Balkinization  

Tuesday, June 28, 2016

Significant Line from a Dissent From Denial of Cert.?

Mark Tushnet

In his dissent from the denial of certiorari in Storman's v. Wiesman, Justice Alito ends his introductory paragraph (technically, his second paragraph) with this: "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern." I've added the emphasis. Does Justice Alito foresee an extended period ("years ahead") in which conservatives won't be able to set the court's agenda?

Even if Justice Kennedy's "defection" in Fisher and Whole Woman's Health is as temporary as was (the first) Justice Roberts's in the 1936 Term, the agenda-setting point may still hold. If Justice Alito foresees the confirmation of Merrick Garland or a different nominee from a Democratic President, the conservatives might be able to count only to four in any "agenda"-type case, and might refrain from granting review without some confidence that there's a fifth vote somewhere to be found. (I think the point holds even if, as I think extraordinarily unlikely [contrary to views expressed by some bloggers], the Court's membership is permanently reduced by refusals to confirm nominees of a Democratic President.)

I've expressed my views about what a new majority with the power to set the agenda should do. We'll see whether Justice Alito's right, and if so what a new agenda will look like.

[I also like Justice Alito's use of Google maps to calculate driving distances.]

Comments:

It's a reasonable concern; The left was ok with religious liberty so long as it meant the right of Indians to get stoned on Peyote. Once they realized it implied that Christians didn't have to knuckle under to the left, religious liberty looked less attractive. Now that it looks like an obstacle to ultimate cultural supremacy, it has become something that must be destroyed.

It may well be that Trump will win in November, and the Court will be spared a majority hostile to traditional religious exercise. But that there's no longer a bipartisan consensus in American in favor of religious liberty is a shocking development; The RFRA was originally introduced by a Democrat, and passed the House unanimously, and the Senate with 93 votes. This used to be something that both parties overwhelmingly favored.

The last decade or so has seen something of a sea change in the left's relationship with civil liberties. The left has always been hostile to property rights and the RKBA, but traditionally was very good on freedom of speech, religion, due process. One by one those have been falling by the wayside.

I guess that's a natural consequence of the left gaining power; They only ever favored liberty over government power because they thought their foes would exercise the power; Now that they expect to, human rights are nothing but an impediment.
 

Brett, I doubt that many at the time thought about RFRA applying to commercial activity, also giving small minorities a shield from the government is one thing, allowing large majorities the same can be a quite different kettle of fish. In one of (if not the first) SCOTUS RFRA case Justice Roberts noted that the exemption asked for was to such a small group was an especial reason to grant it, for example.
 

I too doubt there was much thought at the time that majorities would have to make any RFRA claims; Who ever thought it would be the majority being oppressed, and needing relief?

That very common religious positions would need shelter from government policy was not the sort of thing you'd expect in a democracy.
 

Well, sort of, and this is in a way my error for rather carelessly using the word 'majorities.' The main purpose of anti-discrimination laws were to prevent some local majorities from discriminating, and therefore making life really awful, against their local minorities. White racists might be political majorities in this or that Southern town or city, the law was meant for them. Of course, these weren't national majorities, and today's anti-gay Christians aren't either.

Like those laws, RFRA was intended to protect such local minorities, but I don't think people foresaw them using the law as a shield (or spear) to protect them from laws that were meant to protect other minorities. People invoking their religion to turn away minority groups was something they probably should have seen as a potential of the laws, but they didn't, and large numbers of such people they saw even less. And then to further extend things, they didn't see it being applied commercially (I imagine RFRA challenges concerning churches turning away minorities for marriage ceremonies might have passed by without too much fuss, but commercial activity of the same vein was going to be a bridge too far).
 

Also too, "religious liberty" is being used here with the same sincerity and accuracy as "women's health" in the TX abortion arguments.
 

Trump, for whom Brett toils at this Blog, has committed to the "Revengelicals" that he will unwall Jefferson's separation of church and state. I assume Brett would like to see RFRA utilized to change the changing demographics.
 

"but commercial activity of the same vein was going to be a bridge too far)."

Considering that at the time RFRA passed, anybody who suggested that bakers and wedding photographers would be compelled to provide services for same sex marriages would have been viewed as a lunatic, I wouldn't be so sure of that.
 

I find Mark Tushnet's opinions on "what to do" heavy-handed but Alito and Thomas (though here joined by Roberts) have seemed to feel left out of late. As to Brett ...

anybody who suggested that bakers and wedding photographers would be compelled to provide services for same sex marriages would have been viewed as a lunatic

Not if they had some foresight given there were already laws against discrimination based on sexual orientation in place, and like service to interracial couples who got married though some religious beliefs oppose that sort of thing, they applied to bakers too. Plus, given the arc of sexual relations, marriage was a logical next step as gays and lesbians unions were more and more deemed legitimate and accepted, including raising children.

Once they realized it implied that Christians didn't have to knuckle under to the left, religious liberty looked less attractive

RFRA stands for the "Religious Freedom Restoration Act" and it was passed after Oregon v. Smith. There were numerous lawsuits before than that applied to Christians and Jews, including the right of Christians to have clubs in schools. There was even a federal law passed in the 1980s specifically targeted to that. So, "the left" was aware of that sort of thing. The liberals on the USSC didn't only care about Native Americans either.

Part of the pre-Oregon v. Smith case law that RFRA was supposed to "restore" was a unanimous opinion (U.S. v. Lee) written by Chief Justice Burger. It specifically differentiated commercial activity:

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.

The group there was the Amish, who was beneficially treated in an earlier case that involved personal behavior -- sending children to school -- not commercial behavior affecting third parties.

RFRA had wide supported because more personal acts were visualized, not clashes with equality and other rights in the public market place. For instance, the Supreme Court back in the 1960s rejected a religious exemption to laws regarding racial equality in public accommodations. In time, though a few conservatives like Prof. Marci Hamilton opposed it at the time, the breadth of the federal law (the USSC struck it down as unconstitutional as applied to state action) was seen as problematic.

a majority hostile to traditional religious exercise. But that there's no longer a bipartisan consensus in American in favor of religious liberty is a shocking development

Only a minority finds it immoral to use IUDs and morning after pills, at the very least, to sell them in pharmacies. A neutral requirement for licensed pharmacies to fill prescriptions follows the test set forth by Justice Scalia in Oregon v. Smith. It allows each consumer, in the public marketplace, to choose pursuant to their religious beliefs, to fulfill their health needs. This promotes religious liberty.

 


I guess that's a natural consequence of the left gaining power; They only ever favored liberty over government power because they thought their foes would exercise the power; Now that they expect to, human rights are nothing but an impediment.

This is fictional. They then and now support basic liberties, including the free choice to practice religious beliefs. The basic rule that commercial transactions can be more regulated has been in place for some time as shown by a unanimous opinion written by a conservative Nixon appointee. OTOH, the left and right, including on the Supreme Court, has supported more private religious rights for a range of groups.

The proper lines here has been debated for quite some time and each side makes choices that can be criticized. It can be complicated. Some, however, are single minded, only opposing one side selectively. That does, if in a biased fashion, simplify somewhat.
 

"Considering that at the time RFRA passed, anybody who suggested that bakers and wedding photographers would be compelled to provide services for same sex marriages would have been viewed as a lunatic"

I'm not so sure about that, remember Romer v. Evans? It was decided in 1996 and was about a 1992 Colorado Amendment which was passed that year to address the fact that municipalities like Aspen and Boulder had passed ordinances including sexual orientation as protected under their anti-discrimination laws. RFRA was passed in 1993. So this kind of thing wasn't unheard of.

But what's more interesting to me is the different ways, exhibited by the comments here, a conservative (Brett) and a liberal (Joe) think about this kind of thing. Brett says essentially 'no one thought this law would affect businesses turning down gay marriage related clients when this law passed, so that shouldn't factor in to how the law works.' Joe says 'that doesn't matter, we had laws protecting various protected minorities and which extended to marriage related business, that they might apply to additional or different minorities in the future as mores change is pretty foreseeable.' Balkin's 'original application vs. original meaning' comes to mind.

http://balkin.blogspot.com/2005/06/original-meaning-and-original.html



 

" They then and now support basic liberties, including the free choice to practice religious beliefs."

Oh, bs. The only religious liberty the left has any use for today is what takes place inside your head, and that's only because mind reading technology isn't proven. The moment your religion tells you to do something they disapprove of, or refrain from something they demand, where's your religious liberty? You can't even refrain from baking a cake!

Sure, you can exercise religious liberty in that ever shrinking realm where they don't care what you do. But that's not religious liberty, that's just not caring what you do. Hardly the same thing.
 

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Brett, if I honestly believed via my religion that private property laws were an abomination could I crash at your house anytime I want? You don't think much of anti-discrimination laws so someone asking for a religious exemption from them is easily accepted by yourself as no big deal, but it's easy to think of laws I bet you care more for that you'd be less thrilled about exemptions from them. Well, some people think the same way about anti-discrimination laws as you do property laws, for example.
 

Oh, b.s.

I find Brett's comments on "religious liberty" a bit amusing given past comments (on another blog) where he thought religion was "b.s." and I was the one honoring religion's place in society & why we have religious freedom protections.

The only religious liberty the left has any use for today is what takes place inside your head

That's why a ministerial exemption case involving workplace discrimination was upheld unanimously by the Supreme Court. Kagan, Sotomayor, Breyer and Ginsberg must be part of "the Right" now. Just an example.

and that's only because mind reading technology isn't proven.

Millions of liberal religious believers who deem their (and those they disagree with) actions covered too here ignored. The ACLU etc. repeatedly protect religious ACTS pursuant to the1A including of conservative leaning Christians.

The moment your religion tells you to do something they disapprove of, or refrain from something they demand, where's your religious liberty? You can't even refrain from baking a cake!

Religious practice as a whole is widely protected. Again, sorry if this is so hard, pursuant to long-held precedent, including one written by Nixon conservative Chief Justice Warren Burger, public accommodation laws that protect equal protection is generally not a violation of the 1A.

You can "refrain from baking a cake." OTOH, if you choose to run a public accommodation, even if your religion is against it, the state can require you to serve interracial customers who want a cake. Or, a loaf of bread etc. Or, Jewish customers, or unmarried customers etc.

Sure, you can exercise religious liberty in that ever shrinking realm where they don't care what you do. But that's not religious liberty, that's just not caring what you do. Hardly the same thing.

Not the rule. There has to be a legitimate public interest, such as guarding against discrimination or the evenhanded supply of drugs by state licensed pharmacists. The latter here allows the consumer access as their individual religious beliefs warrant, including ACTIONS (not just "in their head") such as those who deem morning after pills more moral than abortion or having a child.

BTW, the rule in place -- even though it is general applicable and regulated public health -- balanced concerns for religious dissenters.

https://rewire.news/article/2016/06/28/supreme-court-rejects-challenge-washington-law-requiring-pharmacies-stock-plan-b/
 

I have written that, ideally, religious liberty shouldn't be necessary, because the government shouldn't be mandating/prohibiting in the first place anything it would remotely make sense to exempt religion from.

You don't need to exempt communion wine (Or Peyote!) from Prohibition if you don't have Prohibition. You don't need to exempt the Little Sisters from the contraceptive mandate if you don't have a contraceptive mandate. You'd never consider exempting Thugee from laws against murder, so it makes sense to have laws against murder.

In short, I haven't proposed eliminating religious liberty, but instead expanding general liberty to the point where religious liberty ceases to be distinguishable from it.

Naturally it follows from this that non-religious institutions and individuals don't have to be distinguished from religious individuals and institutions, if the latter already have every right the former might reasonably claim.

 

I'm not sure how far that gets you Brett. I'll only use actual historical examples here. What would you do, in times for war, for the religious adherent who believes fighting is against their religion? Will you have a draft, and if so, will you exempt him? But it doesn't stop there: many people today are arguing that by sending a form asking for the exemption which, if granted, triggers the contraceptive mandate from other sources, their religious beliefs are burdened. Analogously, what would you do with the Quaker who says 'to be drafted burdens my beliefs, but to go through any process for an exemption would too (because someone else would be chosen in my stead!)!

Or here's another example: a Native American says that their religious beliefs are burdened unless they can perform religious rituals on land that you now own, they say the property laws that bar them burden them and they should get an exemption.

Bottom line, as you seem to recognize with your Thuggee example, you are going to have people whose religious exercise conflict with some law that even you are going to think shouldn't have exemptions. So now what do you do?
 

Brett: Now that it looks like an obstacle to ultimate cultural supremacy, it has become something that must be destroyed.

Good observation.

Our law has recently crossed the line from negative tolerance (you will not persecute homosexuals by criminalizing sodomy) to affirmative government compulsion to recognize and support social arrangements preferred by the secular left (you will recognize and subsidize SSM and abortion through the government and you cannot conduct business unless you service SSM or pay for your employees' abortions).
 

I have written that, ideally, religious liberty shouldn't be necessary, because the government shouldn't be mandating/prohibiting in the first place anything it would remotely make sense to exempt religion from.

There is a range of mundane governmental regulations, including ordinary workplace ones, that are valid but we make various exceptions for a range of reasons. The 1A among other things underlines that religion is a basic concern of humankind and that among the range of reasons, our society thinks religion is particularly important.

There is also a concern of religious favoritism and an extra concern that religion in particular -- again in a range of mundane matters and more important ones -- needs to be treated carefully. Thus, the need for religious liberty over and above some general distrust of government.

You don't need to exempt communion wine (Or Peyote!) from Prohibition if you don't have Prohibition. You don't need to exempt the Little Sisters from the contraceptive mandate if you don't have a contraceptive mandate. You'd never consider exempting Thugee from laws against murder, so it makes sense to have laws against murder.

We don't allow open sale of all drugs. Take even wine -- usually, we don't allow serving wine to minors. Communion wine could be an exception. It's grand if we had single payer but we will have employment regulations, including unemployment insurance. Religious liberty there includes allowing certain work exemptions and religious belief is one. OTOH, like discrimination in public accommodations, yes, even religious belief might not be enough. There is a compelling state interest, snce liberty isn't absolute.

In short, I haven't proposed eliminating religious liberty, but instead expanding general liberty to the point where religious liberty ceases to be distinguishable from it.

This would belittle religious liberty, deemed of fundamental importance, as one of any mundane reasons not to be regulated. Also, free exercise is only part of religious liberty anyway. Again, in the past, Brett belittled religious importance, so this inferior place his reasoning places in it (just one of many reasons to be exempt) is unsurprising. In this respect, he is akin to a minority of the left ironically enough.

Naturally it follows from this that non-religious institutions and individuals don't have to be distinguished from religious individuals and institutions, if the latter already have every right the former might reasonably claim.

In the process, he shows he disagrees with the special concern religion is given in the 1A. This is okay -- it's okay to disagree with constitutional principles & he does in various respects. Best to be aboveboard about it.
 

"has recently crossed the line"

If we've crossed a line there we crossed it in the 1960's with non-discrimination law, all that's happened now is it's applied to sexual orientation to other long protected categories such as race, national origin, gender and (with some irony) religion. And we're not subsidizing same sex marriages any more or less than we are heterosexual ones.
 

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"In the process, he shows he disagrees with the special concern religion is given in the 1A."

The 1st amendment involved two particular concerns:

1. The establishment clause. Which, historically, was supposed to prevent the federal government from legislating on the topic of established religion. Several of the states had established religions at the time, you know, and didn't want the federal government butting in, either establishing a religion itself, or interfering with their own establishment of such.

2. Freedom of exercise. The concern here was that the federal government would deliberately target specific religions for attack, not that religions would be held to generally applicable laws. What laws were within the originally understood reach of the federal government, that a religion would want to take exception to?

"If we've crossed a line there we crossed it in the 1960's with non-discrimination law"

That's true, that IS when we went wrong on this topic. The cancerous growth of "suspect classes" just makes the error more egregious.
 

In his item 1, Brett neglected the historically significant 14th A that via the Court's incorporation similarly proscribed the states. Perhaps Brett's historical incompleteness suggests that he might like the idea of a state having an established religion. Needless to mention, there is much about the 14th A that Brett disagrees with. And is it coincidental that Brett's view of the 1960s going wrong is aimed at the civil rights movement and its efforts to level the playing field after decades of Jim Crow?
 

Well, yes, at the point where it got incorporated, the prohibition on enacting legislation "respecting" (Having to do with) an establishment of religion came to apply to the states, which could thus no longer have established religions themselves. I'm just urging some accuracy of what was meant by "respecting an establishment of religion": It didn't actually mandate neutrality between religion and irreligion, just neutrality among religions. The federal government, and later the states, could not establish a religion, the way England did with the Anglican church.

Anyway, you've got me all wrong: I have no objection to the 14th amendment, it was a great idea. My objection is to the implementation, which has come to stand the idea of equality under the law on its head. What we have today is not so much a level playing field, legally, as a carefully contoured field where some groups get to run downhill, some must run uphill, with the aim that they end up at the finish line about the same time.

A level playing field and an engineered tie are not compatible goals.
 

What laws were within the originally understood reach of the federal government, that a religion would want to take exception to?

An obvious example would be militia duty -- Quakers objected to it. Slavery was another example. There were religious objections to federal Indian policy.
 

Fair enough. But you must admit the fast expansion of federal jurisdiction has increased the opportunities for federal laws to impinge on religion.
 

Sure, and the 1A is there to protect against that. But the 1A does not provide a religious exemption from laws of general application (Oregon v Smith). To the extent there is such an exemption, it comes via statute, and thus is always subject to majority rule.

The balancing act is that the expansion of "religious exemption" effectively forces people who don't share that religion to abide by (or be inconvenienced by, if you prefer) its dictates. The trick is to draw a line, in an area where conduct -- as distinguished from belief -- has always been understood to be subject to regulation.

An easy way to see the problem here is to look at religion in employment. Employers are required to "accommodate" religious practices among their employers. In practice, though, this means that if the "accommodation" costs any amount of money whatsoever, they don't have to "accommodate" the practice. If that test were to apply to businesses -- you can practice your religion as long as it doesn't cost your customers any money -- well, I think you can see where that would end up.


 

"But the 1A does not provide a religious exemption from laws of general application (Oregon v Smith)."

That's kind of the point of the RF"R"A; "Restoration" of the understanding of the First amendment that prevailed before Oregon v Smith. Recognizing that Oregon v Smith overturned the previous doctrine on this! It was enacted almost unanimously because everybody from the Christian Coalition to the ACLU thought the Supreme court had gotten Oregon v Smith wrong.

What I'm noting here is that barely more than 20 years ago, the RFRA represented not just the prevailing viewpoint on religious liberty, but practically the universal viewpoint, across the political spectrum.

And here we are, a short while later, and the left has changed its views on the matter. Why? What changed?

What I think changed is that the left now sees itself making the rules, and has no interest in anybody being exempted from the rules IT makes.
 

I think you're reading far too much into the title of an act. Congress was being its Congress-y self in giving it that title. Obviously, Scalia thought he was applying the Constitution as written. And in any case the statute didn't (and couldn't) create a Constitutional right (City of Boerne v Flores).

But putting that aside, the Court still needs to interpret the RFRA in particular cases. And that just brings us back to the issues I raised above about the interplay between religious practice and the rights of others.

Your question "what changed?" assumes a reading of the RFRA that isn't necessarily correct; I certainly don't see any cases that have to be overruled as a result of recent decisions. For me, what changed was the aggressive use the religious right has made of the RFRA as a wedge to intrude religion into areas previously exempt from it. YMMV, of course.
 

Brett has no objection to the 14th A, but only to its implementation. And I suppose his attitude towards Brown v. Bd. of Educ. is about the same. Then Brett comes up with this:

"What we have today is not so much a level playing field, legally, as a carefully contoured field where some groups get to run downhill, some must run uphill, with the aim that they end up at the finish line about the same time."

When a group had been "running uphill" in chains with slavery and continuing uphill even after the 14th A after the 14th A was ratified for more than 8 more decades, Brett presumably believes the 14th A was self-implementing in leveling the playing field. However, the 14th A recognized the need for steps to accommodate how to level the playing field and in the mid-1960s this was addressed with the Civil rights Acts under the authority of the 14th A - about a century after the 14th A. Better late than never. But addressing the imbalance over that century and what preceded it could not be accomplished overnight what with the resistance from with white supremacy mentality including to date.

Brett, an engineer, closed his 11:38 AM comment with this:

"A level playing field and an engineered tie are not compatible goals."

Is Brett suggesting this based upon what he considers white supremacy? Or is this a riddle of engineers?
 

"What I think changed is that the left now sees itself making the rules, and has no interest in anybody being exempted from the rules IT makes."

Wasn't RFRA passed when there was a majority Dem Congress and Dem President (1993)? Why yes it was.

https://en.wikipedia.org/wiki/103rd_United_States_Congress

So the left was in charge when it passed the exemption law itself. There goes that theory...

The much more reasonable explanation is that many who supported the law didn't think about it applying to exemptions for 'religious commercial activity' (or as Mark says the current religious rights use of it in general).
 

The much more reasonable explanation is that many who supported the law didn't think about it applying to exemptions for 'religious commercial activity' (or as Mark says the current religious rights use of it in general).

Applications can be thought up, but yes, this would make sense since the law was "restoring" pre-Oregon v. Smith case law & a key case noted how commercial activity is different. If one examines the range of cases, free exercise cases that reached the Supreme Court generally did not apply to commercial activity or if it did involved unemployment compensation. A special rule also arises regarding the "ministerial exemption" which can apply to paid employees, but its reach is unclear. An exception were Sunday Closing cases, but the litigants lost there, Orthodox Jews not given an exemption. The Hobby Lobby case (involving a corporation) was also something of a special case.

 

"In the process, he shows he disagrees with the special concern religion is given in the 1A."

[Brett noted: "Ideally, religious liberty shouldn't be necessary, because the government shouldn't be mandating/prohibiting in the first place anything it would remotely make sense to exempt religion from."

So, religion -- a basic aspect of human society especially in the U.S. - has no special protection or concern. Government regulations balances various things such as the needs of employees and employers. Religion here is as important as anything else. Again, he disagrees with basic 1A values which singles out "religion."]

The establishment clause. Which, historically, was supposed to prevent the federal government from legislating on the topic of established religion. Several of the states had established religions at the time, you know, and didn't want the federal government butting in, either establishing a religion itself, or interfering with their own establishment of such.

A general concern was that government itself would not do this but the 1A only applied to federal action. The 1A also left open state censorship too. Establishments existed but were limited and in decline. The 14A came along and applied it to the states.

2. Freedom of exercise. The concern here was that the federal government would deliberately target specific religions for attack, not that religions would be held to generally applicable laws. What laws were within the originally understood reach of the federal government, that a religion would want to take exception to?

The text is not an equal protection clause -- it speaks in general of "free exercise of religion" which does at least two things: avoids coercion and gives people the right to exercise their religion generally.

There were from the beginning various exemptions such as from oaths, Quakers not needing to doff their hats in court, exemption from militia service and so on. The federal government controlled D.C. and territories that would also apply general laws that might clash with religious belief, especially when religious property and organizations were involved. The Free Exercise Clause sends a message that when balancing everything, religion in particular would be given an extra edge from any mundane thing.

"If we've crossed a line there we crossed it in the 1960's with non-discrimination law"

That's true, that IS when we went wrong on this topic. The cancerous growth of "suspect classes" just makes the error more egregious.


Exemptions occurred before the 1960s, but if you think the Civil Rights Act of 1964 was a problem, fine. Ditto greater protection of equal protection of law. Others disagree.
 

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"Ditto greater protection of equal protection of law"

No, I WANT greater protection of equal protection of the law. That isn't what we have today, when different races are treated differently under the law.

Shag talks of slavery as an excuse for that, but slavery is over a century distant. The case for special treatment for people who personally were slaves just a few years earlier is much different from the case for people who just happen to look something like people who were slaves a century and a half ago.

Ultimately, at some point, the way to stop discriminating is to stop discriminating. Democrats quite naturally do not want that point to ever arrive, because they're still the party of racial spoils, just as much as they've ever been. All they've changed is who they hand them out to.
 

Brett's:

"Ultimately, at some point, the way to stop discriminating is to stop discriminating. Democrats quite naturally do not want "

seems to channel CJ Roberts. Plagiarism? But when Brett says "at some point," he perhaps concedes "not as yet." Yes, slavery is a distant past, but not Jim Crow, segments of which continue to this day. [Consider the recent Pew Report on racism.] Perhaps a reverse Jim Crow is what Brett fears from the changing demographics. Slavery is not an excuse but Jim Crow's post-slvery tenure nourishing claims of white supremacy justifies steps to level the playing field. That Brett cannot compete on a level playing field is quite obvious.
 

Brett,

A question: I know you're a big fan of the idea that states or regions should get a somewhat equal say regardless of the numbers of individuals who live in them. Should racial or ethnic groups get a similar arrangement, as Lani Guiner has proposed?
 

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No, I WANT greater protection of equal protection of the law. That isn't what we have today, when different races are treated differently under the law.

"The cancerous growth of "suspect classes" line is curious for someone who wants greater protection of equal protection. Your disagreement with some here on what equal protection means as applied to affirmative action is duly noted.

Shag talks of slavery as an excuse for that, but slavery is over a century distant.

The effects of slavery and other forces is still a thing, including the various reasons that Mr. W. et. al have discussed in the past that make affirmation action of various kinds (and not just by race) useful.

Ultimately, at some point, the way to stop discriminating is to stop discriminating.

It assumes the question to deem it illicit discrimination -- I'm not sure at what point, e.g., colleges are not going to try to get a range of people of various types. This "discriminates" among different types by criteria other than test scores or the like. But, that's nice. And, peace is great too. At some time we have to stop using violence to answer violence, I guess. IRL, imperfect means are sometimes used.

Democrats quite naturally do not want that point to ever arrive, because they're still the party of racial spoils, just as much as they've ever been. All they've changed is who they hand them out to.

You are in full partisan cant now, so will probably ignore yet again that a range of Republicans (including judges) support race conscious affirmative action for various reasons. The Republican Party has repeatedly used race for their petty ends but your partisan biases make you a lousy neutral truth teller here.
 

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Justice O'Connor (a Republican supporter of affirmative action) quoted Washington in her dissenting opinion in City of Boerne v. Flores:

"In my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit."

https://www.law.cornell.edu/supct/html/95-2074.ZD.html

This reflected a general understanding of religious liberty -- free exercise included some accommodation of religious beliefs specifically, not some general libertarian concern that applied to all things. As to actions, this could not be absolute, but extra concern was warranted (and not an establishment).

One thing that comes to mind here was the extra level of independence given to religious institutions, including by allowing them to settle their property disputes by their own beliefs, not by mere secular general principles. This continues to be a matter of some litigation.
 

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