Let Them Eat Cake

Earlier this week the Supreme Court of the United States made a decision that favored the cake baker in Colorado who chose not to bake a cake for a same-sex couple. Unfortunately, some people did not get the memo about what they decided and why. For instance, a hardware store owner, Jeff Amyx, in Tennessee who took down a sign in 2015 that said "No Gays Allowed" has rehung it stating "Christianity is under attack. This is a great win, don't get me wrong, but this is not the end, this is just the beginning," Amyx said. "Right now we're seeing a ray of sunshine. This is 'happy days' for Christians all over America, but dark days will come."

The question of what is under attack is equal rights under the law. The case that SCOTUS decided was that the baker from Colorado's rights were not treated equally under the law by the Colorado Civil Rights Commission. One commissioner on the panel during a public hearing disparaged the baker’s faith as “despicable” and another member compared his sincerely held religious beliefs to defenses of slavery and the Holocaust. “This sentiment is inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation,” Justice Kennedy wrote.

The court said Colorado law can protect gay people from being discriminated against by businesses that are open to the public, but the law must be applied in a manner neutral toward religion.So, in essence, the Court found for the baker because of the treatment he received by the Commission, which has a degree of irony in that the gay couple seeking to buy a cake from him had a similar experience, thought to his credit, without the degree of contempt.

Back to the hardware store owner, though. If he makes duplicate keys and a gay person wishes him to make keys for his home, Mr. Amyx will be hard pressed to defend 1) limiting access to his store to that person 2) refusing to make a key because of his religious beliefs. Mr. Amyx owns a hardware store and sells hardware. Keys are hardware. If Mr. Amyx makes keys for anyone, he must make them for everyone. Mr. Amyx must allow people to buy his hardware regardless of his beliefs because he cannot refuse service based on race, creed, color, gender, or sexuality under federal law.

"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."

Sadly, Mr. Amyx and others will be looking for opportunities to test the degree to which they can discriminate owing to religious beliefs.  For instance if the customer who is gay wanted a house key for his spouse to be made, Mr. Amyx might argue that for religious reasons he won't do it because his faith does not support gay marriage. The Supreme Court and/or lower courts would have to decide if their is precedent to support that viewpoint. More to the point, the courts will be constantly barraged with how free freedom actually is within the walls of a nation that seem to be closing in and minds with them.

Oh Hell No, Ohio!

Once again, the Buckeye State finds itself in the midst of a pickle, this time not because votes haven't been counted, but because of voter registration problems. And this time it is going to the US Supreme Court before the election to decide what to do.

Truthout and the The Washington Post reports:

As many as 200,000 votes in the pivotal state of Ohio could be at stake in a legal battle between Republicans and Secretary of State Jennifer Brunner, and Ohio officials have appealed to the Supreme Court to block efforts to turn aside a lower court order to alter procedures to check new voter registrations.

The battleground state already has become the setting for a series of lawsuits over voter eligibility. About 660,000 new voters have registered since January with an edge to Democrats.

Ohio's attorney general filed an emergency appeal to the U.S. Supreme Court late Wednesday night on behalf of Brunner, a Democrat. It contends that upholding a Tuesday decision by the U.S. Court of Appeals for the 6th Circuit would create havoc on Election Day and cause many voters to cast "provisional" ballots that may or may not ultimately be tallied depending on judgments by local elections boards.

More here.

Updated: According to CNN
The Supreme Court is backing Ohio elections officials in an ongoing dispute over allegations of voter registration fraud.

Ohio Secretary of State Jennifer Brunner filed the emergency appeal with the U.S. Supreme Court.

The justices in an unsigned opinion Friday blocked a lower court order directing the Ohio Secretary of State -- a Democrat -- to update the state's voter registration database after information provided by some newly registered voters did not match up with Social Security and driver registration numbers.

The state Republican party had asked for enforcement of a temporary restraining order, but the justices ultimately denied that request.

The appeal, from Secretary of State Jennifer Brunner and other elections officials, follows a Tuesday ruling from the 6th U.S. Circuit Court of Appeals in Cincinnati that sided with the state GOP.

It ordered Brunner to create a system by Friday to provide a list of newly registered voters whose Social Security numbers or driver's license numbers do not match their names. More.

Supreme Court Torture Advocate Roberts In Des Moines

JOIN ANTI-TORTURE ACTIVISTS PROTESTING ROBERTS' SUPPORT FOR TORTURE
AND ATTACK ON THE CONSTITUTION, KNAPP CENTER, DRAKE U AT 2 PM.


Anti torture activists will be on hand this afternoon at Drake
University's Knapp Center in Des Moines this afternoon to protest
Chief Justice Roberts' attacks on habeas corpus and his support for
torture protested.


Chief Justice of the United States John G. Roberts Jr. will deliver
the 11th Dwight D. Opperman Lecture in Constitutional Law at Drake
University today, Thursday, Oct. 2. The lecture, which is free and
open to the public, will start at 3 p.m. in the Drake Knapp Center,
2525 Forest Ave., Des Moines. Protesters will gather in front of the
center with signs and banners starting at 2 PM.


On June 12, 2008, Chief Justice Roberts dissented from the Supreme
Court ruling on BOUMEDIENE v. BUSH, that foreign terrorism suspects
held at Guantanamo Bay and other US prisons have rights under the
Constitution to challenge their detention in U.S. civilian courts.
Roberts disagreed with Justice Anthony Kennedy, who writing for the
court, said, "The laws and Constitution are designed to survive, and
remain in force, in extraordinary times" In his dissent, Roberts
characterized the military commissions established by the Bush
administration that accepted testimony gained under torture and the
use of evidence kept secret from the accused, "the most generous set
of procedural protections ever afforded aliens detained by this
country as enemy combatants."


Roberts' dissent also disagrees with then commander at Guantanamo,
Major General Jay Hood, who acknowledged to The Wall Street Journal
on Jan. 26, 2005, that: "Sometimes we just didn't get the right
folks," and that the reason those "folks" were still in Guantanamo was
that "[n]obody wants to be the one to sign the release papers . . . .
There's no muscle in the system."

Habeas Corpus for Detainees Upheld by US Supreme Court

Despite Chief Justice Roberts and fellow justices Scalia, Thomas, and Alito dissent, the US Supreme Court upheld habeas corpus for captives held in Guantanamo. Glenn Greenwald in Salon says:

I

n a major rebuke to the Bush administration's theories of presidential power -- and in an equally stinging rebuke to the bipartisan political class which has supported the Bush detention policies -- the U.S. Supreme Court today, in a 5-4 decision, declared Section 7 of the Military Commissions Act of 2006 unconstitutional. The Court struck down that section of the MCA because it purported to abolish the writ of habeas corpus -- the means by which a detainee challenges his detention in a court -- despite the fact that Constitution permits suspension of that writ only "in Cases of Rebellion or Invasion."

As a result, Guantanamo detainees accused of being "enemy combatants" have the right to challenge the validity of their detention in a full-fledged U.S. federal court proceeding. The ruling today is the first time in U.S. history that the Court has ruled that detainees held by the U.S. Government in a place where the U.S. does not exercise formal sovereignty (Cuba technically is sovereign over Guantanamo) are nonetheless entitled to the Constitutional guarantee of habeas corpus whenever they are held in a place where the U.S. exercises effective control.

In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees -- mandated by the John-McCain-sponsored Detainee Treatment Act of 2005 -- does not constitute a constitutionally adequate substitute for habeas corpus.

Chief Justice John Roberts, in dissent: ``Today the court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date.''

``The critical threshold question in these cases, prior to any inquiry about the writ's scope, is whether the system the political branches designed protects whatever rights the detainees may possess. If so, there is no need for any additional process, whether called 'habeas' or something else.''

---

Justice Antonin Scalia, in dissent: ``The game of bait-and-switch that today's opinion plays upon the nation's commander in chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional republic. But it is this court's blatant abandonment of such a principle that produces the decision today.''

``Today the court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause. ... It blatantly misdescribes important precedents ... It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad ... And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The nation will live to regret what the court has done today.''

Justice Anthony Kennedy, writing to grant court access to detainees: ``Because our nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the court might not have this luxury.''

``The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.''

``In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. ... While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.''

Justice David Souter, in support of the majority wrote: ``A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years ... Hence the hollow ring when the dissenters suggest that the court is somehow precipitating the judiciary into reviewing claims that the military, subject to appeal to the Court of Appeals for the District of Columbia Circuit, could handle within some reasonable period of time.''

In a separate decision, the court ruled 9-0 that United States citizens detained by US forces have the right to challenge their detention, no matter where they are being held. In the consolidated cases of Geren v. Omar and Munaf v. Geren, the Court held that American citizens held by the United States Army outside of the United States have a right to challenge their detentions in federal court. The United States government had contended that, since the United States soldiers holding Omar and Munaf were operating under the auspices of a multi-national coalition, they were not entitled to habeas corpus in US courts.

Three of the five Justices in the majority -- John Paul Stevens (age 88), Ruth Bader Ginsburg (age 75) and David Souter (age 68) -- are widely expected by court observers to retire or otherwise leave the Court in the first term of the next President. By contrast, the four judges who dissented -- Antonin Scalia, Clarence Thomas, John Roberts and Sam Alito -- are expected to stay right where they are for many years to come.

Republican John McCain said that he continues to support closing the detention facility, but is concerned about a ruling that gives habeas corpus rights to enemy combatants who are not US citizens.

Democrat Barack Obama, who also wants to close Guantanamo, said "This is an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy."

What the rulings mean to Guantanamo captives.

Some Guantanamo Protestors Have Iowa Roots

The Washington Post covered the story below about the trial of protesters seeking to close Guantanamo who demonstrated in front of the Supreme Court includes four Iowans: Brian Terrell, Christine Gaunt, Ed Bloomer and Kirk Brown.

Thirty-five people accused of staging an illegal demonstration at the Supreme Court went on trial today and used the proceedings as another opportunity to protest conditions at the military prison at Guantanamo Bay, Cuba.

Many of the 22 men and 13 women dressed themselves in orange prison jumpsuits to show solidarity with Guantanamo detainees. They were arrested Jan. 11 for illegally protesting on the grounds of the Supreme Court, a misdemeanor that carries up to 60 days in jail.0527 11

Watch the video coverage.

The demonstration came on the sixth anniversary of the opening of the detention facility set up to house suspected terrorists. Today, the defendants continued to make political statements about the treatment of detainees as their trial began in D.C. Superior Court.

More

Lethal Introspection

With everything else that is going on, it is likely that many of us have been following the Kentucky court case that the US Supreme Court is reviewing that may lead to changes to how the lethal injection method is applied in death penalty cases. However, based on this report, it is likely that this method will continue.

According to the Los Angeles Times

The Supreme Court gave a skeptical hearing today to lawyers who are challenging the use of lethal injections to carry out executions in the United States.

Death penalty foes had hoped the high court was about to rein in the most commonly used method of execution, but there were few signs of that during today's oral argument.

Instead, in comments and questions, most of the justices said they were not convinced that the commonly used, three-chemical compound causes inmates to die a painful death. They also said they were not convinced a better method was available.

If these three drugs are "properly administered," the inmate should die peacefully, Chief Justice John G. Roberts Jr. told a lawyer for a Kentucky death-row inmate.

"The risk here is real," that the drugs will not be administered correctly, said Donald Verrilli Jr.

If the inmate is not given enough anesthetic and is then given a paralyzing drug, he may be fully awake on the execution table, yet unable to react when he is given a heart-stopping drug that causes searing pain, he said.

"That's why it is illegal in Kentucky to euthanize animals this way," Verrilli said.

More than 30 years ago, death-penalty states moved away from using electrocutions or the gas chamber to execute inmates and instead adopted lethal injections. At that time, and with little public debate, they decided to use a three-drug concoction. It includes an anesthetic, a paralyzing agent and a heart-stopping drug.

In recent years, this formula has been cast into doubt. In the Kentucky case, defense lawyers argued that veterinarians do better with the use of a single, powerful barbiturate to put horses to death.

Lawyers for the Kentucky inmates asked the high court to rule that the three-chemical compound causes "an unnecessary risk of pain" and should therefore be struck down as unconstitutional.

But that argument appeared to gain little traction. Even Justice Stephen G. Breyer said he was not convinced that the use of a single anesthetic had been shown to be an effective and reliable way to end human life. He cited a study from the Netherlands that questioned its use in euthanasia.

"Is there more problem here than with other execution methods?" he asked Verrilli.

Justice Antonin Scalia said the defense lawyers are simply trying to stop executions. If the court agrees there are problems with Kentucky's method, "this never ends," Scalia said.

"It will lead to endless litigation," agreed Deputy Solicitor General Gregory Garre, who was supporting Kentucky.

Several justices, including David H. Souter, suggested the court send the case back to Kentucky for further hearings to compare the use of a single powerful barbiturate against the use of the three-chemical compound. "We need some kind of definitive answer," he said.

But most of the justices sounded as though they were inclined to reject the challenge and to uphold Kentucky's approach.

The battle in the high court over lethal injections has temporarily halted executions around the nation. It will be weeks, and perhaps six months, before the court hands down a ruling on the issue.

Bloomberg has more.