SC Lawyer, November 2012, #2. Supreme Prescriptions America, Take Your Medicine!.

• Author: By Miller W. Shealy Jr.

South Carolina BAR Journal

2012.

SC Lawyer, November 2012, #2.

Supreme Prescriptions America, Take Your Medicine!

South Carolina LawyerNovember 2012Supreme Prescriptions America, Take Your Medicine!A Review of the 2011-12 U.S. Supreme Court TermBy Miller W. Shealy Jr.Well, we have just finished another rollicking term at the U.S. Supreme Court. The good news: the Republic still endures! The bad news: the Supremes are already back with a sequel this fall!

How should we characterize the 2011-2012 term? This time, it's easy. For most of last fall and spring the soap opera droned on for months. Talking heads and media pundits, all of the major news magazines, and every network offered up one constitutional law "expert" after another to give their prediction on what the high Court would do about "Obamacare." Several high profile politicians made predictions, some justices even hinted at infighting on the Court and many political wonks claimed that the Obama presidency hung in the balance. So, what to call this great soap opera? Well, "General Hospital" and "Days of Our Lives" are already taken, but I like "Supreme Prescriptions." What better way to characterize the drama on and off the Court? As the justices secretly debated the diagnosis, Americans waited nervously on the results. In the most important case of the term, and what will surely be a landmark case for years, the Court told Americans to take their medicine! For some it was a spoonful of sugar, for others it was a big dose of castor oil. But will this medicine work? Nobody knows. Just keep taking it, and come back in 20 years if you aren't better.

Health Care

1n National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), the Court upheld the Patient Protection and Affordable Care Act (PPACA) and the Health Care and Reconciliation Act (HCERA)-commonly referred to as "Obamacare"-against numerous constitutional challenges. All you have to do is a Google or Yahoo search and you can get opinions and conspiracy theories from all across the spectrum, both political and intellectual, about what the Court did and why it did it. At the center of this soap opera is the Chief Justice, John Roberts. The widespread prognosis from pundits and "experts" was that the Chief Justice would side with the Court's "conservatives" (Scalia, Thomas, Alito and Kennedy) and vote to strike down "Obamacare." Instead, the Chief Justice went with the "liberals" (Sotomayor, Ginsburg, Kagan and Breyer). This was a shock to just about everybody, as it was widely assumed that if a "conservative" was to leave the fold, it would probably be Kennedy. It is certainly more interesting to speculate why the Chief Justice switched his vote; he almost certainly did as close readers of the opinions can see. However, until he retires, if he ever does, and writes his memoirs, I think we will never truly know. At any rate, we may have to wait a long time. The Chief Justice is only 57, young for a Supreme Court Justice, and in good health. He is likely to be on the Court for some time, so we may have a long wait for a candid memoir.

What we do know is that the Chief Justice's opinion in National Federation seems to restrict the scope of the "commerce clause." The central issue of the case was whether Congress could require-"mandate"-individual persons to engage in commerce by imposing a "penalty" on them if they do not buy insurance. The next and logical issue was whether, assuming the "mandate" fell, the rest of the law could stand without the "mandate" provision. Most believed that if the "mandate" fell, the rest of the law would have to go. The Chief Justice found the "mandate" provision to be a "tax" and not a "penalty." Thus, the law was saved under the "taxing power" as opposed to the "power to regulate commerce." One will simply have to read the entire opinion to fully appreciate this stroke of genius or creative sleight of hand. So, what about the "commerce clause"? We just do not know. On one level, there are five justices, including the Chief Justice, who seem willing to put the brakes on the expansion of federal power under the "commerce clause." There are limits. On the other hand, what are those limits exactly? If now is not the time to limit federal power under the "commerce clause," when is the time? Will the "taxing power" always come to the rescue? Will all "penalties" become "taxes"?

On a closely related issue, National Federation did strike down the Medicaid expansion provisions of the law. Part of the law would have required states to expand Medicaid. However, the Court could not agree on a single rationale for this. So, states may opt out, but confusion reigns as to precisely why.

Is this good medicine? If the nation's health system is cured, we will be eternally grateful and all of this controversy will pass into history. However, the patient could get much worse or die! Unfortunately, if the latter occurs, we will not be able to sue Congress or the Court for malpractice.

First Amendment

The Court issued four more prescriptions concerning First Amendment freedoms: Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012), American Tradition Partnership v. Bullock, 132 S. Ct. 2490 (2012), FCC v. Fox TV, 132 S. Ct. 2307 (2012), and United States v. Alvarez, 132 S. Ct. 2537 (2012).

In Hosanna-Tabor, the Court's decision may prove to be one of the most important rulings on religion in American legal history. It is arguably one of the most important constitutional victories for organized religion of any stripe. In the simplest terms, the Court upheld and applied the "ministerial exception" that had been a part of the jurisprudence of the Courts of Appeals for years: "the Courts of Appeals have uniformly recognized the existence of a 'ministerial exception,' grounded in the First Amendment, that precludes application of [employment laws] to claims concerning the employment relationship between a religious institution and its ministers." Id. at 705. One of the most important aspects of this decision is that it is unanimous! This is a great rarity in constitutional law, especially in First Amendment jurisprudence. There are concurring opinions, but the judgment of the Court was unanimous.

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.Id. at 706. The most important aspect of the Court's acceptance of the "ministerial exception" is that it followed all of the federal circuits in holding that, "the ministerial exception is not limited to the head of a religious congregation." Id. at 707. Other employees and volunteers may be "ministers." Ministerial status is determined by looking to the totality of the circumstances. Here, the employee in question was "called" and designated as a "minister," received religious training, was subject to periodic review as to "skills in ministry" and had to pass an examination at a local religious college. Without giving an explicit definition of "minister," the Court found the employee to be one. Thus, the Court held Hosanna-Tabor Lutheran Church to be exempt from the Americans with Disabilities Act in this circumstance. As such, Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 879 (1990), has to be seen as limited where religious institutions are involved. Smith held that the "right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Quoted in Hosanna-Tabor at 706. After Hosanna-Tabor, religious institutions are, at least, partially exempt from Smith.

I noted earlier that one of the more striking aspects of the case is its unanimity as to the judgment. An equally striking aspect of the case is the concurring opinions. In some respects they are more sweeping and strident than the majority opinion. Justice Thomas wrote, "the Religion Clauses require civil courts to apply the ministerial exception and to defer to a religious organization's good-faith understanding of who qualifies as its minister." Id. at 710 (Thomas, J. concurring). The majority did not go as far as Justice Thomas and leave the definition of "minister" entirely to religious organizations. Justice Alito, joined by Justice Kagan, also argued that the term "minister" should not be used narrowly because "[t]he term 'minister' is commonly used by many Protestant denominations to refer to members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists," Id. at 711 (Alito, J. concurring).

The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groups must be free to choose the personnel who are essential to the performance of these functions. The "ministerial" exception should be tailored to this purpose. It should apply to any "employee" who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group's right to remove the employee from his or her position.Id. at 711-12 (Alito, J. concurring). For justices as different as Alito and Kagan to join in such a sweeping statement of the rights of religious institutions over basic employment law is striking indeed! This Supreme Prescription will surely inoculate religious institutions against the application of many state and federal employment laws.

Political PACs won another big victory this term. In American Tradition Partnership v. Bullock, 132 S. Ct. 2490 (2012), the Court gave Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), a second booster shot. The first booster shot came last term in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011). For those who do not like Citizens United, too bad. It looks like three's a charm. A clear majority of the Court is convinced that the First Amendment bars most restrictions on corporate and institutional campaign contributions. Bulluck is a per curiam opinion only one paragraph long. Four justices dissented: Sotomayor, Ginsburg, Kagan and Breyer. The per curiam opinion simply notes that "Montana state law provides that a 'corporation may not make ... an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.'" Id. at 2491. The Court summarily reversed the Montana Supreme Court saying, "this Court struck down a similar federal law [in Citizens United], holding that 'political speech does not lose First Amendment protection simply because its source is a corporation.'" Id. It appears that corporate, institutional and union PACs are fully vaccinated against attempts by the state and federal governments to restrict the amount of money they may contribute to political causes. This is the third term in a row that political PACs have won in the Supreme Court.

In another significant First Amendment case, the Court dealt with "fleeting expletives." It even sounds like a medical problem. Fox television stations broadcasted the Billboard Music Awards which honor top selling musicians. In an acceptance speech, one award winner used an expletive. A presenter used two expletives in a speech. Apparently, many thought that the use of "fleeting expletives" in such circumstances did not violate the FCC's indecency regime. However, the FCC viewed its reference to "fleeting expletives" in earlier decisions as dicta and mere "staff letters." Fox was issued notices of liability by the FCC for the incidents. The Court ruled for the FCC, holding that the agency had not acted in an arbitrary and capricious manner under the Administrative Procedure Act. Justice Scalia, writing for the Court, ruled that the FCC need not show that its change in policy was better, only that it is permissible and that there are good reasons for it. Fox got a spoonful of castor oil.

Lastly, can you lie about your military accomplishments? Specifically, can you claim to be a Medal of Honor winner, even if you never even served in the U.S. military? The Stolen Valor Act of 2005 (18 U.S.C. 704 (2006)) broadens those laws which regulate and pro-