Some Things Are Obvious, Others Not So Clear (Gwen Moritz Editor’s Note)

Some things just seem so obvious to me. The U.S. Supreme Court, land of the 5-4 split, has handed down a couple of unanimous rulings recently on such no-brainer questions that it’s hard to imagine that our highest court even needed to get involved.

The first one had to do with religious freedom in this country. Now clearly there are rational limits on religious freedom – Tony Alamo isn’t allowed to use religion as an excuse to rape young girls, for instance. But the Supremes were exactly right in ruling that religious organizations are not bound by discrimination laws when deciding which people to employ in their ministries. This is true even if those ministries, as in this case, involve mostly nonreligious duties, like teaching at a school.

Most astonishing is the fact that the Equal Employment Opportunity Commission, which certainly has plenty of legitimate cases of discrimination to deal with, took this one on and then fought it all the way to the end.

The church, I was taught from infancy, is the people – not the building and certainly not the nonprofit organization. It’s possible – maybe even probable – that some employees will be discriminated against by religious organizations for reasons that are less than holy; the people who make up a church are still flawed human beings.

But that’s a risk worth taking for a principle so fundamental to our national character (and our Constitution) as religious freedom.

Last week, the justices all agreed again that law enforcement officers can’t just pop a GPS tracking device on your car without first getting a warrant by proving probable cause.

Although they did split 5-4 on some nuances of their reasoning, all nine justices agreed that attaching a tracking device to a suspect’s vehicle is a violation of the Fourth Amendment, which reads, in total: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In deciding United States v. Jones, Justice Antonin Scalia wrote, "The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted."

Some commentators argue that the court wouldn’t really object to a warrantless GPS for a short period of time rather than weeks as in Jones. And there may be people who trust that no policeman in the country would ever abuse the ability to track people electronically. I’m not one of those people. Before the cops put a bug on my car, or yours or anyone else’s, I think they should have to persuade a judge that they have good reason. That’s exactly why we have the Fourth Amendment, and exactly why the justices only argued around the edges of the case.

Other things are not so cut-and-dried to me, even if they seem straightforward to other people. The Keystone pipeline project, for instance. My congressman, Tim Griffin, sees it as jobs and energy, period, end of story. Environmentalists see it as nothing but a looming natural disaster, especially for Nebraska’s Ogallala Aquifer and Sand Hills.

The Gulf spill should have taught us all a hard lesson about taking safety and environmental concerns too cavalierly. And from my seat as a business editor, I can tell you that businesses are always wildly optimistic about the number of employees they will need tomorrow while being exceptionally cautious about actually hiring today.

Much more important in my mind than mostly temporary jobs is putting together all the pieces for long-term energy security. Oil sand from Canada may not be the Star Trek fuel of the future, but it certainly can and should be part of what President Obama last week called an "all-of-the-above" energy strategy.

So I don’t agree with those who cheered when the Keystone permit was denied or with those who insist the president should have approved it as-is, where-is. It makes much more sense to me to follow the third-way suggestion of Neb. Gov. Dave Heineman: Allow construction to start at the north and south ends while working out an exact route around the most sensitive environmental hazards in the middle. If Keystone’s developers are willing to take that risk, let them and work with them.

(Gwen Moritz is editor of Arkansas Business. Email her at GMoritz@ABPG.com.)