Standards of Review

The flurry of Supreme Court decisions at the end of the term tackled some of the most contentious social topics in our national dialogue, with much weight given to how the "conservative" or "liberal" justices voted.  Predicting the outcome of a case is nearly impossible, even when taking into account the assumed ideology of the nine Justices.  Recent polls show the high court approval rating at new lows, with only 28% affirming the Supreme Court as doing a "good" or "excellent" job.  Many news pundits are quick to point to a partisan court divided between the conservatives and liberals as the main reason the court's approval rating has tumbled.  The hyper-partisan 5-4 votes are the cases which make headlines, but the reality is over 50% of all cases in the last term were unanimous 9-0 decisions.  These cases are all incredibly important, but the large consensus does not make for high ratings.  While political ideology inevitably affects the Supreme Court decisions in some capacity, there are set legal theories which the nine Justices follow to help them analyze the case based on the law, constitution, and facts. 

One critical legal theory used by the Supreme Court is known as the Standards of Review, and is applied typically in civil litigation linked to the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  As one of the most litigated portions of the U.S. Constitution, it was adopted in 1868 as a response to the Civil War during the efforts of Reconstruction.  Section 1 of the Fourteenth Amendment is what has become referred to as the Equal Protection Clause and Due Process Clause and states:

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.

The three tiered test known as the Standards of Review has been adopted by the Supreme Court as a legal method to look at cases which come before them and deal with the Equal Protection Clause.  Congress often has to pass legislation which deals with the classification the placement of restrictions on certain persons, either purposeful advantage or disadvantage.  An example of this would be citizens who are 20 and not legally allowed to drink alcohol in the U.S., while those who are 21 are permitted to drink.  This is a law which classifies and singles out certain individuals because the government claims there is a compelling government interest which validates the age limit for alcohol consumption.  The drinking age law prohibits anyone under the age of 21 from drinking and places a limit on their freedom.  This is where the Standards of Review comes into play and helps the Justices examine laws to determine if they are legitimate and serve a compelling government interest.  The three standards of review are: 1) Rational Basis - minimum scrutiny, 2) Intermediate Scrutiny - middle-tier scrutiny, and 3) Strict Scrutiny - most narrow level of scrutiny.  Here is a chart that helps break down the levels of scrutiny, and explain the steps the Supreme Court would take in deciding if a law is valid or unconstitutional.

SCRUTINY TESTS AND CATEGORIZATIONS (FOR EQUAL PROTECTION & SUBSTANTIVE DUE PROCESS)
STEP 1. The Supreme Court Justices decide - WHAT IS THE CLASSIFICATION APPLIED?   a) The classification is on the face of the law or b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact
STEP 2. The Supreme Court Justices decide - WHAT IS THE LEVEL OF SCRUTINY?
Strict Scrutiny   Law must be necessary to achieve a compelling government purpose.   SUSPECT CLASSES: ·         Race ·         National Origin ·         Alienage –generally   FUNDAMENTAL RIGHTS: ·         Travel ·         Parenting ·         Marriage ·         Procreation ·         Abortion = undue burden test ·         Voting ·         Gun Ownership ·         Privacy ·         Religion	Intermediate Scrutiny   Law must be substantially related to an important government purpose. (Gender) Government must show exceedingly persuasive justification for the discrimination   CLASSES: ·         Gender ·         Illegitimacy ·         Undocumented Alien Children   NON-FUNDAMENTAL RIGHTS: ·         Right to Refuse Medical Treatment (possibly if related to religion) ·         Homosexual Activity	Rational Basis   Law must be rationally related to a legitimate government interest   NON-SUSPECT CLASSIFICATIONS: ·         Alienage classifications related to self-government and democratic process   ·         Congressional regulation of aliens ·         Age ·         Handicap ·         Wealth/Poverty ·         All other classifications   ALL OTHER NON-FUNDAMENTAL RIGHTS
STEP 3. The Supreme Court Justices decide - DOES THE LAW MEET THE LEVEL OF SCRUTINY?

I hope this chart helps break down the three levels of scruitny that are part of the Standards of Review test.  The Supreme Court is able to apply this legal theory when relevant cases come before them, and allows the Justices to approach a case using the same legal reasoning.  While you will likely hear the 5-4 decisions on the news, legal theories like the level of scrutiny is what helps the court actually have a majority of their opinions unanimous 9-0 decisions!

Bloomberg's Big Gulp Ban Fizzles

As most New Yorkers are aware, Mayor Michael Bloomberg has been fighting to implement a ban on the sale of any cup or bottle of sweetened drinks larger than 16 fluid ounces.  The proposed law is an effort by Bloomberg and New York City to combat the rapid increase of obesity throughout the city, while opponents deride the effort as an encroachment of civil liberties.  On Tuesday, an appeals court upheld a lower court finding that the sugary drink ban was unconstitutional and an overreach in authority by the Mayor and Board of Health.  The appellate judges wrote in a unanimous decision that "Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority".  While the big gulp ban has been found to be unconstitutional, it is important to understand the details of the law and not simply rely on catchy headlines from cable news. 

The Facts: The ban is not a law, rather a regulation passed by New York City's Board of Health and was highly touted by Mayor Michael Bloomberg.  The ban went into effect in March, but litigation from the beverage industry among others brought about a court ordered injunction while the constitutionality of the ban went through the judicial process.  The ban applied to any cup or bottle of sweetened drink larger than 16 fluid ounces BUT there were a significant number of notable exemptions.  The drink ban does not apply to diet-sodas, fruit juices, dairy based drinks, or alcoholic beverages.  The ban also does not apply to grocery or convenience stores. The Board of Health and Mayor Bloomberg said the ban is an effort to combat the out of control obesity epidemic in the city, and the numbers are startling with 60% of New York City adults classified as obese and 40% of NYC school children classified as obese.  Officials and doctors argue, these rapidly rising obesity numbers directly effect all other New Yorkers through rising health care costs and other fees associated with providing care for those individuals.

 

While the obesity numbers are dire, the courts have found that the ban to be unconstitutional because it came from the executive body of the city, a violation of the state principle of separation of powers.  The court found that the Board of Health and Mayor were acting too much like a legislative body through the enactment of sweeping policy change.  They also took issue with the large amount of exemptions saying if it were a legitimate ban it would apply to all public and private enterprises, not only the hand selected ones.  While the drink ban clearly lacks constitutional merit, the court made sure to clarify nothing in the decision was meant to "express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so".   This seems to leave the door open in case the appropriate legislative body took up the issue. 

 

The reality is the Mayor and Board of Health likely overstepped their authority by implementing the sugary drink ban.  The further hurt their cause by allowing numerous loopholes and exemptions, which directly contradict the law.  If a legislative body like the city council took up the issue and implemented a similar ban, they would have a strong claim it is in the best interest of the public based on the rising costs of health care which is being unfairly passed on to other residents.  But the Bloomberg and the Board of Health are part of the executive branch and therefore lack the authority to implement sweeping policy changes, which is the role of the legislature.  I predict the ban in its current form likely will not be allowed by the courts, and agree with the appeals court that the effort is unconstitutional.  As always, please feel free to share your thoughts!

How Separate are Church and State?

One of the most recognizable theories from our country's founding documents is the idea of a separation of church and state.  The notion of a government that protects the liberties of all religions, while also maintaining a neutral position for the country as a whole is one of the most unique aspects of our democratic dialogues.  But where does this ideal originate from?  How accurate is this "separation" today?  Why is this important?  These are key questions often associated with a debate on the separation of church and state, but finding clear answers can prove far more complex than simply checking wikipedia.  

When you hear the phrase "separation of church and state" a natural and common assumption is that our founding father's included this proclamation in the U.S. Constitution, however it may surprise some to learn the phrase does not actually appear in the constitution.  In fact, "God" also does not appear in the Constitution and there are only two references to religion, one prohibits the use of a "religious test" and the other that allows officials to "affirm" rather than "swear" in taking the oath of office.  The reality is, our founders went to great lengths to avoid religious references, even though many were devote men of faith themselves. The idea of a separation between the state and the church does go back to the writing of our constitution and hinges on two clauses from the First Amendment, the Establishment Clause and the Free Exercise Clause.  Let's look at what the First Amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Establishment Clause is the first portion which states, "Congress shall make no law respecting an establishment of religion".  At a minimum, the Establishment Clause was intended to prevent the federal government from declaring or financially supporting a national religion, which was common in many other countries at the time.  What is less clear is whether or not the Establishment Clause was intended to also prohibit the federal government from supporting Christianity in general.  Those who favor a narrow interpretation point to the fact that the first Congress opened with a prayer, while those favoring a more broad interpretation point to the writings of Thomas Jefferson and James Madison who were the earliest proponents for a "wall of separation" between church and state.  It was Thomas Jefferson who first openly wrote and discussed a "wall of separation between church and state" when he issued a "condemnation of the alliance of church and state" in a letter to the Danbury Baptist Association in 1802. 

The Free Exercise Clause is more straight forward and refers to the idea that Congress shall make no law "Prohibiting the free exercise thereof".  While the two clauses were obviously intended to serve a similar purpose, there are inherent differences about the two meanings which can lead to tension.  For example, some might view providing a military chaplain to troops overseas as a violation of the Establishment Clause, while others might claim not providing a chaplain a violation of the Free Exercise Clause.  This tension between the two clauses exists to this day, however there are several Supreme Court decisions that have helped define the separation of church and state.

Everson v. Board of Education (1947) - The Supreme Court did not begin their interpretation of the Establishment Clause until 1947 in their 5-4 Everson v. Board of Education ruling.  At issue was a New Jersey law which allowed parents to be reimbursed for the costs of busing their children to public and parochial (mostly catholic) schools.  The Supreme Court held 5-4 that the New Jersey law was not a violation of the First Amendment's Establishment Clause because the statute required the state to reimburse the parents.  The reason this case is one of the most important regarding the separation of church and state, is because of the extensive discussion on the Establishment Clause.  While the court was divided in their ruling, the justices unanimously agreed and laid forth the court's belief that the Establishment Clause goes much further than simply prohibiting the federal government from establishing a religion.  In fact, Justice Black and referenced Thomas Jefferson's letter to the Danbury Baptist Association and the "wall of separation" as a fundamental aspect of the Establishment Clause and the constitution.  Although the justices were split in their decision regarding the New Jersey law, they unanimously agreed the constitution outlined an inherent separation of church and state which cannot be abridged.  The length and depth of their discussion of the Establishment Clause was a unique deviation the court had really never taken before.  Also notable was that the justices also explained that if the state had tried to reimburse the parochial schools they would have unanimously found the law unconstitutional.  This case is viewed as an early foundation for the legal theory of a barrier between the church and federal government.

~ Subsequent Supreme Court rulings have established that the wall of separation is flexible with the outcome often hinging on nuanced details of the specific case. 

McCollum v. Board of Education (1948) - The high court proved that the details of each case and situation are critical when determining the constitutionality of a legal challenge based on the Establishment Clause.  In a 8-1 decision the Supreme Court found unconstitutional the practice of inviting religious instructors into public school classrooms to provide optional instruction.  The issue was not the teachings or religious instructors themselves, rather the court held the use of tax-supported property for religious instruction and the close relationship between school authorities and a religious council violated the Establishment Clause.  The justices held that since students were legally required to attend school and the religious classes applied to their required curriculum, the Champagne Illinois system was "beyond question a utilization of the tax-established and tax-supported public school system to aid religious groups and to spread the faith".

Engel v. Vitale (1962) - This is perhaps one of the most famous cases pertaining to the separation of church and state, and is still debated to this day.  At issue was a New York State requirement for public school classrooms to begin each day with the voluntary reading of a nondenominational prayer. In a 6-1 ruling the court held neither the "nondenominational" nor "voluntary" aspect of the prayer saves it from unconstitutionality.  This was one of the first cases where the Establishment Clause was applied to remove religious activities from public schools and other government related forums. 

While I have outlined some early critical Supreme Court cases and interpretations, it is important to note that the debate over a separation of church and state is not limited to the courtroom.  There has always been a vigorous dialogue from politicians, citizens, and throughout the public sphere.  Here is then Senator Kennedy giving a speech during his presidential campaign which addresses concerns with his Catholic faith, but he also provides his opinion on the theory of a separation between church and state.

 

 

JFK's speech was a landmark moment for presidential candidates, and illustrates the connection faith has always had with our elected officials.  However, many viewed Kennedy's speech in a negative light and continue to argue against his articulated opinion on the separation of church and state.

 



 

While I have provided a recap on how Thomas Jefferson's "wall of separation" and the Establishment Clause were historically interpreted by the Supreme Court, I wanted to lastly provide two more recent cases which illustrate the ongoing discussion on how exactly this ideal should be applied to the country as a whole.   

 

McCreary County v. ACLU (2005) - The ACLU sued three Kentucky counties in federal court for displaying the Ten Commandments in courthouses and public schools.  The ACLU argued that the Ten Commandments on display violates the Establishment Clause of the First Amendment, while McCreary County argued the commandments display was part of a presentation on the "Foundations of American Law".  The Supreme Court ruled 5-4 it was unconstitutional for the Kentucky counties to erect the Ten Commandments in courthouses and public schools because any observer would be under the assumption the government was endorsing religion.  The court held that displaying the Ten Commandments in isolation, displaying them with other passages, and displaying them as part of the "Foundations of American Law" presentation were all unconstitutional.  The court even explained that the courthouse exhibit was merely an effort where the county reached "for any way to keep a religious document on the walls of courthouses".  The justices found that the erection of the Ten Commandments by the county in courthouses and public schools was a form of endorsement and therefore void and unconstitutional.

 

Van Orden v. Perry (2005) - In the very same term the Supreme Court struck down three Kentucky counties which erected the Ten Commandments in courthouses and public schools, a Ten Commandment monument donated and placed by a private organization on the grounds of the Texas capitol was allowed to stay.  In a 5-4 ruling, the justices found that the private donation and erection of the stone Ten Commandment monument was not a violation of the Establishment Clause because it was a private gift and was erected privately with numerous other historical monuments.  Unlike the Kentucky case, the court found that no observer would assume there was a government endorsement of religion.  As I mentioned earlier, the "wall of separation" has been interpreted to be flexible and the outcome of a case will most likely hinge on the very specific details.

 

Hopefully these Supreme Court cases illustrate the history of the separation between church and state doctrine, while alos highlighting the debate that continues today.  This topic evokes many passions and emotions, but it is important to look at it with the legal ramifications in mind.  I would love to hear anyone's opinion on this topic in case you want to share!