Posts Tagged ‘Supreme Court’

The Idolatry of Abortion

Wednesday, July 18th, 2018

Once upon a time, people who called themselves “pro-choice” insisted that nobody is really in favor of abortion, but rather they see it as a sad necessity for women who are forced to deal with an unwanted pregnancy. We even heard from President Clinton – and the First Lady – that they thought that abortion should be “safe, legal and rare”. These attitudes reflected the ambivalence of ordinary Americans about abortion. While most people support legal abortion in some cases, most actually oppose it and would impose restrictions on it in most cases.

While the ambivalence of Americans remains, the reticence of abortion rights supporters is long gone. The leading lights of that movement are revealing their true beliefs that abortion is a positive good that is not to be regretted but rather is to be celebrated. We are at the point where there is a virtual idolatry of abortion, where it is seen as a sine qua non for the active participation of women in society.

The nomination of Judge Brett Kavanaugh to the Supreme Court has been the catalyst for an astonishing amount of overheated rhetoric about abortion. We’ve seen claims that his confirmation will lead to the deaths of women, and even the display of the mythical coat-hanger meant to evoke illegal and dangerous abortions that are supposedly just around the corner. The fear-mongering will undoubtedly get even worse once the Senate convenes its confirmation hearings.

The most notable practitioner of waving the bloody shirt has been our Governor. His devotion to legalized and unrestricted abortion is long-standing, and his preference for outrageous rhetoric is well known. This is the man who once said that pro-lifers “have no place in the state of New York, because that’s not who New Yorkers are.”

He is now on the campaign trail pushing for the State Legislature to return to Albany for a special session to “codify Roe v. Wade” in state law. He recently made the bizarre statement that “If Roe v. Wade is overturned, women lose their right to choose in the state of New York today”. He must expect that nobody will actually fact-check him and realize that he is just making things up. The reality is that New York already has one of the most liberal abortion laws in the nation, one that pre-dates Roe and which permitted thousands of abortions prior to Roe. Abortion is available on demand, for any reason whatsoever, at any time prior to 24 weeks of pregnancy, and afterwards if the life of the mother is at risk. Overturning Roe will have no effect whatsoever on that – the vast majority of abortions will still be legal in New York.

The only way that the Governor’s statement makes any sense is when we realize that Roe was the high-point of abortion jurisprudence. It legalized late-term abortion to preserve a woman’s health – a term the Supreme Court defined so broadly that it means any reason whatsoever – and it was used by courts to strike down virtually all regulations on abortion at any stage of pregnancy. So what the Governor is really advocating for is unrestricted abortion and particularly late-term abortions on demand.

And that’s precisely what the Governor’s own abortion expansion bill would do. Back in 2013, the Governor introduced a radical bill as part of his “Women’s Equality Act” that would: expand the availability of late-term abortions on demand; permit non-doctors to do abortions, including late-term abortions; virtually eliminate the ability of the State or local governments to regulate the practice of abortion; immunize from criminal prosecution any person who directly tries to cause the death of an unborn child (e.g., in a domestic violence incident); and severely limit criminal prosecutions of unlicensed “back-alley” abortionists (which is ironic, given all the rhetoric about going back to the days of illegal abortions). That’s not a “pro-choice” bill, it’s the abortion industry’s wish list.

The Governor has also made the deeply weird statement that he will sue somebody for something in some court somewhere if the Supreme Court overturns Roe, and that’s why he really needs the Legislature to pass his abortion expansion bill now. I must have missed the class in law school where that makes any sense at all. Perhaps when the Governor was in law school he missed the class where they taught that the Supreme Court is the highest court in the nation, that there is no appeal to another court from its rulings, and that lower courts cannot overrule a Supreme Court decision.

The Governor also doesn’t seem to realize that Roe v. Wade is no longer the controlling law when it comes to abortion. In 1992, the Supreme Court decided the case of Planned Parenthood v. Casey, which permitted much more regulation of abortion than Roe did. By expressing his preference for the Roe legal standard, the Governor shows that he is out of step with public opinion, which supports many limitations on abortions, especially late-term abortions, and that he wants New York to have the most extreme abortion law possible.

Our Governor is not the only one who is going to such extremes. Many pundits and leaders of the Democratic Party are just as far out there. This is becoming clearer and clearer, and by the end of Judge Kavanaugh’s Senate auto da fe, it will be undeniable.

Perhaps the clearest example of how the pro-abortion movement has come to idolize abortion took place on late-night television recently. An unfunny comedienne staged a bizarre and crude “Salute to Abortion” that celebrated the unlimited right to destroy unborn children. “Progressive” pundits applauded, and politicians who publicly recoil from every incontinent tweet from the President were nowhere to be found or heard from.

There’s a reason for that. The ideology of abortion has reached the point in certain precincts in America where its adherents have turned it into a virtual idol. This is why we must continue to oppose the Governor’s radical abortion bill, and any effort to extend legal protection to the killing of unborn human beings.

Realism about the Supreme Court and Abortion

Saturday, July 7th, 2018

The President is about to announce his nominee to fill the newly vacant seat on the Supreme Court. That will set off a bruising confirmation battle that will stretch into September at least. The rhetoric will be heated and likely ugly, and may even include a large dose of religious intolerance. As this maelstrom kicks off, it’s important that we have realistic expectations about what this will mean for legalized abortion.

It is a clear sign of the debasement of our American political society that so much energy and effort are going to be devoted to a Supreme Court nomination. The loss of a proper understanding of natural law and the dominance of a sense of moral agnosticism have left our government and courts without a moral and legal compass to guide them in interpreting and making civil law. The centralization of power in Washington, which was never envisioned by the Founders of our nation, has given the federal government and especially the courts a disproportionate control over public policy, when compared to the states. One consequence of this has been the constitutionalization of what should be political questions, as we have seen in the issues of abortion and marriage. Another consequence has been the increasing intrusion of politics into areas that are rightly protected personal liberties, such as the freedoms of speech, religion and association.

The worst consequence has been that the Supreme Court — and particularly the “swing vote” that was exercised by the retiring Justice Kennedy — has become our de facto ruler when it comes to essential questions of the separation of powers between the branches of government and crucial social issues relating to life, family and religion. It is truly bizarre that the last few weeks in June is a time of great anticipation, as the Supreme Court’s term comes to an end and we citizens passively wait for rulings that will define our lives. This is why I often derisively refer to the Court as our “Black-Robed Platonic Guardian Rulers” — a role that Washington, Hamilton and Madison would be horrified to see.

These trends are so deeply rooted that we have to have realistic expectations. None of the nominees to the Court will change this sorry situation. None will restore the correct separation of powers or the federalism that were built into our constitutional structure as a defense against the abuse of power. None will stop the trend of constitutionalizing political questions.

We particularly have to be realistic when it comes to the momentous issue of abortion. There is no question that Roe v. Wade decision was wrongly decided as a matter of morality and legal reasoning, and that it has had a corrupting effect on the law, the legal profession and the judicial confirmation process. It is imperative to see it and its progeny overruled (particularly Planned Parenthood v. Casey, which really is the controlling law now, not Roe), and for the constitutional rights of unborn children to be recognized and protected. But that isn’t going to happen any time soon, no matter who the President selects.

Regardless of who the nominee is, it is far from clear that that there would be enough votes on the Court to overrule Roe and Casey. Of the current judges on the Court, four are certainly never going to vote to overrule or even meaningfully limit abortion; only one, Justice Thomas, has ever said that he would vote to overrule; Chief Justice Roberts and Justice Gorsuch both called Roe “settled law” during their own confirmation hearings, and Justice Alito has said that it has added strength as a precedent because it has survived prior challenges and people have come to rely on it. So it’s not as if Roe and Casey are hanging by a thread and just need one more vote to be overruled.

It’s also important to understand that the “conservatism” of some of the Justices would suggest that they may actually shy away from overruling Roe and Casey, even if they believe that it was wrongly decided. Chief Justice Roberts and Justice Alito, and it would already appear Justice Gorsuch, have a strong tendency to minimalism in their rulings — deciding questions on the most narrow grounds available, and choosing, as Justice Alito once wrote, to “leave broader issues for another day.” You can see that trend in some of the major decisions of the last term, for example the Masterpiece Cakesdecision, where the “conservative” justices supported a narrow ruling and completely ducked the critical free speech issue.

This minimalism is particularly important when one realizes how deeply embedded Roe and Caseyare in Supreme Court jurisprudence. Roe didn’t spontaneously emerge fully formed from the brow of Justice Blackmun, nor did the infamous “mystery of life” passage in Casey come out of nowhere. They were the result of decades of prior decisions, reaching back to the 1920’s, in which the Court recognized or invented “privacy” and other rights that are nowhere enumerated in the Constitution, many of which have no basis in history, tradition or natural law. Some of these decisions were actually correct, but many were perverse (like the contraception decisions Griswold and Eisenstadt), and all of them laid the groundwork for Roe and Casey. They also stemmed from a theory of absolute personal autonomy that evolved from the political liberalism on which America was founded and that produced the culture of sexual libertinism and moral relativism that we currently inhabit.

Overruling Roe and Casey would thus mean that the “conservative” Justices would be repudiating an entire body of law and a political and moral philosophy that is so deeply entrenched in our society that most people find any alternative view virtually incomprehensible. They would also set off a political explosion that would undermine the legitimacy of the Court in the eyes of a large number of Americans and many powerful elected officials. Such a momentous decision would be virtually unprecedented in American history, with the only prior examples that I can think of being Brown v. Board of Education and Roe itself.

Even if the Justices mustered the fortitude to overrule Roe and Casey, abortion would not suddenly be made illegal across the United States. The issue would then return to the states for regulation. A number of states already have laws on the books that would essentially permit abortion on demand for some, if not all of pregnancy. New York’s statute, for example, permits abortion on demand prior to 24 weeks of pregnancy. According to one expert on abortion law, if Roe and Casey were overruled, only eleven states have laws that would completely outlaw abortion, and over 80% of Americans would live in states where the situation would be essentially unchanged — abortion would still be legal for all nine months of pregnancy for virtually any reason and with little effective regulation.

It is also likely that state courts would step into the breach and declare a constitutional right to abortion. Iowa’s Supreme Court did so just last week, and as many as twelve other states had previously done so. We would also expect increased pressure in solid liberal states like New York to expand abortion rights through legislation.

This is not to say that we should expect that nothing will change for the better. I fully expect that the new Justice will be a legitimate constitutional originalist, which means that they would interpret the Constitution according to its actual original meaning. I also expect that they will show greater respect for the separation of powers and federalism. And I believe that at least in the short term they will vote to permit states to have greater leeway in regulating abortion, and to protect religious liberty and freedom of expression. Those would all be good developments, and may begin the process of rolling back Roe, Casey, and the terrible decisions that underlie them.

A new nominee to the Supreme Court will not be a magic bullet that will make all things new. Our challenge is to continue to press for social and legislative change that would increase respect for human life. We also have to work harder to create a social infrastructure that would replace the culture of contraception and abortion and promote a vision of women’s health that truly respects her fertility and genuine freedom. We still have a lot of work to do.

What’s at Stake in the Cake Case

Monday, December 4th, 2017

A very important religious liberty and free speech case will be argued before the United States Supreme Court tomorrow. It involves a wedding cake artist, Jack Phillips, who does business in Colorado under the name Masterpiece Cakes. This decision will go a long way to determining how much freedom we will have to dissent from the current cultural orthodoxy — and not just on issues of “gay rights”.

A few years ago, before same-sex “marriage” was legalized in Colorado, Mr. Phillips was approached by two men who were planning a “wedding” in another state, and wanted to have a reception in Colorado. They asked him to bake and decorate a custom wedding cake for them. Mr. Phillips declined, citing his Christian faith and his beliefs about the true nature of marriage, and said that he could not use his artistic talent to promote an event that was contrary to his faith. The State of Colorado, acting through its Civil Rights Commission, took a dim view of Mr. Phillips’ religious objection and ruled that the state’s “public accommodation” law prohibited him from discriminating against a customer on the basis of sexual orientation.

The case has now been appealed through the courts and has now reached the Supreme Court. Mr. Phillips has two main arguments. First, he is arguing that being forced to decorate the wedding cake violates his First Amendment rights to free exercise of religion by requiring him to participate in an event that is contrary to his faith (the “wedding” reception). His second argument is based on the premise that his artistic cake decorations are a form of speech, so he should not be coerced into saying something that he does not wish to say (that this relationship is in fact a “marriage”).  Colorado is countering by denying that cake decorating is a form of speech or expressive conduct, and by contending that the state’s interest in eliminating discrimination outweighs Mr. Phillips’ right to free exercise of religion.

Our mainstream culture has adopted the notion that gay rights should trump all other legal interests. It holds that “error has no rights” when it comes to the newly-minted notion of same-sex “marriage”, and any dissident is a bigot with no rights bound to be respected by enlightened folk. The advocates for these views have been very busy whipping up fear and loathing and  predicting all sorts of deplorable consequences if Mr. Phillips wins. They have also been misrepresenting what the law actually is, and substituting their “wishful thinking” theory of what they want the law to be.

The Supreme Court’s prior rulings on the Free Exercise and Free Speech Clauses of the First Amendment make it clear that the government cannot easily impose laws upon people when they pose a serious conflict with the person’s religious beliefs or when they suppress their speech.  In other words, when a person claims a religious exemption or a free speech protection they are not breaking the law — they are merely asserting their basic human and constitutional rights.  If the government or a private party fails to recognize those rights, they are the ones who are breaking the law, not the religious believer.

Examples abound in both speech and religion cases, such as the Supreme Court ruling that upheld the right of Jehovah Witnesses to refuse to recite the Pledge of Allegiance. In that case, the Court made a famous statement of principle: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” In another case involving the right to say things that people found offensive, the Court said, “the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense”.

Cases happen all the time that involve conflicts between free speech and religious freedom rights against other legal interests of the government or private parties. Every state and the federal government has a law that requires employers to give reasonable accommodations to employees if their work conditions violate their religious beliefs. The recent Supreme Court decisions in the challenges to the HHS Mandate (principally the Hobby Lobby case in 2014) affirmed the idea that burdens on a person’s religious belief can warrant an exemption from the law. In recent years the Supreme Court has also upheld a church’s ability to hire and fire its ministers, the right of a prisoner to grow a beard required by his faith, and the right of a prospective employee to wear a head covering mandated by her faith. In the lower courts, there have been hundreds of lawsuits where employers are required to recognize religious holidays or clothing, cities are banned from restricting street-corner evangelists, schools are prevented from closing religious clubs or newspapers, etc. There have been numerous free speech cases that carefully protected people’s right to express themselves without government censorship.

The current law has certain characteristics that we need to understand if we are to appreciate the Cake Case and to separate the wheat from the chaff in the opinions of pundits and commentators:

  • The law requires judges to actually judge, and make fact-based case-by-case evaluations.There’s no blanket rule favoring anyone. So the claim by advocates that a ruling for Mr. Phillips will create a universal “get out of the law free card” for religious believers shows a complete lack of faith in our court system to do its job. It’s also not supported by any evidence that religious liberty or free speech claims win every case — in fact, the studies show quite the contrary.
  • It rejects the “tough luck” approach under which the religious person automatically always loses. Enemies of religion may wish it were otherwise, but the law has long recognized that there actually is some legitimacy to religious beliefs and that they occasionally have to be protected. In fact, studies show that in recent years that religious liberty plaintiffs win about half of the cases that are brought claiming a violation of the Religious Freedom Restoration Act and three-quarters of free speech cases. Legislatures also routinely grant religious exemptions. The sky has not yet fallen.
  • It protects against slippery slopes. Back to our original principle — our current law relies on judges being judges and making sensible distinctions between cases and to apply the rules sensibly. There has been no outpouring of religious liberty cases or massive instances of nullification of generally applicable laws. The study noted above found that there has been no significant change in the way the law is applied since the Hobby Lobby case in 2014, which upheld the religious freedom of a family business to refuse to comply with the HHS Mandate.
  • It does not require you give up your religious freedom by engaging in business. This has been settled law for decades. The Supreme Court in Hobby Lobby implicitly recognized it just a couple of years ago. In an earlier case, the court said: “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Being in business doesn’t mean that Mr. Phillips suddenly became a second-class citizen.
  • It recognizes and protects against objections based on insincere religious beliefs. Such claims will inevitably happen. But again, the law trusts that judges will actually judge and discern which claims are legitimate and which are frivolous. Judges have been doing this for many years, and there’s no reason to believe that they will suddenly lose that ability if Mr. Phillips prevails.
  • It will not silence people’s speech just because somebody else is offended or it hurts their dignity. This is also well-established law. Our right to free speech does not stop when others’ sensibilities come into play. The Supreme Court has consistently upheld the right to “offensive speech”, including the right of Nazis to march in a Jewish neighborhood, the KKK to burn a cross, and a fringe anti-gay group to protest at soldiers’ funerals. The risk of hurt feelings is a price of freedom. Plus, why does the dignity of the gay couple have more legal weight than Mr. Phillips’ dignity and integrity?

Our nation was built on the notion of the inherent rights of individuals to live free from undue government control. That freedom applies to all sorts of people, including and especially those whose opinions are not favored by the majority and powerful. Mr. Phillips is defending his ability to make his cakes and decorate them as he pleases. Even those who disagree with him should defend that right.

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.