Supreme Court Upholds "Obamacare"

Earlier today, the United States Supreme Court upheld the majority of the provisions contained in President Obama’s healthcare legislation.  Twenty-six states had challenged this legislation that would require citizens to purchase health insurance that met government mandated minimum standards; those who do not purchase said insurance will be fined.   Many have termed this case “the most significant before the court since at least the 2000 Bush v. Gore ruling”.   

Relying on Congress’ power to levy taxes, the Court voted 5-4 to uphold this provision.  The primary restriction that this ruling placed on the health care legislation related to the expansion of Medicaid by states; with the ruling, states will be given the flexibility to expand their Medicaid programs less than originally legislated without fear of being fined.

Republicans have vowed to continue fighting this legislation.  Presumptive Republican candidate for President, Mitt Romney, has stated he will reverse this legislation if he is elected.  While the goal of the legislation was to resolve the issue of the large number of uninsured citizens many are claiming that this legislation now opens the door for the government to require its citizens to purchase anything the government feels is a necessity, “with broccoli becoming the central example in court arguments.”

One of the major issues with this legislation is that many are not please that the government is requiring them to make a purchase that used to be their personal decision.   Most citizens are now required to purchase insurance whether they wish to or not, and whether they have the means to afford it or not.  The legislation does provide support for “poor and nearly poor households”, but there are others out there who do not qualify for this support that still may have issues affording this government mandated insurance.

The other main concern is determining where the government’s powers end with this type of legislation.  Surely the government cannot require its citizens to buy broccoli, but there are certainly other items the government may deem necessary for citizens’ well-being that are unnecessary and/or unaffordable to some.  Should the government try to expand these powers into other areas, the Supreme Court will be required to create clearer guidelines on what the government can and cannot require its citizens to purchase.

More information can be found in this article from the New York Times.

 

House Reduces Protections Under the Violence Against Women Act

On September 13, 1994, then-President Bill Clinton signed into law the Violence Against Women Act (Title IV, §§40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994; Public Law 103-322). The aim of the Act was to fund investigations and prosecutions of violent crimes against women, to impose automatic and mandatory restitution on those convicted, and allow civil redress in cases prosecutors chose to leave unprosecuted.  The Act also provided “anonymity to victims of domestic abuse who are applying for residency visas so that their applications cannot be sabotaged by their alleged abusers.” Also, to encourage cooperation with law enforcement officials, witnesses are provided with an opportunity to apply for special residency, and eventually permanent residence.  The Act has already been renewed twice, with bipartisan support.

However, the last Bill authorizing the continuation of the Act expired in 2011. The Senate has approved a Bill expanded protections for lesbians, immigrants and Native Americans and passed with bipartisan support with a vote of 68-31.  However, on Wednesday the House of Representatives passed their version of the Bill, stripping away the protections for immigrants who are subjected to such violence or who witness such acts of violence.  Some feel the House Bill will discourage immigrant women from reporting abuse for fear of being deported.  At the same time, the House Bill also makes it more difficult for Native American women to seek justice against their abusers; the House version also provides no protection for the LGBT community.

As for the elimination of protections for immigrant women, it is argued that this may be the only way to prevent fraud and abuse of the system by women seeking citizenship in the United States.  However, it is countered that all visa applications from immigrant victims already go through extensive review and require extensive documentation.  

With such limitations put in place by the House of Representatives, the Violence Against Women Act will cease to protect women from abuse as the original Act intended.  The House ignores the needs of immigrant women, Native Americans and the LGBT community, classes of women that need at least the same protection as all other female citizens.  And the justification of preventing fraud by immigrant women seems unfounded; this Act has already been renewed twice without previous Congresses feeling the need to add such limitations, and safeguards are already in place in the visa process to reduce the risk of fraud.  It is believed that the House version of this Bill will be vetoed without removing the restrictions, restoring the Act to its original intentions.  Whether through veto or other manner, hopefully the House and Senate can reach agreement on renewing the Act in a way that will ensure protection for all.

Further information can be found at these articles from the Huffington Post and Los Angeles Times. 

President Obama Supports Gay Marriage

In the wake of North Carolina’s vote on a constitutional amendment banning same sex marriage in the state, some positive news arose for same sex couples and gay right activists on Wednesday. Previously, Vice President Joe Biden had expressed his opinion that same sex couples should be allowed to marry, and yesterday President Barack Obama (finally) expressed his support of same sex marriage.

The President stated that “he had weighed the teachings of his Christian faith against a growing pro-marriage consensus among younger Americans — a key target group for his reelection campaign.” Administration officials also stated that Obama planned to make his express support of gay marriage known prior to the Democratic National Convention, but the announcement was moved up due to Vice President Biden’s Sunday comments on “Meet the Press”.

President Obama had previously stated that his views on same sex marriage were “evolving”, and many had believed that he was a supporter of same sex marriage. The President has previously shown he was pro-gay with action such as repealing “don’t ask, don’t tell”; however, the President also has come under criticism from gay rights activists when he stated he did not plan to sign legislation that would ban discrimination by federal contractors based on sexual orientation or gender identity. Until yesterday, the failure of the President to express his viewpoint on the topic was beginning to create tension amongst gay right activists.

Some view this statement as a possible election strategy: hoping that an express support of gay marriage will bring in the votes to ensure the President’s re-election. However, there are many that say this statement may actually chase away supporters, and believe that, due to this possible alienation of voters, this statement must be the President’s true opinion.

The Washington Post, along with this article on the President’s statement, has this article discussing the divide in the community this statement has made. Some who supported the President during his first election and were proud to support an African American President now say that they “don’t believe in skin color more than [they] believe in God’s word.” Some believe that the statement will not outweigh his other acts as President, and some believe that the President may change his mind on the subject before the election. And some people believe that, no matter the motivation behind the statement, this was the right thing to do.

No matter the motivation, this will most certainly open voters’ eyes and give them something additional to consider when casting their ballots in November. Until then, it is impossible to know the full effect of the President’s statement. And even then, it will be impossible to tell whether this statement was a deciding factor in how people voted, or if it is merely one additional action that people feel added to the President’s accomplishments or was just another negative aspect of his Presidency.

No matter the outcome of this November’s election, it is my opinion that it is definitely a positive to finally have somebody in such an authority position take a stand in support of gay rights; while this may not affect how I vote in November, it gives me hope that the country and its politicians may finally be open to taking measures to protect gay rights.

Employment Discrimination and Gay Rights

With the recent victories in a variety of states regarding same sex marriage, and the apparent support of the current administration, the push towards more expansive rights for homosexuals seemed promising. While much work remains to be done in establishing equal rights and protects for homosexuals, the necessary support for progress seemed in place. However, the New York Times yesterday published an article stating that President Obama has decided not to sign an Executive Order protecting homosexuals from discrimination by employers with federal contracts.

“Current law does not protect against discrimination based on sexual orientation or gender identity, and legislation to do so, which Mr. Obama endorses, lacks sufficient votes in Congress.” Previously, President Obama has issued Executive Orders regarding several issues which he asserted that “we can’t wait” for passage by the Republican-dominated Congress. Supporters of gay rights assert that gay, bisexual and transgender people, to whom such an Executive Order would apply, have a right to be protected from employment discrimination based on their sexual orientation and believe that the “we can’t wait” for Congress to ensure protection of this right. Instead, the article reports that an administration official has stated that, “We support legislation that has been introduced and we will continue to work with Congressional sponsors to build support for it.”

President Obama has not yet publicly endorsed same sex marriage, but he has been a proponent of initiatives such as repealing the military’s “Don’t Ask, Don’t Tell” policy. The President also continues to advocate for “an inclusive Employment Non-Discrimination Act (ENDA), which would prohibit employers across the country from discriminating on the basis of sexual orientation and gender identity.” However, it is unlikely that the current Republican-led Congress will pass any such Bills which would add gender identification or sexual orientation to the list of classes protected from employment discrimination. It surely seems that this is exactly the type of policy that falls under President Obama’s “we can’t wait” drive, and yet the President is taking the wait-and-see approach.

Admittedly there may be many other legitimate reasons for not issuing the Executive Order at this time. All that is certain is that gay, bisexual and transgendered people should not be subject to employment discrimination based on their gender identity or sexual orientation and it is unlikely that such protections will be afforded to these groups as promptly as they should be.

The Supreme Court Considers "Obamacare"

The big news this past week has been the Supreme Court’s three day hearing on the constitutionality of President Obama’s health care bill (“Obamacare”). While the final ruling on this matter is not expected until later this summer, many are already predicting what the Court will do and how this will affect medical care for U.S. citizens.

It is thought that the more conservative judges, those on the right, are ready to rule the program unconstitutional and void the entire law. However, some hope that between now and the ruling Justices will come more “center” and approach the law in a more moderate sense.

Solicitor General Donald B. Verrilli Jr. has already pleaded with the Justices to exercise judicial restraint, aiming his plea at Justice Kennedy, who many expect to be a key vote, perhaps siding more with his liberal colleagues even though he is often grouped with the conservative Justices. According to Verilli, “The Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment.” He feels it is not the place of the Supreme Court to overturn this decision, but instead it is the duty of the voters to change the plan if in fact they feel it needs changing. He has asked the Court not to become a part of this partisan battle.

Verilli’s plea is interesting, as it appears he is asking the Court to refrain acting in a manner which is inherent in their existence: to ensure that the government does not violate the constitutional rights of its citizens. It is the duty of the United States Supreme Court to hear challenges on the constitutionality of laws and determine whether they are proper or not. To ask the Court then to shirk this duty is to negate the system of checks and balances instituted to protect U.S. citizens. It does not matter how long the government has wrestled with the issue; if the law violates constitutional rights, then it should be struck down.

Verilli is correct in that this should not be a partisan issue for the Court. It is their responsibility to analyze the law and rule on its constitutionality without regard to whether it was Democrats or Republicans who instituted it. The Court needs to analyze the law and decide only one issue: is this health care law constitutional?

We all have our opinions on whether Obamacare is right or wrong for the country. This is not an expression of either my support or opposition to the law; this is merely an expression of my belief that the Supreme Court’s duty is to protect citizens from having their constitutional rights infringed upon. It is Congress’ duty to create laws that pass constitutional muster (no matter the subject matter) and the Supreme Court’s duty to keep Congress in check. This is the basis of the United States government; it has been the basis for hundreds of years and it should not change now.

For more information, click here.

Pennsyvania Voter ID Law

With the 2012 election season in full swing, it seems only proper that new voter issues arise to potentially complicate the voting process. On that note, Pennsylvania enacted a new law Wednesday requiring all voters to show identification at the polls prior to voting. This is by far not a unique requirement, but it is a reminder of what types of issues such legislation can bring.

The intent of this legislation, as put forth by Pennsylvania governor Tom Corbett, is to protect the principle of “one person, one vote.” Pennsylvania, and other states before them, believes that voter identification requirements are needed to guard against voter fraud. “Supporters say the laws are no different from needing identification to board an airplane or obtain a library card.”

However those opposing laws such as these claim that voter identification laws serve only to prevent access to the polls, especially to the poor and minorities. Advocates against this legislation claim that requiring voter identification discriminates against those who cannot afford such identification nor have no access to locations where such identification can be obtained. “Democrats say voter identification measures are aimed at squeezing out university students and senior citizens who tend to vote for Democrats.”

In response to those opposed, Governor Corbett offers the statistic that he claims ninety-nine per cent (99%) of Pennsylvania citizens already have valid identification. He also offers that the Department of Transportation driver license centers would provide free identifications for those who cannot afford to purchase one themselves.

As said, this is by far a new issue. States have been dealing with this issue for several years, and the arguments against such legislation have changed very little. The issue of protecting against voter fraud is an important matter. The principle of “one person, one vote” is what our election system runs on, and any violation of that principle needs to be prevented. Requiring voter identification at the polls is certainly one way to protect against any such violation.

However, the question becomes whether the interest in protecting against voter fraud outweighs the potential that some voters may not be able to exercise their right to vote, another essential principle of our electoral system. Even in cases such as Pennsylvania, where they are offering to provide free identification to those who cannot afford one, many argue that this legislation places a greater and unnecessary burden on people requiring them to travel to license centers that may be in inconvenient locations or open at inconvenient times.

Perhaps the solution is to require identifications at polling places, but also allow some other type of identification system for those who do not have the required identification. While it is unlikely the state would want poll workers asking voters for their social security numbers, a system could be put in place where they only have to verify the last four digits of their social security, their birthday, address and telephone number. While no system is fool proof, at least a system such as this would add some level of protection against voter fraud.

For more on this story, click here.

Judge Strikes Down Cigarette Labeling Requirements

On Wednesday, U.S. District Court Judge Richard Leon ruled that new regulations regarding labeling on cigarettes were unconstitutional. According to these new regulations, originally scheduled to be implemented this year but delayed due to a preliminary injunction issued in 2011, cigarette labels were to have “images of rotting teeth, diseased lungs and other images intended to illustrate the dangers of smoking.”

According to the judge, “The government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech." While Judge Leon agreed that educating consumers on the dangers of a product was a compelling interest, he ruled that these regulations served more to convince consumers not to purchase a product, an interest which he stated was not compelling at all.

It was also ruled that the government has other tools at its disposal to achieve the same purported goal. Other options suggested by the judge include raising cigarette taxes (assuming that higher prices will in fact discourage consumption) and factual statements on cigarette packaging (more than just the current Surgeon General Warnings).

If the labeling requirements do go into effect (the government is expected to appeal this ruling), the required images would cover the top half of the front and back of a cigarette package. These images would also be required to cover the top twenty percent of any cigarette advertising in print. In considering these requirements, Judge Leon stated that “the warning labels were too big to pass constitutional muster.”

Even as a non-smoker, these regulations certainly appear to be overreaching and simply improper. The government must respect First Amendment rights for commercial speech just as they do for individual speech. And, as is the case in regulating individual speech, the government must be wary and not overreach when regulating commercial speech. Adopting regulations that can be seen as nothing more than an attempt to scare consumers from purchasing cigarettes does not in any way fall under proper regulation of free speech.

Judge Leon is absolutely correct in that the government has other, less overreaching, ways to achieve the same goals. For years, cigarette packaging has been required to carry Surgeon General Warnings. Smokers have been exposed to education through government and non-government outlets warning them, sometimes in the graphic detail proposed by these regulations.

The government does have a responsibility to warn the public of potential side effects of drugs, drugs including tobacco. However, once this warning is provided, it is up to the consumer to make a conscious decision as to whether they wish to assume the risks. It is not the government’s duty to use scare tactics to affect the consumption of these products.

For further information, click here.

Unconstitutional Warrants and Officers' Liability

On Wednesday, the United States Supreme Court issued three decisions. One of these decisions, Messerschmidt v. Millender, dealt with an officer’s liability for seizing property based on allegedly unconstitutional warrant. In this case, the Supreme Court held that the officers could not be sued for seizing property under such a warrant.

This case arose from a 2003 search of Augusta Millender’s home; the officers were searching for Ms. Millender’s foster son and/or a shotgun used in a domestic assault. Police did seize a handgun owned by Ms. Millender, which she claimed was hers and was used strictly for personal defense. Later, a court ruled the search warrant unconstitutional under the Fourth Amendment as “the warrant improperly allowed the police to search for ‘all handguns, shotguns and rifles’ and “evidence showing street gang membership.”

However, on Wednesday, the Court ruled that Ms. Millender could not hold the officers liable for the search, even under a warrant later found to be unconstitutional, by relying on the 1986 Supreme Court ruling in Malley v. Briggs; in this case, the Court held that officers in these situations should not be granted immunity from lawsuits such as this “only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” In the most recent case, Justice Roberts held that Ms. Millender’s case did not fall under this exception.

Justices Kagan, Sotomayor and Ginsberg dissented. Justice Kagan wrote that she felt the search for guns was proper, but felt that the search for gang-related evidence (per the search warrant in question) was not connected to the initial incident that gave rise to the warrant. Justice Sotomayor strongly disagreed that the officers’ actions were objectively reasonable. She wrote, “It bears repeating that the founders adopted the Fourth Amendment to protect against searches for evidence of unspecified crimes, and merely possessing other firearms is not a crime at all.” The fact that the officer’s superiors and a judge approved a warrant did not sway her opinion in the least.

The need to protect officers from liability is understandable. If officers are constantly worried about what they will and won’t be held liable for seizing under an apparently valid warrant, then they may easily overlook crucial evidence or fail to seize it “just in case”. Officers must be protected so that they can go about doing their job efficiently and effectively. The officers executing the warrant should be able to rely on their superiors and the judge issuing the warrant.

Perhaps the real issue in this case is determining how this warrant was issued with the questionable language to begin with. “Evidence showing street gang membership” without further explanation is overly broad and can lead to many items being seized by police. Also, this warrant was issued base on a domestic assault complaint; the warrant in question should have been limited to searching for evidence based on that complaint. Not only did this language cause the warrant to fail under Fourth Amendment scrutiny, but it also required the officers to execute judgment calls and seize items they should not have.

For the article from the New York Times, click here.

More States Debating Same Sex Marriage

Another week and three more states appear to be on the verge of approving the ability of same-sex couples to marry within their jurisdictions. Legislation was signed on Monday in Washington which will take effect no earlier than June that will allow same-sex marriage in the state. Both New Jersey and Maryland have bills before their governments today which would legalize gay marriage. Many expect the measure to pass in New Jersey, while questions remain in Maryland. However, even with passage of the bill in New Jersey Governor Chris Christie is expected to veto the bill.

“In Maryland, the House of Delegates will begin debate on the "Civil Marriage Protection Act" sponsored by Gov. Martin O'Malley, a Democrat.” The bill has already been passed by two House Committees, but there remains doubt as to if there are enough supporters to get through the House vote. Last year Maryland was unsuccessful in passing similar legislation.

In New Jersey, “the state Senate approved the proposed Marriage Equality and Religious Exemption Act on Monday.” It is expected the measure will pass the House later today. Once passage occurs, it is almost certain that the legislation will be vetoed. However, I have a hard time fully disagreeing with the governor’s reasoning for promising a veto: he is fully expected to back a referendum in November where he feels it will be up to the voters, and not the legislature, to allow same-sex marriage. Unlike some other jurisdictions where voters have had a voice, a recent poll indicates “that a majority of New Jersey voters support the right of same-sex couples to marry.” As such, supporters of the bill feel that it is only a matter of time before same-sex marriage will be legalized in New Jersey. And, when such legislation passed, it will be the true desire of the voters who cared enough to voice their opinion on the subject.

For further information, you can find relevant articles here and here.

Same-sex Marriage in Washington State

The state of Washington appears to be on track to join six previous states that have passed laws legalizing same-sex marriage. The Washington Senate approved the Bill and now it is to be sent to the House where it is expected to pass without issue. However, opponents of the Bill are already prepared to challenge the law with a referendum.

The Bill in question dealt with several issues regarding same-sex marriage; issues regarding legal protection for religious groups and organizations and businesses that object to gay marriage. An amendment allowing for a referendum clause was refused, but opponents still promise to use a referendum to attempt to overturn the pending law. However, no action can be taken until the Bill is passed by the House and becomes law.

Depending on the outcome of the referendum, the law could allow same-sex couples to begin wedding in Washington as early as June. However, if enough signatures are obtained for a referendum the outcome will not be final and same-sex marriages will be postponed until after the November election.

I have written about same-sex marriage on several occasions on this blog, and my opinion as to whether they should be legalized or not remain the same. However, in this case one of the more interesting items are some quotes by the Bill’s sponsor stating that lawmakers who vote against gay marriage “are not, nor should they be accused of bigotry.” He continues on by saying that, “Those of us who support this legislation are not, and we should not be accused of, undermining family life or religious freedom,” and “[m]arriage is how society says you are a family.”

Senator Ed Murray, the Bill sponsor, does not want unwarranted personal attacks at other legislators due to their vote; whether their vote is due to their personal prejudices or feelings or because they feel they are best serving their constituents, it is wrong to automatically assume and label them as something they are not. The Senator also attempts to head off the major opposition at the pass by stating that this is not an attack on religion or “traditional” families; it is merely allowing same-sex couple to be a family in the eyes of society. Same-sex couples already live as and are viewed by many as families, and allowing them to marry only makes this status “official”.

For the article from the Washington Post, click here.

SOPA and PIPA

People who visited Google, Wikipedia or a number of other sites yesterday were greeted with severe changes to their usual Web browsing experience. These pages advertised their opposition to new proposed Internet piracy bills PIPA (Protect IP Act) and http://www.blogger.com/img/blank.gifSOPA (Stop Online Piracy Act) and encouraged their users to learn more about these proposed bills.

For those that did not take this advice and opportunity, the primary argument, in http://www.blogger.com/img/blank.gifa nutshell, is that these bills will defeat the original purpose of the Internet. Their goal is to attempt to stop the pirating of images, movies and other original works created by other people. While this is a laudable goal, which even the protesting sites respect, they feel these bills are overbroad and compare them to “taking a sledgehammer to something when you need a scalpel.”

An interesting example of this alleged overreach is provided here. To sum it up, an ISP can shut down a site based on a complaint that the site has “pirated” materials. According to the example, it does not matter how rough or dissimilar the work is, if it in any way simulates the work created by another, the site may be banned.

And, the alleged offending site has no recourse. United States Internet service providers are granted immunity for what they decide to pull from their service. Extending the example given above, a person’s personal family Web site could be pulled based on the fact that they have videos of their children singing copyrighted songs, no matter how bad their singing may be. And once pulled, the person cannot then seek recourse.

Like many actions, the intentions behind these bills are justifiable. But the wrong tools are being used. This “sledgehammer” has the potential to violate the First Amendment’s guarantee of freedom of speech and devalue the Internet entirely. There are ways to reach these goals without blowing up the whole infrastructure of the Internet.; SOPA and PIPA are not the right tools to do this.

The Supreme Court Authorizes a "Ministerial Exception"

This week, the United States Supreme Court issued a decision recognizing a “ministerial exception” in relation to employment discrimination laws. Some believe that this is the Supreme Court’s “most significant religious liberty decision in two decades.” This ruling allows churches and religious groups the right to hire and fire their religious leaders without any type of government intervention.

Chief Justice Roberts conceded that employment discrimination is a very serious matter; however, this issue is apparently outweighed by the “interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.” While the ruling created the “ministerial exception”, limited guidance was provided in how to apply this exception. Also, while this exception protects religious organizations from employment discrimination claims, it does not negate the possibility of criminal prosecution and does not affect any other protections put in place for employees of these organizations.

In his concurring opinion, Justice Thomas suggested that it is not the court’s place to determine who qualifies for this new exception, and instead it should be the religious organization’s responsibility to make such a decision. In another concurring opinion, Justice Alito stated that concentrating on the title of “minister” was too stringent as this is a term primarily used only in Protestant denominations; he suggested that this exception instead be extended to “any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

While other protections remain in place for employees of religious organizations, this ruling, without any type of true guidance on its application, is problematic. For those that truly work as “ministers”, no matter their religious affiliation or actual title, the application of this exception is straightforward – people who lead their religious organization and/or performs what one would consider typical religious duties cannot bring claims of employment discrimination if they are terminated.http://www.blogger.com/img/blank.gif

However, this ruling has the ability to be overextended in cases where employees of religious institutions minimally serve as “ministers”. In fact, the case that http://www.blogger.com/img/blank.gifbrought about this ruling involved an individual who only served forty-five minutes per day serving in a religious capacity; the rest of her work day was performed teaching secular subjects. While there were other factors the court considered before extending this “ministerial exception” in this case, it remains uncertain what type of minimal service is required before a religious organization can be exempt from employment discrimination under this exception.

For the complete article from the New York Times, click here.

For the Supreme Court decision, click here.

Church v. State: Relgious Beliefs v. Government Contracts

Yesterday, the New York Times published this interesting article regarding Catholic Charities being closed due to their unwillingness to consider same sex couples as potential foster care and adoptive parents. In order to receive government funding, the state is requiring that such couples be considered. According to the article, this is not the only ongoing battle between the church and state regarding their charities.

Catholic Charities are also fighting the requirement that “religiously affiliated hospitals, universities and charity groups cover contraception in their employees’ health plans.” Additionally, Catholic bishops are asking that their denial of a federal contract to provide aid to victims of sex trafficking be overturned; this program was denied based on the fact that the proposal did not provide referrals for abortion doctors or contraceptives for the survivors of sex trafficking.

Church officials claim that the adoption requirements are an “escalating campaign by the government to trample on their religious freedom while expanding the rights of gay people.” At the same time, same sex couples are being discriminated against by organizations their tax dollars support. The Church also acknowledges that they do not have a First Amendment right to government contracts, but they also feel that they have “a First Amendment right not to be excluded from a contract based on its religious beliefs.”

This issue is a difficult one, and can be easily argued from either side. To start with the government’s side, it seems fair and logical that their provision of federal funds to any organization can be conditioned upon meeting certain requirements. As in other non-religious cases, failure to meet these standards means the organization receives no or limited funds. Especially if those standards are applied to both non-religious and religious organizations, it is difficult to claim discrimination.

As for the Church, each of their battles brings up unique issues, some of which are easier to defend than others. To begin with, their choice to not provide medical coverage to employees working in "Catholic and other religiously affiliated hospitals, universities and charity groups" regarding contraception seems to be an interference with their employment policies. Most employers are given the option of what type of medical coverage they provide for their employees. However, the fact that these employees work for an organization funded by government grants does muddy up the issue.

Regarding the aid to victims of sex trafficking, the Church is providing a valuable service to these people. The issue regarding requiring referrals for abortions and/or contraceptives become s more convoluted however since the Church is asking for federal aid. On one hand, it seems that the government should support these programs, with or without the questionable referrals; on the other hand, as stated above, it is not unfair or unusual for the government to require certain conditions prior to granting aid. While the Church may feel that they have “a First Amendment right not to be excluded from a contract based on its religious beliefs”, if the government is requiring this condition of all organizations seeking to aid sex trafficking victims, then any claim of discrimination seems less likely.

Finally, the issue of the same sex adoption appears to be least difficult of these issues: the government is requiring Catholic Charities to consider same sex couples as foster/adoptive parents; Catholic Charities has decided they do not wish to consider these candidates; and, as a result, many of the Catholic Charities falling under this requirement are being closed. It appears in this instance that Catholic Charities realizes that their work in this area is taxpayer driven and as a result must adhere to government requirements. The government has given them the option to accept funds and consider same sex couples as potential parents, or go it alone; in this instance, the Catholic Charities appear to be resolved that they do not want to follow the government regulations and cannot carry on alone. While the government may not have expected this result, the government cannot require Catholic Charities to remain operational.

The 2012 National Defense Authorization Act

Yesterday, it was reported that President Obama was prepared to sign legislation that would allow indefinite detention without trial for terrorism suspects. Previously, President Obama had indicated he would veto the 2012 National Defense Authorization Act, section 1031, but has reportedly changed his position on the law.

If this legislation is enacted, this will be the first time since 1950 that such indefinite detention would be authorized in the United States. In addition to authorizing such detention, this legislation also prohibits the transfer of any detainees being currently held at Guantanamo onto United States soil for any reason, and would limit the ability to transfer these detainees to other countries, even if they have been cleared for release.

At the start of Obama’s administration, he had stated that one of his goals was to permanently close Guantanamo as a prison for terrorist suspects, going as far as to signing an Executive Order as to this plan. However, the signing of this legislation will further extend the operation of Guantanamo where currently 171 detainees are being held.

Additionally, this legislation will require the United States military to take custody of some terrorism suspects. Some of these suspects may already be detained within the borders and being handled by federal, state, and/or local law enforcement. In debating this legislation, “several senior administration officials, including the Secretary of Defense, the Attorney General, the Director of National Intelligence, the Director of the FBI, and the Director of the CIA, all raised objections that this provision interfered with the administration’s ability to effectively fight terrorism.” Recent statistics seem to support this argument: in the last 10 years over 400 people have been prosecuted in U.S. Federal Courts for terrorism related offenses, while, during that same period, only six cases have been prosecuted in the military commissions.

Human Rights organizations have issues with this legislation, and their concerns appear to be valid. To start with, and most obvious, is that people can be detained for suspicion of terrorism without ever having a chance to stand trial. Without trial, it is plausible that many innocent people will be held improperly; no fact finding will be required and potentially no direct evidence will be required to hold these suspects.

Secondly, the enactment of this law contradicts what President Obama had promised at the beginning of his term. The closing of Guantanamo became a priority due to several issues with the site; there were allegations of torture, improper conditions and the fact that many detainees had be at the location, without trial or other investigation, for longer than what many thought was proper. This legislation specifically authorizes this indefinite detention, an issue which President Obama stated he would resolve.

Terrorism is an important issue that the United States must address. However, there are proven methods to do so without this legislation. Specifically, it is unnecessary for the military to take custody of suspects from agencies that are already set up and seemingly acting more effectively in handling these terrorism cases. The added cases the military would have to handle would only serve to make them less effective.

For the article and position of the Human Rights Watch, click here.

Obama Administration Takes Stand to Protect Gay Rights Abroad

The United States government appears to be getting more serious about gay rights. On Tuesday, President Obama’s administration “bluntly warned the world against gay and lesbian discrimination.” Secretary of State Hillary Rodham Clinton made it clear to those in attendance, which included diplomats from Arab, African and other nations where homosexuality is considered a crime, that the United States “will use foreign assistance as well as diplomacy to back its insistence that gay rights are fully equal to other basic human rights. “

Mrs. Clinton likened the struggle for gay equality to that of women’s and racial equality. She specifically negated religious and cultural traditions do not excuse the type of discrimination homosexuals face, especially in countries “where brutality and discrimination against gay people is tolerated or encouraged.” Ms. Clinton went on to say that "gay rights are human rights, and human rights are gay rights," and "It should never be a crime to be gay." Apparently, many in the audience were not exactly pleased with Mrs. Clinton’s speech and left the room immediately after her speech was completed.

While President Obama’s administration is taking a stronger stance on this issue, no specific consequences were spelled out for countries violating these rights. And while President Obama is attempting to curb discrimination overseas, he has yet to back gay marriage. Many gay supporters find his failure to support gay marriage and the delay in repealing “Don’t ask, don’t tell” as disheartening; as such, some see this latest advocacy as an outreach to homosexuals, “a core Democratic constituency at home”, in order to garner their support in the 2012 Presidential election.

The protection of all human rights is of primary importance; as Mrs. Clinton states, it does not matter if one is gay or not, as human rights apply to all persons. It is admirable that the Obama administration is attempting to protect these rights in areas where homosexuals are considered criminals and are subject to government approved violence.

However, there is still much to address in the United States regarding gay rights. Homosexuals are much more than an important constituency that must be placated to earn their votes. Also, as Republican Presidential candidate Mitt Romney suggest, gay rights should not necessarily be the deciding factor for whether to provide aid to or interact with foreign countries; although specific consequences have not been enumerated, the reduction in aid and/or trade seem like likely candidates. It is hoped that this policy is much more than just a play for more support from homosexuals as the election draws nearer, but without further support for gay rights in the U.S. by the President and a lack of more specifics on this new policy, it is hard to see it as much else.

The entire AP article can be viewed here.

Technology Outpacing the Law?

On Monday, the Associated Press published an interesting article describing how advancing technology (specifically Facebook and smartphones) have developed faster than the law can keep up with. Thttp://www.blogger.com/img/blank.gifhe specific issue in question is the ability of inmates to use said technology to harass and intimidate their victims.

Previously, for an inmate to intimidate potential witnesses or harass their former victims they would have to obtain the services from somebody on “the outside”. Now, with the increase in the number of smuggled phones coming into prisons, inmates can use these devices to harass and intimidate on their own. Since 2008, the number of telephones confiscated by the Federal Bureau of Prisons has doubled to 3,684.
Unfortunately, in many of these cases it is difficult to determine who is actually sending the messages. Even in the rare occasion where they are able to determine the inmate is the one sending the harassing messages, they often face no serious consequences.

Another issue is that these inmates have seemingly found gaps in existing laws. For example, in some states, “no contact” orders do not apply to persons once they are in custody. However, due to the increasing awareness of this issue some states are now starting to take action in an attempt to prevent this type of harassment. Oregon legislators passed a law preventing inmates from contacting their domestic violence victims from behind bars; California officials are beginning to work closely with Facebook to identify and delete inmate accounts. California legislators have also enacted a law which punishes corrections employees or visitors up to six (6) months in jail for smuggling in smartphone devices; inmates in California caught with smartphones can lose up to 180 days of early-release credit, although no additional time is added to their sentences.

This harassment and intimidation makes it harder for the legal system in that many witnesses may choose not to testify due to the fear of being harmed. Victims of inmates are in fear of what will happen to them when the inmate is released. Victims are also fearful that these inmates now have access to their victims’ information, including pictures and names of family members.

For some, the easy solution for the victims is to: 1) delete their Facebook account; 2) block the inmate from viewing their page and sending messages; and/or, 3) setting their Facebook page to the highest privacy settings. There is no doubt merit to these suggestions (for anybody wishing not to have their life made public via Facebook), although these suggestions are not 100% effective. Many of the more tech-savvy inmates will find ways around these safeguards, and there are still other ways for inmates to use their access to technology to harass and intimidate outside of Facebook. While all individuals need to take steps to protect their privacy to a level they see fit, states must also take steps to close loopholes in their laws and create more suitable consequences to deal with developing technology and its possible misuse.

"Obamacare" and the Commerce Clause

On Monday, the United States Supreme Court agreed to hear arguments on the constitutionality of “Obamacare”, President Obama’s Affordable Care Act. Should this Act be found constitutional, it would require all Americans to purchase health insurance. While many issues have been discussed regarding this Act, the Supreme Court will be looking at an issue that will surely affect more than just the constitutionality of “Obamacare”: whether the Commerce Clause provides the authority to mandate that all citizens purchase insurance.

Article I, Section 8, Clause 3 of the United States Constitution provides Congress the power "to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes." According to the Christian Science Monitor, the real question for the Court to decide is whether choosing not to buy healthcare is an activity able to be regulated under the Commerce Clause.

The Monitor’s article, while having an obvious slant against “Obamacare”, does raise the important and relevant issue of the balance of the enumerated powers of the government against individual freedom; the more expanded the interpretation of these enumerated powers becomes, the stronger it can be argued that the government is infringing upon individual freedoms. This seems especially true in this case where the government is not forbidding an action while leaving multiple options open for individual choice, but instead is requiring action without leaving alternative options open.

As argued in the Monitor’s article, “If government goes from only regulating activity to also regulating inactivity, it will effectively go from telling individuals what they cannot do to telling them what to do.” By disallowing an individual from abstaining in purchasing life insurance, the government requires the individual to act in a way that reduces their individual freedom to choose.

No matter how one feels about “Obamacare”, the Supreme Court’s decision could possible expand the scope of the Commerce Clause. Although the Commerce Clause in the past has not been applied to inactivity, the Supreme Court now has the opportunity to settle this issue. If the Commerce Clause is expanded to cover the area of inactivity, it surely seems that the government’s power will be expanded at the cost of individual freedom.

Fallout from the Penn State Scandal

This past Saturday,Jerry Sandusky, former Penn State Assistant Coach, was arrested on forty (40) criminal counts. At the time of his arrest, there were eight (8) known underage victims, with a possible ninth coming forth this past Tuesday. The alleged incidents are spelled forth in the Grand Jury’s Findings of Fact. In the aftermath of the arrest, Penn State has fired its President Graham Spanier and their Head Football Coach Joe Paterno, although the Pennsylvania Attorney General has indicated that Joe Paterno is not subject to the investigation.

According to the indictment, Mr. Sandusky had been sexually molesting young boys whom he came in contact with through a program he started called “The Second Mile”, a program dedicated to helping troubled boys. While this program was started in 1977, the first alleged contact did not occur until 1994. It was not until 1998 at the first suspicions of this illicit contact come forth, and it was not until 2002 that Joe Paterno is informed of such contact. Even after these suspicions and reports, the Pennsylvania Attorney General does not commence an investigation until early 2009. Although Mr. Sandusky retired from coaching in 1999, up until his arrest he maintained emeritus status which allowed him access to the locker rooms. An entire time line of events can be found here courtesy of The Huffington Post.

I think, and would hope, that all would agree that what Mr. Sandusky has allegedly done is completely improper. It is also fairly obvious from reading the reports and the Findings of Fact that Penn State acted improperly in failing to conduct proper investigations; as such, there does not seem to be uproar about the firing of Graham Spanier. However, the firing of Joe Paterno perhaps falls into a more gray area.
After the arrest, Coach Paterno indicated that he would retire after this season. However, the University’s Board of Trustees decided to end his coaching tenure Wednesday. In response to this, more than 1,000 students protested around the Penn State Campus. In their protest the students actually overturned a media van and damaged other property.

Students were quoted as saying things such as, “From a student's perspective, it's like where do we go from here? We no longer have a president. We no longer have a 45-year legacy,” and "I think it's only fair to let him (Paterno) ride out the season because this is the house that Joe built." (Both quotes from the Cleveland Plain Dealer.) From these quotes, it is obvious that the students were concentrating more on their history than on the current events.

Of all that has come out of this series of events, it is to me this protest that seems the most questionable. As stated, it is obvious that Mr. Sandusky’s alleged actions and Penn State’s handling of the situation were improper. The firing of Coach Paterno is understandable, but whether one agrees with it or not, the proper response is not the destruction of private property. Even more disturbing is the valuation by students of football over the handling of the deplorable events giving rise to Paterno’s firing, based on the fact that Coach Paterno is a “legend” and “celebrity”. Merely being a highly successful college football coach does not excuse Paterno from the scrutiny and discipline of a “normal” coach.

Law Banning Same Sex Adoption in Florida Ruled Unconstitutional

On Wednesday, a Florida Court of Appeals ruled on a 30-year-old law related to the adoption of children by lesbians or gay couples. The Court found this law unconstitutional leading the Florida governor to state that the rule will not be enforced pending a decision to appeal the judgment.

The primary issue the Court had with this law is that gay and lesbian couples were allowed to serve as foster parents, but were not allowed to officially adopt children. Due to this inconsistency, the Court ruled that the law prohibiting adoption had no rational basis and violated equal protection rights.

As for now, the judgment affects the entire state and will go into effect immediately. However, the state has 30 days to appeal. At this point, members of the Florida state government have discussed appealing, but no final decision has been made.

This ruling appears to be another step in the right direction for equal rights independent of sexual orientation, at least for now. And while this is only a statewide victory, it may open the door for challenges to other state statutes banning adoption by same sex couples.

As the court acknowledges, allowing gay and lesbian couples to serve as foster parents but not adoptive parents. Instead of this blanket ban, gay and lesbian couples should be put through the same scrutiny as heterosexual couples wishing to adopt, with sexual orientation bearing no weight on the decision. It should be the fitness of the applicants and their ability to care for the child that should be taken into account; some same sex couples may still be found unfit based on these standards (just as some heterosexual couples are), but at least they will have been given a fair chance.

For the complete article, click here.

Proposition 8 Ruled Unconstitutional, For Now.

Yesterday, a Judge in California ruled that Proposition 8, the same-sex marriage ban, was unconstitutional. In the ruling, the judge found that there was no legitimate purpose in disallowing same-sex marriages, finding that the voter approved measure was solely based on “unfounded stereotypes and prejudices”. In his findings, Judge Vaughn Walker stated that same-sex and opposite-sex marriages are exactly the same in regards to California law.

Many find this ruling to be a major victory for same-sex marriage rights. However, the constitutionality of the measure will be first decided by at least one Court before the victory can be declared final. However, should the 9th U.S. Circuit Court of Appeals uphold the California court’s ruling, this finding should then be precedent for all states under the jurisdiction of the 9th U.S. Circuit Court of Appeals, not just California.

The group that sponsored Propositon 8, Project Marriage, have already promised to immediately appeal yesterday’s ruling. Judge Walker has indicated, based on this promised appeal, that he will not make his ruling final until the appeal is decided. Both sides of the litigation are to submit written arguments by this Friday regarding the issue. With this appeal, and Judge Walker’s delay in finalizing his order, it appears that those wishing to enter into same-sex marriages in California may still have to wait.

For one of many articles on this issue, click here.