Posts Tagged ‘Supreme Court Nominees’

Secularism in Action — In the Supreme Court

Friday, September 30th, 2011

On October 5, the most important religious liberty case in decades will be argued before the United States Supreme Court.  It is yet another instance of the influence of secularism in America, and it may result in a substantial reduction in religious liberty.  At stake here is the ability of churches to operate without interference and control by the government, or whether churches will be treated as if they were mere secular organizations.

The case is entitled Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission.  To understand why it is so important, I have to take a step back and explain a bit of constitutional law on religious freedom.

The phrase “separation of church and state” does not appear in the United States Constitution, but the basic concept is embodied in two clauses of the First Amendment, as interpreted by the Supreme Court.  In a nutshell, the Free Exercise Clause guarantees that the government cannot intervene in the internal affairs of religous organizations, and the Establishment Clause prohibits the government from any “excessive entanglement” in religious matters.

These principles are essential to the guarantee of religious liberty — they protect churches from becoming mere creations of the state, subject to interference by the government.  So, for example, under current law it would clearly violate both the Free Exercise Clause and the Establishment Clause if the government were to interfere in a church’s selection of clergy, over how doctrine is taught, or how a church resolves internal ecclesiastical disputes.  The First Amendment thus requires that religious organizations enjoy a considerable amount of freedom — a zone of privacy, if you will.

These basic principles have a direct impact on the ability of religous organizations to select their key staff members.  The courts have long understood that religious organizations must have considerable autonomy in the selection of clergy and other staff members who have religious missions.  They have also recognized that this autonomy occasionally conflicts with the provisions of anti-discrimination laws.

To address this tension, the courts long ago recognized what is called “the ministerial exception” to the anti-discrimination laws.  This exception permits churches to select their spiritual leaders — even if that decision would have violated anti-dicrimination statutes had it been done by a business.  So, for example, the Catholic Church’s cannot  be sued for sex discrimintion based on her all-male clergy.  The courts also recognize that this should not be limited to formally-ordained clergy, since many lay staff members play crucial roles in the religious mission of churches — just think of the central role of parochial school teachers, directors of religious education, pastoral associates in parishes, etc. in spiritual life of the Church.  Of course, not all employees of a religious organization are “ministers” .  For instance, one could not justify classifying a school janitor as a “minister”, since his job is clearly not spiritual in nature.

This brings us to the case before the Supreme Court.  The facts of the case are fairly straight-forward.  It involves a dispute between the Hosanna-Tabor School and one of their former teachers.  The teacher alleged that she was fired in retaliation for threatening to file a disability claim, in violation of federal anti-discrimination laws.  The school responded that she was a ministerial employee, whose job entailed a specifically religous mission for which she was commissioned by the church, and that as a result, the school’s decision to terminate her was an internal matter and was not subject to the anti-discrimination laws.

The Supreme Court will be wrestling with those facts, and also with larger questions — whether to recognize the ministerial exception, determining what part of the Constitution it rests upon, and giving guidance on how it is to be defined.  The biggest challenge is how to do all this without infringing upon the religious liberty of churches, and without getting the government entangled in internal religious matters.

Virtually every major religious organization — including the U.S. Bishops — has filed a brief in support of the Lutheran school, arguing for a broad definition for the ministerial exception rooted in the Free Exercise Clause of the First Amendment.

The Administration, however, has filed a brief that advocates for the virtual elimination of the ministerial exception.  In the Administration’s view, the exception — if it exists at all — is so narrow that it would only apply to clergy and disputes about doctrine.  Moreover, the brief denies that the exception is rooted in the Establishment or Free Exercise clauses, but is instead supported only by a much weaker constitutional principle that is subject to being overridden by any neutral, generally-applicable law.

In short, the Administration is advancing a position that would treat religious organizations as if they were merely secular groups, subject to virtually any government oversight and control — no different from banks, oil companies, or airlines.   If the Administration’s position prevails, churches will be subject to endless litigation and regulation, aimed at influencing and changing their internal doctrines and practices. This is a radical and dangerous argument.

Religious liberty is one of the founding principles of our Republic.  It is the reason that many of our ancestors came here, and the reason that many immigrants still long for our shores.  We must all pray for wisdom on the Supreme Court — and await with trepidation the decision in this momentous case.

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

Tuesday, May 11th, 2010

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

Is anyone surprised?

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

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

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

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

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

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

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

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

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

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

Nominees and Code Words

Tuesday, April 27th, 2010

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

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

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

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

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