Tennessee Attorney General Says Bill To Force Colleges To Allow Discrimination Is Unconstitutional

Later today, a Tennessee House subcommittee is scheduled to consider a bill that would take away university police departments unless those institutions permit religious student organizations to engage in anti-gay discrimination. The bill arises from a conflict between Vanderbilt University and anti-gay lawmakers led by state Rep. Mark Pody (R), who object to Vanderbilt’s policy which requires student organizations to accept “all comers” if they wish to be subsidized by the school.

Last week, however, Tennessee Attorney General Robert Cooper (D) threw cold water on Pody’s efforts with an official opinion explaining that the bill is unconstitutional, at least as-applied to private universities such as Vanderbilt. As Cooper’s opinion explains, private universities generally have a right to decide which student organizations they wish to be associated with, and that includes the right to take a stand against discrimination:

It is well established that the State may not condition continued receipt of a valuable state benefit (here, the exercise of the State’s police power to commission and maintain a police force) on a private institution’s compliance with an unconstitutional condition. . . .

As previously discussed SB1241 impacts a private university’s First Amendment right of free association and distinguishes between those universities that organize their student groups in conformity with SB1241 and those that do not. This classification thus impacts a fundamental right – a private university’s First Amendment right to free association – and would be reviewed under the strict scrutiny standard. The General Assembly has an interest in how the State delegates its police power to a private university. Even if that interest is compelling, the General Assembly cannot assert that interest through an unrelated requirement that a private university abandon its right of free association.

Cooper also concludes that Pody’s anti-gay law would be constitutional as-applied to public universities, because Tennessee is allowed to decide that it does want to associate itself and its universities with anti-gay discrimination. This conclusion, however, is likely not correct. Just as the federal government cannot discriminate against gay couples when it doles out marriage benefits — that’s why the Defense of Marriage Act is unconstitutional — a state government also cannot form official groups that engage in anti-gay discrimination. Thus, to the extent that a student group at a Tennessee university is an arm of the state itself, such as group is not permitted to engage in anti-gay discrimination.

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Obama administration brief: Defense of Marriage Act is unconstitutional

President Obama’s administration said Friday that the Defense of Marriage Act (DOMA) was unconstitutional, filing a brief weeks ahead of scheduled arguments before the Supreme Court.

In its brief, the Justice Department said that DOMA, which defined marriage as only between a man and a woman, “violates the fundamental constitutional guarantee of equal protection.”

“The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” the brief added.

Obama has already ordered his administration not to defend DOMA, and announced he supported same-sex marriage during the heat of last year’s presidential campaign.

The Supreme Court will hear arguments next month on the case of Edith Windsor, who was forced to pay taxes on the estate of her deceased partner, Thea Spyer. 

The couple had married in Canada, and their marriage was recognized in their home state of New York at the time Spyer died in 2009. But Windsor was forced to pay hundreds of thousands of dollars in estate taxes that would not have been required if her deceased spouse had been a man. 

House Republicans have taken up the defense of DOMA, which overwhelmingly passed Congress in 1996 and was signed by former President Clinton. 

Congressional Democrats are currently pushing measures that would repeal DOMA, in addition to groups’ legal efforts to have the law ruled unconstitutional. 

The Supreme Court is also scheduled to hear arguments about California’s Proposition 8, a ballot initiative to ban same-sex marriage approved in 2008.

According to reports, the administration plans to file a brief in that case that supports the constitutionality of same-sex marriage.

“I have to make sure that I'm not interjecting myself too much in this process, particularly when we're not a party to the case,” Obama told a San Francisco television station this week. 

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Sen. Ron Johnson Joins The Violence Against Women Act Is Unconstitutional Club

Four senators, Jim Risch (R-ID), Rand Paul (R-KY), Mike Lee (R-UT), and Ted Cruz (R-TX) previously suggested that any effort to prevent violence against women exceeds the federal government’s power under the Constitution. Earlier this week, Sen. Ron Johnson (R-WI) joined their club of senators who think legislation reauthorizing the Violence Against Women Act is unconstitutional:

Some Republicans have objected to new provisions in the law, including one allowing tribal courts for the first time to prosecute men who aren’t American Indians when they’re accused of abusing an American Indian woman on a reservation. . . .

[JOHNSON]: “the Senate has approved a piece of legislation that sounds nice, but which is fatally flawed. By including an unconstitutional expansion of tribal authority and introducing a bill before the Congressional Budget Office could review it to estimate its cost, Senate Democrats made it impossible for me to support a bill covering an issue I would like to address.”

In fairness to Johnson, his objection is much narrower than the one raised by senators like Paul and Cruz, and applies only the provision of the VAWA renewal that would permit tribal prosecutions against non-members of the prosecuting tribe. Nevertheless, Johnson is simply wrong about the Constitution.

It is true that the Supreme Court held back in the 1970s that tribal courts do not have criminal jurisdiction over non-Native Americans, but that decision concluded that “Indian tribes . . . give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.” More recently, the Court’s 2004 decision in United States v. Lara recognized that Congress “does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction over nonmember Indians.” The reasoning of that decision would also apply to a law expanding tribal jurisdiction further to include non-Native Americans who engage in violence against women on reservations.

So Johnson is wrong about the Constitution, and his opposition to protecting Native American women is downright cruel. Eighty percent of Native American rape survivors were attacked by non-Indians, and a 2010 report by the General Accounting Office determined that federal prosecutors “declined to prosecute 46 percent of assault matters and 67 percent of sexual abuse and related matters.” As a result, many reservations are virtually law free zones for serial rapists who prey upon Native American women without consequence.

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Indiana Lawmaker Proposes Unconstitutional Bill To Take Away Voting Rights From Out-Of-State College Students

In 1977, the Supreme Court upheld a decision holding that it is unconstitutional to treat college students any differently than other voters in terms of residency requirements to vote. Three and a half decades later, some Republican lawmakers are still trying to prevent college students from voting.

The latest instance is in Indiana, where a state lawmaker just introduced legislation that would prevent students from considering their campus address as their place of residency. Instead, the bill would only allow students to claim the address where they grew up.

The Indianapolis Star has more:

Under House Bill 1311, students who pay out-of-state tuition would not be able to vote in Indiana.

Rep. Peggy Mayfield, the Martinsville Republican who filed the bill, said she’s trying to resolve an issue about determining who is an Indiana resident.

“We’re having people who are not necessarily residents voting in our elections,” she said.

Indiana’s constitution only requires that a voter establish residency for 30 days prior to an election in order to be eligible. Passing a bill that would impose a unique requirement on college students clearly violates the constitutional protections affirmed in Symm v. United States.

Over the past few years, Republicans have made a habit of trying to disenfranchise college students. In Maine, then-Secretary of State Charlie Summers sent a threatening letter to hundreds of college students in 2011 implying that many of them were illegally registered to vote simply because they had grown up out of state. The same year, then-New Hampshire House Speaker William O’Brien tried to discourage students from casting a ballot because he feared they’d vote “liberal.”

One Indiana Republican is already speaking out against Mayfield’s bill. State Rep. Randy Truitt (R) opposed the measure on the grounds that it would depress turnout among students. “We worked so hard on making the students a part of our community,” Truitt said. “And whether they’re there for a short period of time or not, from my perspective, they’re part of our community, and I’m just not in favor of disenfranchising them.”

Indeed, young Americans already vote at lower rates than the rest of the electorate. Even if this bill weren’t unconstitutional, it’s primary effect would be to drive down turnout among students.

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Meet The Four Republican Senators Who Think The Violence Against Women Act Is Unconstitutional

Since then-Delaware Senator Joe Biden first authored the law in 1994, the Violence Against Women Act (VAWA) has earned bipartisan praise for providing vital protections against domestic violence and assistance to victims. But of the eight Senators — all Republicans — who voted Monday against even considering VAWA renewal, at least four apparently did so because they believe the bill is unconstitutional.

Several of these senators have expressed similarly radical views about the constitutional role of the federal government in other contexts. Sen. Mike Lee’s (R-UT) claimed that national child labor laws, Social Security and Medicare violate the Tenth Amendment, for example; and Sen. Ted Cruz (R-TX) once led a Tenth Amendment project at a conservative think tank and co-authored a paper proposing an unconstitutional process to nullify the Affordable Care Act. The four senators who claim that the Violence Against Women Act is unconstitutional are:

1. Sen. Jim Risch (R-ID): In a statement, Risch explained: “It is at the state and local level where I believe enforcement and prosecution must remain. The federal government does not need to add another layer of bureaucracy to acts of violence that are being handled at the state and local level. In addition to my 10th Amendment concerns, this legislation raises additional constitutional questions regarding double jeopardy and due process. I opposed this legislation, however well intended it was, because it is another effort of the federal government extending its reach into the affairs of state and local jurisdictions.” 2. Sen. Rand Paul (R-KY): In a 2012 letter explaining his opposition to last year’s VAWA re-authorization attempt, Paul wrote: “Under our Constitution, states are given the responsibility for prosecution of those violent crimes. They don’t need Washington telling them how to provide services and prosecute criminals in these cases. Under the Constitution, states are responsible for enacting and enforcing criminal law. As written, S. 1925 muddles the lines between federal, state, local and tribal law enforcement.”3. Sen. Mike Lee (R-UT): In 2012, Lee claimed VAWA “oversteps the Constitution’s rightful limits on federal power. Violent crimes are regulated and enforced almost exclusively by state governments. In fact, domestic violence is one of the few activities that the Supreme Court of the United States has specifically said Congress may not regulate under the Commerce Clause. As a matter of constitutional policy, Congress should not seek to impose rules and standards as conditions for federal funding in areas where the federal government lacks constitutional authority to regulate directly.”4. Sen. Ted Cruz (R-TX): A Cruz spokeswoman told ThinkProgress: “For many years, Senator Cruz has worked in law enforcement, helping lead the fight to ensure that violent criminals—and especially sexual predators who target women and children—should face the very strictest punishment. However, stopping and punishing violent criminals is primarily a state responsibility, and the federal government does not need to be dictating state criminal law.” While the statement does not explicitly call VAWA unconstitutional, his previous comments leave little doubt that that is what he means.

These senators’ apparent belief that the federal government cannot constitutionally play a role in preventing violence against women is not even shared by most Republican members of Congress. 216 House Republicans agreed just last year that the Constitution does not prohibit a version of the Violence Against Women Act. The Supreme Court did strike down one piece of VAWA in 2000, but it left most of the law intact.

While the other four Senators who voted against the “motion to proceed” did not respond to a request for an explanation of their votes, Sen. Tim Scott (R) voted for the watered-down House version of VAWA last year and Sen. Marco Rubio (R-FL) claims he supports a scaled-back version of the legislation.

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Court Holds Low Kansas School Funding Unconstitutional, Lawmakers Respond By Attacking Constitution

Just weeks after a three judge panel unanimously ruled the Kansas legislature was failing to meet its constitutionally defined responsibility to suitably fund the state’s education needs, conservative Kansas legislators responded with a proposal to limit judicial oversight of education funding. The January ruling ordered the legislature to raise education funding around $400 million to return the state’s schools to reasonable standards and called out the hypocrisy of cuts given other “priorities” pursued by the legislature at the same time:

The court said it was “illogical” for the state to argue that it could not adequately fund schools at the same time it slashed income taxes.

The ruling is the latest in a series of court victories for a group of public school districts, parents and students in Kansas who have demanded for years that the state provide more money for education.

A funding plan was devised for Kansas in 2006 through a settlement of a prior lawsuit but the groups filed suit again in 2010 when the state made an estimated $300 million in funding cuts. The state made even more cuts in 2011. There have been $511 million in cuts to the base funding between fiscal year 2009 and fiscal 2012.”

Rather than accept the decision and provide Kansan students with adequate funding, last week conservative legislators introduced a constitutional amendments intended to reduce judicial influence and Attorney General Derek Schmidt (R) appealed the ruling.

The large conservative majorities in both chambers of the Kansas legislature, have pursued an aggressive agenda under Governor Sam Brownback, including gutting arts funding, and attempting to end income taxes.

Kansas is not alone in constitutionally requiring education funding standards, with many other states including New Jersey and Washington fighting similar battles over education funding in recent years. Just yesterday, a District Judge ruled Texas’s school-finance system unconstitutional due to funding disparities between richer and poorer districts.

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Unconstitutional Pennsylvania Bill Aims To Make Federal Gun Enforcement A Felony

Following the lead of Wyoming and Texas, state Rep. Daryl Metcalfe (R) introduced unconstitutional legislation on Wednesday to make enforcing federal anti-gun violence measures a felony in Pennsylvania.

Metcalfe said he aims to make federal law unenforceable to protect Pennsylvanians’ “sacred personal liberties” from the “chains of government tyranny”:

Passage of my legislation will send the message that there will never be additional gun control, anywhere in Pennsylvania. Whether by White House executive orders, congressional fiat, or judicial activism, we will never allow the left to benefit from the wicked acts of murderers in order advance their senseless gun-grabbing agenda which would only succeed in replacing one of our most sacred personal liberties with the chains of government tyranny.

However, if Metcalfe referred to the Constitution, he would quickly find his bill violates the Supremacy Clause, which states that “duly-enacted” federal laws “shall be the supreme law of the land” and trump state laws. This means states cannot nullify laws or arrest officials for enforcing them simply because lawmakers do not like them, or even because they make their own determination that the law is unconstitutional.

While gun extremists’ response to sensible gun policy has ranged from states’ unconstitutional campaigns to calls for the President’s impeachment, other Republicans have acknowledged that nothing about gun violence prevention is unconstitutional.

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