WITH THE SUPREME COURT’S PENDING SPORTS GAMBLING DECISION STATES ARE ALREADY PREPPING FOR LEGALIZATION

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A screen shows a baseball game next to various betting lines at the Westgate Superbook in Las Vegas, Nevada. John Locher/AP Photo

Jennifer Roberts,
University of Nevada

The gambling world is waiting with bated breath for the United States Supreme Court decision that could result in an expansion of sports betting. The decision could be announced anytime between today and the end of June.

Since I teach sports betting regulation and gambling law, I’ve been closely watching the developments as well. Although Nevada has had a robust sports betting industry for decades, New Jersey has been at the forefront of the push to legalize sports betting.

In recent years, many other states have prepared for a ruling from the Supreme Court that would overturn the prohibition of sports betting. Even professional sports leagues – which have emerged as the leading opponents of efforts to legalize and regulate sports betting – are looking to cash in.

How we got here

According to the 10th Amendment of the United States Constitution, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

For this reason, states have traditionally overseen and regulated casino gambling. The Nevada Supreme Court specifically recognized, in a case involving the infamous Frank Rosenthal (portrayed as Ace Rothstein by Robert De Niro in the movie “Casino”), that gaming is “a matter reserved to the states within the meaning of the 10th Amendment to the United States Constitution.”

However, in 1992, responding to concerns about the spread of state-sponsored sports wagering, Congress enacted the Professional and Amateur Sports Protection Act, also known as the Bradley Act, named after its lead sponsor, then-U.S. Senator Bill Bradley.

The Bradley Act made it unlawful for any governmental entity, such as states, municipalities or Indian tribes, to “sponsor, operate, advertise, promote, license, or authorize by law or compact” any sports betting. In addition, the act prohibited any individual from operating any sort of sports betting enterprise.

However, the Bradley Act exempted four states from the prohibition: Nevada, Oregon, Delaware and Montana. Of these four states, Nevada was – and remains – the only one with full-scale sports wagering. New Jersey was given a one-year window to legalize sports wagering, but the state legislature failed to take action within the allotted time.

Fast forward to 2011. That year, New Jersey government officials decided they wanted to have regulated sports wagering, so the state introduced a referendum on a statewide ballot that would amend the state Constitution to permit wagering on college, amateur, and professional sports at Atlantic City casinos and racetracks across the state.

New Jersey voters supported the ballot referendum, and in 2012 the New Jersey legislature passed a law to legalize sports wagering.

However, the major professional and college sports leagues – NCAA, NFL, MLB, NBA and NHL – opposed the legislation and filed a lawsuit to stop New Jersey from regulating sports wagering.

In response, New Jersey claimed that the Bradley Act was unconstitutional because it violated the state’s 10th Amendment rights to regulate gambling in the form of sports wagering. In 2013, the Third Circuit Court of Appeals ruled in favor of the leagues, and the U.S. Supreme Court declined to consider the case. The Bradley Act remained intact.

New Jersey pressed on. Having lost on the argument that legalizing sports wagering is equivalent to “authorizing” it under the existing Bradley Act, New Jersey got creative and decided to simply repeal the state’s criminal laws and regulations that prohibited sports book operations in casinos and racetracks.

Once again, the sports leagues sued to stop New Jersey. In response, New Jersey argued that it would be a violation of the 10th Amendment if the state were prevented from repealing an existing law. Again, the lower courts and Third Circuit Court of Appeals ruled in favor of the leagues – but for the first time, the U.S. Supreme Court decided it would weigh in.

Prepping for the inevitable?

Now we await the decision.

It’s important to note that this case is about more than sports betting, which is simply the subject matter before the Supreme Court. It has more to do with states’ rights, and the decision has the potential to affect other areas of dispute, from marijuana legalization to the ability of cities to protect undocumented immigrants to gun control.

There are several possible outcomes. The U.S. Supreme Court could decide in favor of the leagues, which would mean New Jersey – and any other nonexempted state – would remain prohibited from allowing any sports wagering.

At the other end of the spectrum, the court could declare the Bradley Act unconstitutional, and states and Indian tribes would no longer be blocked from authorizing and regulating full-scale sports wagering.

Another possibility is that the court sides with New Jersey and allows the state to decriminalize sports wagering – on an either limited basis (in casinos and racetracks) or entirely – but not regulate it.

Finally, the Supreme Court could strike the prohibition that prevents states and tribes from permitting sports wagering, but keep the restriction so that individuals cannot conduct legal sports wagering. If this were to happen, sports betting could be permitted by states, but individuals would be prevented from operating their own sports betting business.

About 20 states are already preparing for the event that the Bradley Act gets overturned and are gearing up to pass laws (or have already done so) that will give them the ability to offer regulated sports wagering.

However, there are many unknowns and issues that will need to be addressed: Will state-sponsored sports wagering be run by state lotteries or private enterprise such as casinos or racetracks? Will amendments be needed to permit Indian tribes to offer sports wagering? And will information on sporting events for wagering purposes – such as scores, outcomes or game statistics – be restricted to data generated from the leagues?

There are already disagreements over something called an “integrity fee.” In states where sports betting will likely become legal, leagues have been pressing to receive 1 percent of all amounts wagered on a sporting event.

In Nevada – where legal, regulated sports wagering has taken place since 1949 – such a fee has never been in place. Instead, casinos simply pay the state up to 6.75 percent in a tax on revenues (which is the same tax paid by casinos on other forms of gambling), in addition to a federal tax of 0.25 percent on amounts wagered. States looking to legalize sports betting are proposing varied rates of taxation.

So how might an integrity fee affect sports books?

If we look at the most recent Super Bowl, over US$158 million was wagered in Nevada on the game. If there was a mandated integrity fee, this means that the NFL would have received $1.58 million from Nevada sports books.

But in the case of the Super Bowl, Nevada sports books only made $1.17 million, or 0.7 percent of the total amount wagered. So that means that if Nevada sports books had to pay an integrity fee on the Super Bowl, it would have lost money even before having to pay state and federal taxes, rent, employee salaries and the other costs of operating a sports book. From the industry’s perspective, sports wagering isn’t always as lucrative as it’s often portrayed to be.

The ConversationFor this reason, states must be educated and informed when considering whether to legalize sports betting. If they think they’ll get a tax windfall for schools and roads, they could be sorely mistaken – especially if the leagues end up getting a cut.

This article was originally published on The Conversation.

 

 

The Supreme Court, Religion and the Future of School Choice

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The Supreme Court’s decision in the Trinity Lutheran case is blurring the lines between church and state. aradaphotography/Shutterstock.com

John E. Taylor, West Virginia University

The Supreme Court recently decided that Trinity Lutheran Church should be eligible for a Missouri state grant covering the cost of recycled playground surfaces. Though the state originally rejected the church’s application on grounds of separation of church and state, the Supreme Court ruled that this rejection was, in fact, religious discrimination.

The case’s impact will probably reach well beyond playgrounds.

As a scholar of education law, I’ve been following the Trinity Lutheran case and what it could mean for the hottest issue in education: school choice. Where in the past states have decided for themselves whether religious schools are eligible for school vouchers and scholarship tax credits, the Trinity Lutheran decision likely signals that the Supreme Court will soon require states to include religious private schools in their programs.

This would be a huge win for school choice advocates and would complete a revolution in the Supreme Court’s understanding of the law on government funding of religious institutions.

Activist group Concerned Women for America shows support for Trinity Luthern Church in front of the Supreme Court in Washington, D.C. AP Photo/J. Scott Applewhite

Of church playgrounds and discrimination

In 1995, Missouri established a program offering reimbursement grants to qualifying nonprofits that installed playground surfaces made from recycled tires. Trinity Lutheran Church, which runs a preschool and daycare center, applied for a grant in 2012, but the state rejected the church’s application. Why? The Missouri Constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

Trinity Lutheran challenged the state’s decision as a violation of the Free Exercise Clause, and in June the U.S. Supreme Court agreed.

The Scrap Tire Surface Material Grant was awarded to two applicants in the 2017 fiscal year. ssedro, CC BY-NC-ND

This result will strike many as intuitively correct. A playground is a playground whether or not it’s run by a church, so the threat to separation of church and state seems slim, and the cry of religious discrimination seems plausible.

The case’s reasoning, however, may signal a significant shift in how the law views the separation of church and state. To understand why, we need to review some history.

1784: Three pence to religious education

In 1785, James Madison wrote his ‘Memorial and Remonstrance Against Religious Assessments,’ asserting that religion should be kept separate from government. Library of Congress

In 1784, Patrick Henry proposed a bill in the Virginia legislature that would have levied a tax to support “teachers of the Christian religion” (i.e., ministers). James Madison, however, successfully opposed the bill.

On the question of funding religion with tax money, Madison asked: “Who does not see that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”

More than 150 years later, in Everson v. Board of Education (1947), this controversy played a prominent role in the Supreme Court’s interpretation of the Establishment Clause of the First Amendment.

Justice Hugo Black in 1937. Library of Congress

In applying the Establishment Clause to states for the first time, the justices in the Everson case emphasized Madison’s objections to the Virginia tax in concluding that the framers of the Constitution had intended to establish “a wall of separation between Church and State.”

In the Everson decision, Justice Hugo Black interpreted this “wall” to mean:

“No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”

The Supreme Court changes its tune

Until the mid-1980s, the Supreme Court mostly adhered to the no-funding mantra announced in the Everson case. Gradually, however, the court’s commitment to such hard-line separation waned.

Much of this came down to a shift in perception: The 21st century is very different from the world of the 1780s, where government was small and taxes relatively rare. Today, government is pervasive, and government money flows to a wide range of institutions. Increasingly, the Supreme Court recognized that allowing some money to flow to religious institutions via general government grant programs was quite different from the Virginia tax Madison had opposed.

By 2002, the court had settled on its current approach to the Establishment Clause – an approach much more permissive than what was laid out in the 1947 Everson case.

Fast-forward to 2017, and seven justices agreed that giving Trinity Lutheran Church its playground grant would not violate the federal Establishment Clause. (Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented on this point.)

Ralph Reed, chairman, Faith & Freedom Coalition, pictured at an event in 2014, has spoken in favor of Trinity Lutheran Church. AP Photo/Molly Riley

State bans on funding religion

So, the Supreme Court now holds a more forgiving position when it comes to separation of church and state. But what about individual states?

Nearly every state has provisions in its constitution that address state support for religion, and many of these provisions (like Missouri’s) are more stringently worded than the federal Establishment Clause. Such a provision is exactly why students in Vermont can’t use state funds to attend religious schools. It’s also, perhaps, why some states have not yet adopted voucher policies: Voucher advocates tend to want religious schools to be eligible, but state constitutions often stand in the way.

So, what happens if state constitutional law is more separationist than the Supreme Court’s current reading of the Establishment Clause?

The Supreme Court faced this question once before in Locke v. Davey (2004). The state of Washington offered “Promise Scholarships” to students meeting certain academic and income criteria, and college student Joshua Davey met those criteria. He lost the scholarship, however, when he declared a major in “pastoral ministries” because Washington understood its state constitution to ban the use of public money to support the pursuit of any degree in “devotional theology.” In other words, Washington was taking a stringent view on separation of church and state.

Joshua Davey speaks to reporters outside the Supreme Court in Washington, D.C. in 2003. AP Photo/Dennis Cook

Davey argued that excluding ministry students from the scholarship opportunity was a kind of religious discrimination, violating his right to freely exercise his religion.

The Supreme Court ruled 7 to 2 against Davey. Chief Justice William Rehnquist explained that in a federal system, states should have the right to insist on greater separation of church and state than the federal Establishment Clause requires.

While federal law would not prevent Washington from giving Davey a scholarship, the state could also choose to uphold its stricter separation – without violating the Free Exercise Clause. In other words, just because Washington could fund Davey didn’t mean that it had to.

Does separationism equal discrimination?

Since 2004, lower courts have generally interpreted Locke v. Davey to say that states may choose to exclude religious applicants from public funding programs. Trinity Lutheran will change that.

At least six justices agreed that Missouri’s exclusion of the church from its grant program was religious discrimination, pure and simple – and that this trumps the state’s desire to enforce a strict separation of church and state. Justice Roberts determined that the judgment in Locke did not apply here, as the discrimination alleged in the two cases was different. Justices Thomas and Gorsuch suggested that there was improper religious discrimination in both cases.

Despite their different views of Locke, these justices agreed that the court was required to analyze Missouri’s grant denial under “strict scrutiny.” This is the same level of review the court would give to, for instance, an express ban on Muslims entering the country.

In his opinion in the case, Justice Roberts stressed the differences between Locke v. Davey and Trinity Lutheran Church v. Comer. AP Photo/Stephan Savoia

This is remarkable. Though Joshua Davey had asked the court to review Washington’s scholarship policy under strict scrutiny, the court declined to do so. In that decision, the justices determined that separation of church and state and religious discrimination were horses of a different color. The Trinity Lutheran decision suggests that, at least in the context of general funding programs, the court will now view separation of church and state – a position the court once wholeheartedly embraced – as a kind of religious discrimination.

What happens next?

Standing against this reading of the Trinity Lutheran decision is… well, a footnote. Footnote 3 in Justice Roberts’ opinion reads:

“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

The footnote suggests that the implications of the decision are narrow and shouldn’t be applied to, say, school vouchers. But it’s hard to reconcile the footnote with the seemingly widespread ramifications of the opinion’s text.

Indeed, the day after deciding the Trinity Lutheran case, the Supreme Court vacated four lower court decisions in Colorado and New Mexico that allowed the exclusion of religious schools from general aid programs. The state courts had based their rulings on separationist language in their state constitutions, but the Supreme Court asked the states to reexamine those decisions in light of Trinity Lutheran. Given the Supreme Court’s treatment of these cases, Footnote 3 may not be much of a limitation after all.

The Colorado and New Mexico courts will have the first shot at deciding what Trinity Lutheran means for school choice. In my view, though, the Trinity Lutheran case signals that the Supreme Court will now generally treat separationist exclusions of religious institutions from government funding as religious discrimination.

The ConversationIf that’s right, we’ll soon have completely flipped the law on government funding of religious schools. Where it had once seemed fairly clear that government money could not be used to support religious instruction at all, it may be only a matter of time before the Supreme Court requires voucher programs to treat religious schools the same as their secular peers.

John E. Taylor, Professor of Law, West Virginia University

This article was originally published on The Conversation.

Supreme Court Justices In The Pews and On The Bench – Where Neil Gorsuch Fits In

 

Supreme Court nominee, Neil Gorsuch. Joshua Roberts

 

Steven K. Green,
Willamette University

On Jan. 31, President Donald Trump nominated Judge Neil M. Gorsuch of the Tenth Circuit Court of Appeals to fill the vacancy on the Supreme Court occasioned by the death of Justice Antonin Scalia. The Senate hearing on Judge Gorsuch’s nomination to the Supreme Court started on Monday, March 20.

As important as is a Supreme Court confirmation, Congress and the media have focused chiefly on the numerous controversies that have embroiled the new Trump administration. One media outlet even called Gorsuch’s confirmation process the “stealth Supreme Court nomination.”

Judge Gorsuch has a reputation as a judicial conservative in the mold of Scalia. He has not ruled on several controversial issues such as gun rights, but the conventional wisdom among court watchers is that if confirmed, the “young” (49-year-old) Gorsuch will swing the high court back to the right on many social issues and will impact Supreme Court jurisprudence for decades to come. As a result, progressive interest groups are scrambling to marshal their forces to oppose Gorsuch’s confirmation.

Judge Gorsuch has a notably strong record on one controversial subject, that being on church-state matters. His rulings have generally supported a more “accommodationist” approach to resolving church-state controversies, a position advocated by religious conservatives. In addition, during the White House announcement ceremony for his nomination, Judge Gorsuch remarked that he was “thankful for my family, my friends, and my faith.”

His statement raises the question of whether a judge is influenced to rule a particular way on church-state controversies by his or her religious faith.

I am a constitutional law professor who specializes in church and state matters. I have also participated in more than 25 church-state cases before the Supreme Court as counsel and through friend-of-the-court briefs.

In my view, the religious faith of a justice, standing alone, tells us little about how he will vote in church-state cases or on other controversial social issues. It is a conservative religious worldview that is more likely to reinforce and validate an existing conservative judicial ideology.

Gorsuch’s judicial decisions

Following Trump’s announcement, conservative religious groups such as Focus on the Family and the Family Research Council praised Gorsuch’s nomination. The evangelical magazine Christianity Today declared that Gorsuch will be a justice “that evangelicals will love.” In contrast, progressive religious groups have voiced opposition to Gorsuch’s nomination based on his church-state holdings.

Little is known about Gorsuch’s personal faith other than that he is religiously observant. Gorsuch was raised Catholic, attending a private Jesuit school in his youth. He became an Episcopalian while a graduate student at Oxford, the religion of his wife whom he met while in England. Currently the judge attends a mainline Episcopal church in Boulder, Colorado, that takes progressive stances on social issues.

The liberal orientation of Gorsuch’s church stands in contrast to his own record of judicial decision-making. During his 10-year tenure on the Tenth Circuit Court of Appeals, Gorsuch has taken a firm stance on behalf of protecting religious liberty claims against government regulations, a position that has made him a favorite of religious conservatives. Several of those cases have been highly controversial.

Protesters rally outside the Supreme Court against President Donald Trump’s Supreme Court nominee Neil Gorsuch in Washington, D.C. on Jan. 31. Yuri Gripas

The infamous Hobby Lobby case is one example. In that case, the Supreme Court held that for-profit corporations may assert a religious liberty defense against having to comply with the contraceptive care insurance mandate under the Affordable Care Act. Judge Gorsuch wrote a concurring opinion in the Tenth Circuit’s decision that went even further, urging that courts should defer to a person’s subjective claim that a law burdens his religious beliefs, regardless of how tangential that burden appears objectively.

Little Sisters of the Poor is another example of a case that involved the question of a religious exemption from complying with the ACA. In that case, the Catholic order that operates nursing homes claimed that even applying for an exemption under the ACA from the government violated their religious beliefs. Gorsuch dissented when the Tenth Circuit declined to reconsider its decision rejecting the Little Sisters’ religious liberty claims. That dissent argued that the court had given insufficient deference to the Little Sisters’ own articulation of the burden on their religious beliefs.

He has also written or joined on opinions siding with the ability of governments to display religious symbols on public property, such as a Ten Commandments monument on courthouse lawns. According to one bipartisan analysis of Gorsuch’s record:

“The common thread in these cases is one that matters very deeply to conservatives: a sense that the government can permit public displays of religion – and can accommodate deeply held religious views – without either violating the religion clauses of the Constitution or destroying the effectiveness of government [nondiscrimination] programs.”

Religious affiliations in Supreme Court

The question many people are asking is, will Gorsuch’s religious affiliation matter? First, let’s look at the religious makeup of the Supreme Court.

Currently, the Supreme Court comprises five Catholics and three Jews (Justice Scalia was also Catholic). This has led some commentators to speculate on what this means for issues such as abortion regulations and church-state matters.

The vast majority of justices have been Protestants, which is not surprising considering the Protestant dominance of the culture until recently. President Andrew Jackson appointed the first Catholic to the Supreme Court (Chief Justice Roger Taney) in 1836, a fact that did not go unnoticed. The next Catholic justice, Edward D. White, was appointed in 1894, some 58 years later. (White was more controversial for being a former Confederate officer than for being Catholic)

The first Jewish justice was appointed in 1916 (Louis Brandeis), to be followed by Benjamin Cardozo in 1932, which established the unofficial “Jewish seat” on the court. From 1940 forward, there has always been at least one Catholic and one Jewish justice on the high court (absent a hiatus from 1969 to 1993 of a Jewish justice).

Those demographics have changed significantly over the past two decades. With the resignation of Justice John Paul Stevens in 2010, the court was left without a Protestant member for the first time in its history.

Here’s what history tells us

In most instances, research shows, a justice’s religious faith has been a poor predictor of his or her judicial philosophy (and that would assume that one can draw accurate conclusions about what any religion requires of its adherents).

For example, is it safe to assume that a Catholic justice will vote against abortion and gay marriage because of the teachings of the Catholic Church?

Catholic Justice Frank Murphy (1940-1949) was a staunch New Deal liberal, whereas Catholic Justice William Brennan (1956-1990) was likely the Supreme Court’s fiercest supporter of church-state separation and reproductive choice during his long tenure.

Currently, Catholic Justice Sonia Sotomayor is considered to be part of the court’s liberal wing. Another notable liberal was Justice Hugo Black (1937-1971), who was a Southern Baptist, while two conservative justices were William Howard Taft (1921-1930) (Unitarian) and William Rehnquist (1972-2005) (Lutheran).

And though Catholic Justice Anthony Kennedy usually sides with the conservatives, he has voted to uphold abortion rights and gay marriage. Likely the closest religious indicator of judicial philosophy has been among the court’s Jewish justices, who have overwhelmingly been liberal.

To be sure, there have been some exceptions. Justice William Strong (1870-1880) was an evangelical Presbyterian who served briefly as president of a religious organization that sought to amend the Constitution to declare the United States a “Christian nation.”

Similarly, Justice David J. Brewer (1889-1910) was an evangelical Congregationalist who declared in a court opinion that America was a Christian nation, a matter he wrote about at length off the bench. And Justice Felix Frankfurter (1938-1962), a secular Jew, frequently referenced his religious/ethnic heritage in his strong support for church-state separation.

But those instances have generally represented the exceptions.

The safest conclusion to draw from history is that religious affiliation is probably a poor indicator of judicial philosophy. It generally does not preordain any judicial holdings. However, a conservative religious outlook may reinforce an existing conservative judicial ideology, and vice versa, particularly on social issues.

Steven K. Green, Professor of Law, Director of the Center for Religion, Law & Democracy, Willamette University

This article was originally published on The Conversation.