Category: SCOTUS 2022

Introduction

Almost half a century after the first – and some would say the most important – decision about abortion and women’s rights case in the United States, Roe v. Wade, the legal battle between pro-choice and pro-life groups has still not come to an end. Every now and then, a case like the currently pending Dobbs v. Jackson Women’s Health Organization finds its way to the Supreme Court.  The current case is specifically about abortions performed after 15-weeks, or as the petitioners put it, after viability, even though the question of viability is also one of those still waiting to be answered. The parties of the case Dobbs v. Jackson Women’s Health Organization are waiting for the Supreme Court to decide its fate. In both of the documents submitted by the petitioner and the respondent to the Supreme Court the case Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) can be found. This case has already been before the Supreme Court already where the Court had to decide about the constitutionality of the abortion laws in the state of Texas.

Case analysis

The case of Hellerstedt started with a Texas law voted in in 2013. The said law did not ban the abortions performed in the state, however it did severely restrict the facilities providing abortions. The law contained two specific provisions that were challenged before the Supreme Court. One of the requirements was the so-called ‘admitting-privileges requirement’, which meant that the doctor performing the abortion procedure must have had active admitting privileges in a hospital no further than 30 miles from the abortion-providing facility on the day of the procedure. The other challenged part of the law contained the ‘surgical-center requirement’, which means that the abortion facility had to meet the minimum standards of a surgical center.

While the aforementioned law was explained as one protecting women’s health which is the legitimate interest of a State, it resulted in the number of the abortion-providing facilities to decrease to half. When the case was before the District Court, it made findings such as the number of facilities would’ve dropped to only seven or eight in case of the surgical-center requirement being in effect and that before the law, abortions were already safe in the state with a very low late of complications and no deaths.

The Supreme Court in its ruling highlighted to findings of the District Court. With all the mentioned information in mind, the Court ruled that the challenged parts of the law provide only a few health benefits for women, however they do pose as obstacles when seeking abortion and constitute and ‘undue burden’ on the constitutional right of freely seeking abortion.

Handling of Whole Woman’s Health v. Hellerstedt by the litigants in Dobbs v. Jackson Women’s Health Organization

The case of Hellerstedt was included in both the petitioner’s and the respondent’s documents, however on the petitioner’s side it’s only mentioned occasionally. However, the respondent leans on the case and uses it as one of the main cases to support its own arguments. The reason for this is the similarities between the cases and the fact that the Court has already decided in favour of the abortion providers in a previous case where the state tried to regulate their operation. The Hellerstedt case is also known as one of the biggest victories of the women’s rights movement since the historical victory of Roe v Wade, which is also one of the cases cited by both of the parties. For this reason having the Hellerstedt case supporting the arguments of the respondent can be seen as a political move as well.

Conclusion

The main question that is shared by the two cases is whether the State has the right to restrict abortion and abortion-providing facilities. The case also revolves around the viability question, which is really similar to the Hellerstadt case’s question in the perspective of the health reasons supporting banning abortion, and whether the protection of one’s healtj by the State is enough for the State to restrict their right of controlling their own body.

As a windup if anything certain of this case can be said; the ruling of this case can adumbrate the future of abortion cases and woman’s rights issues in the United States and for that alone it is a case worth following. 

V.N.B.A

Introduction

Roe v. Wade, 410 U.S. 113 (1973) is one of the landmark decisions of the U.S. Supreme Court regarding abortion laws. The case was decided in 1973 and it substantially changed the interpretation of existing law in the United States. The case has had a strong standing for almost half a decade, but its place is wavering under the tension of the Supreme Courts pending case, namely Dobbs v. Jackson Women’s Health Organization. This case addresses the problem with the constitutionality of a state law called the Gestational Age Act that banned abortion operations in Mississippi after the first 15 weeks of pregnancy. The core issue of the case is whether all pre-viability prohibitions on elective abortions are unconstitutional. It is yet to be seen if the Supreme Court will overturn its own precedent and decide against Roe v. Wade.

Case analysis

As stated before, the case Roe v. Wade is about abortion laws. The plaintiff of the case was Jane Roe (a fictional name used in court documents to protect the identity of the plaintiff’s), who brought a class action suit against the district attorney of Dallas County, Henry Wade, challenging the constitutionality of the Texas abortion laws. Eventually, the case was about a conflict between the Due Process Clause of the Fourteenth Amendment, which has inherent a fundamental “right to privacy” that protects woman’s choice on whether to have an abortion, and the government’s interests in protecting “the potentiality of human life” and protecting women’s health. The case eventually led to a decision, in which the court held that the decision regarding abortions during the first trimester must be left to the decision of the pregnant woman’s doctor. In other words, abortion during the first trimester shouldn’t be regulated by states. However, then the court stated that states may promote their interests in the potentiality of human life by controlling or even forbidding abortion during the third trimester, except when necessary to preserve the life or health of the mother.

Handling of Roe v. Wade by the litigants in Dobbs v. Jackson Women’s Health Organization

The case Roe v. Wade is brought up by both litigants, Thomas E. Dobbs and the Jackson Women’s Health Organization. No doubt their arguments are rather polar opposites. Where Dobbs argues that Roe’s viability line is arbitrary, constantly changing as medical knowledge increases, and even that it doesn’t respect the fact that states have interests of their own beginning from the beginning of pregnancy, the Jackson Women’s Health Organization brings up that as Dobbs tries to argue that the Roe’s central holding would be “inconsistent with the Court’s recognition that states have legitimate interests in maternal health, potential life, and the integrity and ethics of the medical profession”, he is incorrect, since the court has already accounted for these interest before and decided that they do not contradict. The Organization continues to argue that Roe and the Court’s subsequent cases speak in favour of the fact that it is for the pregnant person to make the final decision on abortion before viability. To clarify, “viability” is a concept that the Court itself has made a pivotal issue in its cases. Viability means, in short, the point at which a fetus is capable of living outside the womb with medical intervention. As both parties make their arguments based on numerous precedents, it is yet for the Supreme Court to decide how this case will unravel. 

Conclusion

To conclude, the most central holding of Roe v. Wade is that an individual has the right to decide whether to continue a pre-viability pregnancy. This has been confirmed in later Supreme Court cases, hence I agree with the Jackson Women’s Health Organization as they state that a pre-viability abortion ban unquestionably would contravene with the fundamental tenet of the Court’s abortion jurisprudence.

Finally, as Dobbs continues to assert that Roe’s viability clause is outdated, and most states reject viability as the rule for determining when prenatal injuries are actionable, it is nonetheless clear that Roe v. Wade has strong standing when it comes to abortion cases.

V.N.B.A

Introduction

In 2018, Mississippi passed a so-called Gestational Age Act, a law, which prohibits abortions after 15 weeks of gestational age unless there’s a medical emergency or severe fetal abnormality. The Courts line for the last fifty years has been that the right to pre-viability abortion must be guaranteed. The issue lies in the word “viability” – at what age is a fetus viable and can woman’s right to abortion be based on that?

Whether the Gestational Age Act is unconstitutional or not has not yet been settled. Case Dobbs v. Jackson Women’s Health Organization is pending in the U.S. Supreme Court. The petitioner as well as the respondent hold on to their arguments which consist of several precedents. One of the most important precedents the respondent, Jackson Women’s Health Organization, cites, is Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992).

Case analysis

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed that a state cannot prohibit pre-viability abortions since the state’s interests aren’t strong enough in the pre-viability state compared to women’s rights. This particular case is seen as a “landmark case” when it comes to abortion regulation. As mentioned before, the issue lies in the word viability; for over fifty years the Court has ruled that it is unconstitutional to ban abortions before viability. The respondent in the pending case, Dobbs v. Jackson Women’s Health Organization, puts a great emphasis on this matter. Respondent, Jackson Women’s Health Organization, claims that the state’s interests before viability “cannot override a pregnant person’s interests in their liberty and autonomy over their own body”. Problem seems to be the different interpretations on when the fetus is viable or would be able survive outside the womb – with or without medical assistance. The Court has taken a stand on this issue also in Casey, where it reaffirmed the constitutional importance of viability and described the line between non-viable and viable fetus as follows: “it is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of the state protection that now overrides the rights of the woman”. The way I see it, the meaning and significance of the “viability line” seems to be clear yet it’s unclear where to draw the line.

Handling of the Planned Parenthood of Southeastern Pennsylvania v. Casey by the litigants in Dobbs v. Jackson Women’s Health Organization

This case seems to be significant especially to the respondent. Their main arguments are based on this precedent already in the ‘questions’ section in the brief of opposition. The petitioner also cites Casey through its petition for a writ of certiorari but doesn’t build its argumentation on that. What’s interesting to me is that the respondent, Jackson Women’s Health Organization, sticks to the “viability rule” reaffirmed in Casey while the petitioner, Dobbs, is questioning whether the right to abortion can be based on viability at all. According to Dobbs, “viability is not an appropriate standard for assessing the constitutionality of a law regulating abortion”. Petitioner asks if the validity of Gestational Age Act should be considered under Casey’s “undue burden” standard or Hellerstedt’s balancing of benefits and burdens. As stated by the Court in Casey, undue burden exists if a laws purpose or effect is to set significant obstacles for woman trying to get abortion. Question is, does the Gestational Age Act set significant obstacle for getting abortion or not?

Conclusion

The question in the pending case, Dobbs v. Jackson Women’s Health Organizations, revolves mainly around viability and its importance. Since the right to pre-viability abortions has been reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, which is seen as a landmark case, it’s obvious that its importance is significant. Although the petitioner and the respondent represent different point of views, they both cite Casey. Casey is in many ways setting a framework for findings in Dobbs v. Jackson Women’s Health Organization. It will be interesting to see whether the Court will hold its previous view or change its opinion.

V.N.B.A

Introduction

The case of Gonzales v. Carhart, 550 U.S. 124 (2007) is a landmark decision of the U.S. Supreme Court. It is about the so-called Partial-Birth Abortion Ban Act of 2003, a federal law banning a certain form of abortion called a “partial-birth abortion.” The medical term for it is “intact dilation and extraction”, which is a type of late termination of pregnancy, where the fetus is removed feet-first and then its head collapsed. The statute, however, uses the term “partial-birth abortion” to refer to any type of abortion where the fetus is extracted from the mother’s body past the navel and then terminated.

The Act was protested against by pro-choice groups, due to an absence of exemption in case a pregnant woman’s health is at risk and the procedure is needed to help her. This is one of the reasons why the Act was found unconstitutional by three district courts and three courts of appeals, after which Attorney General Gonzales petitioned the Supreme Court to review the decision. The question presented in Gonzales v. Carhart is whether the Act violates the right to personal liberty protected by the Fifth Amendment because it lacks the aforementioned exemption, whether it imposes an undue burden on a woman’s right to abortion, and whether it should be found unconstitutional for those reasons.

Case analysis

The Court ruled by a 5-4 vote that the Partial-Birth Abortion Ban Act is to be considered constitutional, upholding the law in question and reversing the previous decisions by the courts of appeals. Justice Ruth Bader Ginsburg wrote the dissenting opinion, which took quite a heavy stand on the majority opinion, ruling it as infringing on women’s rights and totally ignoring Supreme Court abortion precedent.

The decision in this case is heavily dependent on the precedent set by Planned Parenthood v. Casey, 505 U.S. 833 (1992). This is because one of the main challenges to the Partial-Birth Abortion Ban Act had to do with the main principle established in Casey, the undue burden standard. In short, the undue burden standard is a constitutional test used in this context to analyze restrictions on the right to have an abortion. A restriction on abortion rights poses an undue burden when it places a considerable obstacle in the path of the woman seeking an abortion. In Gonzales, banning only a certain form of abortion, the “partial-birth abortion”, was deemed in the majority opinion as something that does not pose an undue burden on the woman. This was justified partly by explaining that the woman still has other options and other types of abortion to turn to. 

Another important problem brought forward by the respondents was the absence of an exemption to preserve the health of the mother. The Supreme Court, however, found that there is no consensus in the medical community on whether the procedure is ever necessary to protect the woman’s health. In the past, the Supreme Court has made decisions that allow legislation in areas where there is medical uncertainty, and this is the Court’s reasoning behind the decision to uphold the Act even without this exemption. However, part of the so-called essential holding of Roe v. Wade, 410 U.S. 113 (1973), is that the State can only restrict abortion rights in later stages of pregnancy when there is also an exception for pregnancies where the mother is in danger. Keeping in mind the doctrine of stare decisis, the failure to provide such an exception in Gonzales seems unjust, which is exactly what Justice Ginsburg pointed out in her dissenting opinion, as well.

Handling of Gonzales v. Carhart by the litigants in Dobbs v. Jackson Women’s Health Organization

Gonzales is one of the cases presented in the Table of Authorities of both the Petitioner and the Respondent in the case of Dobbs v. Jackson Women’s Health Organization, but especially the Petitioner’s side uses the case to their advantage and refers to it multiple times. This is because the Petitioner is trying to defend the strict Mississippi law banning abortion after 15 weeks, the Gestational Age Act, which is what Dobbs is all about.

Gonzales is the first case to, in a way, go against previous precedent and to go from supporting reproductive rights to this time restricting them. It could provide Dobbs an example of a case in which these kinds of restrictions were able to be made. I think this is the direction in which the Petitioner in Dobbs is trying to take the case. By using Gonzales as an example, they can show that the Court has previously been willing to limit certain aspects of abortion, so perhaps it could be possible that they go a step further and allow even greater restrictions on reproductive rights.

Conclusions

The case in question is a very interesting one, as it is the first in a long line of decisions after the ground-breaking Roe v. Wade to impose restrictions on abortion rights, without an exception protecting the woman’s health. The decision in Gonzales is interpreted to be the start of a shift toward a more restrictive approach to abortion rights in the Supreme Court.

This shift is essentially made possible not necessarily by a change in public opinion or any justice’s opinion, but rather by a change in the make-up of the Court; Justice Sandra Day O’Connor was succeeded by Justice Samuel Alito just weeks before the petition for a writ of certiorari was granted. Justice Alito is generally thought to be one of the most conservative justices on the Court, while Justice O’Connor is thought to have represented more moderately conservative views, and she cast the swing vote to the more liberal side in many important cases. It will be interesting to see whether Dobbs will be able to further this shift with even more radical restrictions on reproductive rights.

V.N.B.A

The topic of gun control has been a divisive issue since the birth of the United States’s Bill of Rights in 1791, and it has caused fierce debate among legal scholars and laymen alike and that debate is still ongoing and evolving after centuries. The latest example of trying to set a new precedent on the issue can be observed in the case The New York State Rifle & Pistol Association v. Kevin P. Bruen, where the petitioners try to make the claim that laws restricting a citizen’s right to carry a firearm outside of one’s home for self-defense purposes are against their Second Amendment rights.

All the disagreement and legal ambiguity of gun regulation seems to stem from one source: The Second Amendment of the Constitution. The Amendment states that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Depending on your interpretation, this either means the citizens’ individual right to bear arms in case of a threat to their personal safety and property or alternatively, the states’ collective right to defend themselves against the tyranny of the federal government and other outside forces. For most of the Amendment’s history, the latter has been the dominant interpretation. However, recent cases brought to the Supreme Court have challenged the status quo, no doubt partly due to the conservative leaning judges appointed to the court who tend to rule in favor of these precedent-shifting petitions.

Historically, the legislative action has tilted towards further restrictions to gun ownership and more broadly the firearm market as a whole. In the 1930s Congress passed the first two federal laws to regulate the firearm market  in the States. The first one, called the National Firearms Act (NFA) was designed to reduce crime and was passed in 1934 and imposed a tax on the manufacturing, transporting and selling of some particular firearms. The second law, called the Federal Firearms Act (FFA) was passed in 1938 and mandated         manufacturers and dealers among others to have a federal firearms license. The FFA also restricted access of convicted felons and the mentally ill to obtain firearms.

The NFA and FFA were followed by multiple laws by Congress to further limit the access to firearms in the coming decades. These restrictions included, among other things, banning weapons of ”no sporting purpose”, banning handguns for citizens under 21 years old and requiring gun dealers to perform background checks on clients. There was one law however, that actually loosened the regulation even before the  current shift in the Overton window of gun regulation. Called the Firearm Owners Protection Act, it prohibited a national registry of gun dealer records, made it possible to sell firearms at so called ”gun shows” and permitted the sales of ammunition without a license.

The Lawslingers

New York State Rifle & Pistol Association v. Bruen is a current case pending in the U.S. Supreme Court that could turn out to be a landmark decision for the interpretation of the 2nd Amendment of the U.S. Constitution. The case in essence begs an answer to the question of whether the 2nd Amendment and it’s clause on the right of the people to keep and bear arms protects the open-carry of firearms outside the home.

In their brief in opposition, as the respondent’s of the case begin to articulate reasons for the court to deny the petition for writ certiorari, the first line of argumentation involves a historical perspective with New York State arguing that its licensing regimes goes back for over a hundred years. Likewise, during oral arguments before the Supreme Court, Barbara Underwood – Solicitor General of New York – began her argument with a statement regarding the centuries long tradition of English and American law imposing limits on the open-carrying of firearms in public in the interest of public safety. Though the history and tradition of a legal scheme is not the only qualification when assessing its constitutionality – as an extreme and quite drastic example, in Brown v. Board of Education the Supreme Court struck down (rightfully so) the racial segregation of public schools even though this segregation had a long historical precedent – it is nonetheless a strong line of argumentation either in favor or against the interpretation of the U.S. Constitution. This is especially true when dealing with the interpretation of the 2nd Amendment, as prior notable 2nd Amendment cases such as District of Columbia v. Heller and McDonald v. City of Chicago relied heavily on the analysis of the history, text and tradition relevant to these cases.

One could argue that this rings truer now than at any other point in modern history. The conservative side of the Court often abides by an originalist interpretation of the Constitution. The most recent addition to the bench, Trump-appointee Amy Coney Barrett – who is also a subscriber to this judicial ideology -, describes originalism as the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative”. If a regime has been in place in one form or another since the Founding Period, wouldn’t it be fair to argue that these regimes were ostensibly accepted by the drafters of the Constitution?

One of the earliest examples of Anglo-American judicial legislation cited for justifying modern day regulation of open-carrying of firearms is the Statute of Northampton which was passed by the Parliament of England all the way back in 1328. Chapter 3 of this statute essentially banned carrying weapons in fairs and markets. The statute remains central to this day in the legal debate on whether the 2nd Amendment provides protection to carry arms in public. 

New York State has a nearly one and a half century long history regarding gun regulation. Beginning in 1884, New York enacted a statewide licensing scheme, which required minors to acquire a license for carrying weapons in public. In 1905 this scheme was expanded to cover all persons who wished to carry any pistol, revolver or other firearm in public. 

After the Civil War, in the period called Reconstruction – lasting from around 1865 to 1877 – U.S. States and localities saw a wave of gun regulation with a myriad of laws limiting guns in public places. A watershed moment in New York State came shortly after the expansion of the licensing scheme in 1905 when in 1911 the Sullivan Act was passed by the New York legislature, modeled on the laws passed during Reconstruction. The Act was introduced – according to the bill’s namesake, state senator Timothy Sullivan – after a “marked increase in highly publicized violent street crime” and many prominent New York politicians came under intense public pressure to act. The statewide law required licenses in order for New York residents to possess firearms which were small enough to be concealed. 

The law was amended two years later in 1913 to establish statewide standards for licensing. This is where the contentious “proper cause”-standard, requiring every New York citizen to show that he or she has “proper cause” to carry a firearm, arose from and which is supremely relevant to the current Supreme Court case at hand.

History carries weight and in nowhere else quite as much as the Supreme Court of the United States. The historical record of gun regulation shows that there is more than 700 years of Anglo-American legal tradition of regulating arms in dense and populous areas. This tradition carries over to the colonial and the founding period, all the way through the Civil War to modern day America. 

The Lawslingers

Are gun control laws racist? This provocative question can be brought up when going through the documents of U.S. Supreme Court`s case 20-843, otherwise known as New York State Rifle & Pistol Association v. Kevin P. Bruen. The second amendment in the U.S: Constitution reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” While the exact content of rights in the amendment are argued to this day, for the purposes of this text we shall use the following: if you are an American citizen, you can own firearms, no matter the color of your skin. With this in mind, let us go over the criticism (and a little bit of the defense) of gun control laws.

The end of the Civil War in the USA and abolition of slavery did not mean that everyone was happily getting along with each other. After the war the southern states passed a collection of laws known informally as Black Codes. The exact wording of the law changed from state to state, but the basic idea was to restore what control was lost over slaves in the war to be reinstituted in a form of law. These included controls on marriage, “vagrancy” (basically homeless or wandering people), and also guns. So, it should be made clear that these laws were not just gun control laws. A more recent law is the 1968 Gun Control Act. It also has been criticized for having hidden motives.  This line of argumentation is brought forth, among others, by gun control activist and journalist Robert Sherill outright saying: “The Gun Control Act of 1968 was passed, not to control guns, but to control blacks.” 

Gun control laws are not allegedly discriminatory against just African-American people. In the beginning of the 20^thcentury Italian-Americans were stereotypically considered to be part of the mafia. Italian-Americans were not seen as Americans, but as “swarthy-looking, jabbering foreigners” as one newspaper of the time put it. Newspapers reported (and possibly spread) worries about how Italian-Americans were armed, not just with guns but with knives also. A group of Italo-American jurists argue that Sullivan’s law, one of New York laws related to the case 20-843, would have been made to control access by Italian-Americans to firearms and reduce crimes committed by Italian-Americans. Same argument has also been used by the National Rifle Association, or NRA.

A different view to the issue is taken by the American Civil Liberties Union, or ACLU, which argues that the second amendment, which allows the right to bear arms for all citizens, is in itself a racist amendment. The ACLU’s argument is that the second amendment itself was set up as a way to arm white Americans against African-Americans. The amendment would give rights to white Americans, while gun control would effectively bar minorities from accessing firearms.  This view on the second amendment has also caused discussion in academic circles that is still ongoing. Also it should be noted that the ACLU does not officially support gun control laws.

So, are gun control laws racist? I would use this incomprehensive look into different laws as a reminder that stated objectives of a law might not always correspond with reality. Making laws is a collaborative effort, and there is no guarantee that everybody involved is doing things for the right reasons. Doing research is vital, especially when it comes to law.

The Lawslingers

District of Columbia v. Heller was a landmark decision of the U.S. Supreme Court. The case was the first case to conclude that the Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia.  The case consisted of a police officer who wished to have a gun at home “only when needed for self-defense”. The first of the two D.C. laws in question banned possession of handguns by citizens, with few exceptions, while the other demanded all firearms to be either always unloaded and disassembled or trigger-locked. The Heller majority concluded that the first two regulations are in fact unconstitutional and that the Second Amendment does protect the right to keep and bear arms unconnected with service in a militia and to use these arms within one’s home for “traditionally lawful purposes, such as self-defense within the home”. The Heller decision did however leave unaddressed whether the individual right to keep and bear arms for self-defense extended outside of one’s home.

The Second Amendment of the United States Constitution reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” According to the Heller majority, this clause renders unconstitutional a blanket prohibition on possessing a functional handgun in one’s home at any time. The Court did emphasize in their decision, that the opinion should not be read as casting doubt on some well-established prohibitions regarding the possession of firearms “by felons and the mentally ill”; laws which prohibited carrying firearms in “sensitive places” such as schools or government buildings or laws establishing conditions for the “commercial sale of firearms”. 

The Heller case left some uncertainty as to the scope to which the extension of constitutional rights in Heller was to be enforceable against the states. Thus, the same day Heller was decided, a suit was filed against Chicago (McDonald v. City of Chicago) arguing that the individual right to keep and bear arms in one’s home established in Heller must be enforced against state and local action. The case was heard in front of the Supreme Court and the Court ruled that the individual right established in Heller is in fact incorporated against the states.

The Supreme Court in the New York State Rifle & Pistol Association v. Bruen, scheduled for mid-2022, might render unconstitutional a restriction in New York State related to bearing hidden handguns in public places. This type of ruling – if in favor of the plaintiffs, which includes an affiliate of the National Rifle Association – could take down regulatory schemes regarding gun possession in several U.S. states. Thus, if the Court does strike down the New York law, Americans should expect an increase in the amount of people bearing lawful firearms in communities. Followers of the Court agree that there are three possible outcomes in regards to the Bruen case. The Court could respect the New York law, strike it down or reach some sort of middle ground such as issuing a narrow verdict which covers big questions regarding restrictions of firearms in the future. As the court has a 6-3 conservative supermajority, the likeliest outcome would be one of the latter options. 

Heller has had a huge impact on gun regulation in the U.S. as the Court had stayed silent on the individual right to possess firearms up to that point. The case was viewed as an astounding victory for the gun rights lobby. Much like the reality of the bench is today, in 2009 the Court had a 6-3 supermajority of Republican nominated justices. With gun rights as an issue most pressing on the political right, with the U.S. electoral system and structure of the U.S. Senate (the only political institutions getting a say in the nomination of justices) heavily favoring the Republican party and the gun lobby getting ever louder, there will no doubt be an ever growing presence of judicial activism regarding gun rights. As a testament to this, only a mere decade after the individual right to possess firearms within the home was established, the Court will most likely expand that right to be protected and enforced nearly everywhere. Aside from the speculation and analysis, one thing is clear: the effects of Heller will remain to loom large and far into the future.

The Lawslingers

The American culture has always been strongly linked to religion. It has also been widely present in education, though judicial reforms have made sure to build a wall to separate the state and religion, also known as the Establishment Clause of the First Amendment. While the court prefers to say that the jurisprudence, in respect to the religious schools and governmental aid, has remained consistent for decades now, the 2002 Supreme Court case Zelman v. Simmons-Harris 536 U.S. 639 (2002) takes a new turn in the debate.

In 1995, the state of Ohio established a Ohio Scholarship and Tutorial Programme, which attempted to tackle the ongoing educational crisis of weakened public school performances. The idea of the scholarship was to offer the students from low-income families an alternative choice between public and private education by providing them financial aid. In attempt to provide true freedom to choose between all available schools, the programme also included the secular and religious schools within the district.

Religious schools financed by scholarships, which are paid by tax-payers? A definite way to start a debate on constitutionality of the programme. The case was brought into the court on the basis that tax-payer money should not be used on religious education. The supporters of the programme, however, argued that under Supreme Courts previous cases, namely Witters v. Washington Dept. of Servs. for Blind 474 U.S. 481 (1986) and Mueller v. Allen 463 U.S. 388 (1983), the programme is constitutional because it offer true private choice to the parents to decide on their children’s education. 

The petitioners argued that there is a two-leveled criteria of neutrality principle to determine the constitutionality of the programme. Firstly, the students that were chosen to apply to the programme needed to reside in the school district. The second thing to consider was the family income. As was mentioned before, the programme was aimed to aid those families whose financial situations would not allow alternative choices of education, namely private schools. 

At this point, it is important to have a break and truly think about the effectiveness of these criteria. Considering the fact that private school institutions have tuitions, which the Ohio scholarship will not cover completely, poor families would not be able to cover private education any way. Public schools do not have tuitions and do not therefore fall under the scholarship category. If students were to choose a public or community education within the programme, they would receive tutoring aid – an amount of money which is surely lower than an actual scholarship. Now when we look into the expenses of religious schools, the scholarship offered to cover the tuition would cover it completely. 

Now, the petitioners also added that in order to decide on the consitutionality of the programme, the court should also recognise the fact that it was aimed for all-comers. It was clearly stated that the programme was not to discriminate any student based on their race, religion or ethnicity. Therefore the programme would not favour any student of their own faith. 

While the above section is a great and important addition in any context, we cannot help but wonder whether the circumstancial factors of religious schools were considered during the argument? The religious school education is based on the theological ideology and values, which are present in the educational processes whether we try to minimise them or not. This being said, we cannot truly put religious schools in the same category as the “traditional” public and private schools. So, why where they included in the scholarship options? 

Again, we need to look back into the reason behind the establishment of the programme: to give disadvantaged, low-income children an alternative choice instead of letting them continue in the failing system. However, as was commented in the case [24], the biggest irony is that the parochial religious schools generally have a better reputation than other schools. If we make the correct comparisons between all available schools, it is clear that you choose a religious school if you want to provide your child with the best education. Does this truly represent the true, free choice? Additionally, if the reason was to make this programme a solution to an existing problem, why did they only give the scholarship to such a small percentage (something close to 10%) of students – why not give it to everyone? Now it seems that the programme was supposed to be an attempt to save “the poorest of the poor”, which sounds like the low-income children are some sort of charity case who do not have any other option than succumb to religious education in order to achieve the best life has to offer. 

Admittedly, the arguments from the respondents are quite airy, and as stated in the Rebuttal argument [68], all of them have been rejected by the court during the past two decades before this case was submitted. This being said, even if the legal arguments against the programme do not bring out strong emotions, we should still think about the deeper, personal level of the issue: the issue is not merely consitutional but also about the debate on how we are supposed to educate the students of new generations? Do we allow the public perception, which may or may not be presented here, that religious schools offer “more” and parents would choose them even without financial incentive? [37-38]

The issue is not only about the legal facts, but also about the political stance. News articles counted the result of Zelman v Simmons-Harris as a victory for the conservatves – a victory for the christian values that are deeply rooted into our western culture. While it can be admitted, that author has biases and lack of knowledge about how the education is truly managed by the religious schools, we can agree with Justice  John Paul Stevens’ comments about the result being “profoundly misguided”. Church and state should stay separated, and religion shouldn’t be combined with current day education. 

It’s clear that by putting money up to religious schools we threaten the pluralism of the society. Would the decision have turned out the same if the programme included another type of school, let’s say a school for idigenous people? And, do the religious schools truly accept all students, even if the students do not live up to the religious values? While there’s generally no issue about the existence of religious schools, is the establishment clause fulfilled if public funds are used to cover the functioning of particular religious faith? [684] If we want to built education and scholarship system on the principle of neutrality, that means that schools should be neutral and not base their methods on any kind of ideologies.

By Double S – PKAK

Should tax money be used for a devotional theology scholarship, or should it be excluded from public funding? The United States Constitution has a long history with keeping the state and the church as two separate entities. Before the Declaration of Independence of the United States in 1776, the Anglican church in the southern states and the Puritans in New England had established religious taxes. However, in the formation of the Constitution there was a consensus that no national church should be established. This is because the early Americans had a large variety of religious beliefs, and no one wanted their beliefs to be overruled by another religion. It is for this reason that the Establishment clause of the first amendment was drafted. Nowadays it is largely agreed that the states should not interfere with the religious establishments. However, it is heavily contested whether state funding should be used for religious organizations.  

The case of Locke v. Davey is focused on the Promise Scholarship Program that was established by Washington state. The scholarship´s aim is to assist gifted students with their post-secondary expenses, but this financial aid cannot be used for a devotional theology degree according to the Washington State law. The respondent Davey was awarded with the scholarship and chose to attend a private church-affiliated university, Northwest College, that was eligible under the scholarship program. However, the major that Davey opted for was pastoral ministries, which is undeniably considered to be a devotional program and as such, does not meet the requirements. Therefore, the student did not qualify for the grant of the scholarship. Davey brought his claim to the court, asserting that by withdrawing his scholarship, the state had violated the Free Exercise Clause. In this case, the Supreme Court held that Washington’s exclusion of the devotional theology degree from its scholarship program does not violate the United States Constitution. 

The Court motivated its decision firstly by stating that there is no precept in the Washington Constitution that seems to be indicating animus towards religion. The First Amendment of the United States Constitution states the following: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”  Interpreting the meaning of this amendment, the Court declares that while some states’ actions can be permitted under this clause, they do not necessarily have to be required. The Court motivated its argument by stating that some early State Constitutions explicitly excluded just the Ministry from receiving funding from the state. Because Davey motivated his claim with the precedent of Lukumi Babalu Aye, Inc. v. Hialeah, the court also took this precedent in the front. The Court stated thatfollowing this precedent in the case at hand would be a stretch. In the present case, no criminal or civil sanctions are granted as was done in the Lukumi-case. In addition, the Court also underlines that a student is not required to choose between their religious benefit or receiving the scholarship. 

Although prevailing, this was not the only opinion stated in the Supreme Court. Two of its members left a dissenting opinion, claiming that the Washington policy was discriminatory and as such, unconstitutional. These two justices claimed that the Court did not succeed in motivating its decision due to the fact that no animus towards religion was found in the Washington Constitution. Justice Scalia claims that according to its own precedent an intention of the state should not be considered. The only thing that should be considered is whether someone’s constitutional rights have been violated. As an example, Justice highlights how a racially unjust state policy does not need to have hostility for it to violate the Constitution. While I appreciate Justice Scalia’s position, I cannot really consider racist segregation and the exclusion of a devotional theology program from a public scholarship as comparable in any possible way. Since they are however being compared in Justices writing it is important to point out that when examining the Washington Constitution, the Court never seeks the original intention of the state, but instead studies the writing and afterwards concludes that the text does not include any hostility towards religion from an objective standpoint. I doubt that the same could be statedwhen objectively examining the articles that promoted racial segregation. 

However, I tend to agree with Justice Scalia in some sense. When talking about the individual liberties, the only thing to be considered should be if someone´s rights have de facto been violated. If that is the case, no excuse can be made, and the policy should be deemed as unconstitutional. However, specifically excluding a devotional degree from a public scholarship can also be seen to guarantee freedom of conscience; a way in which no one is forced to fund a system of beliefs they don’t agree with. I would be curious to know if the people pushing for the scholarship to be extended would feel differently if that tax money would be used for pagan practices or Islamic teaching.  Freedom of religion and conscience is a priceless right and should be protected in every way possible. The best way to do it, in my opinion, is to keep the funding of any religious activity private and by doing that to assure that anyones freedom of religion is not being violated. 

By Double S – PKAK