The Indian Panorama

Tag: The U.S. Supreme Court

  • ARRANT RELIGIOUS BIGOTRY AND DISGUISED RACISM NOW SEEM ALIVE AND WELL IN THE US SUPREME COURT (SCOTUS)

    ARRANT RELIGIOUS BIGOTRY AND DISGUISED RACISM NOW SEEM ALIVE AND WELL IN THE US SUPREME COURT (SCOTUS)

    EXECUTED MUSLIM DENIED LAST RITES BY MULLAH

    By Nagendra Rao

    Looks like the halcyon days of Supreme Court justices like William J. Brennan Jr., Thurgood Marshall, Earl Warren, Potter Stewart, William O Douglas, Felix Frankfurter are permanently over, or at least for a very long time.

    This is what happens when economic prosperity heads full speed towards a brick wall as is increasingly happening to the US as it begins its irreversible long slide down.

    This is the court of Brett Kavanaugh, John Roberts, of late Antonin Scalia disguised but intensely opinionated, conservative, fundamentalist, (bigoted?) Catholic / Christian judges.

    It’s why as NYT wrote in a long and thoughtful piece about 10 years ago that the world has now stopped reading or giving credence to the opinions of SCOTUS.  It is too right wing, too biased, (Christian parochialism?) to be worthy of universal respect as in past eras.  It is the Supreme Courts of Canada, New Zealand, South Africa and India (alas, now increasingly of slavishly westernized and deracinated from Indic cultural ethos and pandering to western sensibilities) which are respected and regarded.

    SCOTUS on narrow technical grounds just denied an American Muslim the right to last rites by a Mullah / Maulvi in the judgment on Dunn v. Ray.  Domineque Ray, was executed Thursday evening by the State of Alabama. Mr. Ray did not contest the state’s power to kill him, he simply asked that Alabama permit his spiritual adviser to be in the execution chamber to comfort him as the state extinguished his life. Ray is a Muslim, and the prison’s policy allowed him to be attended by a Christian chaplain but not by a Muslim imam.

    “Religious liberty for me, but not for thee”.

    The word “empathy,” it should be noted, does not mean “sympathy.” Sympathy implies a kind of partisanship — to be sympathetic to a party is to be favorable to their claims. Empathy means something else. It is the ability to place yourself in someone else’s shoes and to understand their perspective even if you have not shared their experiences. It is a white Christian man’s ability to see that the world sometimes operates differently for an African-American Muslim.

    It should have been an open-and-shut case. As Justice Elena Kagan noted in a dissenting opinion, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” If Alabama allows Christian inmates to be attended by a clergy member of their faith, then it must offer the same accommodation to people of other faiths.

    Neal Katyal, a former acting Solicitor General of the United States who, by virtue of the fact that he practices before the Supreme Court, must be careful about criticizing its judges too harshly, compared the Ray decision to notorious decisions such as “Dred Scott, Plessy v. Ferguson, Korematsu, and the Chinese Exclusion Act cases.” The National Review’s David French labeled Ray “a grave violation of the First Amendment.”

    Nearly a hundred years ago the Ramakrishna Mission Vedanta Society in California was gifted a huge property by a wealthy devotee in her will.  Her family filed suit.  The openly and blatantly racist and religiously bigoted judge (there are scads of them even in federal courts of the Confederate South) set aside the bequest on totally specious grounds and awarded the property to the family.  It looks like SCOTUS under Trump is rapidly returning to the Dred Scott days of viewing slaves as property.

  • Justice Brett Kavanaugh and Supreme Court of India Sabarimala rulings

    Justice Brett Kavanaugh and Supreme Court of India Sabarimala rulings

    By George Abraham

    “While the Kavanaugh Saga was unfolding in Washington, the Supreme Court of India has made some historic rulings that may have upended some traditional beliefs and customs. According to a new ruling led by the Chief Justice Dipak Misra, women of all ages will be allowed to enter India’s Sabarimala Temple, one of Hinduism’s holiest sites, overturning a centuries-old ban”.

    At the outset, one may wonder what Brett Kavanaugh’s appointment to the U.S. Supreme Court has anything to do with the recent rulings by India’s Supreme Court allowing women between ages of 10 and 50 entry into the Sabarimala temple. It may not have a direct linkage concerning geography or jurisprudence. However, it speaks volumes on how the underlying principles involved in these dramas could evoke these spectacles of emotions of raw anger in countries that are separated by Oceans.

    As we all have learned throughout the history, elections have its consequences, and President Trump has indeed followed through his pledge of appointing judges to the courts that he termed as ‘strict constructionists.’ The judicial philosophy of the conservatives in this country is that courts should not make laws but to uphold the constitution and laws of the land and interpret them. On the contrary, liberals and progressives love an activist court that creates laws especially in the social arena that may have a transformational impact on the society.

    Mark Levin, a conservative author makes a good case for a strict constructionist in his book titled “Liberty and Tyranny’. He has defended the importance of original intent when interpreting or adjudicating the constitution. Levin appeared to have made a genuine effort in illustrating the fine points in the ongoing debate between the strict constructionists and those who want the Constitution to be a “living, breathing evolving” document.

    Alexander Hamilton, in Federalist 78, stated that judges have a duty to “guard the Constitution and rights of individuals,” and above all, to be impartial. He was known to have argued that in cases where laws and statutes clash with the Constitution, it is the constitution that must prevail, and the Supreme Court has to side with the Constitution.

    Liberals and many moderates sincerely believe that the Court’s swing to the right might jeopardize decades of landmark gains on issues from abortion to affirmative action and same-sex marriage. To some legal experts, the addition of Justice Kavanaugh to the Supreme Court could have profound consequences on issues ranging from Women’s reproductive health to LGBT rights.

    In today’s high-octane environment, it has become increasingly difficult to reconcile these differing points of view. However, to an independent observer, the Supreme Court relies greatly on precedent that is a principle or rule established in a previous legal case that becomes a basis or reasons for future decisions. Therefore, the Court may yet find it difficult in overturning many of those landmark decisions that have long become the laws of the land.

    While the Kavanaugh Saga was unfolding in Washington, the Supreme Court of India has made some historic rulings that may have upended some traditional beliefs and customs. According to a new ruling led by the Chief Justice Dipak Misra, women of all ages will be allowed to enter India’s Sabarimala Temple, one of Hinduism’s holiest sites, overturning a centuries-old ban.

    The five-member constitutional bench struck down the religious ban on women aged 10 to 50 from entering the temple, ruling it to be discriminatory and arguing that women should be able to pray at the place of their choice. “It is the constitutional morality that is supreme. Prohibition can’t be regarded as an essential component of religion” said the Judge’s ruling. Sabarimala temple is thought to be 800 years old and is considered spiritual home of Lord Ayyappa.

    This issue is very complex and multi-layered, however, touches the very core of faith and tradition. That is the reason why this verdict has invoked so much anger and resentment pitting one community against another often inflaming the communal passion waiting to be exploited by the political parties and their narrow interests. For a democratic country that has Secularism written on its preamble of the constitution, India should accord autonomy to religious orders and religious groupings and prevent state interference. It is a matter of pure faith, and the State has a responsibility to stay neutral unless it violates the fundamental rights or causes injury to its citizenry.

    If we carefully examine, a severe crisis was created when the Supreme Court took up this issue, and its subsequent ruling has indeed challenged an age-old tradition. Although it is embarrassing to argue about the merit of this tradition in these modern days, the purity of women in their menstrual years, it was a dormant issue for so long that people paid only scant attention. The question then is should the court give rulings on issues that have profound social implications as well as a transformational impact on society?

    In a democratic process, it is the people through their representatives in the Legislature who make laws mostly reflecting the will of the majority. That is often done with debating the merit of the legislation with utmost scrutiny from all opposing sides. If the country has followed such a course, we could have avoided this tragic turn of events unfolding before our eyes today.  As much as we value the Supreme Court as a vanguard to protect our rights, it would have been prudent to leave these sensitive issues of faith and tradition to the legislatures rather than to the judiciary.

    Many Indian Americans, who abhor several of the progressive decisions of India’s Supreme Court in the last few weeks often overturning their beloved traditions, beliefs, and customs, may need to reconsider their stand on an activist court. They generally cheer on legislating from the bench in the U.S. by activist judges and have long enjoyed common ground with progressive forces opposing the appointment of Judges whose philosophy of judicial restraint that is similar to that of Justice Kavanaugh.

    As the adage goes, ‘we cannot have the cake and eat it too’! It is time to take a consistent stand in opposing legislating from the bench that often fails to take into account the sentiment of the local people whose tradition, faith and religious practices they hold dear to their heart and supporting the strict constructionist view of the constitution and laws of the land. We have long learned from history that it is judicious to have limited interventions in these matters by the courts given the inexorable relationship in India between religion and public life.

    (The author  is a former Chief Technology Officer of the United Nations. He can be reached at gta777@gmail.com)

     

  • The Supreme Court Defends the Integrity of U.S. Citizenship

    The Supreme Court Defends the Integrity of U.S. Citizenship

    The justices unanimously limited the federal government’s power to strip immigrants of their hard-won status.

    WASHINGTON (TIP): The U.S. Supreme Court narrowed the scope under which the federal government can strip naturalized Americans of their citizenship on Thursday, ruling that false statements made during the naturalization process had to be relevant to gaining citizenship in order to justify revoking it later.

    Justice Elena Kagan, writing for a unanimous Court in Maslenjuk v. United States, said that using small omissions or minor lies to denaturalize immigrants went beyond what Congress authorized. “The statute it passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturalization process, but only when that act played some role in her naturalization,” she wrote.

    The Obama and Trump administrations had tried to convince the justices otherwise. The case hinged on a provision of federal immigration law, Section 1425(a). If a jury finds a naturalized American guilty of an offense under 1425(a), he or she is automatically stripped of their citizenship. In 2013, federal prosecutors charged Diana Maslenjuk, the plaintiff in the case, with making false statements about her husband’s membership in Bosnian Serb militias in the 1990s.

    Since the Supreme Court’s landmark Afroyim v. Rusk decision in 1967, American citizenship is generally irrevocable unless its bearer explicitly chooses to forsake it. No lawful method exists to involuntarily strip a native-born American of citizenship; naturalized citizens can lose it against their will only if they lied during the naturalization process. Maslenjuk qualified under that exception, according to federal prosecutors, when she misled a State Department official in 1998 during her application for refugee status.

    The United States granted her that status in 1999 and she and her children emigrated to Ohio; her husband soon followed. After the U.S. government discovered the truth and arrested her husband in 2006 for lying about his service, Maslenjuk applied for citizenship. On the application form, she marked “no” twice when asked if she had given false information to American consular officials to gain entry to the United States. Her application was approved the following year.

    The government argued at Maslenjuk’s trial that lying about her husband’s participation in the ethnic civil wars that wracked the Balkans in the 1990s helped her get refugee status. That status, prosecutors argued, was a precursor to her eventual application for citizenship in 2013. Maslenjuk countered that her omission in 1998 was immaterial to her application for refugee status. Because she reasonably feared persecution as an ethnic Serb in Muslim-majority Bosnia, she argued she already qualified for the program. The trial judge sided with prosecutors and told jurors her statement didn’t have to be material to her citizenship to qualify under 1425(a).

    “That would give prosecutors nearly limitless leverage—and afford newly naturalized Americans precious little security.”

    When Maslenjuk appealed her case to the Supreme Court, the justices saw disturbing implications from the government’s logic. Chief Justice John Roberts asked the government during oral arguments in May if lying about a speeding ticket 30 years earlier would be grounds for denaturalization. Assistant Solicitor General Robert Parker replied yes. “Oh, come on,” Roberts scoffed. Other justices followed up with more hypotheticals, and Justice Anthony Kennedy eventually told Parker that the government’s argument “is demeaning the priceless value of citizenship.” Kagan reiterated those same themes in her majority opinion on Thursday.

    “Suppose, for reasons of embarrassment or what-have-you, a person concealed her membership in an online support group or failed to disclose a prior speeding violation,” she hypothesized. “Under the government’s view, a prosecutor could scour her paperwork and bring a §1425(a) charge on that meager basis, even many years after she became a citizen. That would give prosecutors nearly limitless leverage—and afford newly naturalized Americans precious little security.”

    Kagan noted that such a reading of the law could create paradoxical situations for would-be Americans seeking citizenship. She pointed out that federal immigration law only allows false statements to be used to deny citizenship applications if they are made “for the purpose of obtaining [immigration] benefits”—not if they are made simply out of shame or error. “But under the government’s reading of §1425(a), a lie told in the naturalization process—even out of embarrassment, fear, or a desire for privacy—would always provide a basis for rescinding citizenship,” Kagan observed. “The government could thus take away on one day what it was required to give the day before.”

    Whether Maslenjuk will be able to keep her citizenship is unclear. Her case now returns to the lower courts for retrial in front of a properly instructed jury, which could still conclude her misstatements were material to her citizenship application and convict her again under 1425(a). If they do, her citizenship would face revocation for a second time.

    But the ruling’s full impact extends beyond her specific case. The unanimous decision comes as the Trump administration ramps up enforcement of immigration laws nationwide, putting into practice the hardline stance that propelled President Trump to the Oval Office. Had the Court ruled the other way, it could have opened the doors for federal prosecutors to imperil the citizenship of tens of thousands of Americans for innocuous errors made decades earlier. By foreclosing that possibility, the Court strengthened American citizenship and the protections it brings.

    (Source: The Atlantic Daily article by Matt Ford)