While lower courts for years have often recognized a “ministerial exception” to federal, state and local laws against discrimination in the workplace, the Supreme Court itself had never done so. Although bold in some ways, the decision was, in fact, quite cautious.
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The dispute between the former government legal officials and the President’s spokesman – a dispute that has now widened well beyond those combatants – is one of those constitutional controversies that remain truly unsettled even 225 years after the founding document was written.
If photo ID requirements are going to be struck down, it would probably be either under the guarantee of legal equality under the Fourteenth Amendment, or under one of two provisions in the 1965 Voting Rights Act which seek to assure voter equality.
It is fair to assume that no member of the current Court would publicly advocate abandonment of the preferred status of individual rights or the lesser protection of economic liberties; the Court regularly applies only a rationality test to economic legislation.
The sometimes heated debate over how free the Internet should be was on public display in angry shouting matches at a recent meeting of the House Judiciary Committee working on drafts of the proposed “Stop Online Piracy Act.”