Lincoln, but rather to the Southern segregationists who opposed implementation of the ruling in Brown v. Board of Education (1954). Moreover, those calling for a Constitutional Convention, in the unlikely event they were able to attain their goal, might well find that the Free Exercise Clause (and indeed much of the rest of the First Amendment) would not survive intact. Finally, those calling for withdrawal from the public square would leave that platform for discussion one-sided, assuring a complete defeat for all of their faith-based positions on matters of public concern.

2. In determining the proper response to the decision, it is important to keep in mind that Obergefell raises serious questions as to what freedom the decision leaves people of faith and others to oppose same-sex marriage. Justice Kennedy’s majority opinion unsatisfactorily deals with this issue. On page 27, he devotes a lengthy paragraph to the rights of “religious organizations and persons,” who, he says, “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” (Emphasis added.) While this is all well and good, it seems to limit rights to those conferred under the Free Speech Clause of the First Amendment by using the words “advocate” and “teach.” Indeed, in his dissenting opinion, Chief Justice Roberts notes at page 28 that “The First Amendment guarantees…the freedom to”exercise” religion. Ominously, that is not a word the majority uses.” (Italics in original.)

Thus, “advocacy” may embrace teaching and protesting (at abortion clinics, for example), but will it also embrace such activities as priests or ministers refusing to perform same-sex marriages, or local bakeries refusing to bake cakes for same-sex wedding receptions? Here, I believe, that sensible compromises are called for. Priests, ministers, rabbis, and Muslim clerics should consider withdrawing from performing marriages on behalf of the state, and limit their ministries to performing religious weddings. (A parallel civil wedding could easily be accommodated at the wedding reception, to avoid inconvenience to the couple being married.) Clerical withdrawal from civil weddings has been suggested by Catholic bishops and clergy in the United States and in Europe to avoid any entanglement with the state, hoping that such an approach would prevent the state from inflicting penalties for refusals to perform same-sex marriages. A more difficult issue arises from the specter that religions which refuse to countenance same-sex marriages may lose their tax-exempt status. That this is a real prospect was underlined at the oral argument in Obergefell, where the Solicitor General of United States refused to rule out that possibility, a point noted by Chief Justice Roberts at page 28 of his dissenting opinion.

The case of the reluctant baker also has a workable compromise. One who opens his or her business to the public may reasonably be required to provide a wedding cake to a same-sex couple who comes into the bakery to order a cake. By contrast, however, same-sex couples should not be permitted to mandate that a wedding cake be decorated with pro-same-sex marriage or pro-gay slogans. The First Amendment should protect the baker who refuses such a request.

3. In considering the issue of exercising the right to oppose same-sex marriage in the public square, and to conduct religious ceremonies and private businesses without improper governmental interference, people of faith should keep in mind, as Rod Dreher has observed, that “We lost the culture long before we lost the Supreme Court.” Thus, as a result of extremely effective advocacy by those supporting same-sex marriage, including the enlistment of major corporations and the military to their side, the Gallup Organization reported in May, 2015, that 60 percent of Americans now support same-sex marriage. Public attitudes on the issue have changed at a meteoric pace; a New York Times poll in 2003, for example, reported that 61% of the American people opposed same-sex marriage, and that 55% favored a constitutional amendment allowing marriage only between a man and a woman. Given this rapid shift in public opinion, it is necessary for people of faith to more effectively address the culture as, for example, by advocating in the public square for their position regarding the importance of having both a mother and a father in a family, supporting that position with empirical studies.

Advocacy on the issue of same-sex marriage, or indeed on any issue of importance, should be conducted with great respect for those who disagree with the position advocated. One model which should be followed is that of the pro-life community in its steady and effective advocacy against abortion, and its efforts to repudiate Roe v. Wade (1973) over the 42 years since it was decided. Peaceful protests, combined with educational activities such as exhibiting ultrasound pictures of developing fetuses, have shifted public opinion, particularly among the young, against unlimited abortion. This type of advocacy falls well within the protective ambit of Justice Kennedy’s opinion, and is the best approach for winning over hearts and minds to the position advocated by people of faith.

4. In a democracy, respect must be shown to all people, regardless of their views on contested public issues. It is also critically important that views opposed to majority thinking not be exiled from the public square, for this country was founded on the idea that free and unlimited debate must be preserved in the interest of preserving freedom for all.

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Supreme Court Holds That Disparate Impact Claims Can Be Brought Under The Fair Housing Act

In Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc, No. 13-1371 (June 25, 2015), the Supreme Court held, by a 5 to 4 margin, that claims of disparate impact  can be brought under the Fair Housing Act. This was a surprising result, particularly because two previous cases had quickly settled after the Supreme Court granted review since the adherents of the disparate impact theory feared a negative result in the Supreme Court.

The case before the court involved claims that the State of Texas unfairly allocated affordable housing subsidies between white and black neighborhoods in Dallas such that credits were approved for nearly 50% of the units in minority neighborhoods as compared to about 37% in white neighborhoods. This disparity meant that subsidies were less available for minorities who wished to live in predominately white neighborhoods. Both the district court and the Fifth Circuit held that this statistical disparity was sufficient to make out a prima facie case of disparate impact. Significantly, however, after a four-day trial, the district court found that there was no evidence of intentional discrimination.

The Fair Housing Act prohibits discrimination in residential real estate-related transactions where that discrimination is practiced, inter alia, “because of race.” The Act further requires that tax credits be allocated under a plan that “sets forth selection criteria to be used to determine housing priorities of the housing credit agency which are appropriate to local conditions.” In Texas, the State Department of Housing and Community Affairs established a system with 11 criteria to evaluate projects. These criteria included financial feasibility, community participation, income levels of tenants, development costs, and services to be provided to tenants.

Justice Kennedy’s majority opinion relied heavily upon a comparison of the language of the Fair Housing Act to that of Title VII of the Civil Rights Act of 1964 and to that of the Age Discrimination in Employment Act of 1967, both of which have been held to permit disparate impact claims. Rather than focus upon the phrase “because of race” in sections 804(a) and  805(a), the majority focused instead upon the language in section 804(a) that prohibited refusals to sell or rent “or otherwise make unavailable…a dwelling to a person because of race.” Justice Kennedy reasoned that the “otherwise make unavailable” phrase in the Housing Act had the same impact as the phrase “otherwise adversely affect” which appears in the Civil Rights and Age Discrimination Acts. This is because the “results-oriented” phrase “otherwise make unavailable” refers to the consequences of an action rather than to the actor’s intent.

The majority also pointed out that amendments in 1988 to the Housing Act served to “ratify” disparate-impact liability because Congress knew at that time that the nine Courts of Appeals which had considered the question had unanimously concluded that such liability existed.

Justice Kennedy also relied upon the underlying purposes of the Housing Act, which focused upon laws and restrictions excluding minorities from certain neighborhoods.

In an important qualification, however (which was clearly necessary to secure his vote), Justice Kennedy went on to point out that the case before the court involved “a novel theory of liability” which needed to be reviewed carefully on remand so that it was not “simply…an attempt to second-guess which of two reasonable approaches the housing authority should follow in allocating tax credits for low-income housing.” “A disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity.” Moreover, defendants must be given “leeway to state and explain the valid interest served by their policies.” As such, “A robust causality requirement ensures that ” ‘ [r]acial imbalance…does not, without more, establish a prima facie case of disparate impact’ and thus protects defendants from being held liable for racial disparities they did not create.”

Significantly, Justice Kennedy explicitly noted that courts must thoroughly review disparate impact cases at the pleading stage, and “examine with care whether a plaintiff has made out a prima facie case of disparate impact” because “prompt resolution of these cases is important.”

Finally, Justice Kennedy cautioned that remedial orders must be consistent with the Constitution, concentrating on elimination of the offending practice, with courts designing “race-neutral remedies.”

Justice Kennedy’s opinion generated dissents by Justices Thomas and Alito. Justice Thomas criticized the pivotal decision in Griggs v. Duke Power Co. (1971), which was the Title VII “foundation on which the court builds its latest disparate-impact regime,” stating that he “would not amplify its error by importing its disparate-impact scheme into yet another statute.”

Justice Alito, joined by Chief Justice Roberts, and Justices Scalia, Thomas, delivered a dissenting opinion which even Justice Kennedy referred to as ” well-stated.” Alito began by pointing out that the “because of” language, which appears in both sections relied upon by the majority, means “by reason of,” or “on account of,” and refers to a factor which “was a reason for what was done.” It thus refers to subjective intent in the performance of an act, rather than to the consequences of an act after it has been performed.

With respect to the 1988 amendments, Justice Alito’s dissent points out that “[s]hortly before the 1988 amendments were adopted, “the United States formally argued in this Court that the [Housing Act] prohibits only intentional discrimination.”

Justice Alito’s dissenting opinion also points out the difficulties recognition of a disparate impact theory presents for housing authorities. This echoes a point made by several Amici in the briefing of this case. For example, the American Bankers Association contended that the disparate impact standard elevates the need to avoid turning away minority applicants over the selection criteria involving financial and other underwriting considerations. It also argued that “Down-payment requirements, debt-to-income requirements, loan-to-value requirements, and other neutral, risk-based underwriting requirements can all affect various racial and ethnic groups differently.”

Considerations such as those raised by Justice Alito and the American Bankers Association  are, in my view, compelling and undoubtedly contributed to the lengthy portion of Justice Kennedy’s majority opinion calling for careful scrutiny of disparate impact claims in the housing area. While those cautions will somewhat assist defendants in weeding out the most unmeritorious claims at the pleading stage, they are hardly an assurance that all such claims will be dismissed. Indeed, as Justice Alito properly points out, “the costs of litigation, including the expense of discovery and experts, may ‘push cost-conscious defendants to settle even anemic cases,’ ” and, in addition, “may let race drive their decision-making in hopes of avoiding litigation altogether.”

In closing his dissenting opinion, Justice Alito made the critical point that the approach of the majority opinion, in “privileging purpose over text…creates constitutional uncertainty,” and may act to  “‘perpetuate race-based considerations rather than move beyond them.'”

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