Archive for the ‘Law’ Category

Erasing the First Amendment

Thursday, July 8th, 2010

When we all studied American History and Civics 101 in school, we were taught that the First Amendment to the United States Constitution guarantees religious liberty to all.  It ensures that the government cannot interfere with religious belief or practice, nor canthe state reward or punish religious people or groups for their beliefs.  All religions are to be treated equally, with no favoritism or legal restrictions.  It’s to enjoy this specific freedom that the early settlers, and many of our ancestors, came to this country.  It’s part of what makes America great.

Too bad that the Supreme Court has been on a path to erase the First Amendment to the Constitution.

This has nothing to do with the issue of prayer in public schools or copies of the Ten Commandments in public buildings.  It has everything to do with marginalizing and penalizing religious practices that are not popular with the current powers that be.

The first major instance of this came in 1990, in the case of Employment Division v. Smith.  The case involved the denial of unemployment benefits to several Native Americans, pursuant to a rule that denied benefits to anyone who couldn’t pass a drug test.  But the reason they couldn’t pass the test is because they used the drug peyote in their religious practices — much as we use wine at Mass.  They challenged the law, claiming that it would force them to violate their religious beliefs.

The Supreme Court held that they were properly denied the benefits, because the government is not required under the Constitution to grant exceptions to neutral laws that apply to all people, even if that law imposes a burden on a person’s religious liberty.  In essence, the Court held that the government can require a person to forego their religious practices — to give up their sacraments — in order to qualify for benefits.

In one decision, the Court essentially gutted the “free exercise” clause of the First Amendment.  The irony is that the majority opinion was by a man whose religion is frequently a subject for attention and comment — the Catholic Justice Scalia.

The most recent shredding of religious liberty came last week, in Christian Legal Society v. Martinez.  This case arose at a public university law school — an arm of a state government.  The Christian Legal Society, an interfaith group of law students, adoped rules that required all its officers and members to subscribe to a basic tenet of Christian moral teaching — that sexual relations are properly reserved only to a man and woman joined in a marriage.  The school denied the organization recognition because of this provision “discriminated” against personw who are engaged in homosexual acts and relationships. The effect of this was to deny the Christian students access to funding and activites that were open to all other kinds of groups (including, ironically, a “gay and lesbian” association).

The Supreme Court upheld the denial of recognition to the group, holding that the school could require that all student organizations accept anyone who applies, both as members and as leaders.  In essence, the Court decided that the state government has the power to regulate the identity and message of religious organizations, and can force them to accept people who deny or undermine the integrity of their beliefs.  And, by implication, the Court’s decision means that a religious group cannot be a full participant in the “marketplace of ideas” unless its beliefs conform to current standards of political correctness.  In other words, the government can play favorites among religious groups — granting “equal” access to those it approves, and denying it to those it disapproves.

So much for the “free exercise” and “free association” rights that are supposedly guaranteed under the First Amendment.

This decision was written by Justice Ginsburg, but was joined by two Catholic Justices, Kennedy and Sotomayor.  Since this was Justice Sotomayor’s first foray into religious liberty jurisprudence, it does not bode well for how she will rule in future cases.

There is a movement afoot in America to stigmatize religious people who uphold traditional moral teaching (particularly about homosexuality and other sexual subjects) as bigots who do not have to be tolerated in the public square.  Whether they knew so or not, the Justices of the Supreme Court have advanced that agenda and, in doing so, have reduced the liberties of all.

Here Comes Another Anti-Life Judicial Ruler, Thanks to Our President.

Tuesday, May 11th, 2010

So, the President has nominated yet another Ivy League college/law school product to be one of our Black-Robed Platonic Guardian Rulers on the Supreme Court.  Another person who is committed to a legal regime that has no regard for the protection of unborn human beings.

Is anyone surprised?

Remember, this is the same President whose spokesman said, last year:

Q: Looking back to November of 2007, when he was a candidate, he said that he would not appoint somebody who doesn’t believe in a right to privacy [i.e., the right to abortion]. Does he stand by that now that he’s President?

MR. GIBBS: Absolutely…. I think he believes that the right to privacy in the case of Roe v. Wade… was settled and was in his mind settled correctly.

And the same President who said just two weeks ago that he was looking for:

“somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights. And that’s going to be something that is very important to me…. somebody who believes that women should have the ability to make often very difficult decisions about their own bodies and issues of reproduction.”

The President, of course, mouths all the usual pieties about not having a “litmus test” for judges, particularly when it comes to abortion.  But try a thought experiment for a second.  Can anyone imagine this President considering the nomination of a Supreme Court Justice who might overturn Roe v. Wade?

To ask the question is to answer it.  Of course he wouldn’t.  The President is so deeply immersed in anti-life attitudes and beliefs that it would never even occur to him to appoint such a person.  Remember, this is the man who is so incoherent in his legal thinking that he can be 100% pro-abortion in all of his policies and positions, and still say this:

“I want my Justice to understand that part of the role of the court is to look out for the people who don’t have political power. The people who are on the outside. The people who aren’t represented. The people who don’t have a lot of money; who don’t have connections. That’s the role of the court.”

Above the main entrance to the Supreme Court building,  where this new nominee will likely rule us for decades, there is an inscription: “Equal Justice Under Law”.

That statement is a lie, and as long as this President makes appointments to the bench, it will continue to be a lie.

Misguided “Personhood” Initiatives

Thursday, May 6th, 2010

In a number of states, pro-lifers are sponsoring what they call “personhood” initiatives — either legislation or state constitutional amendments that they claim will overturn Roe v. Wade and grant legal protection to the unborn. Unfortunately, this is a well-intentioned but legally and tactically misguided strategy.

We need to recall the state of the law. The Supreme Court held in Roe v. Wade, and has upheld in every subsequent abortion decision, that an unborn child is not a “person” who is entitled to protection by the Fourteenth Amendment to the United States Constitution, and that a woman’s right to an abortion is protected by that same Fourteenth Amendment. Obviously, I believe that this is an awful miscarriage of justice, but that’s the law as it stands.

Because the federal constitution is the supreme law of the land (see Article VI of the Constitution), the Supreme Court’s rulings on abortion override all state laws or constitutions.  Congress cannot overrule a Supreme Court decision interpreting the Constitution. Nor can a Supreme Court decision interpreting the federal constitution be overruled by state constitutional amendments or legislation. Only a federal constitutional amendment (e.g., the Human Life Amendment) or a subsequent Supreme Court decision can overrule the holding in Roe that an unborn child is not a “person” within the meaning of the Fourteenth Amendment.

As a result, “personhood” bills like the federal “Sanctity of Human Life Act” or the “Life at Conception Act” simply cannot accomplish what their sponsors desire — they cannot overturn Roe v. Wade by simply defining an unborn child as a “person” under the Fourteenth Amendment.  The same holds true for similar state constitutional amendments that are being proposed around the nation.  I wish it were otherwise, but there it is.

We also have to consider the state of the judiciary. Some people are proposing these “personhood” initiatives as a way of starting a case that will challenge the Supreme Court to overturn Roe. The problem with this approach is two-fold.

First, no justice who has ever sat on the Supreme Court has ever given any indication that he or she would hold that an unborn child is a “person” under the Fourteenth Amendment. In fact, only two justices currently on the Court have ever said that they would overrule Roe on any grounds (Justices Scalia and Thomas). Even if we assume (without any factual foundation) that Chief Justice Roberts and Justice Alito would also vote to overrule Roe, there’s no indication that they would support the “personhood” theory.  In any event it would still not be enough — you need five votes, and there just isn’t another Justice on the Court who would vote to overrule Roe. Second, the result of this strategy will almost certainly make things even worse.  Instead of overturning Roe, a case involving a “personhood” law would likely produce an even stronger Supreme Court decision upholding the right to abortion, either by affirming Roe on the non-personhood of the unborn, or (God forbid!) by holding that abortion rights are necessary to ensure women’s equal status in society, based on the Equal Protection Clause of the Fourteenth Amendment (Justice Ginsburg’s favorite rationale for abortion rights).

On the whole, I believe that these “personhood” initiatives are a distraction from practical, achievable ways that we can reduce abortions and increase legal protection for the unborn. Parental notification, limits on public funding, and fetal homicide/assault bills are far more profitable ways for the pro-life movement to spend our time. We have to use these kinds of bills to build an authentic pro-life culture, so that a real Human Life Amendment, or a pro-life Supreme Court, becomes politically possible.

So, while I fully respect the intentions of those who promote “personhood” bills or amendments, I would not endorse or support them, or encourage anyone else to do so.

Nominees and Code Words

Tuesday, April 27th, 2010

The President will soon be announcing his nominee to serve as the next Associate Justice on the Supreme Court, to replace Justice John Paul Stevens, who is retiring at the end of this term.

Over the past half-century, the Supreme Court has developed into an institution that bears no resemblance to the role originally envisioned by the framers and ratifiers of the United States Constitution.  Rather than being a neutral arbiter of disputes under federal law, it has evolved into board of Platonic Guardians Rulers who undemocratically settle significant policy disputes, all under the guise of interpreting the Constitution.  For a demonstration of this, just take a look at any of the Court’s decisions on “social issues” like abortion or “gay rights”.  In fact, this development has gone so far that some have speculated that we no longer live in a democracy, but in a system where ultimate authority rests not in the people or in their elected representatives, but in unelected, life-tenured judges.

Given this situation, it is clear that the policy preferences of prospective Supreme Court Justices becomes an appropriate area for inquiry and discussion. After all, if they are going to act as our de facto rulers, perhaps we should get to know them better.

To that end, I thought it would be useful to look at some of the code words that will be used during the discussion of the new nominee, and especially during the confirmation hearings in the Senate.

  • “Precedent” and “Settled Law” — I have written before about these phrases, which are used by nominees to suggest that they are careful to respect existing law.   In reality, they mean that the nominee can be expected to overturn previous decisions that they don’t agree with, and sustain those they favor.  Or, to be more specific, these phrases mean that the nominee will support the Court’s abominable abortion decisions.
  • “Empathy” — This phrase was used by the President to describe what he was looking for in a nominee — somebody who would be sensitive to how law affects the lives of regular people.  This is a troublesome phrase, since to apply that standard in decision-making would violate a judge’s oath of office, which says: “I, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Justice of the Supreme Court under the Constitution and laws of the United States. So help me God.” (28 U.S.C. section 453)
  • “Women’s Rights” — This phrase has nothing whatsoever to do with the Nineteenth Amendment (which guarantees women’s suffrage) or Title VII of the Civil Rights Act (which bans discrimination based on sex).  All it means is that the nominee can be counted on to support the right to destroy unborn human beings in the womb.
  • “Right to Privacy” — This has nothing to do with the Fourth Amendment (which guarantees the security of your person, home and papers from intrusion by the government).  It means that the nominee will support abortion rights.
  • “Right to Choose” — Nobody even pretends anymore that this means anything other than the right to abort unborn children.
  • “Judicial Activist” — As used by those who actually care about what the Constitution says and means, this phrase refers to judges who make up new rights and dress them up in Constitutional language — or those who invent new rights, like the right to abortion, and hide them in nonsense like the “penumbras” and “emanations” from the Bill of Rights (Griswold v. Connecticut), or “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” (Casey v. Planned Parenthood).  For those who don’t care about what the Constitution says and means, but instead adhere to the more flexible concept of the “living constitution” (i.e., it means whatever the current “wisdom” desires), the phrase is used to attack anyone who might overrule Supreme Court rulings on abortion rights or other social issues, or who might strike down statutes for exceeding the authority granted to Congress in the actual Constitution.
  • The public debate over nominees to the Supreme Court offer us an opportunity to re-assess where we are as a constitutional republic.  The use of code words deflects from that important consideration.  In the upcoming months, as the Senate deliberates over the new nominee, we should be very careful to pierce through the fog to the truth about what the nominee believes, and what the consequences will be if that person becomes our newest Black-Robed Platonic Guardian Ruler on the Supreme Court.

    More Causes for Hope

    Friday, April 16th, 2010

    In these embattled days, it’s all the more important that we look for reasons to hope, and to be optimistic.  Fortunately, God being so good, there have been several such signs thrown my way in recent days.

    First was the special Family Life Conference sponsored by the Respect Life Office.  The theme this year was to honor the legacy of John Cardinal O’Connor, and all that he did to defend and promote the dignity of every human life.  It was a wonderful day, with great speakers — Archbishop Dolan, Helen Alvare, Mother Agnes of the Sisters of Life, and Fr. Charles Connor.  The large crowd was filled with fond memories of the Cardinal, and we were reminded of his indomitable commitment to the cause of life.  Despite all the battles he fought, he never wavered, and never lost his well-founded confidence in the rectitude of our cause.  It was an uplifting day.

    The second event was a pro-life legal symposium at Columbia University last week, sponsored by (believe it or not) the Columbia Law School’s pro-life group.  Yes, you read that correctly — a thriving group of committed pro-life law students at one of the most liberal institutions in the nation.  The line-up of speakers was outstanding — experts in constitutional law, attorneys who were actively litigating pro-life cases in the courts, law professors who are teaching and mentoring the next generation of pro-life legal crusaders. The best part of the day was how dynamic and hope-filled the law students and young attorneys were.  For old warhorses like me, it was a breath of fresh air, and another uplifting experience.  I felt as if the cavalry was on the way.

    The final cause for hope was the most recent Witness for Life — the prayerful vigil that is held outside of the Planned Parenthood abortion mill in lower Manhattan every first Saturday.  After praying outside the clinic in the cold and benediction at Old St. Patrick’s Cathedral, we return to the basement of the school for a hot coffee and a doughnut, and a bit of fellowship.  Part of the social is a sharing of stories by some of the participants.  Some of the men in the group shared their experiences in doing the sidewalk counseling — taking for a few moments with the women on their way into the clinic, handing them brochures from the Sisters of Life offering alternatives to abortion, and then talking at greater length with the men who bring the women there and then wait outside.

    One of the sidewalk counselors reported that, after talking to one of the men, the man decided to go back into the clinic to try to convince his friend not to have the abortion.  We all prayed that he would be successful.

    But the most amazing story of all was one told by one of the Sisters of Life assigned to the Visitation Mission, which helps women in crisis to make the decision for life.  Recently, the Sister was called to speak to a young lady who had gone into the same Planned Parenthood clinic that we pray in front of, to make arrangements for an abortion.  While sitting in the examining room, the young lady happened to look at the pamphlet rack, which was filled with all the usual horrible material about contraception, STD’s, etc.

    But what did she find instead?  One of the very same brochures from the Sisters of Life, offering hope instead of abortion, that our sidewalk counselors hand to the women who are going into the clinic — someone must have put it into the pamphlet rack, and the clinic staff hadn’t removed it.  This young lady read the brochure, had a change of heart, left the clinic and went right to see the Sisters.  After talking to them, she made the decision to keep her baby.

    The Holy Spirit is a very inventive fellow, always looking for ways to open our hearts to God’s will and His love.  He works through our memories of great leaders, he buoys our mood by raising up new warriors, and he reminds us of the wonderful mysteries that the world would call coincidences, but which we know as the handiwork of God.  How can we not be hopeful with such an ally?

    On “Precedents”, “Settled Law”, and True Justice

    Thursday, July 16th, 2009

    Some of the more illuminating testimony in the current Senate hearings over the new Supreme Court nominee has centered on the word “precedent”.

    That’s a legal term for a previous judicial decision that a court will consider to be binding authority in all cases to which it is applicable. This is an important feature of a common law-based legal system, like ours. It means that once a legal issue has been resolved, there is a strong preference for respecting and giving deference to that decision, so that there can be some clarity and predictability about what the law is. The fancy Latin term for this respect for precedent is “stare decisis”, which means, basically, “maintain what has been decided”. Lawyers will typically refer to such issues as “settled law”.

    Of course, not all previous judicial decisions are worthy of respect. A decision that was plainly erroneous should not be followed. Nor should a decision that directly contradicts a fundamental value of our Constitutional system, or basic justice. Courts frequently overrule prior decisions when it becomes clear that they were erroneous, or that circumstances have sufficiently changed that they are no longer applicable. (Or, to be cynical, when the composition of the Supreme Court has changed.)

    So, for example, we have the infamous Dred Scott v. Sandford decision of 1857. There, the Supreme Court decided that that African slaves, even after they are freed, could never be citizens and that they “had no rights which the white man was bound to respect”. Abraham Lincoln saw clearly that this exercise of judicial power was illegitimate, in violation of natural justice and the principle of universal equality in the Declaration of Independence. He gave it no respect, nor did it deserve any, despite the principle of stare decisis, and no American court has ever considered it to be “settled”. Instead, the decision is universally repudiated as a gross injustice.

    Or take the case of Buck v. Bell, the iniquitous Supreme Court decision of 1927, which upheld the involuntary sterilization of mentally handicapped persons. This is the case in which Justice Oliver Wendell Holmes (who is, inexplicably to me, one of the heroes of the legal profession) ended his majority opinion with the horrendous sentence, “Three generations of imbeciles are enough”. That case legitimized eugenics in the United States and constituted an egregious violation of fundamental human rights. It’s hard to believe, but this decision has never been explicitly overruled by the Supreme Court. But nobody would consider it to be “settled law”, and it is rightly viewed with the contempt that it deserves.

    Now we come to the modern age, and we have the cases of Roe v. Wade, Planned Parenthood v. Casey, and their ilk. These injustices have excluded unborn children from virtually any legal protection, have deemed them not to be “persons” under the law, and permit their destruction with impunity. They have established the unborn as a virtual underclass, whose rights no man is bound to respect. They violate the fundamental principles of natural law and justice, and the promise of universal equality under the law and the right to life as expressed by the Declaration of Independence.

    Nevertheless, the new Supreme Court nominee has called these decisions “precedent”, and considers the law they establish to be “settled”. Make sure that you understand the significance of that terminology — “settled law” must be followed and applied to future cases, and “precedents” must be respected and not overturned. This means that the nominee is committed to upholding Roe and Casey, and applying their evil rules to abortion cases that come before the Supreme Court.

    I attended the same great high school as the Supreme Court nominee, Cardinal Spellman High School. I also went to an Ivy League college and law school, as did the nominee. But I learned something different along the way.

    I learned that when a law — either a statute or a judicial decision — violates the inherent, inalienable rights of any human being, then that law can never be considered to be “settled”. It can never be respected or given deference as a binding “precedent”. Such a law is not really a law at all, but is instead a usurpation of power and an act of violence. A true respect for authentic justice means that it must be opposed and changed.

    It’s tragic that this is not being made clear before the Senate this week. But the real tragedy will come if the nominee is seated on the Court and decides to applies the evil “settled law” of Roe and Casey.

    Justice must take precedence over “precedents”. Otherwise we do not have an authentic rule of law for all, and we will never fulfill the dream of respecting the inalienable rights given to us by our Creator, particularly the right to life.