Posts Tagged ‘Supreme Court’

More Chaos and Injustice for Refugees

Friday, July 7th, 2017

At the end of June, the Supreme Court issued a ruling in a lawsuit that challenged the Administration’s so-called “travel ban”. The Supreme Court decision would permit the Administration to impose its ban on refugees from any nation in the world for 120 days, once the quota of 50,000 refugees has been met. Since that absurdly low number is expected to be met next week, the effect is to permit a refugee ban for the rest of this year.

However, the Court provided that refugees from six Muslim-majority countries can be admitted if they can prove a “bona fide relationship with a person or entity in the United States.” The Administration has interpreted this narrowly, to mean that people with “close family” in the U.S. — such as a parent, spouse, fiance or fiancee, child or sibling — would qualify. But it does not include others, including grandparents, grandchildren, aunts, uncles and cousins. And it fails to take into account the reality of persecution suffered by thousands who don’t have any family ties to the US.

This leaves thousands of refugees trapped in dangerous and unhealthy camps or in hiding from violence and persecution. 65 million people are currently displaced by war and persecution around the world, according to the UN. Our attention has mostly been directed to the Middle East, but there are refugees from all over the world, including those fleeing the civil war and famine in South Sudan and people escaping the growing tyranny and economic collapse in Venezuela.

The terrible irony is that, even though the President originally said he wanted to help Christians facing persecution and to keep out radical Islamists, the ban will likely exclude far more Christians than Muslims. According to the State Department, 48 percent of the refugees admitted to the US in the first half of this year were Christian, while 41 percent were Muslim.

The injustice to Christians fleeing persecution was made even more evident by the bizarre decision by immigration officials to target Chaldean Christians in Michigan for a deportation campaign. Some of these people were legitimately subject to potential deportation because of prior criminal convictions. But the result of this campaign is not only to separate families, but to send these people back to northern Iraq — a current hot war zone that has been the site of genocide against Christians. It’s hard to fault them for feeling betrayed by a President who once tweeted “Christians in the Middle-East have been executed in large numbers. We cannot allow this horror to continue!”

This Administration is not exactly famous for consistency and rationality of its policies, and chaos seems to be the order of the day. Just today, it was revealed that the head of the ICS deportation unit has ordered his officers to detain all undocumented immigrants they encounter, even if they don’t have a criminal history — in direct contradiction of the Administration’s publicly stated priorities. Considering that the Administration hasn’t even nominated a new head of ICS or the policy office of Homeland Security, the disarray is not too surprising.

But the injustice of this Administration’s policies on refugees is both surprising and tragic. While I can appreciate differing positions on the appropriate numbers of immigrants to welcome to the United States, it is hard to fathom the Administration’s hard-heartedness towards refugees.

“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.

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.

Our Misguided and Dangerous Platonic Guardian Ruler

Wednesday, April 29th, 2015

The Supreme Court has now heard oral arguments on the marriage redefinition cases.  I was already pessimistic about the eventual outcome of this case but, based on the arguments, I am even more concerned about what it will mean.

Conventional wisdom holds that Justice Anthony Kennedy will be the crucial “swing” vote in this case, as he has been in many others.  In fact, his role as the ultimate, sole decider of momentous constitutional questions makes me wonder about the notion of “one man, one vote”, on which our nation has relied for so long.  What kind of democracy are we, if one Supreme Court justice is the “one man” and his vote is the only “one vote” that matters?  That is why I often refer to the Supreme Court, and particularly Justice Kennedy, as “our Black-Robed Platonic Guardian Rulers on the Court”.

If the oral argument revealed anything, it certainly showed how deeply confused Justice Kennedy is about the role of government in our society.  In many of Justice Kennedy’s decisions on moral issues, he places a great deal of emphasis on the notion of “dignity” as a principle of constitutional law.  Needless to say, the Constitution contains no mention of the word “dignity” — it speaks of equal protection, due process, many specific rights, but not “dignity”.  Nor can anyone determine how it became grafted onto the basic law of our polity.

That doesn’t stop the fertile imagination of Justice Kennedy.  In Windsor v. United States, the first Supreme Court marriage redefinition fiasco, Justice Kennedy had this to say about state laws surrounding marriage: “The State’s decision to give this class of persons [i.e., men and women] the right to marry conferred upon them a dignity and status of immense import.”  He went on to describe these laws as an  “interference with the equal dignity of same-sex marriages”.

Note the use of that one key word — “conferred”.  This is crucial to understand the real significance of Justice Kennedy’s muddled Constitutional theories, which become clear in the oral arguments yesterday, in this strange exchange between Justice Kennedy and the attorney for Michigan, who was defending the traditional understanding of marriage:

Mr. Bursch (Counsel for Michigan): … what they are asking you to do is to take an institution, which was never intended to be dignitary bestowing, and make it dignitary bestowing.

Justice Kennedy:  I don’t understand this not dignity bestowing.  I thought that was the whole purpose of marriage.  It bestows dignity on both man and woman in a traditional marriage… It’s dignity bestowing, and these parties say they want to have that same ennoblement…  I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.

One can only wonder where he got this idea from.  The “whole purpose of marriage” is to bestow dignity or to grant “ennoblement”?  Who ever heard of such an idea?  These concepts have absolutely no foundation in the Constitution or in rationality.

What is truly breath-taking is the assumption the government has the authority and mandate to bestow dignity or “ennoblement” upon a person.  A government that can do that, is truly unlimited in its power — it is indeed Hobbes’ Leviathan, absolute and without any final restraint.

This is dangerous nonsense — our dignity comes from our Creator, and is intrinsic to us as human beings.  No government can add or detract from it, and it is not conditional upon any principle of law, decision of a court, or the desires of others.  The government has nothing to do with dignity, and even less to do with nobility.  If we grant that kind of power to a government, then we have ceased to be free people, and we are all in trouble.

We who are likely to be on the losing side of the marriage definition case need to consider this — what the government can bestow, it can also revoke or withhold.  If we are branded as “bigots” for holding to the true meaning of marriage, what will the government do to our legal rights, under the rubric of upholding the dignity of others?

There is indeed much at stake here, and the confused and dangerous ideas of Justice Kennedy give no cause for optimism about the results of this case, and the future of ordered liberty in America.

The Supreme Court Surrenders on Marriage

Monday, October 6th, 2014

This morning, to the surprise of just about every observer, the Supreme Court declined to review seven lower-court rulings that had re-defined marriage. For all intents and purposes, this non-decision really gives the green light to lower courts to strike down every democratically-enacted state law that defines marriage in the traditional way.

To understand how significant this surrender is, some basic background information is necessary.

Since the Supreme Court struck down the federal Defense of Marriage Act in June 2013, there has been a virtually-unbroken string of lower-court decisions invalidating state marriage laws.  Three of the federal Circuit Courts of Appeals had already struck down laws in several states.  Four other Circuit Courts have similar cases before them but haven’t issued decisions yet.  When you take all these cases into account, the laws of as many as sixteen states were at issue.

Petitions were filed in the Supreme Court in which all the parties to the seven lower-court decisions — both the defenders of the marriage laws and those seeking to overturn them — had asked the Court to make a final ruling on the issue.   For the Court to agree to hear a case, only four Justices need to assent to the petition (technically called a petition for a “writ of certiorari”).

Rule 10 of the Supreme Court’s rules states:

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers… (c)  a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.

You also have to understand something of the self-image of the Supreme Court, who seem to believe that they have been appointed to be Platonic Guardians over our society.   Recall this gaseous emanation from the penumbras of the Supreme Court’s collective consciousness, in the plurality opinion in Planned Parenthood v. Casey:

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.

Now, it’s hard to imagine a more contentious controversy than the debate over the definition of marriage, or a more “important question of federal law that has not been, but should be, settled by this Court”.   The argument has raged since the late 1990’s, and it has been fought out in a series of state ballot initiatives and constitutional amendments, legislative battles, court cases, and political campaigns.  The Supreme Court itself created the current legal chaos and uncertainty with its decision in the Windsor case, which was mis-used by federal judges to strike down state marriage laws.  One would have thought that now was the time for this matter to be addressed by the Court itself, in its self-anointed role to”call[] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution”.

Yet the Court declined even to consider the cases.  No briefs to be filed.  No oral arguments.  No further discussion among the Justices.  There weren’t even four Justices who thought it was ripe for decision — not even the vaunted supposedly-conservative wing of the court (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito).  Even though anyone can foresee the consequences of not taking the cases — namely, sending a signal to the lower courts that it was open season on state marriage laws.  We can now expect more lower courts to follow the Supreme Court’s lead, and the dominoes will continue to fall.

The most disappointing part of this non-decision is that not a single Justice thought it was worth writing a dissenting opinion.  Perhaps they should just raise a white flag over the Supreme Court building today.

So, by not agreeing to decide any of these cases, the Supreme Court actually issued a momentous decision, and effectively re-defined marriage in the entire United States, without giving the defenders of marriage their day in Court.  This is how democracy no longer works around here.  Thus is marriage redefined in the United States, not with a bang but with a whimper.

 

An Encouraging Victory for Religious Liberty

Tuesday, July 1st, 2014

The Supreme Court has issued a very important ruling on the HHS mandate.  By a narrow 5 to 4 majority, the Court found in favor of the religious liberty rights of two family-owned businesses, Hobby Lobby and Conestoga Wood.  The Court held that they do not have to fund insurance coverage for abortion-causing contraceptives that they consider to violate their religious beliefs about the sanctity of human life.

This is a significant victory for religious liberty. It shows that the government does not have unlimited power to force people to violate their beliefs. It is also a vindication for all those who have objected to the HHS mandate, and who have defended religious freedom.

There has been, and will continue to be, a great deal of commentary on this decision.  At this point, though, it’s valuable to make sure that we understand clearly just what the Court did, and what it did not do:

  • The decision was was based on the federal Religious Freedom Restoration Act (“RFRA”), and not the Free Exercise Clause of the First Amendment.   However, the Court recognized that RFRA offers broader protection to religious liberty than the First Amendment.
  • The decision does not in any way restrict access to contraceptives, nor will it impose any additional costs on women who seek them.  This ruling is very limited — it just requires the government to find some other way to accomplish the basic (and in my view, lamentable) goal of the HHS mandate — free contraceptives — without requiring the corporations to pay for them.
  • However, the ruling does mean that the government, in pursuit of its public policy goals, cannot impose substantial burdens on religious believers, without seeking some way to accommodate or exempt them.
  • It is not clear what impact this decision will have — if any — on the challenges brought against the HHS mandate by religious non-profit organizations like the Little Sisters of the Poor and Catholic Charities.   There is much speculation about this, even to the point of very close analysis of a particular sentence in the majority opinion, but that’s all it is — speculation.  The Court specifically left that issue open for a future decision.
  • This case upholds the idea that corporations have legal standing under RFRA (in legal parlance, they are “persons” within the meaning of the statute).  The Court recognized that corporations are just vehicles through which real, live human beings act, and, in some cases, exercise their own constitutional rights.  This is an important recognition of the Catholic social teaching about the value of mediating institutions that operate in society and stand between the state and individuals.
  • The ruling was limited by the Court to closely-held corporations that are controlled by religious people who operate with explicitly religious missions.  It does not give carte blanche to all corporations to ignore generally applicable laws.
  • Nor does the case give automatic permission for religious people to engage in discrimination on account of race, sex, etc.  Despite the fear-mongering in the dissenting opinion and in the media, this notion was specifically ruled out in the majority and concurring opinions.  Any claim for a religious exemption will still have to satisfy the scrutiny of a court, applying the standards of RFRA to the particular facts of each individual situation.
  • The Court did not strike down the Affordable Care Act or the HHS mandate in general.  That was not at issue in the case at all.
  • The discussion and debate about this issue, and about the general intersection of law and religion, will certainly continue.  A pluralistic society like ours should recognize and respect a broad scope for the fundamental human right to freedom of conscience, consistent with public order and safety.

    So we have much to be thankful for.  Please give thanks to God for the wisdom of the Justices in the majority of the Supreme Court, and for the courage and persistence of the owners of Hobby Lobby, Conestoga Wood and their attorneys, particularly those at the Becket Fund and Alliance Defending Freedom.

    A Welcome, Disappointing Decision

    Monday, June 30th, 2014

    Pro-Lifers rarely win court cases, so it is very gratifying to win one in the Supreme Court. Unfortunately, even in victory, there is disappointment, and a sense that the constitutional rights of pro-life people have been relegated to second-class status.

    The case was McCullen v. Coakley, and it arose out of a terrible Massachusetts law that established a 35-foot buffer zone around abortion clinics. Pro-lifers were prohibited from entering that zone, which effectively banned any attempt to speak to women seeking abortions (“sidewalk counseling”) completely. However — and this is crucial — abortion clinic staff were permitted to be in the zone and speak to the women who were approaching the clinic.

    The Supreme Court, by a unanimous decision, found that the law was unconstitutional. However, the Court’s unanimity is actually deceiving — although all nine justices agreed that the law was invalid, the Court was actually split 5 to 4 on the reasoning. And the reasoning of the majority is very troubling.

    One of the fundamental principles of the First Amendment guarantee of free speech is that the government cannot pass a law that is based on the content of a person’s speech, and that discriminates against one particular point of view. The principle is called “viewpoint neutrality”.  The majority found that the Massachusetts law did not violate the requirement of neutrality, but still found the law unconstitutional because it burdened speech more than was necessary to fulfill the government’s legitimate objectives.

    But that reasoning is gravely flawed.  Take it out of the abortion context for a second. Consider the hypothetical case of a law that places a buffer zone around a mine entrance where there is a highly contentious strike taking place. Imagine that the law prohibits striking miners from being in that zone, but allows management employees to be in the zone and speak openly to strike-breaking workers seeking to enter the plant. Can anyone imagine a court upholding such an obviously biased law? Of course not — it would be a clear case of the government taking sides in a strike, and showing favoritism towards one point of view.

    The Massachusetts statute is exactly the same, and is clearly not “viewpoint neutral”. It was specifically designed and intended to prosecute and deter only pro-life speakers, while giving pro-abortion speakers free reign to speak and act.

    Nevertheless, the majority of the Court, led by the Chief Justice, implausibly concluded that the law was “viewpoint neutral”, because on its face it did not single out pro-life speech. This is absurd — everybody understands very clearly what the goal and effect of this law is.  As Justice Scalia stated in his concurring opinion,

    The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to “protect” prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks.

    In short, although the Court unanimously struck down the law, there is only a minority of Justices who believe that pro-lifers deserve the full protection of the Constitution. This follows a disturbing trend in the Supreme Court, in which abortion distorts the Constitution — indeed, abortion corrupts everything it touches.

    Again, to quote Justice Scalia:

    Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.

    So, while it’s good that we’ve won a big case, it’s clear that pro-lifers continue to be treated as second-class citizens in our courts.

     

    What’s Next for Marriage and for Us

    Thursday, June 27th, 2013

    I was asked yesterday to contribute to an online symposium at National Review Online about the implications of the Supreme Court decisions on marriage.  Here’s my contribution:

    From a legal standpoint, the Supreme Court’s decision on DOMA is extraordinary and far-reaching. Our entire legal history and tradition regarding marriage continues to be dismantled. Nobody can know what will come from redefining thousands of federal statutes and regulations — wherever the words “marriage” or “spouse” appear. It will take decades to know the ultimate legal consequences.

    But there is a deeper meaning. We have been engaged in a great struggle for the soul of our society, and the souls of individuals. The battleground has been over the nature and significance of marriage, and why people should choose marriage as the centerpiece of their lives. We have long been contending against a hostile culture.

    This task will go on, regardless of whatever the law might be. Families, schools, and churches will all continue to teach the authentic meaning of marriage — one man, one woman, lifelong, faithful, and inherently oriented to having children. But the terms of engagement have dramatically changed. The Court’s ruling will make our mission more difficult, by branding the real meaning of marriage as mere bigotry, hatred, and irrationality.

    In a way, though, this may enable us to become more effective teachers. The big lie at the heart of the Supreme Court’s decision — that same-sex relationships are the same as real marriages — cannot ultimately gain sway over the hearts of people. It is false, and deep in our hearts we know it. And it will only highlight the contrast between the false values of a corrupted society and legal system, and the true virtues of authentic, loving married couples.

    The law is a great teacher, and this Supreme Court decision teaches a lie. But the truth about marriage will continue to be attractive to people, who always prefer truth to lies.

    Many of the other contributors took a “it’s not as bad as it could have been” approach.  I’m not convinced.  The expansive, dismissive language of the majority opinion — claiming that bigotry alone supports laws defending real marriage — will certainly be used by future litigants to attack the laws of the states that have not yet gone over the edge.  Same-sex “marriage” advocates have already begun predicting that it will only be a matter of five years before they will succeed in overturning all those state laws.

    The language of the decision will also be used in the public square to shape the debate, by branding us as the equivalent of racists.  Soon, the media won’t even try to obtain and present our side of the story.  There won’t be much of a debate, if only one side is allowed to show up.

    The Court’s ruling on the Defense of Marriage Act will also shape the implementation of a wide range of federal laws, which reach far into every recess of American life.  Think only of ERISA (which governs employee benefit plans and pension plans) and the Affordable Care Act (which governs health insurance plans), and you can see how significant will be the redefinition of “marriage” and “spouse” under federal law — every benefit plan, and every health insurance plan, will likely have to cover benefits for same-sex “spouses”.

    The potential for conflict with religious liberty and conscience rights will be just as severe as with the HHS mandate.

    Likewise, we can easily see a time when the IRS will play a role.  When it scrutinizes the policies of organizations that seek (or already have) tax exempt status, what will happen when it finds that an organization “discriminates” against same-sex couples in employment, benefits or services?  Will “discriminatory” churches be denied tax exempt status, or have it stripped from them? Remember, the old saying, “the power to tax is the power to destroy”.

    While I continue to be optimistic that people will see through the lie in the Supreme Court’s decision, as an attorney I’m pessimistic.  People will still choose authentic marriage, and we will continue to teach about it, and call people to it.  But from a lawyer’s perspective, it’s very difficult to see a future that is free of continuing legal and social pressure and conflict, all designed to make us conform to the new view of marriage, and punishing us if we fail to do so.

    The Supreme Court Casts Us Beyond the Pale

    Wednesday, June 26th, 2013

    Our black-robed Platonic guardian rulers on the United States Supreme Court have now decreed that the federal government — the democratically-elected Congress and the President, that is — may not define the word “marriage” to mean what it always has meant, and always been understood to mean.  Our entire legal history and tradition, dating back to its roots in Roman and English law, has now, at the stroke of a pen of five unelected judges, been swept into the dust heap.

    The Court’s specific ruling was to strike down a section of the Defense of Marriage Act, which was passed by wide majorities in both houses of Congress and signed into law by President Clinton.  This provision stated that for the purposes of federal law, “marriage” could only mean a union of one man and one woman.  Until ten years ago, that provision of law would have been completely unremarkable, indeed, unnecessary.  After all, until a decade ago, nobody would have considered it possible that any person would consider “marriage” to mean anything different.

    But now, in the post-modern world of ethical, moral, and rational relativism, words no longer mean what they have always meant.  And “democracy” certainly no longer means government “of the people, by the people, and for the people”.

    Instead, five Justices (including one who graduated from my own alma mater, Cardinal Spellman High School) have decided that anyone who believes that “marriage” means “one man, one woman”, is irrational, motivated solely by hatred and a desire to stigmatize and insult homosexual persons.  Yes, the Supreme Court has now said that the Catholic and Orthodox Churches, the vast majority of Protestant communities, Orthodox Jews, virtually all Muslims, and many others of no faith, are mere bigots.  We have been cast out of polite society.

    This may sound like “sour grapes” or hyperbole.  So don’t just take my word for it, consider this section from Justice Antonin Scalia’s dissent from the Court’s judgment:

    But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions…  In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

    The Court’s calumny of our position is, of course, utter nonsense.  There are an abundance of rational reasons to defend the authentic definition of marriage.   Just consider the scholarly arguments made in the recent book What Is Marriage?: Man and Woman: A Defense by Robert George, Ryan Anderson, and Sherif Gergis.  Or, you could watch this video of a presentation I gave to a parish meeting to explain the many reasons that support the real definition of marriage.

    It is a sad day when millions of Americans have been slandered by the Supreme Court.  It is sad when reason, history and tradition are traduced so casually.  And it is even sadder when one of the highest institutions of our government gravely wounds the fundamental  structure of society.