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Some interesting cases in the first half of 2020

Saturday June 27 2020
uscourt

The US Supreme Court. On June 15, 2020, the top court ruled that LGBTQ people cannot be disciplined or fired based on their sexual orientation. PHOTO | CHIP SOMODEVILLA | GETTY IMAGES | AFP

By SEKOU OWINO

The year is half-way gone and has mostly been taken up by the Covid-19 pandemic. The world of law is not an exception. In Kenya, like in most other countries, courts and much of legal service avenues were closed.

Even then, courts have made decisions that are interesting, surprising and even far-reaching in their effects on the lives of many beyond the specific litigants.

Last month, the US supreme court had to contend with a case in which the South Bay United Pentecostal Church challenged a directive by the governor of that state that prohibited meetings and congregations in churches. This was meant to prevent the spread of the coronavirus.

 The church argued that this was discriminatory and contrary to the right to worship as guaranteed in the First Amendment to the US constitution.

In particular, the church contended that these directives targeted the religious worshippers unfairly because other secular establishments such as grocery stores were not prohibited.

The supreme court, by a majority of five judges to four, confronted the issue of weighing the right to worship against the public health crisis occasioned by the Covid-19 pandemic. It rejected the claim by the churches. Chief Justice Roberts, writing for the majority side, said the California restrictions were not inconsistent with the constitutionally permitted right to free exercise of religion because similar restrictions apply to other gatherings of a secular nature such as lectures, concerts or movies. Even among the judges, this issue was sensitive and contentious. In dissent, Justice Kavanaugh said the state cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings”.

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This close decision indicates that the Covid-19 pandemic will continue to present not only public health challenges but also some public questions on the manner in which governments and health bureaucracies seek to manage the pandemic.

Earlier this month, the US supreme court made another decision  on a programme started during President Obama’s administration known as the Deferred Action for Childhood Arrivals (DACA).

This was an immigration initiative where individuals who came into the US as minors but whose parents may not have been lawfully entitled to stay, were allowed to remain in the country if they graduated from high school or served in the military. The reasoning for the Obama administration was that such persons were innocently within the country and would be entitled to continue residing and working in the US as they sought citizenship or permanent residential status.

The DACA programme was revoked by the Attorney-General appointed by President Trump after President Obama left office. The effect of this revocation was that such persons were then under threat of deportation.

In upholding DACA, the supreme court stated that the revocation decision was made capriciously and should have been accompanied by a reasonable explanation. It did not make any decision as to whether the DACA was itself originally valid or not. This was seen as a rebuke to President Trump’s administration, which had sought to deport beneficiaries of DACA. Soon after this decision, President Trump himself remarked: “Do you get the impression that the court doesn’t like me?”

Another President may also ask himself a similar question. This week, a federal judge ordered Brazil’s President Jair Bolsonaro and all officials in his government to wear a mask whenever they go out in public.

This was against the backdrop of rapid spread of Covid-19 in Brazil and given that President Bolsonaro is one of the “Covid Sceptics”.

Failure to comply with this order would expose President Bolsonaro to a fine equivalent to US$380 (Sh38,000) for each day of default.

 Still in the US, the supreme court made another case of monumental consequence to that country.

It was in a series of cases brought by various persons who claim they had been sacked for being gay or transgender.

Relying on the Civil Rights Act of 1964, the majority in that case decided that the bar against discrimination on race, religion, national origin or sex must be read to bar discrimination on sexual orientation as well.

Admitting that even though sexual orientation was not expressly provided in the legislation and is unlikely to have been in the minds if the legislature at the time the law was passed, the law must come in aid of those who may be dismissed for their sexual orientation.

 Writing for the majority, Associate Justice Neil Gorsuch said the limits of the drafters’ imagination could give no reason to ignore the laws’ demands. No wonder the advocates for the employers contended, with some justification, that the decision was more about paying heed to culture than to the law. This decision will have far-reaching consequences on the way gay, lesbian and transgender persons are treated in the workplace.

But the most mentally challenging court case for me was in the United Kingdom, where a judge held that a 34-year-old man who was sedated and in intensive care be allowed to die because he had a colostomy bag and had said that he did not wish to live with it.

Justice Hayden made the decision after he was told that the man had said he did not wish to live with the surgical hole in the stomach, to which a colostomy bag is attached to collect digestive waste. The man said this limited his social life and made life pointless for him.

However, Christian Concern, a pro-life campaign group, challenged this decision on the ground that the man appeared to have changed his mind. The judge, however, stated that it was not a case about choosing to die, but about an adult's capacity to shape and control the end of his life," he said. The man’s life support system was removed and he died soon thereafter early this month. The question lingering in this case is whether the right to life includes the right to die and whether that right means the comfort and lack of any ailment or illness.

The writer is Head of Legal at Nation Media Group PLC

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