A Second Appeals Court Blocks Trump Travel Ban

(Cartoon image about Trump travel ban is by John Darkow in the Columbia Daily Tribune.)

A couple of weeks ago, the Fourth Circuit Court of Appeals refused to lift the blockage of Trump's travel ban by a lower court. They ruled that Trump's travel ban violated the Constitution's First Amendment by targeting a religious groups (muslims).

Now a second appeals court has done the same thing -- upheld the blockage of Trump's travel ban by a lower court. What's interesting is that the 9th Circuit Court of Appeals found a different reason to continue blocking the travel ban. They ruled that Trump had exceeded his authority, because his travel ban violated the provisions of the immigration act passed by Congress.

Immigrations law says the president cannot suspend the immigration rules without first justifying the need to do that -- that he must first prove that the people in the nations banned provide a substantial risk to the people of the United States before unilaterally changing the immigration rules. The Court ruled that Trump had not proved that, and therefore could not change the law with an executive order.

The Trump administration will probably appeal this decision to the Supreme Court -- as they did the decision of the Fourth Circuit Court. But because this decision was based on immigration law, and not a First Amendment violation, it will need to be considered separately. A Supreme Court decision overturning one of these decisions would not apply to the other.

This makes it a little harder for the Trump administration to get their bigoted and silly travel ban.

Appeals Court Upholds Block Of Trump's Travel Ban

Donald Trump has lost another round in the courts over his executive order banning muslims from certain countries from entering the United States.

After his first executive order travel ban was tossed by the courts, he made some small revisions and issued a second executive order travel ban. That was almost immediately blocked by U.S. District Judges in Maryland and Hawaii.

The Trump administration appealed the rulings of those courts to the Fourth Circuit Court of Appeals -- asking that appeals court to overturn the lower court rulings and allow the ban to be instituted.

On Thursday, the Fourth Circuit Court of Appeals issued its ruling (a 205 page ruling which you can read here). They refused to unblock Trump's ban on travel to this country by a vote of 10 to 3.

And they were unequivocal in their distaste for Trump's attempt to subvert the First Amendment's guarantee of religious freedom, saying the travel ban "drips with religious intolerance, animus, and discrimination".

It should be no surprise that Trump's bigoted toady in the Attorney General's office didn't like the ruling of the appeals court. Sessions, who has shown in the past that he thinks discrimination against groups is just fine, now extends that feeling toward religious groups. He says he will appeal the ruling to the United States Supreme Court.

What will the Supreme Court do? Will they uphold the First Amendment of the Constitution and rule that the Trump administration cannot discriminate against any religious group, or will they trash the First Amendment and decide that religious freedom is no longer protected? Sadly, with the current court, it could go either way.

Legal Avenues Have Run Out For Bigoted Kentucky Clerk

(This photo of Kentucky County Clerk Kim Davis is from the Louisville Courier-Journal.)

When the Supreme Court ruled last summer that same-sex couples have the same marriage rights as all other couples, there were a few county clerks in the country that tried (and failed) to fight the ruling. The most famous of these bigoted clerks was Kim Davis in Kentucky.

Davis claimed that having to issue a marriage license to a same-sex couple violated her religious rights. When it became obvious that she could not discriminate in the issuing of licenses, she stopped issuing licenses to any couple. That could not be sustained. Both same-sex and opposite-sex couples took her to court, and the court ruled she must issue the licenses. She was even put into jail for a while -- until her assistant clerks began issuing the licenses.

But Davis is nothing if not hardheaded, so she went to court herself to retain her "religious" right to discriminate. She lost, and appealed to the Court of Appeals. Last week, that court made it's decision -- and it went against Davis. The court said:

"It cannot be defensibly argued that the holder of the Rowan County Clerk's office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court."

In other words, her religion doesn't give her the right to violate the Constitution. Davis then appealed to the United States Supreme Court. That appeal went to Justice Kagan, who referred it to the whole court. Yesterday, the court rejected the appeal (without even a single abstention). The court didn't think her case was worth hearing.

Kim Davis may not like it, but this fight is over. The Constitution guarantees all citizens the same rights, including the right to marry the person of their choice -- and if Davis doesn't like that, she can resign. Her religious rights have NOT been violated, and she cannot violate the rights of others.

Same-Sex Marriage Ban Overturned In South Dakota

There are only 14 states left where same-sex couples cannot legally get married -- the states shown in white on the map above. But only four of those 14 have not had a federal judge strike down their bans on same-sex marriage (North Dakota, Nebraska, Georgia, and Alabama). The rest have had those decisions overturning the bans stayed until they can be heard by an appeals court.

It was five states with no decision, but yesterday U.S. District Judge Karen Schreier struck down the ban in South Dakota. The judge issued a stay to give the state time to appeal her decision to the 8th Circuit Court of Appeals (where appeals striking down the bans are pending from Missouri and Arkansas). In her decision, Judge Schreier wrote:

“In Loving, the Supreme Court addressed a traditionally accepted definition of marriage that prohibited Mildred Jeter and Richard Loving from marrying. Because Virginia’s laws deprived that couple of their fundamental right to marriage, the Court struck down those laws. Little distinguishes this case from Loving. Plaintiffs have a fundamental right to marry. South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification.” 

So far, only one appeals court (the 6th Circuit Court of Appeals) has upheld the state bans on same-sex marriage -- a ruling that affects only Michigan, Ohio, Kentucky, and Tennessee. All other Appeals courts have upheld overturning the bans, or are still deciding what to do. The decision of the 6th Circuit Court of Appeals has been appealed to the U.S. Supreme Court, and that court is currently deciding whether they will hear that appeal or not.

The Supreme Court should accept that appeal for a hearing, because it is unconscionable to have a ban unconstitutional in most states while being constitutional in a few. Same-sex marriage bans must either be constitutional or unconstitutional in all states, since all state laws must conform to the U.S. Constitution. Personally, I believe the 14th Amendment makes it clear that all citizens must be treated equally under the law (and that includes state laws), and any ban prohibiting any one group from enjoying rights given to other groups (in this case, the right to marry) has to be unconstitutional.

The Supreme Court has dodged this issue long enough. It is time for them to make a decision.

Obamacare Is Under Attack In The Courts Again

(The image above was found at nywcc.org.)

The die-hard opponents of the Affordable Care Act (Obamacare) have not given up. This time they are attacking the provision of the law that helps those not making enough to buy insurance with a government subsidy -- and unfortunately, they have found some judges that agree with them. A three-judge panel of the District of Columbia Circuit Court of Appeals has decided, in a 2-1 vote, that the federal government cannot give a subsidy to those who bought their insurance through the federal government exchange.

The two judges (both appointees of George W. Bush) based their decision on a section of the law that said tax credits can only be applied "through an exchange established by the state". The federal government disagreed with that interpretation, saying the intent of Congress was clear that the subsidies should apply to all citizens who qualify for it, regardless of what state they live in -- and in fact, that intent is why the federal exchange was created.

Further complicating this matter is the fact that a different appeals court, the 4th Circuit Court of Appeals (in Virginia), reached just the opposite conclusion -- that the subsidies granted through the federal exchange were legal and permissible. If both of these decisions stand, then this issue will have to go to the Supreme Court for a final decision. That might be avoided by an appeal to the full District of Columbia Circuit Court of Appeals (where 7 of the 11 judges are Democratic appointees).

This is a serious matter, and could gut Obamacare -- especially in the Republican-controlled states that refuse to create a state insurance exchange. There are currently 36 states without a state exchange -- and in those states about 5.4 million people signed up for insurance through the federal exchange (and about 87% of them received a subsidy to help pay for the insurance -- about 4.7 million people). If the decision is allowed to stand, it would mean these states would forfeit about $36 billion in subsidies (with Texas at $5.6 billion and Florida at $4.8 billion being the hardest hit states) -- and insurance premiums for those who needed subsidies would rise by an average of 76%. That means millions in those states could no longer afford insurance.

I don't think the House and Senate Democrats should wait for a court decision -- by either the full Distict of Columbia Circuit Court of Appeals or the United States Supreme Court. They should immediately file a bill to fix this supposed "glitch" in the law -- and dare the congressional Republicans to block it.

If the Republicans did block it, which they would probably do to keep their teabagger base happy, then Democrats should make sure that blockage gets as much coverage in the media as possible -- and keep reminding voters of it until election day. It could be a difference-maker in November, because the millions who will lose their insurance, or have to pay a much higher premium, are not going to be happy voters.

Court Orders Texas To Allow Offensive License Plate

Texas sells a variety of "vanity" license plates. These plates identify the car owner as supporting a particular cause -- and the plates cost more, with the state and the cause splitting the additional money. The Sons of Confederate Veterans wanted one of these vanity plates produced and sold, but the state refused -- recognizing that a plate with the confederate battle flag on it (see image above) would be viewed as racist and offensive by many Texans.

Unfortunately, the 5th Circuit Court of Appeals disagreed. They said Texas must produce and sell the plate. The court decided that Texas had discriminated against the viewpoint of those who wanted the plate, and that the state had no right to decide for a car's owner what view was appropriate and what view was not appropriate.

This decision could well open the floodgates to any kind of opinion being on a plate. In the past, the state had allowed religious plates (christian), but not plates promoting atheism (or other religions). Will the state now have to allow plates supporting (and funding) atheist and muslim groups? How about support and funding for right-wing militias or communists? Is there any group that would be considered too offensive for a vanity plate in light of this court decision?

I find myself in a quandary over this court decision. On one hand, I agree with the court's idea that the state has no business deciding what ideas are appropriate and what ideas are not. On the other hand, I don't think the state should be forced to be a party to offensive speech or images being promoted to the public. I personally view the confederate battle flag to be an offensive symbol of racism and hate, but if other ideas can be promoted on a plate, then offensive ideas should be allowed too -- that's the basis of freedom of speech which is guaranteed in our Constitution.

But maybe it's time to remember why we have license plates. Their purpose is to allow law enforcement (and witnesses to crimes and accidents) to be able to identify a particular car. They were never meant to be tiny traveling billboards advertising ideas or organizations the car owner likes. That's what bumper stickers are for. All a license plate needs is the name of the state issuing it and a series of numbers (or a combination of letters and numbers) that identify the particular car. Anything else is extraneous, and in my opinion, just makes it more difficult to read the identifying state and numbers on the plate.

I think Texas (and other states) should go to using a plate with nothing but the state's name and identifying numbers and letters -- and nothing else. I know the state gets a bit of money from selling the vanity plates, but that revenue is minuscule when compared to the state budget -- and the state could easily do without it. Let the organizations and ideas be promoted on bumper stickers.

That's my opinion -- but if the state chooses to continue selling the vanity plates, then I want to be able to buy a vanity plate promoting (and helping to fund) some atheist organization. What do you think?

Take Heart: It's Just A Stay - Not A Decision

A couple of weeks ago, a federal judge declared Utah's ban on same-sex marriages to be unconstitutional. He refused to issue a stay, and hundreds of same-sex couples rushed to marry in the state. Utah appealed the decision to the 10th Circuit Court of Appeals, and asked for a stay of the judge's order. The appeals court refused to issue that stay, saying the state had not shown it was likely to win that appeal -- and the marriages continued.

But now those marriages have been stopped, at least for a while. On Monday morning the U.S. Supreme Court issued the stay requested by the state of Utah. Liberals across the country are disappointed in that, and I understand. I also would have preferred the court not issue that stay. But we shouldn't make too much of it. After all, it's just a stay while the issue works its way through the courts (and probably winds up in the Supreme Court). It's not a decision, and in issuing the stay, the Supreme Court did not give any hints as to how they might decide the issue when it gets to them.

This is actually a pretty normal action the court performed. It is unusual that a court will deny a stay when such a big change will happen. The court simply doesn't want anything to happen until it (or at least the appeals court) can hear the case.

I still believe there is a good chance the judge's decision that Utah's ban on same-sex marriages will be upheld. The appeal's court statement shows they are leaning in that direction. And the judge's decision was based on the Windsor decision issued by the Supreme Court, which ruled the denial of rights in the Defense of Marriage Act was unconstitutional. And if the denial of equal rights is wrong for the federal government, I don't see how it can be right for a state government (since all state laws must follow the Constitution).

It's kind of frustrating that we must now wait while this issue takes months to wind its way through the courts. But we must take heart. The fight is far from over and this case from Utah might be the one to finally force the Supreme Court to stop ducking the same-sex marriage rights issue, and finally force the states to comply with the equal rights guaranteed in the Constitution.

Appeals Court Refuses To Stop Same-Sex Marriages In Utah

Last Friday, a federal judge declared Utah's ban on same-sex marriages to be unconstitutional. The state asked that judge (U.S. District Judge Robert Shelby) to stay his decision until they could appeal it and get a decision from the 10th Circuit Court of Appeals. Judge Shelby refused, and state officials immediately asked the appeals court itself to issue a stay until the state's appeal could be heard.

I had thought the 10th Circuit Court of Appeals might issue that stay, but I was wrong. On christmas eve, the appeals court refused to issue the stay. The court said the state had failed to show it would suffer "irreparable harm" if the stay was not issued. That means same-sex couples can now be married legally in that states -- and all but four counties are now issuing those marriage licenses (and in light of the appeals court refusal, those four counties must now comply with Judge Shelby's decision, or face penalties).

And there is even better news for those of us who believe in equal rights for all Americans. In denying the stay, the appeals court went on to say that the state had also failed to show it had a "significant likelihood" of winning their appeal when the case is finally heard by the 10th Circuit Court of Appeals. That means the state of Utah stands a good chance of losing their appeal.

This makes sense. The state will probably try to make a religious freedom argument. But that won't really fly, since all the decision says is that the state government cannot prevent same-sex marriages. It does not force any church or individual to participate in those marriages, while reinstating the ban would force individuals to accept a state-imposed religious belief.

If the appeals court does uphold Judge Shelby's decision, which is now expected to happen, the state will undoubtably appeal to the United States Supreme Court. Until now, that court has avoided having to make a decision on the constitutionality of state-imposed bans on same-sex marriages. But they would no longer be able to avoid it. They would either have to take the case, and finally decide the question -- or refuse to hear the case, which would mean the appeals court decision would be the law of the land (and could be used to overturn the bans on same-sex marriages in other states).

Confederate Flag Loses Again

The confederate flag has lost again. Only this time, instead of a civil war, the loss happened first in a Texas school and then in a federal courts.

Back in early 2006, two Texas high school girls went to school with purses that bore the image of the confederate battle flag. School officials told them the purses were not permitted at the school in Burleson ( a city of about 30,000 residents located just south of Fort Worth).

School officials tried to confiscate the purses, and when the girls refused to give them up they were sent home. Evidently the girls' parents were as racist as their offspring, because they sued the school district, demanding the school district "clear the girls' student records, acknowledge that their constitutional rights were violated and pay unspecified damages."

When a federal judge dismissed their case in 2008, they appealed the decision. Yesterday, the 5th Circuit Court of Appeals in New Orleans affirmed the judges decision. The court decided that the school had the right to ban racist symbols, and no one's constitutional rights had been violated.

I commend the actions of the school, the federal judge and the federal appeals court.

Court Says Torture Was To Be Expected

Four British Muslims were held by the U.S.at Guantanamo for over two years before being repatriated back to Britain. When they got back, the British immediately released them without charges.

Three of the men had gone to help with humanitarian relief. They were taken prisoner by a warlord who sold them to U.S. troops. The fourth was trying to leave Pakistan to return to Britain, when he was captured by the Taliban and jailed as a spy. He was taken captive by Americans when they drove out the Taliban.

None of these men were ever armed and none of them fought in the Afghanistan war for any side. But that didn't matter to U.S. troops, who sent them to Guantanamo where they were held for two years being tortured and humiliated.

Understandably, these Britons were upset with the United States after being released, and they filed suit in federal court. They said their detention and torture violated the Alien Tort statutes, the Geneva Conventions, the religious freedom law and the U.S. Constitution.

A lower court kicked out their case, and they appealed. Last friday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia also denied their right to sue. But I have to wonder about the reasons the judges gave for dismissing the suit. It is seriously flawed, if not just downright wrong.

First, the court said the men couldn't be recognized as "persons" under the law, because they were aliens who were held outside the United States. This makes no sense because other appeals courts have ruled that Guantanamo is U.S. territory because it is subject only to U.S. authority. Anything that happened at Guantanamo, happened on United States territory.

But as wrong as that was, their other justification was even more ridiculous, and will be an embarrassment for all U.S. citizens before the court of world opinion. They said the torture the men experienced was not a violation, because under the circumstances it was to be expected. What?!! EXPECTED?!!

Why should it matter whether it was expected or not? It was against U.S. and international law. Do the Geneva Conventions say torture is OK if it is to be expected? No! Does the Constitution say it is OK to deny basic rights if it is to be expected under the circumstances? No!

Wrong is wrong, whether it is expected or not. It is very disappointing to see that an appeals court is willing to ignore the rules because they expect those rules to not be followed. Why can't we expect everyone, including ourselves, to follow the rules regardless of the circumstances?

This ruling will only further convince the world that we are a lawless nation, who is unwilling to follow the rule of law. How embarrassing for the nation once glorified as the shining example of following the rule of law.