Constitution Daily Update: Obama on spying, Congress gets involved in prayer case

President Obama is reacting to Russia’s decision to harbor Edward Snowden. We also sum up an important case about public prayer heading to the Supreme Court, and look back at TR’s failed run in 1912.

Joint_Session_of_Congress-450x300Wednesday, August 6, 2013

Items To Watch

1. President Barack Obama cancels a meeting with Russian leader Vladimir Putin in advance of the G-20 summit in St. Petersburg next month. Some lawmakers continue to press Obama to boycott the summit in response to Russia’s decision to harbor fugitive leaker Edward Snowden. Obama also denies extensive unconstitutional domestic surveillance of Americans during an appearance on “The Tonight Show.”

2. Officials in Texas are mounting a strong counterattack against Eric Holder’s attempt to enforce the Voting Rights Act in that state, using a provision that wasn’t invalidated by the Supreme Court in June. The state says Holder “cannot impose preclearance on Texas while remaining faithful to Shelby County and the constitutional principles on which it relies.”

In a commentary in USA Today, former Attorney General Alberto Gonzales finds a way to stick up for Holder and the GOP in Texas at the same time, while taking a pot shot at the Obama administration.

Constitution Daily contributor Lyle Denniston, writing at SCOUTUSblog, has a detailed explanation of the constitutional issues involved in the Texas case.  Denniston says the court should now have all the materials it needs to render a decision.

Developing Questions …

Here are some updates on new discussions about top-of-mind constitutional issues.

1. Should lawyers in federal court be barred from using peremptory challenges in jury selections to remove potential jurors who are gay or lesbian, when the lawyers do not provide reasons for the removal related to the case?

The Equal Protection Clause forbids a prosecutor, for example, from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the state’s case against a black defendant.

This question involves the 6th and 14th Amendments. In 1986, the Supreme Court said in Batson v. Kentucky that lawyers in federal court must have reasons related to the outcome of a case to remove blacks from juries with peremptory strikes that are ordinarily prohibited.

In 1994, the Court said the same thing about gender. Now, a case in the Ninth Circuit raises questions about whether sexual orientation should be treated the same way.

The case is Smithkine Beecham Corp. v. Abbott Laboratories and is scheduled to be argued in the Ninth Circuit on September 18, 2013.

2. When is a prayer just a prayer?

In the upcoming Supreme Court term, the Justices have agreed to hear arguments in Town of Greece v. Galloway about whether prayers that opened meetings of the elected, five-member town board in Greece, New York were unconstitutional under the First Amendment because nearly all of them expressed beliefs about and endorsed the religion of Christianity.

In 2012, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously struck down the prayers as a violation of the ban against the government establishment (that is, favoring) of a religion. Judge Guido Calabresi wrote that, “this is the first instance in which this court has had occasion to consider the validity of a legislative prayer practice under the Establishment Clause” and that under it, “a given legislative prayer practice, viewed in its entirety, may not advance a single religious sect.”

This week, as the Blog of the Legal Times reported, “Members of Congress are sending the U.S. Supreme Court a message: Let us pray.” A brief for 34 Senators, most of them Republicans, contends that a 30-year-old Court precedent, Marsh v. Chambers, “respects the ‘unbroken practice’” of having an opening prayer in Congress and “the Framers’ view that this practice poses ‘no real threat’ of establishing religion.”

Like the Fourth Circuit, the Second Circuit primarily relied on a different, 1989 Supreme Court ruling, County of Allegheny v. ACLU, which held that legislative prayers may not “have the effect of affiliating the government with any one specific faith or belief.” A brief for 85 House members, again mostly Republicans, said that the Allegheny endorsement test has caused “disarray” in the lower courts, because of “its insurmountable subjectivity and latent hostility toward even benign and historically-accepted acknowledgments of faith.” So far, 22 amicus briefs have been filed in the case.

The Supreme Court has struggled for more than a generation to define a clear, consistent standard about prayer at public events that is acceptable to those who favor the ideal of separation between church and state, and also to those who favor the accommodation of religion.

The Court also needs find a balance between the clause in the First Amendment that prohibits establishment of a religion and the clause that allows its free exercise.


It was also on this day in 1912 that former President Theodore Roosevelt launched an unsuccessful third-party campaign to win the White House. The two-term precedent was rarely challenged after it was set in 1796 by George Washington; it was TR’s distant relative, Franklin, who broke the barrier in 1940, which led to the passage of the 22nd Amendment in 1951 to limit presidential terms.

Closing Notes

1. The cable B-movie “Sharknado” has made its way into a discussion of the Voting Rights Act on “The Daily Show.” Guest host John Oliver compared new proposed voting regulations in Texas, Florida and North Carolina to a fictional tornado full of sharks.

2. The South China Morning Post in Hong Kong says the People’s Daily, a mainland newspaper sponsored by China’s government, has launched another attack on the U.S. Constitution. “There is no such thing as democracy and freedom under US constitutional governance,” is one tidbit reported by the Post.

Editor’s note: The Update is a summary of news and commentary about the Constitution and related issues, as reported around the digital world. Guest contributors and our editorial staff add to the daily update, and we welcome your suggestions (and reports) at [email protected].

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