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Sunday, January 27, 2013

Ind. Decisions - Still more on: Notre Dame sues feds over requirement to provide insurance coverage for contraceptives

Updating this ILB entry from January 10th, the South Bend Tribune today has published a long opinion piece by Bridgette Dunlap, the Human Rights Fellow at the Leitner Center for International Law and Justice at the Fordham University School of Law, and Kathryn Pogin, a Ph.D. student in philosophy at the University of Notre Dame. The heading: "Lawsuit raises question: Who is Notre Dame?" A few quotes:

In its lawsuit challenging the federal contraceptive coverage rule, the University of Notre Dame claims to have rights under the Religious Freedom Restoration Act. RFRA protects "(a) person whose religious exercise has been burdened" by the government. Such a person can seek an exemption from a law if she has a sincere religious belief that will be substantially burdened. The assertion that Notre Dame can sue under RFRA raises the question: Who is Notre Dame?

The claim to protection under RFRA would seem to rest on one of two theories: Either that the term "person" should be read to include corporations, or, that the corporation represents as-of-yet unidentified human persons, as when a church sues on behalf of parishioners. Notre Dame's court submissions exhibit confusion on this point, referring to Notre Dame both as having a singular "conscience" and as having plural "consciences." * * *

We believe the proposition that Notre Dame can hold one unified religious belief is antithetical to the very purpose of a university. Notre Dame's administration appears to disagree. Should it appeal the dismissal of the lawsuit or refile once the contraceptive coverage rule is finalized, the plaintiff should plead who or what is the person that holds the beliefs alleged. Perhaps more importantly, it should inform the members of the Notre Dame community, and those considering joining it, who can rightly claim "We Are ND."

Posted by Marcia Oddi on Sunday, January 27, 2013
Posted to Ind Fed D.Ct. Decisions

Courts - "Court Rejects Obama Move to Fill Posts"

Updating ILB posts from Friday on the recess appointment decision, Charlie Savage and Steven Greenhouse of the NY Times had this front-page coverage in the Jan. 26th print edition of the Times. Some quotes:

WASHINGTON — In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago. * * *

But the court went beyond the narrow dispute over pro forma sessions and issued a far more sweeping ruling than expected. Legal specialists said its reasoning would virtually eliminate the recess appointment power for all future presidents at a time when it has become increasingly difficult to win Senate confirmation for nominees. * * *

Presidents have used recess appointments to fill vacancies that opened before a recess since the 1820s, and have made recess appointments during Senate breaks in the midst of sessions going back to 1867. But the three judges, all appointed by Republicans, said the original meaning of the words used in the Constitution clashed with subsequent historical practices. * * *

Among the decisions that could be vacated are three recent rulings in which the board has assumed a powerful role in telling companies that they cannot issue blanket prohibitions on what their employees can say on Facebook, Twitter and other social media.

The ILB posted about the NLRB ruling that social net speech is protected in this Jan. 22nd entry, quoting another NYT story.

"More Than 300 Labor Board Decisions Could Be Nullified" is the headline of this NYT companion story Saturday, also by Mr. Greenhouse, that begins:

The National Labor Relations Board has been thrown into a strange legal limbo — with the possibility that more than 300 of its decisions over the last year could be nullified — as a result of a federal appeals court ruling on Friday that President Obama’s recess appointments to the board were invalid.

By ruling that Mr. Obama’s three recess appointments last January were illegal, the federal appeals court ruling, if upheld, would leave the board with just one member, short of the quorum needed to issue any rulings. The Obama administration could appeal the court ruling, but no announcement was made on Friday.

If the Supreme Court were to uphold Friday’s ruling, issued by the United States Court of Appeals for the District of Columbia Circuit, it would mean that the labor board did not have a quorum since last January and that all its rulings since then should be nullified.

Posted by Marcia Oddi on Sunday, January 27, 2013
Posted to Courts in general

Ind. Law - "Hoosier lawmakers may, or may not, vote on gay marriage ban"

Lesley Weidenbener, managing editor of TheStatehouseFile.com (a news website powered by Franklin College journalism students) and a longtime Statehouse reporter, draws upon her memory of past legislative sessions to unpack and then critique Speaker Brian Bosma's attitude this year on the question of legislative consideration of a constitutional ban on same-sex marriage. Her long column today in the Louisville Courier Journal begins:

INDIANAPOLIS — Republican leaders at the Indiana General Assembly seem at a loss as they decide how to proceed with a proposed constitutional ban to limit marriage to the union of one man and one woman — and restrict how lawmakers can grant rights to same-sex couples.

In fact, House Speaker Brian Bosma, R-Indianapolis, seems just annoyed — maybe even angry — when reporters ask about the issue.

Last week, he refused during a press conference about workforce proposals to answer a question about whether the marriage amendment would get a hearing or vote in committee. He said he’d talk about marriage later.

After the press conference was over, he said he hadn’t decided yet whether the proposal would get a vote.

And then he added: “Anybody have a real question, an important question?”

Yikes. It was a startling answer for a man who nine years ago called the constitutional ban on same-sex marriage “the most critical piece of the people’s business.” And more importantly, it was a slap to the thousands of Hoosiers for whom this issue is important — either because they believe marriage equality is essentially a civil rights issue or they oppose it as immoral.

Bosma’s indecision about the issue is certainly understandable. But his frustration with others’ interest in the issue is not.

Back when the marriage amendment was a key part of the House GOP agenda and Republicans were in the minority, Bosma led his party on a walk-out in the House after then-Democratic Speaker Pat Bauer of South Bend refused to allow a vote on the proposal.

Then two years ago, Republicans — who had won the majority — started the state’s long process for amending the state’s constitution. They need to approve the marriage amendment again this year or next to send it to the ballot for ratification by voters.

But along the way, attitudes about same sex couples and their legal status have been changing.

Posted by Marcia Oddi on Sunday, January 27, 2013
Posted to Indiana Law

Ind. Law - Even more on "Indiana legislator's bill could upset coal-gas plant plan at Rockport"

Updating this ILB entry from Jan. 24th, Tony Cook had this Jan. 25th story in the IndyStar, headed "Key lawmakers want second look at Rockport gas plant deal."

Posted by Marcia Oddi on Sunday, January 27, 2013
Posted to Indiana Law