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The good news is somebody made to obvious move to sue the Louisiana Legislature for ignoring the Constitution regarding the passage of legislation. The bad news is they picked the wrong item to contest that more than likely will end in their defeat, and with that brings up the question why try the half-court shot when an available slam dunk wins the game?
Yesterday, perhaps the most important specific business lobby in the state, the Louisiana Chemical Association, filed suit against the Legislature and other state entities for having put into effect HCR 8, which lopped off a quarter of the exempted tax for utilities that businesses otherwise would pay. The aggregate one percent is expected to raise just over $100 million this fiscal year. It based this mainly on the fact that to repeal a tax exemption requires a two-thirds vote in each chamber, which did not happen in the House of Representatives.
But just as the Constitution helps them with the supermajority requirement in Art. VII Sec. 2, it strikes a critical blow against it in Art. III Sec. 20, which states that laws may be suspended by the same voting requirement with which they were enacted. A suspension differs from a repeal in that it only is temporary, lasting no more than 60 days past the end of the legislative regular session after enacted, and does not require gubernatorial action. By contrast, a repeal is permanent or lasts for a period greater than a year.
Posted by Jeff Sadow at 11:45
When the U.S. Supreme Court recently created a new protected class, people who identify themselves as homosexuals, it opened a whole can of worms regarding questions of freedom of religious exercise, and Louisiana appears to have become ground zero for sorting it all out.
Specifically, the issue right away became whether individuals who are asked in behave in a way that would cause them to deny their religious beliefs, by having them by way of cooperation to assist in the commission of what they see as facilitating immoral acts, must provide that service. The questions arose both in the performance of public sector duties and in those non-government persons and entities participating in commerce.
Regarding government employees, the issue arose when Gov. Bobby Jindal’s office issued a memorandum that stated that clerks of court and state employees who process marriage license requests from people of the same sex wishing to marry may refuse to do so. The legal brief essentially restated federal law (Title VII of the Civil Rights Act), which requires an agency to accommodate employees' exercise of their religion unless such accommodation would impose an undue hardship on the conduct of the agency’s operations. Practically speaking, this means that employees who object to handing out such licenses may defer if other employees can be found to do the same; if not, then the objecting employee(s) likely would be forced to do so because that would cause undue hardship on operations. The severity of hardship is judged by whether it would cause an actual cost to the agency or to other employees or be an actual disruption of work.
Posted by Jeff Sadow at 10:25
So people of the same sex who wish to marry each other may have to wait a bit to obtain marriage licenses in Louisiana. Politics may explain the delay, but that doesn’t mean it’s not the right thing to do.
Only Mississippi seems to follow Louisiana in waiting on allowing issuance of these, where the state’s Constitution prohibits state recognition of such unions but last week’s U.S. Supreme Court decision that used creative license to give birth to a new protected class defined only by its behavior will override that passage. The Court recognizes a 25 day period for reconsideration although that is extraordinarily unlikely to happen. As a result, almost all states have started to issue such licenses, including 12 of the 14 that either did not have the ability in their Constitution, by law, or by judicial fiat.
But Louisiana and Mississippi lay under the jurisdiction of the Fifth Circuit Court of Appeals, which previously had heard a district court case that had denied the federal government the power to impose a definition of marriage on states. The Supreme Court heard cases consolidated from another circuit. That means that the Fifth Circuit must remand the case it ruled on back to the district court to revisit its decision in light of the discovery of the new protected class and its rights granted by the highest court, but until then its interpretation stands, reaffirmed by Gov. Bobby Jindal. Already such a petition to review had been filed. Atty. Gen. Buddy Caldwell did not mention this action in his statement about why he will not direct license issuance to clerks.
Posted by Jeff Sadow at 08:20
Perhaps echoing sentiments he has harbored from his youthful enthusiasm for former Pres. Ronald Reagan, Gov. Bobby Jindal has transferred a desire to abolish the federal Department of Education to getting rid of the U.S. Supreme Court. Actually, he doesn’t have to go that far to rein in a court straying from the Constitution on issues of the day, and if he does win the presidency, with help from his party he would be in excellent position to do so.
Jindal expressed this desire after two monumentally flawed, discouraging, and dangerous decisions, one to ignore the strict wording of a law in favor of an interpretation the opposite of it infused into it by the Court, and the other to conjure up a new protected class of individuals on the basis of their behavior not otherwise explicitly listed in the Constitution. Both set bad precedents that empowered government while simultaneously threatening liberty through dispensing with democratic norms.
But while Jindal’s frustration may be understandable, the Constitution does not really provide for that solution, unless he wishes to go through the difficult amendment process. Theoretically, this complete neutering of the Court could happen statutorily by the powers vested in Congress in Art. III that, while the article requires the presence of one Supreme Court, it could set the Court’s membership currently at nine to zero. However, it need not take such a drastic approach, for Art. III also allows Congress to set the appellate jurisdiction of the Court beyond that specified in the Constitution – and once before it has done that as a reaction to a Court taking up an inflammatory case.
Posted by Jeff Sadow at 09:55