South Dakota has just passed a law allowing discrimination against LGBQT (gays, for short) on religious grounds, despite a series of U.S. Supreme Court decisions to the contrary, most recently Obergefell v. Hodges (https://supreme.justia.com/cases/federal/us/576/14-556/ ) (legalizing gay marriage).
MY GOD TOLD ME TO DISCRIMINATE AGAINST __________.
Expect a lot more of this: purported attempts to “protect religious freedom,” supposedly under attack (but not for Muslims, ahem) that are pretexts for legalization of discrimination. There is proposed Executive Order at this writing circulating in the White House that would essentially repeal all discrimination laws for persons, which includes, you will recall, corporations, who think their God told them to treat gays, women, Muslims, black people, commies or liberals or Jews (same difference), etc. differently and worse than conservative white Christian males of European descent, aka “real Americans.” https://www.thenation.com/…/leaked-draft-of-trumps-religio…/
These laws are unlikely to pass constitutional muster at present, not with the current line-up on the U.S. Supreme Court (SCOTUS) or even when Judge Gorsuch is confirmed. When Trump gets to pick the next justice after him, it’s wide open what will happen. But in the meantime these efforts will absorb a lot of time, effort, energy, and money being litigated.
BACK TO THE FUTURE: THE LOCHNER ERA 1890-1936
For roughly the last 20 years SCOTUS has been using the First Amendment, twisting it of twisting out of all recognizable shape, treating it as a battering ram to force through a right-wing activist agenda, roughly in the same way that SCOTUS used the Due Process clause of the 14th Amendment to promote laissez-faire economics in the period from roughly 1890 to 1936.
Constitutional scholars call the “Lochner Era,” after one such case, Lochner v. New York, 198 US 45 (1905) (striking down limitation on working hours as unconstitutional) otherwise unremarkable except for a scathing and brilliant dissent by Justice Holmes –who agreed with laissez-faire economics, but did think it was the business of the courts to write it into the U.S. Constitution.
THE NEW DEAL CONSTITUTION: 1936-1995
This era ended during the Great Depression when SCOTUS, after striking down several New Deal programs on the grounds, became aware that there was a national emergency and the perceived legitimacy of the courts as obstacles to doing something about it might backfire on the courts themselves. It’s a longer story than that, but you can read about it if you like. Google “Lochner Era” and “the Switch in Time.” From the mid 1930s to the mid 1990s, more or less, the courts pretty much let Congress do whatever it wanted with social and economic legislation because, it held, Congress had power under the Constitution to regulate Commerce, and everythingf affected commerce. But when it came to legislation involving restrictions on individual rights, or oppressive to racial or national minorities, the Courts got very particular.
THE NEW FREE EXERCISE OF RELIGION AND CONGRESSIONAL POWER
In 1997 SCOTUS handed down City of Boerne v. Flores, 521 U.S. 507 (1997), a seriously arcane decision, very technical, about the Religious Freedom Restoration Act introduced by Rep. Charles Schumer and Sen. Teddy Kennedy in 1993. The Court struck down part of the Act on the grounds that Congress had exceeded its constitutional powers to legislate, and in so doing, gravely restricted and imposed onerous conditions upon those powers. The masochistic or super-nerdy can read my piece on the case and its subsequent history, https://works.bepress.com/justin_schwartz/2/ , but warning: it’s really technical. Well written, though.
THE NEW FREEDOM OF SPEECH: MONEY DOESN’T TALK, IT SWEARS
In more familiar and accessible news, SCOTUS has used the First Amendment to strike down limits of corporate campaign contributions in Citizens United v. Federal Election Commission 558 U.S. 310 (2010) (nonprofit corporations), subsequently extended to for-profit corporations and other groups, building on an older ruling, Buckley v. Valeo, 424 US 1 (1976) (holding that money is speech). I’ve written a short accessible nontechnical article, half of which is about this. https://works.bepress.com/justin_schwartz/9/
Corporations are persons under the 14th Amendment and therefore protected by the First Amendment, and have been for over 130 years, since Santa Clara County v. Southern Pacific Railroad Company, 118 US 394 (1886). This is a principle many people wrongly think to have been established by Citizens United. It’s much older. That’s how the Lochner Court was able to apply, or misapply, the Due Process clause to corporations over a century ago.
ACTIVIST, RESULT-ORIENTED LAWMAKING USING THE FIRST AMENDMENT
What this Court has been doing in the name of Freedom of Speech and Free Exercise of Religion is to extend these principles to promote a far-right agenda, attacking antidiscrimination laws and enabling multinational corporations to drown out the voices of the people by deluges of money on the pretense that their billions is just like your $25, limiting Congress’ power to legislate against things the right-wing majority of the Court doesn’t like.
A BAD IDEA. JUSTICE HOLMES WAS RIGHT.
If that doesn’t sound like what the Courts should be doing, it’s because it’s not. Justice Holmes had it right. He personally agreed with the policy outcomes of the Lochner Court. In his policy ideas, he was a laissez-faire conservative or what we call today a libertarian. But he thought that the judge’s job was to interpret the law. It was not make it up and impose his own policy preferences on the country. He thought it was especially not the judge’s job to do this by interpreting the Constitution in a way that requires an almost-impossible-to-get constitutional amendment or a different Court that might take many decades to come about and undo the damage.
I’m not conservative when it comes to policy, you may have noticed, but I am when it comes to what I think judges should do. If they want to make policy, they should get themselves elected to the legislature or run for executive office. When they put on the black robes, take the oath, and sit down behind the bench, what they’re supposed to do is what the law requires, no less, no more, in as minimal a way as possible, and whether or not they like the outcome. Judge Gorsuch says, “I decide cases.” If only.
THE DAMAGE DONE. THE DAMAGE TO COME.
It took almost 50 years to reverse the errors of the Lochner court, 58 to undo the Jim Crow segregation upheld in Plessy v. Ferguson, 163 US 537 (1896) (holding that the Equal Protection Clause of the 14th Amendment was consistent with “separate but ‘equal’ segregation, overruled by Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)); see here for the history Richard Kluger’s Simple Justice, possibly the best book ever written about American law.
The Supreme Court has weaponized the First Amendment and handed it over to the corporations and the religious right. The Christian religious right, not the Muslim right. The stakes are high. Prepare for a very long and tough battle. Contribute to the ACLU and the National Lawyer’s Guild.