I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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A criticism of the Religious Freedom Restoration Act as applied to the states

The more I think about this, the more I think passage of the state version of RFRA this Spring was a very dumb move.

There’s this:  The case I’m quoting below, Bourne, involved a church challenging a city’s historic preservation ordinance on the grounds that it was an indirect burden on their exercise of religion.

At least to the extent it was applied to the states, here’s what Justice Kennedy wrote about the act:

The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest. See Smith, 494 U.S., at 887, 110 S.Ct., at 1604 (“What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?”); id., at 907, 110 S.Ct., at 1615 (“The distinction between questions of centrality and questions of sincerity and burden is admittedly fine …”) (O’CONNOR, J., concurring in judgment). Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If “ ‘compelling interest’ really means what it says …, many laws will not meet the test…. [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Id., at 888, 110 S.Ct., at 1605. Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise. We make these observations not to reargue the position of the majority in Smith but to illustrate the substantive alteration of its holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say, one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.
The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of  their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry. If a state law disproportionately burdened a particular class of religious observers, this circumstance might be evidence of an impermissible legislative motive. Cf. Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). RFRA’s substantial-burden test, however, is not even a discriminatory effects or disparate-impact test. It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. In addition, the Act imposes in every case a least restrictive means requirement—a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify—which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations.
City of Boerne v. Flores, 521 U.S. 507, 533-35, 117 S. Ct. 2157, 2171, 138 L. Ed. 2d 624 (1997).

Chefs and cooks (including my son T.H.) toasting New York welcome table benefit

This is the kitchen crew toasting the completion of the Big Gay Welcome Table benefit in New York City. My son T.H., who went up as part of John Currence’s crew, is closest to the camera on the left, with Currence visible just beyond him, and cookbook writer Virginia Willis just left of center.

This is from a really nice article at Buzzfeed about the event and about John Currence.

SCOTUS blog: Post-Hobby Lobby orders lists suggests that employers can object to all forms of birth control

Lyle Denniston at SCOTUS blog reports:

The Supreme Court sent a fairly strong signal on Tuesday that its ruling giving some for-profit businesses a right not to provide birth control services to their female workers goes beyond the specific methods at issue in that decision.  It issued a series of orders on six cases, each of which involved owners who objected to all of the pregnancy-related services mandated under the new federal health care law.

As he notes, in three cases, the Court reversed decisions and remanded for reconsideration in light of the Hobby Lobby decision.  Two Sixth Circuit cases (Autocam Corp and Eden Foods) had rejected employer objections to covering all forms of birth control services (including sterilization) covered by the mandate.  A District of Columbia case had also rejected all forms of birth control services.

In another District of Columbia case, Catholic brothers and their food service companies objected to all forms of birth control.  The brothers won their challenge, the government appeal, and review was denied.  The Court denied review in similar cases the employer had won from the Sixth Circuit (two cases) and the Tenth Circuit where the employer, objecting to all services, also won.

What this suggests is that the majority is perfectly fine with an employer who rejects all form of birth control services.

Kingfish has a memo for the state Republican party outlining the steps up to a contest

Previously, I posted describing the process for a contest.  There’s a useful memo from state Republican party chair and counsel outlining the process up to that contest (which will play out in the next few weeks) that has been posted at Jackson Jambalaya.

To sum the memo up:  Yesterday or before 2PM today, each county executive committee must have certified their returns to the state party.  Because the voter ID process continues through today– voters have the right to come in as late as today to show an ID if they had to vote by affidavit because they did not bring an ID– any votes coming in after certification are to be sent as an update.  This odd double-step is occurring because the statute on certification was not amended when the voter ID law passed setting the seven day deadline for voters to come in.

At this point, the boxes become available to candidates to review for irregularities in the count.  The candidates must give the county committees three days notice in a request to review so the other candidate can have a representative present.  The circuit clerk supervises this part of the process.  Review must be completed by 12 days after the county certified the results.

Today at 2PM, the state committee meets to canvas the results.  They just tabulate and add up the results; this is not a certification process.

Monday, July 7th, the state committee will transmit the county totals to the secretary of state.  At that point, a candidate can file a challenge with the state executive committee.

That’s the process described in the state party memo.   I do not see a deadline for filing the contest with the state committee.

However, once the contest is filed with the state committee, the candidate filing the contest has only ten days to go to court, in a process outline in my prior post.  

Hobby Lobby and Religious Freedom Restoration Acts (including the one in Mississippi)

I have read most of Justice Ginsburg’s dissent in the Hobby Lobby case and some of the majority opinion, and the upshot seem to be this:  When Congress passed the Religious Freedom Restoration Act, it made clear its intent to overturn a couple of United States Supreme Court cases.  But, Justice Ginsburg argues, what the majority is doing here goes far beyond restoration and creates a right that will allow someone like Hobby Lobby to use assertions of religious freedom even when it violates rights of third parties who do not share those beliefs.

While this point seems obvious on a moments reflection, it bears repeating:  What the Court holds is that women who wish to have contraceptives can be denied that right because the owners of the business were they work don’t want them to have it.    The majority suggests the possibility that the government can pay for the contraceptives although refuses to opine whether that’s even legal under the act.   I’m sure if the Obama administration does this by regulation it will add to the screaming emanating from the House of Representatives about his lawlessness.

It is obvious that these notions are going to be argued in cases under the state act.

I may try to write more later, although this is another busy week.  I’d like to see comments.

Early Summer Breakfast

Summer fruit

One of my favorite breakfasts is blueberries from my yard, peaches from Cherry Creek Orchard in Pontotoc, blackberries from another grower at MidTown Farmer’s Market (sorry I didn’t get the name), cantaloupes (these are from Lucedale because locals aren’t in yet, which seems a little late. I’ve learned to time all these things that go together), a little demara sugar, some Greek yogurt, and some Brown Family Dairy Farm milk.  This goes on for perhaps a little under a month.

Mississippi Supreme Court’s opinion in Carrothers v. State: Important case on experts & reliability of eyewitnesses

On Thursday, the Mississippi Supreme Court released an important decision in Carothers v. Statethe core of which involved the admissibility of an expert witness the defendant offered on the science of the unreliability of eyewitness identification testimony.  The majority opinion, by Chandler, rejects admission largely on the theory that the expert did not observe the eyewitness testify, and based his opinions on erroneous facts.  In concurrence (joined in part by a couple of others), Justice Randolph expands on that part of the opinion, and suggests he’d never support letting the testimony into evidence in any event.

The trial judge bases for excluding the testimony seem very thin– that the testimony could confuse the jury, and that the opinions had some facts wrong.  I’m not sure confusing jurors is such a bad thing, but, then, perhaps it’s better not to disturb their troubled sleep.

Justice Coleman has a dissent that I really like.  The Chandler opinion really reads like cross-examination bullets and not a basis to exclude the evidence, and Justice Coleman focuses in on that actual Daubert standard and to my eye gets it right.   He had three other votes.

Justice Coleman has been an intelligent and independent justice on the court, to my eyes.  I have been pleased to read his opinions as his time on the court has gone along.

There’s also a Batson issue that Justices Chandler and Randolph don’t see exactly the same but resolve the same, and Justice King (joined by Kitchens) opines requires reversal.

One annoying feature:  Two justices join in Randolph’s opinion”in part,” and two join in Justice Coleman’s opinion “in part” but don’t say what part.  With Justice Randolph, one case guess whether it’s the expert or the Batson part (and since Justice Chandler wrote the majority opinion while joining Justice Randolph in part, I suppose one could draw a conclusion by comparison), but with Justice Coleman’s, it’s really hard to say.  It would only take one sentence to clarify, folks!  And this one matters in discerning just how close expert opinions about eyewitnesses may be to being admitted.

Maybe it’s just that all the opinions total 139 pages and everyone (me included– large parts I’ve just skimmed) got overwhelmed.

Update: Reading further into the decision list, I hit a case interpreting the state’s sex offender registry statute.  The vote turns up 4 to affirm (registration should occur even though prosecution was dismissed in California because registration in California was required) 4 to reverse (the Mississippi registration statute specifically says no registration where the prosecution was dismissed, and this one was, although after probation), with Justice Coleman the fifth vote for the majority, in which he agrees with the result but joins in part.  But does not say what part! Rendering the affirming opinion a plurality with no explanation! That’s five different justices concurring in part with no explanation on one decision list! Please stop!

Shall Not Stand

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Perhaps I’m not being sufficiently creative in imagining what challenges McDaniel may bring

May need to think more out-of-the-box.

h/t Chris Offutt.

Let’s take a look at the old book: What the Election Code actually says

Chapter 15 of title 23 of the Mississippi Code covers election contests, and has some pretty concrete answers to some of the things folks (including me) have been saying. Just for instance, I said from memory that there was no deadline for the contest, forgetting that this had been changed in 2012; there’s a deadline now. Here’s some things from the code:

Were there is an election covering more than one county, the challenge in the first instance is with the party’s state executive committee. A challenge must be filed there, reciting the grounds for the contest. If four members of the committee demand it, the chairman shall issue “his fiat” to the appropriate counties where issues are raised, and those are to issue findings and return a report. This is in Miss. Code § 23-15-923.  If there is a deadline for filing this petition, I missed it.

I think this and other provisions in the code talking about state-wide challenges strongly imply a state-wide remedy, although the code is not explicit.

After that petition is filed and the commission either fails to meet or fails to promptly to give the relief required, the contestant can go to any of the counties challenged (big caveat here, noted below) and file a sworn petition challenging the election.  The petition must be filed within ten days after the contest was filed with the election committee.  “In no event shall a prayer for relief be filed in any court other than the appropriate circuit court as authorized in this section.”  This is Miss. Code § 23-15-927.  It seems to me to clearly state, for instance, that if the challenge does not involve votes in Hinds County, the challenge must not be filed there.

I cannot imagine how the state/county process described in Miss. Code § 23-15-923 can play out in ten days, so I’m guessing that a state challenge will proceed from the state committee not completing its job.

Miss. Code § 23-15-927 requires that the court petition may not be filed unless it bears the certificate of 2 practicing attorneys stating they have each made independent investigation of the protest and opine that the relief should be granted.   This provision has long held to be jurisdictional, as has the requirement the petition be sworn.

Here’s a quaint one the always-up-to-date Mississippi legislature left in place when it amended this specific statute in 2012:  When a petition is filed, the circuit cleark “shall immediately, by registered letter or by telegraph or telephone or personally, notify the Chief Justice of the Supreme Court” so a judge can be appointed to hear the case.  Miss. Code § 23-15-929.

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Miss. Code § 23-15-931 sets for the procedure for the trial of the contest.  It provides that if the petition alleges “wrong or irregularity” occurring only “within the state committee” the suit must be filed “in the circuit or chancery court of Hinds County.”

On this point, I am pretty confused.  If there are no irregularities within the Hinds County vote in a state election, I read Miss. Code § 23-15-927 to require the challenge be in one of the counties where there were irregularities.  The code does not imply a challenge based upon something the state committee did as opposed to challenge the votes and the voting process.  Further, Miss. Code § 23-15-927 requires that the petition be filed in the circuit court.  How did Hinds chancery get into the picture?

I’m assuming that any McDaniel challenge would have to take on Hinds County, but, if not, I’d be at an utter loss where to file this thing.  I’d ignore the possibility of Hinds Chancery (who wants to resolve that riddle if you don’t have to?) but other than that would be at sea.