Topic Tuesday #88 2014/03/25 - "Religious Freedom of Corporations"

Topic Tuesday #88 2014/03/25 - "Religious Freedom of Corporations"

It was a busy day for the United States Supreme Court as they heard 90 minutes of arguments over what is universally referred to as the Hobby Lobby case (also includes the Mennonite-owned Conestoga Wood Specialties Corp.). In case you had not heard of this, the core question of the case is, "can the federal government require employers to provide 100% coverage for 20 types of contraception?"
Over 100 lawsuits have been filed. More than 80 amicus briefs were submitted, just for this case, by all sorts of religious organizations all bent of supporting the religious objections to contraception including IUDs and morning-after pills. Paul Clement, arguing for the corporations argued that the issue is "so fraught with religious controversy" that exceptions for the family-owned companies should be made since it was done for religious non-profits, such as churches, charities, and religious schools. The three female Justices were not amused.

Justice Sotomayor wondered whether other employers with religious objections would be able to opt out of covering other medical procedures, such as vaccines or blood transfusions.

"One religious group could opt out of this, and another religious group could opt out of that, and everything would be piecemeal, and nothing would be uniform," chimed in Justice Elena Kagan.

The general left side of the court questioned whether for-profit corps should be able to claim religious views. The right side, championed by Justice Scalia, wanted none of that argument, retorting, "There is not a single case which says that a for-profit enterprise cannot make a freedom-of-religion claim."

The reason this can even be an argument is thanks to the Religious Freedom Restoration Act of 1993. It was designed to basically give companies the option to fight laws that their religious beliefs disagree with. The companies contend that for profit businesses should enjoy the same rights as people to exercise religious beliefs...
This makes me wonder when I will see a company wearing a yamaka and walking into a synagogue. Not likely... ever.

Of course... This is about the rather touchy issue of abortion. This being the root of their objection to four specific methods of birth control that prevent a fertilized egg from implanting in the uterus. They claim that this is akin to abortion.  The amicus briefs from the reproductive rights organizations assert that the methods merely prevent fertilization by inhibiting ovulation or by preventing sperm from reaching the egg, thus preventing an unwanted pregnancy.

Now... it might not REALLY be about abortion, and more about the government forcing a company to pay for healthcare for their employees. This is the hot button that could have some impact. Not that much impact, as one way or another the law will remain nearly intact and female Americans will ultimately be covered for contraception, either by private insurers or the government.

But seriously... A "corporation" or "company", is not a person. A "company" should not be able to have religious views. A "company" cannot be tried for treason or executed. A "company" can't vote for elected officials, though it can contribute to a campaign. Ultimately, a "company" is an extension of the people that run it. These folks are just using it to either save money or force their views on their employees. Either way, not cool when it comes to health.

And what do you think?

Topic Tuesday #57 2013/08/20 - "Running for POTUS"

Topic Tuesday #57 2013/08/20 - "Running for POTUS"

In the news: Texas Sen. Ted Cruz is gearing up to take a 2016 run at the big chair. He has been mired in some interesting controversy that I found amusing, and then infuriating. It's all down to the interpretation of "Natural Born Citizen".
Requirements to be eligible to be the President of the Untied States of America (POTUS):

 35 Years or Older.
Have been a permanent resident of the United States of America for at least 14 years
Must not have served more than one previous term as president.
Must not have been impeached by the Senate.
Must not have participated in a rebellion against the United States
Must be a natural-born citizen of the United States.

This is usually interpreted to mean you have to have been born in the USA, which is not what it legally takes to be a "natural born" citizen.

* The Naturalization Act of 1790 stated that "the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens". This act was superseded by:
* The Naturalization Act of 1795, which did not mention the phrase natural born citizen. The Act of 1795 was superseded by:
* The Naturalization Act of 1798. This act was repealed in 1802 by:
* The Naturalization Law of 1802. A number of minor revisions were introduced, but these merely altered or clarified details of evidence and certification without changing the basic nature of the admission procedure. The most important of these revisions occurred in 1855, when citizenship was automatically granted to alien wives of U.S. citizens (10 Stat. 604), and in 1870, when the naturalization process was opened to persons of African descent (16 Stat. 256).

To the nature of Texas Senator Cruz, who was born outside the United States to a Canadian father and American mother, Section 4 is pertinent.
 
*SEC 4 And be it further enacted that the children of persons duly naturalized under any of the laws of the United States or who previous to the passing of any law on that subject by the government of the United States may have become citizens of any one of the said states under the laws thereof being under the age of twenty one years at the time of their parents being so naturalized or admitted to the rights of citizenship shall if dwelling in the United States be considered as citizens of the United States and the children of persons who now are or have been citizens of the United States shall though born out of the limits and jurisdiction of the United States be considered as citizens of the United States provided That the right of citizenship shall not descend to persons whose fathers have never resided within the United States Provided also that no person heretofore proscribed by any state or who has been legally convicted of having joined the army of Great Britain during the late war shall be admitted a citizen as aforesaid without the consent of the legislature of the state in which such person was proscribe.

So yeah... That's muddy. Now we have to check with what has really already been decided.

"Qualifications for President and the 'Natural Born' Citizenship Eligibility Requirement". Congressional Research Service report. Federation of American Scientists. November 14, 2011. p. 2. Retrieved February 25, 2012.
"In addition to historical and textual analysis, numerous holdings and references in federal (and state) cases for more than a century have clearly indicated that those born in the United States and subject to its jurisdiction (i.e., not born to foreign diplomats or occupying military forces), even to alien parents, are citizens 'at birth' or 'by birth,' and are 'natural born,' as opposed to 'naturalized,' U.S. citizens. There is no provision in the Constitution and no controlling American case law to support a contention that the citizenship of one's parents governs the eligibility of a native born U.S. citizen to be President."
"Although the eligibility of native born U.S. citizens has been settled law for more than a century,
there have been legitimate legal issues raised concerning those born outside of the country to U.S. citizens. From historical material and case law, it appears that the common understanding of the term “natural born” in England and in the American colonies in the 1700s may have included both the strict common law meaning as born in the territory (jus soli), as well as the statutory laws adopted in England since at least 1350, which included children born abroad to British fathers (jus sanguinis, the law of descent).
The weight of legal and historical authority indicates that the term "natural born" citizen would mean a person who is entitled to U.S. citizenship "by birth" or "at birth", either by being born "in" the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship "at birth". Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an "alien" required to go through the legal process of "naturalization" to become a U.S. citizen."

And there it is. "by being born abroad to U.S. citizen-parents." In Ted Cruz's case, there are two reasons that he can be harassed. He was one of the very vocal "birthers" during the Obama campaigns making him a little hypocritical. And by not knowing this in the first place and getting it figured out ahead of time. Letting the media run your campaign is a bad idea. They asked for his birth certificate as a joke, poking at him for the "birther" connection. He has been caught with a Canadian maple leaf on his under-roos with this one and is now being forced to renounce his Canadian dual citizenship, but is unfamiliar with the paperwork, and stumbling around blind in a room full of cameras. There is only one other little detail that could keep this ball in the air. There is a misogynistic bend to this act, that should be summarily ignored. The jus sanguinis, law of decent, is traditionally on the male side, and his father was the Canadian. So if you don't pay attention to his mother being a U.S. Citizen, then yes... you still have an argument to make, albeit a horrible one for someone in the 21st century. But given that he has dual citizenship, that argument should be stuffed.

In short, Yes, he can run. Yes he can hold the office if he wins. Will he be able to win? Well, we shall see in 2016.



Topic Tuesday #46 2013/06/04 - "Book'em Dano"

Topic Tuesday #46 2013/06/04 - "Book'em Dano"

...And make sure you swab his mouth for a DNA sample.

Sounds a little more ominous now doesn't it? But why is that? First, the news: 



Says all I really need to know in that sentence. It passed the high seat by a slim 5:4 margin with a strong dissenting opinion by Judge Scalia. As always, I encourage you to take a look and think about the issue for yourselves.
What I want to look at is what our normal baseline is right now for the "booking process" and the Fourth Amendment.
While going through the booking process, the following should be expected:
  • Mug Shots
  • Fingerprints
  • A search
  • Routine questions on background information (name, address, etc.)

If your case begins with a court appearance and not an arrest, you may still be required to appear at the police station for a book-and-release procedure. 
Most jails will give out booking information (arrest date, bail, visiting information, the location, the court date, charges and booking number). Generally, you'll be asked for the defendant's full name and birth date. Keep the booking number for future reference. 


As you can see, once you are in police custody, very little is sacred. You can plead the Fifth Amendment and maintain your Miranda Rights, however, you are still subject to a physical search, up to cavity search...  

A note on Miranda rights, since they are thrown about so readily: 1966 Miranda v. Arizona. The ruling states:
...The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.
Further: On June 1, 2010, in deciding the Berghuis v. Thompkins case, the United States Supreme Court declared that criminal defendants who have been read the Miranda rights (and who have indicated they understand them and have not already waived them), must explicitly state during or before an interrogation begins that they wish to be silent and not speak to police for that protection against self-incrimination to apply. If they speak to police about the incident before invoking the Miranda right to remain silent, or afterwards at any point during the interrogation or detention, the words they speak may be used against them if they have not stated they do not want to speak to police.

The lesson here is say as little as possible until you see legal council, even if you are innocent. Don't be a jerk about it, but better safe than sorry.

OK enough about that, now on to the Constitution. For completeness:

 Amendment 4: 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.

I imagine that the issue that is primarily irritating is "the right of the people to be secure in their persons". It's a fine line. You would already have your finger prints put on file, your picture taken (without make up in most cases), and... there is that search...

So what's the big deal about having another piece of data, that identifies you, even better than finger prints and mug shots, go into the database? Oh... there it is. The Database. Big brother is watching you and Hoover is keeping Tabs on you. Well yes. They are. This is a surprise? You get targeted advertisements all the time. Data is being harvested all the time, and the government happily buys it up. They might not know what to do with it, but they have it when they do figure something out. DNA, will just be another field in a growing database.

Lately, there has been an increasing stigma over "big data". Specifically how it is being used. The primary problem is a lack of understanding. I will save big data for another Tuesday. For now, be aware that more rapists, more criminals, more bodies, will be identified and thus be another step closer to justice - whatever that means today.

Think I'm off base? Good, tell me about your thoughts on the matter. Just remember, 'cavity search'. before thinking a DNA swab is illegal.


Topic Tuesday #36 2013/03/26 - "Love And Marriage"

Topic Tuesday #36 2013/03/26 - "Love And Marriage"

It's a banner week for the Supreme Court in the USA. Today they begin reviewing 2 same sex marriage cases involving California Proposition 8 (whether gays and lesbians have a constitutional right to marry in a California.) and this will carry through Wednesday, 3/27/2013, as the high bench will be reviewing DOMA (Defense of Marriage Act) as well. The cases presented:
Tuesday, March 26: Prop 8, Hollingsworth v. Perry, 60 minutes
Wednesday, March 27: DOMA, United States v. Windsor, 110 minutes
There are some interesting things happening on the periphery of these cases as they come to trial. I can best sum it up, with no malice intended, as rats fleeing the sinking ship.  California Governor Jerry Brown and Attorney General Kamala Harris have declined to defend Prop 8, leaving only it's staunch conservative backer Dennis Hollingsworth, the case's namesake defendant, of ProtectMarriage.com, to carry the ball. In 2011 many key legistaltors and the Obama administration turned on DOMA, as far as determining that section 3 was unconstitutional and the DOJ would not defend it. In its place the House General Counsel under directive from the Republican congressional leadership would defend the law. Senators. Claire McCaskill, D-Mo., John “Jay” Rockefeller, D-W.V., and Mark Warner, D-Va., said 3/24 and 3/35 that they no longer support a federal law banning gay marriage.

PROP 8: If the court does not side with Hollingsworth, the ruling reverts to an earlier decision which struck down Prop 8. The case originated with Kristin Perry, who was denied a marriage license in Berkeley. Kristin and her partner, Sandra Stier, are mothers of 4 children. Perry has an interesting legal team, Theodore Olson and David Boies, who have a history of going at each other in high profile cases.
On the against side: Olson has 20 minutes to state his. They'll focus on arguing that "marriage is a fundamental right that has nothing to do with having children. … Because marriage is such a fundamental right, and gays and lesbians have traditionally been victims of discrimination, the challengers continue, the Court should apply a more demanding test – known as 'heightened scrutiny' – to determine whether Proposition 8 is constitutional.".  Then Solicitor General Donald Verrilli Jr. will then have 10 minutes to explain why the Obama administration believes Prop 8 should go away. From the Times:
"The government will argue on grounds referred to as the "eight-state solution," which would apply only to states where gay marriage is banned, but same-sex civil unions are allowed (California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island). Verrilli will argue that this violates the equal-protection clause of the Constitution. That case has been called "quite modest," while others have argued, "If the Court takes the President's argument seriously, the justices need not stop at just 8 states. The President's theory could invalidate all marriage discrimination against gays."
On the pro–Prop 8 side: Hollingsworth will have 30 minutes to make his case. If found to have standing, they will argue that "traditional" marriage should be preserved so that children "will be born and raised in stable and enduring family units by their own mothers and fathers."

Verdicts of this could be very little to very dramatic, if the court upholds the defeat of Prop 8, all bans on same sex marriage could be constitutionally challenged, or it could be that a narrow ruling that "once a right is given it cannot be taken away by the state." It bears remarking, "There is no possibility that the court would ban same-sex marriage in places that choose to permit it."

DOMA, enacted September 21, 1996 defines marriage as the legal union of one man and one woman for federal and inter-state recognition purposes.
Section 3 of DOMA has been found unconstitutional (as it violates the equal-protection clause of the Fourteenth Amendment) in eight federal courts, including the First and Second Circuit Court of Appeals, on over 1,000 right issues that married couples enjoy. Such as bankruptcy, public employee benefits, estate taxes, and immigration. 
The U.S. Supreme Court has agreed to hear an appeal in one of those cases, United States v. Windsor, and scheduled oral arguments for March 27, 2013. Edith Windsor was forced to pay $363,053 in estate taxes after her partner of more than 40 years died.
From the Times:"If the court is to establish a constitutional right to same-sex marriage, it will be in [the Prop 8 case] and not in a narrower one to be argued on Wednesday about the federal Defense of Marriage Act,"

Likely outcomes will be for DOMA to fall and Prop 8 to be more narrowly refined and not completely thrown out.
The judges have their work cut out for them and a nation of of men and women who love each other and want the natural right to express their love for whomever they want, will be watching and waiting. Final decisions are expected to be revealed in June.