ONCE AGAIN, JUSTICE SCALIA HAS PUT HIMSELF IN AN UNCOMFORTABLE POSITION

 

…The highly biased Justice, Antonin Scalia

The Hobby Lobby Case puts Scalia directly on the ”Hot-Seat”.

When I wrote my latest article about the Hobby Lobby lawsuit going to the US Supreme Court, I had forgotten about my favorite Justice that I just love to hate. 

Well, instead of a such strong word like “hate”, I should instead say this particular conservative Justice is someone that I probably disagree with on 98% of what he supports.

Yes, the chosen Justice that I wish would retire much earlier than will ever happen is his Honor, Justice Antonin Scalia.

This Reagan appointed jurist is also a devout Catholic who has extolled "traditional Christian virtues" and he still insists that the devil is "a real person." Scalia even has a son who's a Catholic priest and he was one voted in 2012, when the Affordable Care Act came to the high court, to wipe out Obamacare in its entirety.  He has been President Obama's most outspoken foe on the Supreme Court and has come as close to being a true racists as any jurist could become.

Now, in the Hobby Lobby case, it says that Obamacare requires companies with over 50 employees to provide insurance that includes items such as the morning-after pill.  The case says that this goes directly against the Hobby Lobby owners deep religious beliefs. 

Needless to say, Justice Scalia’s deep Catholic beliefs will most likely agree with the owners of Hobby Lobby.  But, based on an opinion that this jurist wrote in 1990, his opinion from then may now come back and bite his honor, squarely in the butt.

As I said, the Hobby Lobby issue is that they feel they should be given an exception for not providing insurance that provides certain contraception’s that go against their religious beliefs.  But the issue is that supporting this position could also open doors for areas of discrimination against other religions and a host of other areas of discrimination.

So, based on a Justice Scalia’s 1990 opinion, one would think that this now decades old opinion could have been written directly toward and against today's Hobby Lobby case.

In the then Justice Scalia’s older opinion, his was the majority opinion in the case of Employment Division v. Smith, and it concluded that the First Amendment "does not require" the government to grant "religious exemptions" from generally applicable laws or civic obligations.

This older case was brought by two men in Oregon who had sued the state for denying them unemployment benefits after they were fired from their jobs for "ingesting peyote", which they said they did because of their Native American religious beliefs.

"The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," Scalia wrote in the 6-3 majority decision. It went on to aggressively argue that, “such exemptions could be a slippery slope to lawlessness and that any society adopting such a system would be courting anarchy."

Scalia went on to say, “The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," he wrote, "ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."

And an opinion in favor of the Hobby Lobby case would or could have the same affect. 

 

His previous 1990 opinion could, or should, haunt the jurist if he seeks to invalidate Obamacare’s birth control rule.

My personal opinion is that Scalia should remove himself from the Hobby Lobby case, due to this previous opinion.

But I and many Americans have also felt that Justice Clarence Thomas should have removed himself from certain cases due to his wife “Ginni” Thomas, who had previously founded the conservative advocacy group Liberty Central.

Liberty Central was formed to organize conservative activists, issue score cards for members of Congress, and to be involved in electing more conservatives to Congress. The group is aimed at opposing what Ms. Thomas has called the leftist "tyranny" of President Barack Obama and Congressional Democrats and "protecting the core founding principles" of the nation.  She served as Liberty Central’s  president until its merger with the Patrick Henry Center for Individual Liberty. She also previous worked as a lawyer for the highly conservative “think-tank”, The Heritage Foundation.

Even with all of these highly partisan issues that his wife supports, Justice Clarence Thomas had said he would not recuse himself due to possible conflicts of interest or a lack of impartiality in cases such as the constitutionality of the Affordable Care Act (ACA).  And yes, he voted that it was not constitutional, but Chief Justice Roberts became the surprise swing vote to side with the more liberal judges on the court and the subsequent approval of the ACA.

In response to Scalia's  previous 1990 decision, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, which says any law that "substantially burdens" a person's exercise of religion must demonstrate a "compelling governmental interest" and employ the "least restrictive means" of furthering that interest. That's the basis under which Hobby Lobby with religious owners, are suing for relief from the birth control rule.

The RFRA might offer Scalia an escape hatch. Experts say he could conceivably decide that the First Amendment doesn't permit a religious entity to be exempt from the law.  However, if the RFRA lets Hobby Lobby off the hook from the birth control rule, the RFRA argument isn't clear-cut. Nineteen Democratic senators who voted for the law in 1993 have filed a legal brief insisting that it doesn't, and was never intended to, give for-profit companies a pass on the law.

When the US Supreme Court initially heard this landmark cases about birth control, few observers doubted that Justice Antonin Scalia's sympathies would be with the Christian business owners who charge that the mandate violates their religious liberties.

But Scalia wrote in his previous opinion, "To permit this, would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

It will be interesting to see if and how Scalia wiggles out of this one when it get to the point of a new legal opinion.

Copyright G.Ater  2014