Archive for the ‘Supreme Court’ Category

Let’s March for Science

Tuesday, April 25th, 2017

Last Saturday, there was a large gathering in Washington called the “March for Science”. I didn’t attend, but I gather that the idea behind the march was a call for society in general and government in particular to rely more heavily on the input of scientists when making public policy in the areas of their expertise. It seemed also to have a lot of messages about accepting the reality of global warming and the adoption of policies that would address it.

All of that is well and good, and I’m all in favor of it.

But while we’re marching for science, how about if we include a little bit of the science of embryology when we make public policies?

Embryology is the study of life at its earliest stages. Human embryology is quite an advanced science, and there is an abundance of amazing resources that have been produced by scientists that can educate us about its truths. A quick Google search will uncover amazing photographs and models of embryonic human life. If we want the quick version, the Wikipedia article is a good place to start.

Here are some of the basic truths that have been revealed to us by the science of embryology: “A human begins life as a fertilized ovum” ( University of Utah medical school website); “The first week of human development begins with fertilization of the egg by sperm forming the first cell, the zygote” ( University of New South Wales, Australia, website); “Human development is a continuous process beginning with fertilization and continuing throughout pregnancy, birth, childhood, adolescence, adulthood, and into old age.” ( the Endowment for Human Development website); “Fertilization is the event most commonly used to mark the zero point in descriptions of prenatal development of the embryo or fetus” (okay, this one is Wikipedia, there were too many medical websites to keep citing them all).

So how does all this science relate to the making of public policy? Consider these quotations:

“During the first trimester, the predominant abortion method is “vacuum aspiration,” which involves insertion of a vacuum tube (cannula) into the uterus to evacuate the contents.”

“D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue… Because fetal tissue is friable and easily broken, the fetus may not be removed intact. The walls of the uterus are scraped with a curette to ensure that no tissue remains.”

“Because the fetus is larger at this stage of gestation (particularly the head) [after 15 weeks], and because bones are more rigid, dismemberment or other destructive procedures are more likely to be required than at earlier gestational ages to remove fetal and placental tissue.”

“There are variations in D&E operative strategy… However, the common points are that D&E involves (1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus.”

“The American College of Obstetricians and Gynecologists describes the D&X procedure in a manner corresponding to a breech-conversion intact D&E, including the following steps: 1. deliberate dilatation of the cervix, usually over a sequence of days; 2. instrumental conversion of the fetus to a footling breech; 3. breech extraction of the body excepting the head; and 4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.”

All of those blood-chilling quotations are from the majority opinion of the Supreme Court of the United States in the case of Stenberg v. Carhart, which struck down a state ban on partial birth abortions. That opinion was authored by Justice Steven Breyer and joined by four other Justices. All of those Justices were highly intelligent and educated people, all of whom attended Ivy League or similar prestigious colleges and law schools. Presumably, they were all reasonably well educated (for laypeople) in basic scientific principles. One would expect that at some point their education included the basic facts of human embryology. That opinion was written in 2000, so Wikipedia was certainly easily available for quick reference.

Yet they still upheld the legal right to kill members of the human race in the most barbaric means imaginable — dismemberment while still alive. They obviously knew the science, but ignored it.

So by all means let us march for science. More public policy decisions should be made based on the facts uncovered by scientific research. But we cannot fool ourselves. Science alone is not enough to make good laws and to promote social justice in our society. We need a proper sense of morality, which cannot be discovered by the scientific method. For that, we need to listen to the voice of God, either in the natural moral law written in our hearts or in his revealed Word.

When we ignore the truths of the moral law, we make even worse mistakes than when we ignore the laws of science. Let’s march about that.

Failing the Dred Scott Question

Friday, March 24th, 2017

As I have already written, I have great concerns about some of the answers given by Judge Neil Gorsuch during his confirmation hearings. I consider his originalist legal philosophy to be perfectly sound and likely to produce decisions that are favorable to the cause of human life. But when asked the most important question, his answer was an utter failure.

One of the Democratic Senators, Richard Durbin, was questioning Judge Gorsuch about a book he had written about assisted suicide and euthanasia. In the book, Judge Gorscuh proposed a principle that could be used to justify laws against suicide and euthanasia, which he called the “inviolability-of-life principle”:  “All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.”

Senator Durbin then asked the judge how he could square that principle with legalized abortion. This exchange then took place:

Gorsuch: Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment—and that book explains that..

Durbin: Do you accept that?

Gorsuch: That’s the law of the land. I accept the law of the land, Senator, yes.

I appreciate Judge Gorsuch’s respect for precedent and the original meaning of the Constitution. But I wonder if he realizes that in his answer, he was echoing one of the worst possible Supreme Court precedents — the infamous case of Dred Scott v. Sandford. In that decision, the Court held that, based on their reading of the original meaning of the Constitution, African-Americans were not “persons” within the meaning of the Constitution:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect…. [and the provisions of the Constitution] show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

In a concurring opinion, one of the Justices said this:

The correct conclusions upon the question here considered would seem to be these: That, in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person.

Is that really the kind of precedent that we want Supreme Court justices to respect?

What’s especially disheartening about Judge Gorsuch’s answer is that he didn’t have to say that at all. He could have easily deflected the question — as he did with pretty much every other substantive question — by saying that the issue of the personhood of unborn humans was likely to be litigated before the Court and that it was thus inappropriate for him to comment. The fact that he did give a substantive answer means that he considered the non-person status of unborn humans to be so clearly and finally settled that it is uncontroversial.

I still think that Judge Gorsuch should be confirmed, and that he will likely rule positively on incremental pro-life regulations of abortion. But any hope that he would overrule Roe v. Wadeappears to be a mirage.

The most important threshold legal question in any case is whether someone can count on the protection of the law to defend their basic human rights. Judge Gorsuch failed that question.

“Precedents” and Justice

Wednesday, March 22nd, 2017

We are now in the midst of yet another set of hearings on the nomination of a new justice of the Supreme Court. As with prior hearings, it has been considerably less than edifying, given the political grand-standing and speechifying. But once again, some of the more illuminating exchanges have centered on the concept of “precedent”.

“Precedent” is a legal term for a previous judicial decision. In many cases, courts will consider precedent to be the controlling legal authority. For example, lower courts must follow the precedents of higher courts in all similar cases. 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”.

Of course, not all previous judicial decisions are worthy of being followed. It has always been understood that prior decisions are not controlling if they are “flatly absurd or unjust” or “contrary to reason” (to quote the great legal scholar William Blackstone). Courts frequently overrule prior decisions when it becomes clear that they were wrong or poorly reasoned. In fact, in the words of another great legal scholar, Chancellor James Kent, “If, however, any solemnly adjudged case can be shown to be in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error” (emphasis added).

The Supreme Court has overruled prior cases, or declined to follow them, many times. The most famous example is Brown v. Board of Education, which overruled the earlier erroneous decision by the Court that endorsed legal racial segregation. There have also been other cases that are universally seen as unworthy of being followed, even if the Court has never formally overruled them. For example, we have the infamous Dred Scott v. Sandford, which held that African-Americans “had no rights which the white man was bound to respect”, or the case of Buck v. Bell, which upheld the involuntary sterilization of mentally handicapped persons since, as the Court said, “Three generations of imbeciles are enough”. Clearly, those “precedents” are not worthy of any respect.

This brings us to the current confirmation hearings. The Democratic Senators on the Judiciary Committee are repeatedly asking the nominee about his views on the cases of Roe v. Wade, Planned Parenthood v. Casey, and their ilk. They have invented a term, “super-precedent”, to indicate that they believe these decisions are beyond any further judicial review and can never be overturned — a concept so foreign to our Constitutional order and to the rule of law as to be laughable.

However, in response to one of those questions, the nominee said: “”Once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

That is a very unfortunate way of thinking. Roe, Casey, and their progeny have excluded unborn children from virtually any legal protection, declared 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. They are widely recognized as being poorly reasoned, even to the point where legal scholars who favor abortion rights have derided them.

It is therefore very troubling that the new Supreme Court nominee has called these decisions “precedent” and “settled”, and that we have to “move forward”. When a law — either a statute or a judicial decision — violates the inherent, inalienable rights of any human being, 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.

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. I hope that the nominee will consider this more carefully when he is on the Supreme Court, and take seriously his right and duty to correct the injustice of the Court’s abortion decisions.

Judges — Not Tribunes of the People

Monday, February 6th, 2017

The President has nominated Judge Neil Gorsuch to fill the current vacancy on the Supreme Court. This has excited and inflamed many people, and the battle over his confirmation will be a wild one. Filibusters and nuclear options are all on the table, and it will be very interesting to see what happens.

One thing that has already become clear, though, is that a great many Americans have no idea what a judge is really supposed to do. It may sound too trite to even be mentioned, but the fundamental truth is that a judge’s job is to decide cases. Nothing more.

A great deal of the commentary that you will see from the opponents of Judge Gorsuch is startlingly uninformed. After the announcement, people were already labeling him as “dangerous” and “extreme”, even though they hadn’t heard of him five minutes before. They were portraying him as some kind of wild-eyed maniac who somehow had managed to get on the Circuit Court of Appeals. Never mind that he was confirmed unanimously by the Senate for that position and that he has served there for the last decade without the Republic collapsing or anyone moving to impeach him.

The reality is that these advocates couldn’t care less about who Judge Gorsuch is (a pillar of his church and community), what his background is (both Columbia College and Harvard Law School, a few years behind me), or his years of outstanding public service (clerking on the Supreme Court and in a high position in the Justice Department). The reality is that these advocates only care about having a Supreme Court Justice who will enact their favored policy positions from the bench. And based on their rhetoric, the only issue that really seems to matter to them is abortion — they desperately want to keep abortion on demand legal in this country, and they don’t care how many people they have to calumniate and destroy to do it.

This campaign against Judge Gorsuch also betrays a complete lack of understanding about what a judge is supposed to do, and it illustrates how important it is for a judge to have a coherent philosophy of the law and a firm grasp of the essential principles of the American constitutional order.

Judges are not supposed to be super-legislators who make sure that their favored policies are embodied in their interpretation of the Constitution and statutes. Policy-making is the province of Congress and the President — the political branches that are subject to oversight by the electorate. The only job of the Supreme Court, as anyone can see in Article III of the Constitution, is to decide cases and controversies that arise under the Constitution and laws as well as certain other specific cases (like disputes between states).

Our Supreme Court has been violating that limited role for a very long time now. At least since the Progressive Era and especially since the New Deal, the Court has seen itself almost as a body of Platonic Guardians who can discern new meanings in the Constitution that nobody saw before. This is the body of judges who had the gall to say in the case of Casey v. Planned Parenthood:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

What gaseous nonsense. I defy anyone to find even a hint of such a role for the Court in the Constitution or in any of the writings of the Founders of our Republic. Madison, Hamilton and Washington would be appalled by such a pronouncement.

This highlights the importance of a sound judicial philosophy and a coherent understanding of the structure and principles of our Constitution. Too many Justices are on the bench already who lack this, and instead are ideologues (like Justices Ginsberg and Sotomayor), smart but lock-step liberals (Justice Kagan and Breyer) or vacuous pragmatists (Justice Kennedy). They appeal to a non-existent entity they call the “living constitution” and use that to make up new laws as they go along. If you want to see how it’s done, see Obergefell v. Hodges. And in doing so they hijack the proper roles that the Constitution gives to Congress and the President.

Judge Gorsuch, on the other hand, is an “originalist” and a “textualist”, which means that his philosophy is to discern the actual meaning that Constitutional provisions had when they were adopted and the actual meaning of the words that appear in laws enacted by Congress. Then, in the common law tradition, he would see his job as applying those principles to decide the actual case or controversy that is before him. No vaporous pronouncements about grand roles of the Court, and no discoveries of new rights and liberties hiding in invisible ink in the penubras, emanations and miasmas of the Constitution.

This restrained approach to the law is what actually scares the advocates who oppose the judge. They have become so used to judges enacting their favorite policies that they can’t imagine one who does otherwise. They are desperate to hold onto their policy gains, and they dread putting them before the elected branches for an open democratic debate.

In ancient Rome, there was an office called the “Tribune of the People”. He had the power to veto any law or government action, and he was absolutely unaccountable to anyone — nobody could overrule him or even lay hands on him. That is not what our Constitution envisions when it gives the Supreme Court its “judicial power”. Judges should decide cases and controversies, give effect to the laws that were actually enacted by “we the people”, and not set themselves up as unaccountable rulers.

Pro-Life Judges

Monday, January 2nd, 2017

I was recently asked my opinion of the list of the President-Elect’s potential Supreme Court nominees. I don’t have any personal knowledge of any of the people on the list, so I can’t really say anything useful about them. But I do have some observations about whether these people, or any judges, can be said to be “pro-life”.

In most cases, it is extraordinarily difficult to divine the personal views, and even at times the judicial philosophy, of lower-court judges based on isolated judicial opinions. Conscientious lower court judges are bound by precedent and are not free to overrule or widely diverge from it, even if they disagree with it. It is not good practice for lower court judges to openly criticize precedent. So even if a lower court judge rules against the “pro-life” side in a case, it doesn’t necessarily mean anything about their personal views or their judicial philosophy. It could just mean that the judge is doing his job.

Plus, sitting judges generally avoid writing law review articles or giving substantive talks on issues, since that might be considered pre-judging cases. There is also a phenomenon in the legal world where a person who hopes to be appointed to the bench deliberately declines to speak openly about controversial topics, to preserve their confirmability. So most sitting judges are a bit Sphinx-like when it comes to their actual views.

It is also a fact that there is probably not more than a handful of sitting federal or state high court judges who are “pro-life” in the sense that I would use the term — namely, they believe that unborn human beings are “persons” within the meaning of the 14th Amendment and are entitled to full legal protection. No Justice of the Supreme Court has ever taken that position — not even Justices Scalia or Thomas — and I would doubt that any sitting state judge has done so either.

So I would be very reluctant to call any judge “pro-life”, lest the word lose its real meaning.

In the absence of such persons, our best bet at this point is a “constitutionalist” or “originalist”, who would hold with Justice Thomas (and the late Justice Scalia) that there is no right to abortion guaranteed in the Constitution, and that the issue is therefore reserved to the states to permit and regulate or prohibit. I am not satisfied with that view, but I think it is just about as good as we can get in the current legal climate.

My general impression, from what I have read, is that the people on the President-Elect’s list would likely fit that description. Since I have no confidence whatsoever that the President-elect would recognize constitutionalism if it hit him over the head, I take some comfort in the probability that he is getting advice from the Federalist Society, which is committed to that view of the law.

Of course, one never knows what a person will do once they’re on the Court (as we have seen from Warren, Brennan, Souter, Kennedy, O’Connor, Roberts and many, many more examples). The Court is generally reluctant to overturn major precedents, and instead prefers to adjust or adapt them (see Casey). So I am not particularly sanguine about any reversal of Roe/Casey in the near term. I think that if a couple of constitutionalist Justices are appointed, we might get a ruling that backs away from the expansive application of Casey’s “undue burden” standard that we saw used to devastating effect in Whole Women’s Health to strike down Texas’ health and safety regulations for abortion clinics. That would be a tremendous accomplishment in itself because it would open up the field for further state restrictions, and it could lay the groundwork for an eventual direct attack on Roe/Casey.

One thing that I particularly fear is a sense of pro-life over-confidence that might lead to a premature assault on Roe/Casey. Pushing flawed and risky cases too fast (e.g., heartbeat bills) could produce a disastrous reaffirmation of Roe/Casey, perhaps with an even stronger constitutional justification based on the (spurious) idea that the Equal Protection Clause requires abortion rights to ensure the ability of women to fully participate in society. That is a position long proposed by Justice Ginsberg, and given the tenor of recent Court decisions like Obergefell, it may appeal to a majority of other justices as well.

At this point, I’m more concerned with the Executive Branch appointments, since that’s where most of the action is right now — regulations, enforcement actions, etc. I also fear that too much attention will be paid to DC, and not enough to the states where the pro-death movement will be very active in expanding abortion rights and promoting assisted suicide. State legislatures and courthouses are the battlefront right now, and our movement needs to focus on them, and less on crystal-ball gazing about potential judicial appointments.

Our Government is the Enemy of Religious Freedom

Wednesday, August 24th, 2016

Throughout American history, people have depended on our government to protect our basic liberties — our “unalienable rights”. Our Declaration of Independence was based on the premise that the purpose of government was to secure these rights, and that any government that sought to extinguish them was unjust and should be replaced. Our Constitution likewise contains numerous provisions that are specifically designed to protect individual liberties — especially the First and Fourteenth Amendments.

In recent years, it has become more and more clear that the current Administration harbors a settled hostility to religious liberty and freedom of speech, and a deep commitment to coercing compliance with their ideology of sexual liberation and gender theory. The history of the HHS contraception mandate shows the relentless commitment of the Administration to coerce all employers, including religious organizations, to offer insurance coverage for procedures and medications that are offensive to their religious beliefs, like abortifacient drugs and devices.

Earlier this year, the Supreme Court sent a very clear message to the Administration that they wanted them to come to some kind of compromise over the HHS contraception mandate. But rather than heeding that suggestion, the Administration has instead intensified its assault on religious liberty.

In May, the Department of Health and Human Services issued new regulations that are astonishing in their breadth and daring. The regulations rely on an interpretation of the term “sex” in current anti-discrimination laws, and stretch that clear term to encompass “gender identity” — which the regulation defines as a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female”, which would even include people with “non-binary gender identities”. A definition that includes so much is no definition at all — it is hopelessly broad and vague, and ultimately incoherent. But that is gender ideology at its heart.

The regs go on to require every doctor, hospital and other health care entity that receives federal funds (e.g., Medicare) — in effect, virtually every single health provider in the US —  to cover all procedures and interventions related to a person’s “gender transition”. Just to be clear, that means medical procedures like massive doses of hormones and the removal or mutilation of health body parts (i.e., hysterectomies, castration, penectomies, mastectomies, plastic surgery to create fake sex organs, etc.) — all so that a man can pretend he is a woman, and vice versa. This coercive mandate will override the medical judgment of a doctor that such acts are not medically necessary or appropriate, and they permit no exceptions based on religious or moral values.

It gets even worse. The regs also interpret the notion of “sex discrimination” to mean that a health provider cannot refuse to perform abortions, and must cover abortions and all those “gender transitioning” procedures in their health insurance plans.

All of this was done through the administrative law process, which is an arcane and undemocratic way to make law. Instead of having a bill passed by both Houses of Congress, all this requires is a regulatory agency plublishing proposed rules, allowing people to comment for a short time, and then promulgating whatever rules they wish. No public hearings are needed, so the entire process is hidden deep in the pages of a massive publication called the “Federal Register”, which no normal person can read and understand (even lawyers, who are far from normal, have a hard time). It is extremely difficult to overturn regulations, because our courts have abandoned their duty of constitutional oversight and give extreme deference to the agencies putting forth the regs.

Our government has been increasingly using this undemocratic process to impose their ideology on the nation. In fact, they go even further by issuing “guidances”, which are purportedly not binding but which in fact are just as coercive as regulations and statutes.

A lawsuit has been filed by the Becket Fund for Religious Liberty, representing a number of states, religious health institutions, and health professionals. If the government follows its previous practice, they will fight tooth and nail against any compromises, and will never concede any ground. No religious objection is ever enough for them, and no demand by gender ideologues is too much. That is the regime under which we live.

In the Declaration of Independence, the Founders stated clearly that when a government no longer secures basic rights, and instead seeks to usurp or repress them, it can only be described as a tyranny. Our government may not be comparable to the wicked despotisms around the world, but it has clearly crossed a line with its relentless attacks religious freedom.

Supreme Court to Religious Liberty — Drop Dead

Thursday, July 7th, 2016

In the last few decades, legal scholars and those interested in religious liberty have questioned whether the Free Exercise Clause of the Constitution is on its way to extinction. The question stems from the Supreme Court’s 1990 decision in the case of Employment Division v. Smith, in which it held that a neutral law of general applicability does not violate the Free Exercise Clause, even if it imposes a burden on a person’s religious beliefs or practices.

At this point, the Supreme Court has give a pretty clear answer to this question. For all intents and purposes, the Free Exercise Clause is a dead letter, with as much life to it as the Third Amendment’s ban on the quartering of troops in private houses.

Although the Smith rule appears to leave open the possibility of challenging laws, in reality it has rendered the Free Exercise Clause virtually useless in defending religious liberty. In fact, in the recent cases that have reached the Supreme Court on religious freedom during Chief Justice Roberts’ tenure (since 2005), virtually all have completely ignored the  Free Exercise Clause. Instead, the very few religion cases that have been taken by the Court were decided on other grounds, such as the Free Speech Clause, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, or Title VII. The lone possible exception was an ambiguous decision regarding the ability of churches to have discretion over religious employment decisions; it isn’t clear whether it rested on the Establishment Clause or the Free Exercise Clause. In any event, it’s as if the Court doesn’t want to hear about the Free Exercise Clause.

If that weren’t clear already, the Court made it perfectly plain this term. A very significant religious freedom case was presented to the Court, involving a serious infringement upon religious freedom. But the Court didn’t think the case was even worth considering.

The case involved a small family-owned pharmacy in the State of Washington. The owners of the pharmacy, the Stormans family, are Christians, and they have religious objections to dispensing so-called “emergency contraception”, because it can cause an early abortion. Other nearby pharmacies are willing to dispense those drugs, so they are easily available to anyone who wants them.

That wasn’t good enough for the pro-abortion zealots in the Washington government. They adopted regulations that their Human Rights Commission interpreted to specifically rule out moral and religious objections to the dispensing of drugs, even though they permitted (either explicitly or by practice) a host of non-religious reasons that a pharmacy can decline to dispense a particular drug. This was the result of a concerted campaign by abortion advocates to rule out any conscience-based objections to “emergency contraception”. In fact, the Governor of Washington invited Planned Parenthood to collaborate in the drafting of the regulations. The Governor even threatened the members of the Human Rights Commission being fired, and with violations of anti-discrimination laws if they allowed conscience objections. Once the rules were adopted, Planned Parenthood targeted this pharmacy for complaints.

It would be hard to imagine a clearer case of the government using its power to punish people of faith for exercising their religious beliefs in the way they conduct their business. There is no doubt that the government of Washington was trying to enforce a pro-abortion orthodoxy, and was willing to put people out of business if they dared to dissent.

The Stormans family challenged these regulations, and were initially victorious. But the Ninth Circuit Court of Appeals — a notoriously liberal bench — overturned the lower-court decision. The Stormans then appealed to the Supreme Court. They were represented by Alliance Defending Freedom, the great defenders of religous liberty and human life. Thirty-three state pharmacy associations urged the Court to take the case. Many others — including the US Bishops Conference and forty-three members of Congress — filed briefs in support of the Stormans’ petition.

Even under the restrictive Smith rule, this should have been an easy case. There was clearly a substantial burden on religious beliefs — being forced to cooperate directly in a possible abortion. The law was far from neutral — it specifically targeted only those who had moral or religious objections, and nobody else. And it absolutely wasn’t generally applicable — all sorts of secular exceptions were permitted, and only moral or religious ones prohibited.

But on the very last day of the Court’s term, it refused to hear the Stormans’ case. Five Justices — Kennedy, Ginsberg, Breyer, Kagen and Sotomayor — didn’t think that the Stormans deserved their day in Court. (I have to add that Justice Sotomayor joining that group is a particular disgrace — she is a graduate of Cardinal Spellman High School, my alma mater, and she obviously didn’t learn the same things that I was taught about the importance of our Catholic faith.)

The three remaining Justices — Roberts, Alito, and Thomas — dissented from the denial of the appeal, and Justice Alito wrote a blistering opinion. His opening paragraphs are worth quoting at length:

This case is an ominous sign.

At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for — or that they actually serve — any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.

By refusing to hear this case, the Supreme Court said to the Stormans and to the Free Exercise Clause that they can just drop dead. That is bad news for religious liberty, for the equal administration of the law, and for the health of our society. An ominous sign, indeed.

Victory for Religious Freedom

Tuesday, May 17th, 2016

Yesterday, the Supreme Court issued its long-awaited ruling on the HHS Mandate cases that involved the Little Sisters of the Poor, several Catholic dioceses, and a number of other Christian organizations. It is a bit of a disappointment that the Court didn’t rule explicitly on the merits of the religious liberty issues, and the case will linger on for a while in the lower courts. Still, given the divisions in the Court after the death of Justice Scalia, I have to consider this to be a major victory.

The Court unanimously decided to send the cases back to the Circuit Courts, which had previously issued split decisions on the cases. The Supreme Court instructed the lower courts to work out a resolution that would ensure that the religious non-profits would not have to do anything to facilitate the provision of morally offensive services beyond contracting with their insurance company for a policy that excludes them. That will then permit the government to come up with a way to ensure that the services are still offered to the employees of the non-profits. Most important, the Court also ruled that the religious non-profits could not be fined or penalized by the government for taking their stand in defense of their religious liberties.

There are a couple of crucial take-aways from this.

  • All along, the argument by the religious non-profits has been that they don’t want to be involved in providing abortion and contraception services that they find morally offensive.
  • This ruling vindicates that argument, and sends a clear signal to the government that they can’t force religious people to violate their religious beliefs by threatening them with ruinous fines.
  • The ruling also makes clear that it is not the business of the government or courts to tell people when their religious beliefs are burdened by a law. The Court’s decision is a direct rebuke to the lower courts who substituted their judgement about Catholic and Christian belief for the plaintiffs.
  • The government has not been told in no uncertain terms that they have to be more accommodating of religious belief, and more creative in coming up with ways to achieve their goals without burdening religious beliefs.
  • The government’s parsimonious view of religious freedom has now been dealt its fourth consecutive major blow — starting with the Hosanna Tabor case, through Hobby Lobby, and now with Zubik, the Court is sending a clear message that the constitutional recognition of religous freedom has to be given special weight when it is negatively impacted by government policies.

Major kudos have to go out the defenders of religious freedom at the Becket Fund and Alliance Defending Freedom, who gave these cases the benefit of their great legal skills. But more than anything, credit must be given to the Little Sisters of the Poor, Bishop Zubik, Archbishop Wuerl, Priests for Life, and the Christian Colleges who were the plaintiffs in these cases, and who carried the banner for our natural right to practice our faith free of government coercion.

James MadisonGeorge Washington, and Thomas Jefferson would be proud.

A Light at the End of the Tunnel?

Wednesday, April 13th, 2016

There is growing reason to hope that the long battle to defend religious freedom against the HHS Mandate may soon be favorably resolved.

You will recall that the “HHS mandate” comes from a provision in the “Affordable Care Act” (the “ACA”, which is typically being called “Obamacare”) that requires all employers who offer health insurance to include coverage for “preventive services”. The term “preventive services” has been defined by the Department of Health and Human Services (“HHS”) to include contraceptive drugs and devices (including “emergency contraception”, which causes early abortions) and sterilization operations. Churches and other purely religious organizations are exempted from this mandate, but many religious and other organizations are not. As a result, they have been in court trying to vindicate their right to conscientious objection — they don’t want to cooperate in the provision of services or products that are against their religious beliefs.

There was a significant victory in 2014 when the right of two family-owned corporations won their case before the U.S. Supreme Court (the  Hobby Lobby case). But now the Court is considering a major case involving numerous religious organizations who are not exempt, and who are facing massive fines if they don’t knuckle under. The most prominent of these organizations is the Little Sisters of the Poor, but there are other Catholic and Protestant organizations as well. The principal argument of these organizations is that the government is requiring them to file forms that essentially allows the government to “hijack” their health plan to provide services that they consider morally evil.

The case was argued before the Supreme Court in March. Usually, we would expect a decision in late June, but things in the Court have become complicated by the death of Justice Scalia — cases that might otherwise have been decided by a 5 to 4 vote would likely now result in a 4 to 4 split Court.  Perhaps becuase of this dilemma, the Court did something very unusual.  They asked the parties to submit additional briefs, in response to a suggestion from the Court that there may be a way to resolve the case, by permitting employees to receive the offensive services without any action by the religious groups. This was encouraging — it suggested that the Court was sympathetic to the religious liberty arguments, and was seeking a way to protect them.

Now the religious organizations and the government have filed their briefs. The Little Sisters et al. readily agreed to the Court’s suggestion, saying that they could comply with an arrangement where they are not required to take any action that would trigger the provision of the services, and if the services are actually provided by a separate insurance plan (even if it is run by their regular insurance carrier). This is all that the religious organizations have ever wanted — to be left alone to do their work, without getting dragged into anyone’s sex lives. In effect, they were saying to the Court, “This is the solution that we would have suggested to the government years ago, if they had only asked”.

The government, for its part, reacted by quibbling, complaining, and digging their heels in. They complained about having to file a new brief. They insisted that no further concessions were necessary to protect the religious groups’ consciences — as if they knew better what is in violation of Catholic or Protestant moral teachings. They groused that the Court’s suggestion would require changes to other sections of the law and regulations, as if that were something unheard-of, rather than the commonplace result of any litigation of this type. They continued to fantasize that any further accommodation would lead to a parade of horribles — endless further litigation, thousands of women without health care, etc. And in the end, as if they were swallowing nasty-tasting medicine, they kind-of, sort-of, very reluctantly maybe agreed that the Court’s suggestion would be barely acceptable.

This ungracious reply hurts the government’s credibility, and is cause to be hopeful for a positive result. The Court now has reason to wonder why the case is even before them, and has a clear way to resolve it.  All they need do is issue a simple opinion, stating that the government has failed to establish a compelling reason to force the Little Sisters et al. to cooperate with the HHS Mandate, and ordering the settlement that the Court suggested, to which both the government (however grudgingly) and the Sisters have now agreed.

That would end this long nightmare, and vindicate the right to conscience of religious organizations. But it also raises a troubling question — if such a common-sense solution was available all this time, why did the government insist on forcing the cooperation of the religious groups? I know of no other answer, other than the Administration’s well-established hostility to traditional religious values, and their complete dedication to the spread of the ideology of sexual liberation, against any opposition.

Lawless and Arrogant Judges

Wednesday, December 2nd, 2015

I frequently refer to judges as our “Black-Robed Platonic Guardian Rulers on the Courts” because of the consistent record of the modern judiciary to invent new laws based on their own policy preferences.  They often run roughshod over the proper role of courts in a constitutional republic, and particularly over traditional moral values that have been enshrined in law and culture since time immemorial.

They have arrogated to themselves the ultimate authority to decide the laws of our nation, and are unaccountable to anyone for the decisions that they make.  All one needs to do is look at the arrogant and imperious decisions in abortion cases (particularly Planned Parenthood v. Casey) and the redefinition of marriage (Obergefell v. Hodges) for all the evidence you need to see what I’m referring to.

Usually, judges are careful not to let on about what they’re up to.  Very few will actually admit to making momentous decisions based on their own preferences, or to disregarding the plain text and meaning of the Constitution when it stands in the way.  This is part of an implicit social contract in our legal and political establishment — everyone knows what is going on, but few will pull back the curtain.

But every so often, the mask slips.  Take the case of Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit.  Judge Posner is one of the most respected jurists of our generation, a brilliant scholar of law and economics and a public intellectual who has written on a wide range of issues.

He is also an astonishingly arrogant Black-Robed Platonic Guardian Ruler on the Courts.  In two recent public statements (on in the Yale Journal and the other in a speech at Loyola Law School), Judge Posner made some breathtaking statements about his view of the Constitution, the role of judges, and how he makes judicial decisions.  Consider:

I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.

And again,

Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.

This, from a judge whose position was created in that very same Constitution in order to decide cases and controversies that arise pursuant to that very same Constitution, and who swore to faithfully discharge his duties under the very same Constitution.

Not that this seems to matter much to Judge Posner.  When asked about his oath of office, this is what he had to say:

The oath is not really to the original constitution, or to the constitution as amended. It is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.

When solemn oaths are deemed insignificant, one can only wonder what kind of justice is meted out in his courtroom.  Actually, we don’t have to guess, because Judge Posner has made it clear:

My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.

In other words, law with the law left out, nothing more than ad hoc seat-of-the-pants rulings based on his idiosyncratic view of what is common sense on any particular day.  Of course, this should really come as no surprise from a man who has expressed his great admiration for the Friedrich Nietzsche, the moral nihilist and apologist for the powerful dominating the weak.

This kind of cynicism, unfortunately, is the mindset of far too many lawyers and judges in the United States.  When I was at Harvard Law School, the professors openly told us that there was no objective moral content to the law, but that it was just a vehicle for powerful people enacting their political preferences.

A nation ruled by such people is no longer a functioning democracy or republic.   It is a despotic judicial oligarchy.