Your Host Hits the Airwaves and Hamilton Hits Broadway

Rockin' the YWC t-shirt and
pocket Constitution from the
 National Constitution Center

Time for some fun.  We've been talking a lot lately about very serious topics that can cause tensions and emotions to run high, so let's kick back and enjoy a little good, clean entertainment.

I've mentioned before, in a blog on educational resources, a radio show called "Your Weekly Constitutional", which I listen to on podcast because it isn't aired in my area (and I can never be sure to be near a radio when it would be on, anyway).  A few months ago, I emailed the host, asking to be considered for a chance to be their Constitutional Quiz contestant and I was selected.  We recorded the quiz a while back and it was just aired this week.  You can hear how it went here:

http://www.montpelier.org/center/radio  (Episode  "Thomas Jefferson's Vision of Religious Freedom")

or here:

http://ywc.podomatic.com/entry/2015-05-29T07_38_29-07_00

or go to iTunes and search for "Your Weekly Constitutional" and select the episode entitled "Thomas Jefferson's Vision of Religious Freedom".  Of course, you should listen to the entire episode, but if you want to go straight to the quiz, skip forward to the 14 minute mark and see if you can solve the riddle along with me!

One of the earliest blogs I wrote was on Alexander Hamilton and at the end, I linked to a video you can see here.  It's a performance by playwright Lin-Manuel Miranda at the White House, doing a hip-hop song about Hamilton.

https://youtu.be/WNFf7nMIGnE

Since then, Miranda has developed it into a full-up musical and it's been the hottest off-Broadway ticket this spring and moves onto Broadway soon.  You can see some highlights here:

https://youtu.be/0wboCdgzLHg

The website for the show is:  http://www.hamiltonbroadway.com/

How appropriate the one of the most New York-y founders is on Broadway!

The Chicken or the Egg? Or, Whose Rights Come First?

After another unforgivably long absence, we're back with more discussion of the Constitution and its relevance to current events.

One of the most-talked about topics in recent weeks is the State of Indiana's Religious Freedom Restoration Act and the reaction to it from across the country.  Friends, this is a minefield and we need to proceed very carefully and precisely, lest we let the emotional issues (the mines) blow up in our faces, as we try to focus on the Constitutional issues at hand.  It's a tough path to navigate, as emotions inevitably bubble up in these kinds of topics.

Full disclosure:  I am Catholic and as we proceed through this blog, I'll be referencing Catholic theology where theology needs to be discussed or illustrated.  Not because I think Catholic theology is the "most correct" (though, of course, I do think so, otherwise, why would I be Catholic, right?) but merely because that's the theology I'm most familiar with, having taught Catholic religious education for over a decade.  Further disclosure: I have friends and family who are gay, some of whom are married, in accordance with the laws of their states, and I love them all and are quite happy for them.

OK, enough with the disclaimers.  What are we talking about here?  Earlier this year, the Indiana legislature passed, and the governor signed, a Religious Freedom Restoration Act which was modeled after the federal act of nearly two decades ago.  The federal act - largely written in response to the Supreme Court's Employment Division vs Smith case - passed both houses of Congress almost unanimously (no "nay" votes in the House and 97-3 in the Senate) and was signed by President Bill Clinton.  So why the big deal about Indiana's act, which on the surface seems merely redundant?

The text of the two acts are nearly identical, but "nearly" is the key word.  There are a couple very small, but very important distinctions.  But before we get into that, let's review the intent of RFRA-type acts.  In a nutshell, these types of laws (both federal and in roughly 20 states) codify the principle that the government may not "substantially burden" a person's religious beliefs or practices unless there is a "compelling government interest" in doing so, and in which case, the remedy must be by the least restrictive means possible in order to achieve that compelling interest.  To make an extreme example, if your religion includes human sacrifice, well, naturally, the government may feel compelled to step in and put a stop to the practice, but can only restrict your religious practices to the point of stopping the sacrifices, not shutting down your whole "church".

Now to the differences.  The first difference is that the Indiana statute explicitly defines that "persons" who are protected under the statute includes corporations that are closely held by individuals or small groups (i.e., families).  While the federal RFRA does not state this specifically, it was held by the Supreme Court to be interpreted that way in the Hobby Lobby case, which we discussed here.

The second small, but important difference is that the Indiana statute applies not only to disputes that arise between an individual and the government, which is a clear First Amendment issue, but also applies to disputes between individual citizens, which is not a First Amendment issue.

The first difference is not the most controversial one, as it has been fairly well settled (at least for now) by the Supreme Court, so let's focus on the second one, which seems to be drawing the most controversy.  In the most often-cited argument by opponents of the law, they say that this statute could allow a photographer or a florist, for example, to use their strongly-held religious beliefs to legally refuse to participate in a same-sex wedding, in other words, to discriminate against the couple being married.  Certainly, none of us here reading this are in any way in favor of discrimination, but here's where it gets tricky from a Constitutional standpoint.  Buckle your seat belts...

The relevant part of the First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".  The second half of that section is the one under debate.  While again, we should not, and must not, condone wanton discrimination, if the government can compel someone to participate in an activity that runs counter to a deeply-held religious belief, does that not violate the "free exercise thereof" part?  Each of us does not hold the same religious beliefs, if any at all, and the Supreme Court has repeatedly - and wisely, I think - held that they, the Court, do not possess the competence to decide which religious beliefs are "valid" and which are not.  There are those I've encountered who think that the Catholic Church is the tool of Satan (yes, really - I've run into those who have said that verbatim), but I do not deny them the right to think that and to publish that belief, even if I find it offensive and hurtful.  That's a private individual's opinion, so, like, whatever, right?

Let's take, as example, the teaching of the Catholic Church on marriage and on homosexuality as an illustration of the difficulty that even devout religious people may have with this issue.  Paragraph 1625 of the Catechism of the Catholic Church (that's the official teaching document of the Church) states: "The parties to a marriage covenant are a baptized man and woman, free to contract marriage, who freely express their consent."  To the devout Catholic, this is clear and unambiguous.  Any other arrangement would be considered disordered (that is, not in order with the teaching of the Church).  The Church also teaches (in Paragraph 2357) that homosexual acts are "intrinsically disordered", that is, not in order with nature, that is, not open to procreation, which the Church teaches should not be separated from the unitive aspect of sex, thus the teaching against sex outside of marriage.  The Church calls all homosexual people (as with all unmarried people) therefore, to a life of chastity.  Many people - perhaps most, even - in American society might disagree with some or all of the above, but it doesn't change the fact that the above is without question a strongly-held position of religious belief for some, and to act in a way that violates these precepts does indeed place a substantial burden on their religious beliefs.  

But let me muddy the water a little bit (more) for us long-suffering Catholics (yeah, I know, poor us, right?) to further illustrate how difficult this issue is.  The Catechism also says this (Paragraph 2358, in part):  "The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination...constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided...."  My gosh - what's a poor Catholic to do?  So, you can see the problem that even a devout person of faith may encounter in trying to satisfy both one's religious faith and one's faith to the Constitution and the law and even sense of fair play.

Back to Indiana.  Again, the difference in the Indiana law versus the federal law is that it protects an individual from action by another individual, not just from government action.  If a suit is brought by, let's say, a lesbian couple who wanted to contract a particular baker to make a wedding cake for them, and the baker refused on religious grounds, the law protects the baker.  The state has no part in the lawsuit (other than, of course, providing the courtroom and judge, but is not a party to the suit).  Opponents of the law will say this codifies discrimination, while supporters say it protects religious freedom - yes, even religious beliefs that may not be popular in contemporary society.  Which brings me back to the title of this piece: The Chicken or the Egg?  Or, Whose Rights Come First?  Or the better question might be this:  Whose rights are more important?  Can we even decide that?

We, in this country, have a number of great traditions.  Freedom of religion is one.  We have people of all faiths (or no faith at all) living side-by-side, living and letting live (with the rare, extreme instances of deadly cults, which may trigger the whole "compelling government interest" thing).  Look at most cities and towns around the country - there are churches and temples and other houses of worship of all sorts of denominations existing within the same city limits.  We may find the beliefs of that "other" church silly or even offensive, but we, as the bumper sticker says, "Coexist".

Another great tradition we have, speaking of coexisting, is acceptance of others.  You know, "different people."  While we have indeed had shameful periods of less-than-charitable attitudes towards people of different backgrounds and behaviors ("Irish need not apply") and even state-sponsored discrimination (slavery, Jim Crow, Black Codes), we steadily evolve away from those behaviors over time.  We tolerate (though perhaps through gritted teeth) even those whose beliefs and behaviors seem abhorrent and backward to us and we afford them protections under the Constitution (KKK, American Nazi Party, Westboro Baptist Church).

This issue is by no means a black-and-white one (sorry for the bad Civil Rights pun), but one that really gets to the heart of the Constitution, the law, individual freedoms and rights and just plain polite behavior.  I have a feeling we're nowhere near the safe edge of the minefield yet, but I hope here, in this blog, at least, we've not stepped on any.

Discuss...

An Entertaining Diversion

Discussing the Constitution can be serious business, but once in a while, I run across something that just tickles me.  The Onion has some of the best comedy writers in the business, and I love their material.  As you all know, I'm a passionate defender of the Constitution.  Hopefully, a better one than this guy:

http://www.theonion.com/articles/area-man-passionate-defender-of-what-he-imagines-c,2849/

I hope you all had fun pointing out all the (hilarious) errors in this satire piece.  Next time, we'll be back to business.

By the way, I took yet another pilgrimage to the National Constitution Center today.  I encourage all of you to put it on your must-see list if you ever get to Philadelphia.  It's like taking a shower for me - feels like I've been cleansed of my sometimes-too-well-exercised political cynicism (which I try not to let out in this blog).  But really, check it out, or at least their web site:

http://constitutioncenter.org/

Wrapping Up The Bill Of Rights - Amendments 9 and 10

The last two amendments in the Bill of Rights are short, deceptively simple, and of course, controversial.  What else is new, right?

Amendment Nine:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.

So, what does this actually mean?  It addresses a concern that many people, including our Mr. Madison, had.  The concern was that by enumerating or identifying certain rights in the Bill of Rights as being specifically protected from interference by the state, anything left unmentioned would be assumed to be fair game for an ambitious government.

We must remember that the Bill of Rights - and the Constitution in general - does not grant anyone any rights.  It protects rights already assumed to exist against infringement upon them by the government ("Congress shall make no law..."  "...shall not be infringed."  "No State
shall make or enforce any law which shall abridge..."  "...shall not be denied or abridged..." (that last phrase appears no less than four times in various amendments)).

In short, just because a natural right is not mentioned in the Bill of Rights, it is by no means assumed that the state has the power to abridge that right.

Amendment Ten:

The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.

This one gets tricky and is consistently one of the most controversial of all the amendments.  We often hear about "states' rights" when the federal government appears to be especially overbearing and interferes with the internal workings of a state.  A strict and literal reading of the amendment would seem to support the claim by the states that the feds are getting too involved in state matters.  The idea here is that the federal government is delegated a certain amount of power, and certain areas in which it may exercise that power.  We call that "enumerated powers".  The assumption is that any power not specifically named by the Constitution as a federal power is therefore not authorized for the federal government to exercise.

People will make the case that many, many federal departments and agencies are, under a literal understanding of the Tenth Amendment, unconstitutional.  These may include the Departments of Education, or Housing and Urban Development, or a host of others whose purposes are never mentioned in the Constitution.  It may also be fair to criticize the federal government for trying to overrule state laws on marriage, drugs, alcohol, speed limits, and a thousand other things, again, based on the Tenth Amendment.

The view of the individual states as "laboratories of democracy" - a term coined by Supreme Court Justice Louis Brandeis - was intended to allow the states to experiment without overbearing federal interference.  This, presumably, would lead to the best and most efficient systems of doing things being adopted voluntarily by states after seeing what works and what doesn't in other states, as opposed to a one-size-fits-all federal mandate.

If there is any amendment that will likely be the one to cause controversy for as long as our Constitution stands, I nominate the Tenth.  The continuous tension between the state governments and the federal is one that, I think, absolutely must continue, or else we are no longer the United States of America, just the country of America.

Horton, Hillary, Hobby, Hamburgers and Humanity

"A person's a person, no matter how small," wrote Dr. Seuss in "Horton Hears a Who!"  We all remember the story of the kindly elephant who protects the microscopic community Whoville from harm.  We see that indeed, a person, no matter the size, still has value and relevance.  This, and recent judicial, economic and political goings-on got me wondering about the very nature of personhood.  What, exactly, constitutes a "person"?  Is a person a person no matter how big?  Can something artificially constructed become a "person" or at least be considered to have the basic characteristics - and attendant rights and protections - of a person?

Don't worry - we aren't going to get into a discussion of abortion today.  Nor are we going to ponder the nature of personhood through some excellent science fiction movies, like "Blade Runner" or "Her" (both of which I highly recommend - but only for mature audiences).  No, today's topic is "corporate personhood".  Can a corporation be considered, at least in some ways, a person?  The recent Supreme Court decisions on Citizens United and Hobby Lobby, combined with the latest business news concerning Burger King all lead us to ponder this question.

A brief review to set the stage:  In 2009, the Supreme Court decided in Citizens United that a part of the 2002 Bipartisan Campaign Reform Act (known most often as "McCain-Feingold") was unconstitutional.  There was a group called Citizens United that sought to screen a movie that was critical of Hillary Clinton during the 2008 Democratic primaries.  The BCRA forbade "electioneering communication" within 30 days of a primary and 60 days of a general election, and specifically forbade them being paid for by corporations or unions.  In short, this restriction was found to be unconstitutional, though it left intact the vast majority of the BCRA.  For more details, see here

Critics of the decision said that this conferred "personhood" on corporations, in terms of exercising First Amendment protections.  They maintained that corporations are not people and should therefore not be afforded the constitutional rights and protections of a person.  This theme was continued in the Hobby Lobby decision that we discussed here in a previous post.  Again, the argument was that businesses are not people, and should not be treated as such, no matter the size of the company or how "closely held" (to use the Supreme Court's terms).  Corporations are not people, went the argument once again.

Which leads us to today.  In business news, Burger King is the latest corporation to announce a plan for an "inversion" merger, in which a company from the United States purchases or merges with a company from outside the U.S., then moves its corporate headquarters to that foreign country, presumably to take advantage of that country's more favorable tax climate.  Critics of this maneuver accuse Burger King and others of lacking "economic patriotism" for trying to lower their tax liabilities by performing this type of merger.

Here's where the discussion gets interesting.  Patriotism is an individual virtue, practiced by those who profess loyalty or fealty to their native land.  Someone exercising patriotism may serve in the military, run for public office, perform service to his or her country in myriad ways.  But it remains an individual behavior.  Yet, the critics of Burger King (and others) maintain that the company exercise the individual virtue of patriotism, while in fact they are acting like a business - trying to improve their bottom line and shareholder value.  (As an aside - Burger King strongly maintains that tax reasons are not the motivation for the nature of their merger with the Canadian company Tom Hortons, but it is certainly reasonable to think that taxes are at the very least a big side benefit to the merger.) So, here's the problem:

If companies are simply companies and cannot be assigned any attributes of individuals, then the critics of Burger King have no basis for their characterization of the company as somehow unpatriotic.  And in that case, they critics of Citizens United and Hobby Lobby may have a good case for saying corporations are not people.

On the other hand, if the critics of Burger King are right and companies can - or even should - exercise individual virtues, then they can be considered, at least under certain conditions, people, and therefore have some measure of protections of an individual under the Constitution.  In that case, Hobby Lobby and Citizens United were decided correctly.

So, are corporations simply businesses, or are they people acting corporately?  Both?  Neither?  I'd love to hear your thoughts, my friends.

The famous ad line from Burger King comes to mind now - "Have It Your Way!"  The question is: can you have it both ways?

The Fourth through Eighth Amendments - Your Day in Court

Due to the unforgivably glacial pace at which I’ve been updating this blog, I’ve decided to speed up the process by combining multiple amendments that have similar characteristics into single entries.  Otherwise, I’d get through all the amendments by, oh, the country’s Tricentenial or so…

Today, we’ll look at the Fourth through Eighth Amendments, or as I would call them, the “Your Day in Court” amendments.  They all have to do with crime and punishment and due process and justice, so here we go:

The Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.”

In a nutshell, the government must have reasonable suspicion that you’ve been part of a criminal activity and must offer evidence of such suspicion to a judge in order to obtain a warrant to search you or your property.  This was a reaction to the British practice during Colonial times of issuing “writs of assistance” or general warrants that did not expire, permitting law enforcement officials to search pretty much whatever they wanted whenever they wanted under authority of the crown.

In a very recent Supreme Court case, Riley v California, the court brought the amendment’s provisions into the digital age by holding in a strong 9-0 decision that police may not search a suspect’s cell phone during an arrest without a warrant.

Of course, as we’ve discussed before, there is no absolute right here.  In other words, not every search requires a warrant.  A police officer who pulls you over for speeding and sees a bag of white powder in plain view on the passenger seat may reasonably suspect that you are a drug dealer/trafficker and conduct further searches.  Likewise, if illegal weapons are in view, a search is not only permitted but quite reasonable.

But in the vast majority of cases, if the police of other governmental authority wants to search you , your house, your office, your documents or any other personal property, they must have a warrant, and you are well within your rights to demand they produce one.  There is nothing “uncooperative” about requiring to see a warrant before admitting any government official into your home or place of business if they indicate they want to search it.  That’s the law, and we all benefit when we all understand it and follow it.

The Fifth Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.^”

Anyone who has ever watched a cop show on TV is familiar with the litany, “You have the right to remain silent…”  The Fifth Amendment’s provisions against self-incrimination were made famous by the landmark Miranda v Arizona case, which compelled police to ensure that suspects placed under arrest were properly informed of their right to not testify against themselves and to have an attorney work on their behalf.

A more recent case, Kelo v New London, infamously tested the “takings” clause when a Connecticut woman’s house was condemned and transferred to use by a development company.  She sued on the basis that private economic development was not “for public use”, according to the Fifth Amendment.  The Supreme Court decided in New London’s favor in a 5-4 decision, which sparked outrage nationwide.  Forty-four states modified their “eminent domain” laws in response to Kelo.  In New London, the developer abandoned the project for lack of financing, Ms. Kelo’s former lot is still vacant and  the city of New London eventually issued an apology to her, though she had moved away from New London in the aftermath and has not returned.

And finally, despite what you’ve seen on TV with Alex Trebek, “double jeopardy” is prohibited by the Fifth Amendment.  Not, not the big-money part of the game show, but the provision that one cannot be tried again for a crime of which he or she had been previously acquitted.  As an example, even if solid evidence were to appear that O.J. Simpson was without a doubt the murderer, he could not be tried again in criminal court on those charges, as he has already been acquitted.  On the other hand, a convicted criminal may certainly be granted a new trial if evidence of his innocence comes to light.  In short – if you’re found guilty, you can be tried again and found not guilty, but if you’re found not guilty at first, you can’t be tried again to be found guilty.

The Sixth Amendment

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Simply put, this amendment guarantees that an accused will simply not “rot in jail” while waiting for a trial that may or may not happen.  Also, the accused must know the precise nature of the accusation and to face the witnesses against him in a public court.  No secret trials, no anonymous witnesses – everything out in the light of day.  And as we discussed in the Miranda case above, the accused must have legal counsel available to help in his defense and the opportunity to present defense witnesses.  No one is compelled to face a criminal trial without a lawyer in his corner (civil trials are a different story).  While this amendment is extraordinarily important to our justice system, it is also, thankfully, one of the easiest to understand.

The Seventh Amendment

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."

The Seventh Amendment makes for a good bar bet or dinner party trivia quiz: what is the minimum amount of money at stake that guarantees the plaintiff the right to a jury trial in federal civil cases?  Yup – you read it right – twenty bucks.  One little Andy Jackson or a pair of Alexander Hamiltons gets you the chance to plead your federal civil case in front of a jury.  How about that?!  In practice, of course, no one goes to a jury trial over twenty dollars, but isn’t it cool that you could?

But perhaps the more important provision of the Seventh is that no federal judge can overrule findings of facts by juries in federal civil cases.  The jury (a minimum of six people, as required by the Colgrove v. Battin case, 1973) is the final authority in civil cases.

Interestingly, the Seventh Amendment is one of the few amendments not “incorporated” against the states.  In other words, most of the amendments have been found by the Supreme Court to bind the states as well as the federal government, but this one stands out as not being one of them.  The states can determine their own criteria for state civil cases regarding minimum amounts of money at stake and jury trials.

The Eight Amendment

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

This shortest of the amendments we are discussing today is also one of the most open to interpretation.  What, exactly, is “excessive” bail?  Does it depend on the nature of the crime, or the ability of the accused to pay?  Can two people accused of the same crime be required to post different amounts of bail?  The answers to those questions have not been defined by either the Congress or the Supreme Court, and remains a very subjective judgment on a case-by-case basis.

So, what is “cruel and unusual” punishment?  Again, very subjective, but at least there are a few cases to look at, though clearly the Supreme Court’s idea of “cruel and unusual” can change, and often quickly.  The Furman v Georgia case of 1972, while not explicitly outlawing capital punishment, effectively ended it, but just four years later, Gregg v Georgia led to the re-introduction of the death penalty, famously in the case of Gary Gilmore, as depicted in Norman Mailer’s Pulitzer Prize-winning book, "The Executioner’s Song".

The question of what precisely constitutes “cruel and unusual” continues to be hotly debates, especially as regards the death penalty.  Recent cases of executions by lethal injection that took what seemed to be excessive amounts of time for the condemned to die have re-ignited the debate on the morality and methods of capital punishment.

In less-than-lethal cases, the argument can be – and has been – made that poor prison conditions may constitute cruel and unusual punishments, along with certain types of forced labor by prisoners. 

Again, the shortest, but perhaps least clear of all the “Your Day in Court” amendments.

Thanks for reading.  Discuss.

Next up – the Ninth and Tenth Amendments

Hobby Lobby, The Supreme Court and Strict Scrutiny

It's been said that in polite society, one does not discuss religion or politics.  Over the last couple of days, however, every media outlet in our society seems to have been quite impolite in discussing religion and politics, specifically regarding the Supreme Court decision involving retail chain Hobby Lobby and the Department of Health and Human Services mandate for contraception coverage under the Affordable Care Act ("Obamacare").  So, in the spirit of polite society, let us take the religion and politics out of the discussion for a while and focus on the process by which the Supreme Court judges cases like this and the tests they apply in order to come to their decisions.

In a case like this, where there is a fundamental Constitutional protection at stake, the justices will generally apply a set of tests known as "strict scrutiny".  This method of analysis requires the defendant (almost always a governmental entity) to prove three things:  One - is there a compelling governmental interest at stake?; Two - is the law narrowly tailored to advance that interest?; and Three - is this the least restrictive means of executing that interest?   Let's look at each element and see what they mean.

Is there a compelling governmental interest at stake?  In other words, is there something the government wants to do that is considered critically important to the country as a whole?  Is it more than simply a preferred course of action or something "nice to do"?  The government lawyers must convince the court that there is a national need so important that it may require the curtailment of some individual liberties.  That, of course, is a tough case to prove, but rightly so - none of us wants the government restricting our Constitutional protections for just any reason.  It must be a "compelling" reason (though, to be clear on it, the court has never "brightly defined", to use a legal term, what exactly constitutes a "compelling" interest, leaving it up to a case-by-case basis).

Next, the government must also prove that the law is narrowly tailored.  It cannot be an over-broad or blanket rule.  The focus of the government action must be specific to the compelling government interest at stake and can't encompass a wide range of actions.

Finally, if the government proves the first two cases, it must also prove that the law under review is the least intrusive means of employing it.  If there are other means of accomplishing the government's goal that do not interfere with Constitutional protections, or at least interfere minimally, then the court will likely direct that those methods be employed, rather than the one under protest.

Now, as an exercise, put yourself in the place of the government lawyer arguing before the Supreme Court (remember, the burden of proof in these cases is on the government, not on the plaintiff).  How would you argue that the mandate under question is a compelling interest of the government?  Could you make the case that birth control leads to fewer unwanted pregnancies, and therefore likely lower welfare payments for the government?  Sure - sounds like a reasonable argument.  But can you make the case that is a compelling national interest - one so important that it can potentially supersede someone's freedom of religion?  That's a tougher case to make.  But let's say you're super-lawyer and you make the case.  The justices agree that the reasons above and others you put forward are justification enough to show a compelling governmental interest.

Next, you need to prove that the law is narrowly tailored.  Is it specific enough that it can't be reasonably interpreted to cover other areas?  If the law is written clearly, this is likely the least problematic of the three questions to answer.  Let's say you prove this case, as well.

Now, the grand finale - is this the least intrusive way of accomplishing the government's interest?  Is there no other way than this to do what the government says must be done?  This is where, I think, many of the cases fall apart.  With apologies to our feline friends, there's more than one way to skin a cat, and it's a tough sell to say, "Your Honors, there is no other possible way to do this."  Again, this is a very high bar to set, but thankfully so.  It's a great throttle on government power, and this is the kind of thing the Supreme Court was really set up to do (or if not specifically set up to do, it assumed that power in the landmark Marbury v. Madison case).  It's no wonder the government bats well south of .500 in strict scrutiny cases - they are very tough to prove (though, interestingly, given the current case, the government has historically done better than average in religious freedom cases).

But even if the court applies strict scrutiny and rules in favor of the government, they can still make bad decisions, such as in the infamous Korematsu (Japanese-American internment) case during World War II.  The court members, after all, are human, and therefore prone to error, just like the Legislature and the Executive.  After all, that's why we have three co-equal branches of government.

I hope this (very brief) explanation has provided some clarity about the judicial process, and that no matter which side you've taken in the Hobby Lobby case, you can at least appreciate the procedure and the tests that the court applies in matters of fundamental Constitutional liberties.

Discuss.