ReligiousLiberty.TV / Founders' First Freedom® – News and Updates on Religious Liberty and Freedom

Month: February 2019

  • Supreme Court: The 8th Amendment’s Excessive Fines Clause is incorporated against the states via the 14th Amendment

    Supreme Court: The 8th Amendment’s Excessive Fines Clause is incorporated against the states via the 14th Amendment

    This morning, the United States Supreme Court issued a ruling that the Fourteenth Amendment applies the “Excessive Fines Clause” of the Eighth Amendment to the states. We have been following this case closely since oral argument last November because, at the core, the case involved a “states rights” assertion by the state of Indiana that the clause only applied to actions of the Federal government.  Similar arguments had been used to undermine the applicability of other provisions of the Bill of Rights to the states including the Establishment Clause which some have asserted only applied to actions of the Federal government.

    The opinion was drafted by Justice Ruth Bader Ginsburg and agreed to by all members of the Court with Justice Gorsuch and Justice Thomas filing separate concurring opinions.  Both Justice Thomas and Justice Gorsuch argued that the “Privileges and Immunities Clause” rather than the “Due Process Clause” were the stronger Fourteenth Amendment protection. However, since 1872, the Supreme Court has held that the Privileges and Immunities Clause are limited to areas governed by the federal government, not to states.  (See Slaughterhouse Cases, 83 U.S. 36 (1872).

    In previous cases, Justice Thomas has argued that the Due Process Clause of the Fourteenth Amendment has been too broadly interpreted and guaranteed “rights” that were not intended by the framers.  The Privileges and Immunities Clause further only applies to citizens of the United States, not “any person” as defined within the Due Process Clause.  This has significant implications with respect to the current immigration debates.

    Justice Thomas’ concurrence leans heavily on English history to argue that, regardless of the Fourteenth Amendment, the prohibition on excessive fines was understood as a general right of citizenship as 37 states had statutes prohibiting excessive fines before the 14th Amendment was ratified.  It is also noteworthy that at the same time, many states did not have language mirroring the Establishment Clause.

    Case Caption:  Timbs v. Indiana (No. 17-1091, Decided 2/20/2019)

    For case background, see “Supreme Court to decide whether Excessive Fines Clause applies to states“, ReligiousLiberty.TV (11/29/2018)

    Amendment XIV, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  • Parties objecting to regulatory decision must follow administrative process

    Parties objecting to regulatory decision must follow administrative process

    This week the Supreme Court denied certiorari in a case where nuns filed their Religious Freedom Restoration Act (RFRA) case opposing a pipeline across their property in the wrong venue and ignored the required dispute resolution process.

     

    [dc]O[/dc]n February 19, 2019, the United States Supreme Court declined to hear a case brought by a Catholic organization which had sought a religious exemption from a regulation that permitted a private company to use eminent domain to run a high-volume natural pipeline across their property.

    Under the Natural Gas Act, the Federal Energy Regulatory Commission can authorize private developers to construct, operate, and maintain interstate natural gas pipeline projects. Before granting authority, the Commission must hold public hearings and parties can voice their objections. If the Commission proceeds with certifying the request, then the party that opposes the project can file for judicial review either in the District of Columbia Circuit or the circuit where the natural gas company is located.  Until then, the circuit court does not have jurisdiction.

    In this case, the Adorers of the Blood of Christ (Adorers), an order of Catholic nuns, which owns a parcel of land in Columbus, Pennsylvania, objected to the pipeline on grounds that it violated their religious beliefs require care for creation. However, they never raised the issue in front of the Commission. Instead, they directly filed suit under the Religious Freedom Restoration Act (RFRA) in the District Court for the Eastern District of Pennsylvania.  The District Court dismissed the claim for lack of jurisdiction because the nuns had not gone through the proper process of first objecting to the Commission decision and then filing in the District of Columbia or the circuit where the natural gas company was located.

    The Adorers then appealed to the Third Circuit Court of Appeals. The Circuit upheld the dismissal stating that filing a RFRA claim does not replace the necessity of following the “specific and exclusive jurisdictional provision prescribing a particular procedure for judicial review of an agency’s action.”

    By the time the courts had ruled that the Adorers had followed the wrong legal pathway, the statute of limitations had expired on the opportunity to file a procedurally correct objection.

    Takeaway:  If there are regulations in place that specify that a particular dispute resolution must be followed, RFRA provides no escape from following the administrative adjudication process. It is incumbent on parties seeking to challenge a regulatory decision to scrupulously follow the prescribed administrative process for resolving the dispute. Had the Adorers timely objected to the Commission decision and filed in the proper venue, they would have had the opportunity to raise a RFRA argument. There’s no guarantee that they would have ultimately prevailed against the pipeline which will now cross their property, but at least they could have had the chance to be heard. In failing to understand and follow the administrative procedure, the nuns fell into a procedural trap for the unwary.

    These processes are often regarded as “technicalities” or “merely procedural” but they are designed to streamline the legal process and reduce the potential for confusion and contradictory results by requiring parties to follow a single process rather than permitting multiple claims to be filed in multiple jurisdictions to address the same projects.

    Third Circuit Case Rule:  “[W]e hold that a claim under RFRA, 42 U.S.C. § 2000bb-1(c), brought pursuant to the general jurisdictional grant of a federal question under 28 U.S.C. § 1331, does not abrogate or provide an exception to a specific and exclusive jurisdictional provision prescribed by Congress for judicial review of an agency’s action.”

     

    Supreme Court Caption: Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (Docket No. 18-548, certiorari denied 2/19/2019)

    Third Circuit Caption: Adorers of the Blood of Christ v. Federal Energy Regulatory Commission (Docket No. 17-3163, decided 7/25/18)

  • High Court decision on Muslim clergy at execution challenges rule of law

    High Court decision on Muslim clergy at execution challenges rule of law

    Dominique Ray

    “In no circumstances shall magistrates enforce a law which has not been inscribed. No decree, whether of the Council or Assembly shall override a law. No law shall be directed against an individual without applying to all citizens alike, unless an Assembly of six thousand so resolve by secret ballot.”

    (Andocides, 440 BC – 390 BC)

     

    [dc]A[/dc] fundamental principle of societies from the earliest days of antiquity is that laws and policies must be written down. Even the first five books of the Torah focus on law and policy down to the most minute detail. Those who attempted to make up the law as they went along are remembered as dictators and tyrants whose ad hoc rulings superseded all legitimate legal authority. Well-drafted law and policy bring about consistency and predictability – unwritten policies bring about chaos, confusion, and centralize power in a few individuals.

    Last week, the Supreme Court decided that an unwritten policy controlled in a case involving a Muslim prisoner on death row who had requested that a member of his faith be present in the execution chamber – a right that Alabama claimed applied only to Christians by way of unwritten “policy.” This is a loaded case to be sure as many might feel that murderers on death row are not the most sympathetic parties, but the rationale behind the Court’s decision could have a much broader impact. If government officials are able to enforce unwritten policies that infringe on core rights, the “rule of law” will disappear.

    Last week, on Thursday, the U.S. Supreme Court allowed the execution of an Alabama inmate to proceed without his clergy member present. According to statements related to an unwritten policy of the state, which only came to light when the circumstance arose, “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites.”

    In this case, Dominique Ray was a Muslim, not a Christian, and the state of Alabama said he had no right to have a Muslim clergy member in the execution chamber for unspecified “security” reasons. The Eleventh Circuit of Appeals had issued a temporary stay on Wednesday, but Alabama issued an emergency appeal to vacate the stay. The Supreme Court voted 5-4 to vacate the lower court stay and allow the state to proceed with the execution. The Court’s decision is unwritten, with the only record of the 5-4 decision being the dissent of Justice Elena Kagan, joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor.

    In its “emergency” motion to the Supreme Court to vacate the Eleventh Circuit’s stay of execution to study the issue, Alabama attempted to prove that unwritten policy existed via a sworn affidavit (see Exhibit A of this document)  of Jefferson Dunn, the Commissioner of the Alabama Department of Corrections who said it was a “long-standing policy.”

    Justice Kagan wrote that the Alabama policy violates the Establishment Clause by preferring one religion over others. “Under that policy,  a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion – whether Islam, Judaism, or any other – he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”

    Justice Kagan argued that the state should have been required to show that “its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisors is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer.”

    The only reason the execution had to occur now, on an “emergency” basis, rather than allowing the case to be heard was “so the State can meet its preferred execution date,” wrote Justice Kagan. “I respectfully dissent.”

    Analysis:  The prisoner’s claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, was not addressed by the Supreme Court, but would have been addressed if the case had been allowed to proceed within the Eleventh Circuit.

    In this case, Alabama claimed that it had a policy in place that only prison employees could be present in the execution chamber and that since the only chaplain who was a prison employee was a Christian, it treated every prisoner the same way. But there is no evidence of a written policy upon which to hinge its argument, and the state refused to release any written policy, so it is reasonable to assume that it did not exist. In ruling that an unwritten rule, quite possibly manufactured after the execution was already scheduled, should not be subject to a judicial Establishment Clause and potentially Free Exercise Clause analysis, the Court has created a troubling precedent that targets the principle of the rule of law.

    Justice Kagan’s Dissent – Case: Dunn v. Ray, 586 U.S. _____ (2019) – Decided 2/7/19 – https://www.supremecourt.gov/opinions/18pdf/18a815_3d9g.pdf