06/30/2014 archive

Considering it has sided with corporations in so many of its rulings over the last few years, the out come of the last two rulings by the US Supreme Court for this session were predictable down to the vote.

As in its decision in Citizens United, in a five to four vote, the court rules that just like people, corporations, too, have religious beliefs.

Supreme Court Rejects Contraceptives Mandate for Some Corporationsby Adam Liptak, New York Times

The Supreme Court ruled on Monday that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom.

The 5-to-4 decision, which applied to two companies owned by Christian families, opened the door to challenges from other corporations to many laws that may be said to violate their religious liberty.

Justice Samuel A. Alito Jr., writing for the court’s five more conservative justices, said a federal religious-freedom law applied to for-profit corporations controlled by religious families. He added that the requirement that the companies provide contraception coverage imposed a substantial burden on the companies’ religious liberty. He said the government could provide the coverage in other ways.

Justice Ruth Bader Ginsburg, writing for the court’s four-member liberal wing, said the contraception coverage requirement was vital to women’s health and reproductive freedom. Justices Stephen G. Breyer and Elena Kagan joined almost all of the dissent, but they said there was no need to take a position on whether corporations may bring claims under the religious liberty law.

In an Illinois case with another 5 – 4 ruling, the justices ruled that in-home healthcare workers who are paid by the state cannot be compelled to pay union dues.

Supreme Court Ruling Allows Some Public Workers to Opt Out of Union Fees by Steven Greenhouse, New York Times

The Supreme Court ruled narrowly on Monday that some government employees did not have to pay any fees to labor unions representing them, but the court decision declined to strike down a decades-old precedent that required many public-sector workers to pay union fees.

Writing the majority 5-4 opinion, Justice Samuel A. Alito Jr. concluded that there was a category of government employee – a partial public employee – who can opt out of joining a union and not be required to contribute dues to that labor group.

Justice Alito wrote that home-care aides who are typically employed by an ill or disabled person with Medicaid’s paying their wages would be classified as partial public employees, which would not be the same as public-school teachers or police officers who work directly for the government.

Because states often set wages for partial public employees like home-care aides and because unions often do not conduct collective bargaining for them, these aides cannot be required to pay union fees, Justice Alito wrote. He wrote that requiring these home-care aides to pay would be a violation of their First Amendment rights.

Burwell v Hobby Lobby can be read here and Harris Et Al. v. Quinn, Governor of Illinois, Et Al can be read here

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

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Joseph E. Stiglitz: Inequality Is Not Inevitable

AN insidious trend has developed over this past third of a century. A country that experienced shared growth after World War II began to tear apart, so much so that when the Great Recession hit in late 2007, one could no longer ignore the fissures that had come to define the American economic landscape. How did this “shining city on a hill” become the advanced country with the greatest level of inequality?

One stream of the extraordinary discussion set in motion by Thomas Piketty’s timely, important book, “Capital in the Twenty-First Century,” has settled on the idea that violent extremes of wealth and income are inherent to capitalism. In this scheme, we should view the decades after World War II – a period of rapidly falling inequality – as an aberration.

This is actually a superficial reading of Mr. Piketty’s work, which provides an institutional context for understanding the deepening of inequality over time. Unfortunately, that part of his analysis received somewhat less attention than the more fatalistic-seeming aspects.

Trevor Timm: Is this the start of the end of the age of warrantless government spying?

From phone tracking to NSA snooping and beyond, here’s a look at the domino effect.

The US supreme court’s unanimous 9-0 opinion this week requiring police to get a warrant before searching your cellphone is arguably the most important legal privacy decision of the digital age. Its immediate impact will be felt by the more than 12m people who are arrested in America each year (many for minor, innocuous crimes), but the surprisingly tech-savvy opinion from Chief Justice John Roberts may also lead to far more protection than that.

Roberts’s analysis of the current state of the digital world in his Riley v Wurie opinion is was so thorough, and so sweeping, that I’d be willing to bet you won’t find many privacy and technology cases going forward that don’t cite this one.

From phone tracking to NSA snooping and beyond, here’s a look at the domino effect.

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

Click on images to enlarge.

June 30 is the 181st day of the year(182nd in leap years) in the Gregorian calendar. There are 184 days remaining until the end of the year.

On this day in 1986, the U.S. Supreme Court rules in Bowers v. Hardwick that states can outlaw homosexual acts between consenting adults.

Bowers v. Hardwick, upheld the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court directly overruled the decision in Lawrence v. Texas (2003), and held that such laws are unconstitutional. In overruling Bowers v. Hardwick, the 2003 Court stated that “Bowers was not correct when it was decided, and it is not correct today.”

Concurrences and dissents

The short concurring opinion by Chief Justice Warren E. Burger emphasized historical negative attitudes toward homosexual sex, quoting Sir William Blackstone‘s characterization of sodomy as “a crime not fit to be named.” Burger concluded, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

Opponents of sodomy laws criticized Bowers not only for its result but also because of the Court’s dismissive treatment of the liberty and privacy interests of gay men and lesbians. A sharply worded dissenting opinion by Justice Harry Blackmun attacked the majority opinion as having an “almost obsessive focus on homosexual activity.” Justice Blackmun suggested that “(o)nly the most willful blindness could obscure the fact that sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.'” (Ironically quoting from the opinion by Chief Justice Burger in Paris Adult Theatre I v. Slaton which held that obscene films are not constitutionally protected)

Blackmun revealed in a 1995 oral history with Harold Koh that his dissent in Bowers v. Hardwick was written primarily by openly gay Pam Karlan (then a law clerk for Blackmun, and now professor of law at Stanford Law School). Blackmun said of the dissent; “[K]arlan did a lot of very effective writing, and I owe a lot to her and her ability in getting that dissent out. She felt very strongly about it, and I think is correct in her approach to it. I think the dissent is correct.”

Lewis Powell was considered the deciding vote during the case. He had initially voted to strike down the law but changed his mind after a few days. In a concurring opinion, Powell voiced doubts about the compatibility of Georgia’s law with the Eighth Amendment as it related to the prison sentence for conviction, but joined the majority opinion upholding the law against a substantive due process attack. It has been argued that Powell’s decision to uphold the law was influenced by the fact that he believed he had never known any homosexuals, unaware that one of his own law clerks was gay. In 1990, three years after retiring from the Court, Powell told a group of New York University law students that he considered his opinion in Bowers was an error. “I do think it was inconsistent in a general way with Roe. When I had the opportunity to reread the opinions a few months later I thought the dissent had the better of the arguments.” However, Powell believed that the case was one of little importance and spent only thirty minutes thinking about it.

Aftermath

Bowers was decided at a time when the court’s privacy jurisprudence, and in particular the right to abortion recognized in Roe v. Wade, 410 U.S. 113 (1973), had come under heavy criticism and was in doubt. In this historical context, Bowers signaled a reluctance by the then-members of the Court to recognize a general constitutional right to privacy or to extend such a right further than they already had.

State sodomy laws were seldom enforced against private consensual conduct in the decades following the decision, but the Bowers decision was frequently cited in opposition to gay rights programs. The Georgia law upheld in Bowers forbade oral sex and anal sex whether engaged in by people of the same sex or different sexes, but Justice White’s decision was restricted to homosexual sex. “The only claim properly before the Court, therefore, is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.”

In the years after Bowers was decided, several state legislatures repealed their sodomy laws. In addition, a number of state courts invalidated sodomy laws under privacy or other provisions of their state constitutions. The same sodomy law that was upheld in Bowers was struck down by the Georgia Supreme Court under the Georgia state constitution in the case of Powell v. State, 270 Ga. 327 (1998).

The remaining state sodomy laws in the U.S. were invalidated, insofar as they applied to private consensual conduct among adults, in the Supreme Court case of Lawrence v. Texas 539 U.S. 558 (2003). Justice Anthony Kennedy wrote the majority opinion in Lawrence, ruling that Texas’ state sodomy law was unconstitutional under the Fourteenth Amendment’s due process clause (adult consensual sexual intimacy in ones’ home is a vital interest in liberty and privacy protected by the Due Process Clause). Lawrence explicitly overturned Bowers, with Kennedy writing “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

A few weeks back, I teased that I wanted to take a bit of a look at Texas Rooftop Solar in the Sunday Train (which is, recall, focused on Sustainable Transport & Energy, and so both not just about trains, and also not in favor of trains when the trains are advancing climate suicide) … and then the California budget passed and I went on a two week binge on California HSR.

But now its time to take that glance over at Texas Rooftop Solar. After all, you’d think that Texas would be an ideal state for rooftop solar, and for years we’ve been seeing articles about how Lone Star State Rooftop Solar would hit big “real soon now”. For instance, this, from 13 Jan, 2013: Solar Power Could See Explosive Growth in Texas over Coming Decades:

Still, solar is just a tiny sliver-less than 1 percent-of Texas’  electricity mix, which is dominated by coal (34 percent) and natural gas (45 percent). Wind, with a 9 percent share, is a giant compared to solar.

Yet, the economics are becoming increasingly favorable for solar to take off in a big way. The question is probably when, not if. And a recent analysis by ERCOT-the industry-funded, technocratic grid operator-has some very rosy projections for the future of the solar industry in Texas. (And some very sour news for nuclear, coal and maybe even natural gas.)

The analysis, first flagged by Colin Meehan of Environmental Defense Fund of Texas, looks at potential transmission needs in the next two decades. But, as Meehan wrote, ERCOT “found that if you use updated wind and solar power characteristics like cost and actual output to reflect real world conditions… wind and solar are more competitive than natural gas over the next 20 years.”

But if the future doesn’t start arriving, it might never get here, brought crashing down by the catastrophic impact of runaway climate crisis. So, what are the prospects that rooftop solar might really start hitting its stride really  soon now?