On April 7, 2014, the Supreme Court of the United States (SCOTUS) issued its latest weekly order list. Among the cases on the order list that were denied certiorari (i.e. cases that will not be heard by the court) was Elane Photography v. Willock.
For those who are not familiar with the case, Elaine Huguenin (Huguenin), the owner and lead photographer of Elane Photography (Elane), told Vanessa Willock (Willock) that she would not photograph Willock’s wedding to another woman because same-sex marriage violates Huguenin’s religious beliefs.
Willock prevailed on a complaint with the New Mexico Human Rights Commission, which Elane appealed to a New Mexico District Court and ultimately to the New Mexico Supreme Court. The New Mexico Supreme Court upheld the lower court’s ruling, finding that Elane provides a “public accommodation” for the purposes of the New Mexico Human Rights Act and is, therefore, subject to that act’s anti-discrimination provisions.
The court further held that requiring Elane to provide photographic services to Willock was not a violation of the First Amendment’s protection against compelled speech, nor was it a violation of Huguenin’s First Amendment right to the free exercise of religion.
By declining to review Elane’s First Amendment defenses to the suit, the SCOTUS has largely left the issue in the states’ hands.
Here in Idaho, we have seen the issue of discrimination become one of the most hotly contested and discussed issues of the 2014 legislative session. Specifically, the “Add the Words” campaign sought to broaden the anti-discrimination provisions of Idaho law, while others sought to carve out exemptions from anti-discrimination laws for “sincerely held religious beliefs.” It is also likely that similar issues will arise again in the next legislative session.
Because the issue of discrimination ignites the passions of so many people, perhaps it will provide a useful vehicle for debating the proper role of government in the marketplace and for answering some fundamental questions about the how our government views the rights of individuals in Idaho. For examples:
- Should a person be compelled against his or her will to provide a good or service to someone else?
- Should it matter why a person refused to provide a good or service?
- Do people have an affirmative right to the fruits of someone else’s labor, regardless of whether they are members of a protected class?
- Should freedom of contract and freedom of association be afforded the same protections as free exercise of religion?
- Should religious beliefs be granted special exemptions from certain laws while other beliefs are not granted such exemptions?
- With information technology making it easier than ever for people to exert social and economic pressure upon businesses, are there non-governmental, non-coercive means of discouraging discriminatory behavior?
The issue of discrimination is a sensitive one that is fraught with tension and which often makes people uncomfortable. Unfortunately, those who seek to engage in honest debate about the issue often become targets for demagoguery and personal attacks from those with opposing viewpoints.
While those on opposing sides of this issue may never fully come to an agreement, I am still hopeful that an honest, spirited debate can be held that will at least attempt to address some of the questions asked above.
According to the stories, Andy and Katie Johnson built a man-made pond on their eight-acre farm, and stocked it with trout, ducks and geese. The EPA contends, however, that they built a “dam” on a “creek” without approval from the Army Corps of Engineers and that their pond is discharging into other waterways.
Pursuant to an order issued on Jan. 30, 2014, the EPA has threatened a daily fine of $75,000 to be assessed each day until the property is restored to its prior condition. The fine for the alleged violation of the Clean Water Act itself is $37,500 per day, and then another $37,500 fine per day may be assessed for violating the EPA’s order to remedy the violation.
These hefty fines may not come as a surprise to those familiar with the case of Michael and Chantell Sackett, a Priest Lake couple that also ran afoul of the EPA. In preparation for building a home on their lot, the Sacketts filled in part of their land with dirt and rock. The EPA deemed this a violation of the Clean Water Act, and not only threatened them with fines of $75,000 per day, but also denied them the benefit of a hearing to challenge the ruling.
The Sacketts, with the help of the Pacific Legal Foundation , took their case all of the way up to the Supreme Court of the United States , where the court declared, 9-0, that the failure to provide a hearing violated the Sacketts’ due process rights, and the case was remanded back down for judicial review of the EPA’s order.
With these kinds of abuses being a standard practice at the EPA and with the EPA’s absurdly high fines making it nearly impossible for the average person to fight the EPA regardless of the merits of their case, is it any wonder that legislation was proposed in the House to nullify the effect of the EPA’s regulations here in Idaho?
A proposal to change the way food stamps are distributed in Idaho certainly wins points for cleverness. But that’s all it gets.
House Bill 565 purports to fix a problem with food stamps. Right now, food stamp money is given out on the first day of the month. This causes 200,000 food stamp users to flood stores on a single day. Store owners complain that the result is long lines, upset customers and food abandoned in carts left to spoil.
The bill would allow the Idaho Department of Health and Welfare to stagger the release of food stamp money and cause food stamp recipients to visit the stores over several days.
Here’s the problem: First, the bill pays for this little exercise with so-called performance money from the federal government. Performance bonus money is rewarded to the state when the state does a good job administering the program. In recent years, a good job has included signing up vast new people for food stamps. So now this bill proposes a process wherein there is an incentive to keep adding people onto the government program. That’s a tad diabolical.
I’m certain that’s not the sponsor’s intent, but that is the end result.
Second, the point of the bill is to make food distribution easier. There is not a lot to be gained by making government handouts easier. When the safety net becomes a hammock, it becomes harder to get out. That’s why House Bill 565 poses real problems, if it becomes a law.
While there are a number of complicated issues raised by that case, as with many eminent domain cases, it is the dispute over attorney fees that really caught my attention.
As reported in the article, the private attorney hired by the Idaho Transportation Department to litigate on its behalf is now seeking approximately $1.1 million (nearly twice the determined value of the land in dispute) from the landowner to pay for ITD’s attorney fees in the case.
You read that correctly: ITD essentially wants the landowner to pay ITD for taking the landowner’s property against the landowner’s wishes.
For more information about this case and about the constitutional requirements for “just compensation” please click HERE.
The great thing about having been around awhile is that you get to understand the habits of lawmakers during good times and bad.
During bad times, lawmakers struggle to pay for government services. They prioritize. They remove dead wood. They consider alternatives.
During “good times,” they spend. They spend a lot. They often overspend. This is where we are today.
The economy in Idaho, as in other states, has picked up a bit. I wouldn’t say that the glory days, the period after the 2003 recession and before the economic downturn of 2008, are back. In fact, in many respects, Obama administration policies are prolonging the “bad times.” That doesn’t stop lawmakers from confusing the two.
As a result, Idaho is on the brink of a spending spree. Minus the tricks and budget gimmicks, our general fund spending may even exceed $3 billion for the first time. And I’ll be more than happy to help identify which legislators contributed to that milestone.
Furthermore, the state continues the policy of “see federal money, get federal money.” Our reliance on federal money is not sustainable.
As we arrive at Mardi Gras, it is a bit unfortunate that lawmakers think the theme of this year’s legislative session is Laissez les bons temps rouler. French Cajun, for “Let the good times roll,” which is fine for New Orleans this week, not so fine with for Idaho taxpayers.