Is it possible to preserve religious liberty alongside modern anti-discrimination law? The Supreme Court has taken up that question in one of its most-watched cases this term, Masterpiece Cakeshop v. Colorado Civil Rights Commission.
Roger Pilon | All Articles
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Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.
The Daily Caller's morning e-mail today brings us two brief stories that capture nicely the growing intolerance of the Left for people and groups holding views with which they disagree. One arises from a decision by Yale’s Social Justice Network (SJN) of Dwight Hall to deny membership to the school’s Choose Life at Yale (CLAY) group. The second concerns a prosed California ban on judges affiliated with the Boy Scouts. Both illustrate how a bedrock American principle, freedom of association, is increasingly being gutted by the Left’s anti-discrimination agenda.
Pierce the soaring rhetoric of President Obama’s second inaugural address and its central message rings clear as a bell: despite the fact that nearly half the nation rejected his big-government vision, he’ll impose it on us — because, as he’s so often said, “We’re all in this together.”
Long-time establishment apologists Norman Ornstein (AEI) and Thomas Mann (Brookings) have generated a lot of ink lately, pro and con, over their claim that our “dysfunctional” government is the fault of Republican “extremists” whose party has become “an insurgent outlier in American politics,” blocking measures for economic recovery, climate change, health-care reform, and much else.
More than a week after the Supreme Court concluded six and a half hours of oral argument over the constitutionality of Obamacare, the debate beyond the Court has hardly subsided. The president himself weighed in on Monday, of course, with his unbridled pre-emptive warning to the Court, some of which he walked back on Tuesday. Yet the next day, there was the hapless White House press secretary, Jay Carney, trying to convince reporters that the president didn’t intend to challenge the Court’s authority, even as Attorney General Eric Holder was telling a different press gathering that Obama's comments were "appropriate." Can life in Washington be any more entertaining?
On Monday the Supreme Court will begin hearing oral argument on the Patient Protection and Affordable Care Act ("Obamacare"), which will run for six hours over three days. Brought against the Obama administration by 26 states, the National Federation of Independent Business and two individuals, Florida v. Dept. of Health & Human Services raises fundamental questions about the scope of Congress's powers, the powers reserved to the states and the rights of individuals over their medical care. It is, without question, the most important case the Court has taken in decades.
There are times when a single issue captures the troubles of an age. Now in its fourth week, the Obamacare contraceptive battle is bringing to the fore not only the conflict between government-run health care and religious liberty but, far more sweepingly, between our ever more socialized world and basic notions of liberty and responsibility.
With the second session of the 112th “tea party” Congress about to begin, let’s recall how the first session opened a year ago — with members reading the Constitution aloud for the first time in history. Could it be, tea party folks imagined, that Congress might at last begin restoring constitutionally limited government? A year later — after battles over the budget the previous Congress hadn’t passed, over raising the debt ceiling, and finally over the FY 2012 budget, following the collapse of the misbegotten super-committee — the session ended barely before Christmas with the payroll tax debacle, the House caving to the Senate’s two-month extension of the payroll tax “holiday.” So inconsequential was that ending that it made April’s 2011 budget compromise, more than six months into the fiscal year, look positively grand, even though it cut “baseline” spending from a $3.6 trillion budget by a mere $38 billion. Tea party folks in and out of Congress are today dispirited. They shouldn’t be, not if they’re in for the long haul, which is what it’ll take.
In a brazen display of the arrogance for which President Obama is so rightly infamous, his unprecedented “recess appointments” yesterday of Richard Cordray to head the new Consumer Financial Protection Bureau (CFPB) and of three others to serve on the National Labor Relations Board are not only unconstitutional, since the Senate is not presently in recess, but, in the case of Cordray, legally futile under the plain language of the Dodd-Frank Act that created the CFPB --- a point too little noticed by media accounts of the move.
If the tea party stood for anything when it upset conventional politics a year ago, it was to revive debate about restoring limited constitutional government. Newt Gingrich seems to be tapping into that effort, but the tea party folks better look more closely before they buy what Newt is selling. In his voluminous 21st Century Contract with America, he has a long section entitled “Bringing the Courts Back Under the Constitution.” A mass of constitutional confusions, laced with several good points, it’s a throwback to some of the worst elements of Nixonian conservatism. And if its proposals were implemented, far from limiting government, they'd do just the opposite.
Hard cases make bad law, but bad law too makes hard cases. We’ll see that today when the Supreme Court tries parsing the opaque National Vaccine Injury Compensation Act of 1986 to determine whether it pre-empts state law “design defect” suits brought against vaccine manufacturers. One of four pre-emption cases the Court has taken so far this term, Bruesewitz v. Wyeth is likely a portent of litigation to come if ObamaCare isn’t repealed — once we find out what’s in it.