Colorado Court of Appeals Rules on Wedding Cake Dispute

By Sam Ventola,

wedding-cake-64821287878047ARgXToday in Craig v. Masterpiece Cake Shop, the Colorado Court of Appeals affirmed a decision fining a Christian baker for refusing to provide cakes for same-sex weddings. The baker did not refuse to provide other goods to homosexual customers, but claimed that forcing him to make cakes for gay weddings violated his rights of free speech and freedom of religion.

The decision was as expected. There is currently a great deal of hostility within courts, and particularly Colorado courts, against claims of free speech and religion when government regulation of gay rights is involved. Further, freedom of religion rights had already been sufficiently eroded nationally that the only possible defense was based on free speech.

The Court did note that in some circumstances, the making of cakes could be considered speech and therefore protected. The Court did not specify the nature of this protection, but if a baker or other businessperson typically insists on placing his own messages in his or her products, then his or her rights would more likely be protected.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Supreme Court decision is that gay marriage is required by the Constitution

By Sam Ventola,

In a 5-4 decision today in Obergefell v. Hodges, supreme-court-546279_960_720(with Scalia, Thomas, Alito and Roberts dissenting), the Supreme Court held that the 14th Amendment’s equal protection clause requires States to recognize gay marriage. The decision is somewhat unusual in that it does not clearly rely on a “level of scrutiny” test as most equal protection cases do. Instead, the majority states that marriage is such an important and fundamental right, it cannot be denied to same sex couples.

One issue with the case is that its reasoning is quite broad, and therefore arguably implies the necessity of recognition of others’ efforts to get marriages, such as those wishing to engage in plural marriages or who are too closely related under State law. It remains to be seen whether the Justices in the majority would apply the same reasoning in those cases, or whether they would simply decide which relationships they deem to be acceptable on a case by case basis.

The result in the decision was widely anticipated, and already possible legislative responses are being considered. One possibility is that a State could simply eliminate “marriage” and create civil unions for any two – or even more – people who wish to commit to each other legally and financially. This could include siblings, a parent and an adult child, etc.

Also, it is important to note that this decision does not affect the First Amendment right of a minister or church to continue to decline to participate in gay marriages. The First Amendment preserves the rights of a religion to preserve its own doctrine and set its own parameters of what is a proper marriage. Although some service providers such as bakers and photographers have been required to participate in gay marriages, this would not be extended to ministers, churches, or anyone who would be required to engage in expression on behalf of the marriage.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Supreme Court Hands Down Decision Upholding Obamacare – Do the laws mean what they say or what we think they should mean?

By Sam Ventola,

young-woman-bored-11281332030yRqtToday in its decision in King v. Burwell, the US Supreme Court, by a 6-3 vote, interpreted the Affordable Care Act (“Obamacare”) in the manner requested by the Obama administration. Specifically, the Court held that tax credits are available for people who bought health policies on the federal exchange, even though the actual terms of the statute limited those credits to those who bought policies on exchanges “created by a State.” The decision did not directly affect Colorado residents because Colorado had established a State exchange.

However, people in 34 other states would have lost any tax credit – and the elimination of tax credits would have imperiled the entire Obamacare system. The Supreme Court acted to avoid these results by interpreting the Act to allow the credits even to people who did not buy on State exchanges.

The decision brings to the fore the central tension in American judicial philosophy – should judges interpret statutes (and the Constitution) strictly as written, or should they try to advance policies the judges believe should be promoted? Although our first impulse may be that we think judges should try to reach the best result, the implication of this view is that we place judges in the position of unelected “Philosopher Kings” who dictate policies they think best, even though the laws may say otherwise. The three dissenting judges (Scalia, Thomas, and Alito) contend that a judge’s role in a Constitutional democracy must be limited to enforcing the laws as written. This is a tension which will continue to play out in judicial decisions.

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

More Fun with Prosecutorial Discretion

By Sam Ventola,

More Fun with Prosecutorial Discretion – Oklahoma and Nebraska sue Colorado over Marijuana.

1904_tug_of_warIn our last entry, we explored the issue of “prosecutorial discretion,” particularly as it involved President Obama’s executive amnesty for certain illegal immigrants. With today’s news comes another story created by the Obama Administration’s decision not to enforce some parts of the federal law.

Today the States of Oklahoma and Nebraska filed a lawsuit with the U.S. Supreme Court challenging Colorado’s legalization of marijuana. The States contend that Colorado’s program violates federal policy which makes marijuana strictly illegal, and that federal policy in the field must be considered supreme.

The curious part is, the federal government – or at least the current administration – apparently does not consider marijuana regulation to be so important, because it has so much as announced that it will refrain from enforcing federal marijuana laws in States such as Colorado that have legalized it. The lawsuit essentially contends that Colorado must prohibit marijuana sales in Colorado even where the federal government has declined to do so. As stated by Colorado Attorney General John Suthers, “it appears the plaintiffs’ primary grievance stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado.”

Indeed, the States suing Colorado include as support of their claim the fact that the U.S. has signed international treaties requiring that marijuana be illegal under U.S. law. But again, it would seem to be the obligation of the federal government to comply with those treaties, rather than the Colorado government.

Because it is a lawsuit between States, this case was originally filed in the Supreme Court, so we may have a final ruling on this issue much sooner than in most cases. Watch this space for further developments.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

First Ruling Comes Down On Obama’s Executive Immigration Amnesty.

By Sam Ventola,

AMNESTYVery often a legal question comes down to a decision as to where to draw the line. Is something legal or prohibited? Does something belong to this person or that one? Lawyers and judges are left to interpret cases, statutes, and constitutions and apply them to fact patterns that differ in subtle, often unanticipated ways.  The line drawing becomes even more difficult in the field of Constitutional law, as we are trying to apply rules over two centuries old to the actions of politicians skilled at pressing the limits.

Today in the case of Elionardo Juarez-Escobar, the federal district court in Western Pennsylvania became the first to try to draw those lines in considering President Obama’s decision to grant amnesty to certain illegal immigrants. The government had picked up Mr. Juarez-Escobar for violations of the immigration law. The judge seemed to want to address the issue of the constitutionality of executive amnesty, because the judge on his own directed the parties to address the issue of whether Mr. Juarez-Escobar was entitled to amnesty under the program. The government argued that the program did not apply, but that didn’t stop the judge. Having created the issue, the judge then resolved it by finding that the executive amnesty is illegal.

The case presents the issue of where the line is to be drawn between the president’s duty to enforce the law, and the executive branch’s “prosecutorial discretion.” It is taken for granted that prosecutors and law enforcement officers, and by extension the attorney-general and president that supervise them, cannot prosecute every case. So they are considered to have the discretion to refuse to arrest, to dismiss cases, to plea bargain, and to decline to appeal. However, the Constitution also requires the president to “take Care that the Laws be faithfully executed.” On which side of the line falls President Obama’s policy of granting amnesty to certain illegal immigrants, and even giving them documentation to prove their status and obtain benefits?

Some scholars have argued that so long as the president is ordering the executive branch to refrain from taking action in certain situations, then the (non-) action is permitted as part of prosecutorial discretion. In our opinion this draws the line much too far on the prosecutorial discretion side. Could a conservative president unilaterally decide that environmental regulations are too strict and therefore will not be enforced? Could he determine that tax rates are too high and instruct the IRS to collect lower amounts, even creating tax forms that apply his new revised rates?

The judge in the Juarez Escobar case drew the line by saying that when the executive action announces a policy that is not on a case-by-case basis, or creates substantive rights that would be difficult to withdraw later, it is too far from prosecutorial discretion and illegal. Finding that President Obama’s executive amnesty violated both those tests, he declared it unconstitutional. However, because of the unusual way in which the case was presented (no party in this case was seeking an injunction against the President’s program), this decision is not likely to affect the Obama Administration’s actions.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Supreme Court To Hear Arguments Today on Facebook Threats

By Sam Ventola,

homme-daffaires-ordinateur-pcIf you have teenagers, you have no doubt heard the argument that some awful thing posted on Facebook or other social media should be ignored because “it’s just song lyrics.”

Anthony Elonis tried that defense too. It hasn’t worked so well for him so far, and now his case Elonis v. United States is before the U.S. Supreme Court for oral argument today. Mr. Elonis posted Eminem song lyrics about his wife including “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” After being visited by a female FBI agent, he posted “Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat.”

The jury that convicted Elonis was instructed that his words should be regarded as a threat, which is not protected by the First Amendment, if a reasonable person would interpret the words as a threat. Elonis’ argument is that the prosecution should have been required to prove that Elonis subjectively intended the language as a threat.

Watch this space for the result, however we predict that the Court will reject Elonis’ argument. The Supreme Court often evaluates First Amendment cases by considering the value of the speech sought to be protected, and there is little value to Elonis’ quasi-threats here. Also, the Court is unlikely to favor an approach that requires authorities to gauge the subjective intent of a speaker.

Please contact us if you have questions about this case, or First Amendment rights generally.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Supreme Court Rules In Favor Of Religious Freedom

By Sam Ventola,

supreme-court-546279_960_720

Today, the U.S. Supreme Court found in favor of the companies’ religious freedom in  Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius.  In each case, the companies argued that the requirement to provide abortion services in the Affordable Care Act (“Obamacare”) violated their rights of religious freedom.  Although religious freedom had been curtailed in previous Supreme Court decisions, religious freedom rights are generally protected at least as against Federal regulation by the Religious Freedom Restoration Act.  Although they could have done so, nothing in the statutes enacting Obamacare indicated that the regulations prevailed over the religious freedom rights protected by RFRA.

The government had argued that although RFRA protected the religious freedom rights of individuals and non-profit corporations, it did not protect religious freedom rights of corporations that sought profits.

As predicted in our recent blog entry on the case, the Court found that it was not legitimate to attempt to deny right under RFRA to Conestoga and Hobby Lobby merely because they were for-profit corporations.  Noting that the government admitted that non-profit corporations are “persons” protected by RFRA, the Court found that there was no basis to then conclude that for-profit corporations are not “persons:”

“This concession [that non-profit corporations are “persons” under RFRA and the Dictionary Act] effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons.  But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”

The Court’s decision is a victory not only for religious freedom rights, but also for legitimate interpretation of statutory authority.  The government’s attempt to allow RFRA’s protections to apply to some corporations but not others was without any support in the actual statutory language.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Obamacare, Religious Freedom and “Persons” – You Can’t Bend it That Way

By Sam Ventola,

Alice_Humpty_Dumpty‘I don’t know what you mean by “glory”,’ Alice said.
Humpty Dumpty smiled contemptuously. ‘Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘
‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.
‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’
Alice was too much puzzled to say anything…
Lewis Carroll, “Through the Looking Glass”

In our last article on Obamacare (“Affordable Care Act”) and religious freedom, we pointed out that in the cases currently before the Supreme Court, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, the issue is not one of interpretation of the First Amendment, but instead interpretation of a statute – the 1993 Religious Freedom Restoration Act (“RFRA”).

The most common question we have received on that article is whether a corporation, such as Hobby Lobby, is entitled to protection of its religious freedom under RFRA. It is the argument of the Obama administration that it is not. The statute protects the religious freedom rights of any “person,” and the administration contends that this does not include Hobby Lobby.

The statute itself does not define “person.” However, another statue, the “Dictionary Act,” states that when the word “person” is used in any statute, that word includes corporations “unless the context indicates otherwise….” The Obama administration’s argument is that corporations aren’t usually thought of as having religious freedom rights, so that when RFRA uses the word “person” that doesn’t include corporations.

One of the problems with the argument, however, is that the Obama administration is not willing to stand behind it all the way. They want religious freedom protections to apply to churches and other non-profit corporations. So, they argue that the context of RFRA indicates that “persons” includes corporations… but only sometimes. When the corporation is “non-profit.”

Of course, there is nothing within the language of RFRA, or the Dictionary Act, which would justify including some corporations within “persons” and not others. Both for-profit and non-profit corporations operate at the direction of the individuals that have control over them. Although there may be differences between them – usually established by the law of whatever State the corporation is registered under – nothing within the context of RFRA is changed by whether the party is a “for profit” corporation, “non-profit” corporation, “not-for-profit” corporation, limited liability company, partnership, limited partnership, etc., etc.

The attempt to protect only some corporations but not others represents the same kind of semantic gamesmanship employed by Humpty Dumpty in the quote above. The administration simply wants to call some corporations “persons,” but not others, based on its own desires rather than any context created by the statute. As pointed out in our last article, if Congress had intended RFRA protections against Obamacare requirements not to apply to corporations, or only to apply to specified types of corporations, it could have so specified when Obamacare was passed. Such a distinction should be made by legislation rather than by redefining words after the fact.

On the Current Contraception Debate

By Sam Ventola,

health careThe current debate on contraception reveals some confusion between people as to the meaning of “rights” and “freedom.”  The following is meant to try to clarify the debate.
At issue is the current health care law which requires all employers to provide insurance, and all insurers to cover contraception.  For some people this is a good idea because it protects the “right” to obtain contraception and the “freedom” to use contraception.

However, this is not the traditional meaning of the terms “right” and “freedom.”  The “rights” enumerated in our Constitution are not rights to have something provided to you – they are guarantees of protection from government, ensuring that government regulation will not prevent you engaging in that activity.  In the 1965 case of Griswold v. Connecticut, the U.S. Supreme Court recognized a right of this type (sometimes called a “negative right”) by prohibiting governments from making some birth control methods illegal.  Although there is no explicit reference to contraception in the Constitution, the Supreme Court found the right to be implied by a number of other “negative rights” in the Constitution, which the Court construed to create a more general “right of privacy.”

The creation (or recognition, depending on your point of view) of such a “negative right” does not imply a “positive right” to have contraception provided, either by the taxpayer, the employer, or the insurance company.  To be sure, many “positive rights” have been created through the insurance law – preventing insurance carriers from denying coverage for certain essential emergency services.    However, mandatory coverage generally has not been extended to anything of a medical nature a person might want.

One of the problems with creation of a “positive right” is that it also creates an obligation on the part of someone else to provide it.  Some object to a “positive right” to contraception because the people who would have to provide it, the insurance companies and the employers that have to fund them, may have  religious or other objections to providing contraceptives.

Under current Supreme Court interpretation, the Constitution probably does not protect any freedom of religion right not to provide contraception.  This is because, subject to certain exceptions, the Supreme Court has held that the First Amendment protection of religious liberty does not excuse compliance with “generally applicable law” which does not reference religion.  Nevertheless, the religious liberty interest is deemed by some to be worth protecting, even if not required by current Constitutional interpretation.

The foregoing is probably not going to persuade anyone to change their minds on the current contraception debate.  However, both sides should recognize that the other side’s position is supported by reason and merit, and neither side’s position is mandated by the Constitution.

If you have any questions about legal and Constitutional rights, please visit us at //samventola.com.

WWJD – What Would Jefferson Do?

By Sam Ventola,

Thomas_Jefferson_by_Rembrandt_Peale,_1800The current controversy regarding military involvement in Libya, and whether congressional authorization is required, raises an instructive lesson in constitutional interpretation.

As you probably know, President Obama has committed US forces to assist other NATO countries in aiding Libyan rebels in overthrowing long-time dictator Muammar Gadfafi. He has not sought or obtained approval of Congress for this action, and many in Congress contend that he has exceeded his constitutional power and/or violated the War Powers Act, which requires the president to seek congressional authorization within 60 or 90 days of starting “hostilities.”

The Constitution gives the President the exclusive power to act as commander in chief of the armed forces. However it gives Congress the exclusive power to declare war. The legal issue is whether the operation in Libya is considered a “war,” or merely standard military operations as directed by the commander in chief.

The War Powers Act issue is essentially irrelevant. Because the Constitution divides the military responsibility between Congress and the President, what a later statute has to say about it would not govern. If the action is “war,” the Constitution requires congressional authorization, and the War Powers Act requirement is meaningless. If the action is “commander in chiefing,” then any attempt by congress to remove that power from the president by statute would be unconstitutional.

So what does the Constitution say about the current Libya issue? Is it “war” or acting as “commander in chief?” Some legal scholars, your humble author included, believe that the Constitution should be interpreted according to “original intent;” what would the founding fathers have interpreted their own words as applied to the current situation? It so happens that we have a historical example from the presidency of a principal author of the Constitution, Thomas Jefferson. What’s more, the issue arises in the very same part of the world.

In the late 1700s and early 1800s, the North Africa region now known as Algeria, Libya and Tunisia was rule by pirate warlords. These pirates would seize US and European ships and demand tribute and ransom. By 1800 payments in ransom and tribute amounted to twenty percent of the US government’s revenues, and upon his inauguration in 1801 Jefferson refused to pay further tribute and sent warships to the region.

In his annual address to Congress on December 6, 1801, Jefferson noted that on his own authority he sent a squadron of naval ships to the Tripoli region. However, the took the position that they had been ordered to act only defensively. He stated that he was “[u]nauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense” and asked Congress to consider authorizing offensive action.

It should be noted that it does not appear that Jefferson considered it a close case. If offensive operations were to take place, he assumed that congressional authorization was needed.

Despite the similarity of place, there are important differences between the situation in Libya today and what occurred in Jefferson’s time. Although the forces dedicated by the US to Libya are larger than Jefferson had dedicated to the Tripoli mission, they also represent a much smaller percentage of our armed forces. Further, the Obama administration maintains that US forces are not engaged in “war” because US personnel are not directly engaged in attacks. Nevertheless, those considering whether congressional authorization is necessary for the current Libya campaign should consider how Jefferson and the other founding fathers viewed the situation historically.