Lawyers Christian Fellowship Guidance on UK Sexual Orientation Regulations

This weekend The Lawyers Christian Fellowship (LCF) and Christian Concern for Our Nation (CCFON) released its Guidance document on the new Sexual Orientation Regulations (SORs) that came into effect today, April 30, 2007, in England, Wales, and Scotland.

A similar law went into effect in Northern Ireland on January 1, 2007.

Christian Today has the news story.

The Guidance provides general recommendations for Christians who are now subject to this law. For example, it warns that that even though the intent of the law was not to burden the freedom of speech i.e. on religion, there are concerns because of the "poor drafting of the law." For example, "it would technically be illegal for a vicar to use the illustration that 'it is better to follow the Bible’s teaching and risk being sued than to be complicit in sin by printing leaflets promoting gay pride.'"

Previously, LCF published a detailed list of Frequently Asked Questions on the SORs in March. Obviously at least some of the FAQ is obsolete because it contemplates the possibility that the SORs for England, Wales, and Scotland might not be enacted.

The Lawyers Christian Fellowship (about us) is an organization of nearly 2,000 lawyers in Britain and other parts of the world, particularly East Africa. Christian Concern for our Nation (about us) is an activity of LCF's Public Policy Unit and is designed primarily as an information and news service for non-lawyers.

Federal Government Agrees to Protect Religious Hiring Rights

A Joint Stipulation of Dismissal was filed on Thursday in Geneva College v. Chao (W.D. Pa. Apr. 26, 2006). The U.S. Department of Labor and the Pennsylvania Department of Labor & Industry agreed to allow Geneva College, a private Christian school, to use job listing services funded under the Workforce Investment Act (WIA). The Center sued officials from both departments late last year when Pennsylvania officials insisted that the WIA nondiscrimination provision precluded the state from posting jobs restricted on the basis of religion. Stories regarding the Center's victory can found on AP and Religion Clause.

The U.S. Department of Labor maintained that Pennsylvania misapplied the WIA nondiscrimination provision. The provision, according to the Department, only applies to recipients of WIA funding. Because Geneva does not receive WIA funds, the nondiscrimination provision has no application to the College and Pennsylvania should have permitted Geneva to post its jobs. The Pennsylvania Department of Labor & Industry conceded that it misconstrued the nondiscrimination provision and agreed to post Geneva's jobs.

The victory is a narrow one but nevertheless important. Religious employers, like Geneva, are now placed on equal footing with other employers. They both now have the same access to WIA funded services.

The case unfortunately leaves unanswered the question of whether a religious employer receiving WIA funds may discriminate on the basis of religion in hiring. The answer appears to be yes. The Religious Freedom Restoration Act, which still applies to the federal government, should be read to provide religious employers with an exemption from the WIA nondiscrimination provision.

DOJ "Religious Freedom in Focus"

The U.S. Department of Justice's Civil Rights Division has issued the April edition of its "Religious Freedom in Focus." The newsletter is a product of the Division's Special Counsel for Religious Discrimination.

Charles Stanley for SCOTUS?

In all the anti-Catholic backlash from certain quarters over the Partial-Birth Abortion decision last week, and the complaints that a majority of the Court is Catholic, I think a gorilla in the corner is being ignored. If we're going to play identity politics with the Court, how about the fact that there are no Baptists on the Supreme Court? [Full disclosure, I'm a Southern Baptist now attending a nondenominational church]. Baptists are the largest Protestant denomination in America, making up over 16% of the population. Despite this fact, there have been three Baptist Supreme Court Justices in the 200+ year history of the United States. The last was Hugo Black.

But it's not just the Baptists who are underrepresented on the Court. Although Lutherans make up 5% of the population, the only Lutheran in the Court's history was Chief Justice Rehnquist. And no Pentecostal has ever been on the Court. While Presbyterians have been overrepresented in Supreme Court history, the last Presbyterian on the Supreme Court bench was Lewis Powell.

What does this mean? Perhaps it shows that political judgments have been made - particularly in recent history - that adherents of at least some evangelical Protestant denominations would face even more scrutiny and suspicion of their beliefs than would a Catholic nominee. Maybe the real problem is media and elite bias against sincere religious believers generally and Catholics are just getting the vitriol at the moment because they happen to be carrying the [Holy] water on the Supreme Court right now. The reaction of certain quarters to the Partial-Birth Abortion decision then may be more anti-Christian than anti-Catholic. As much anti-Catholic bigotry as is being displayed in the wake of the Partial-Birth Abortion decision, I have to think the attacks on the Justices' faith would have been no less rabid had Justice Roberts been a Southern Baptist. But then Tony Auth's cartoon wouldn't have been quite as cute if he had to exchange Justice Roberts' mitre for an Annie Armstrong offering envelope.

Basic Flow of Oral Argument in FEC/McCain v. Wisconsin Right to Life

Although the oral argument transcript will be available shortly, below is my reconstruction of the basic flow of this morning's oral argument in FEC/McCain v. Wisconsin Right to Life ("WRL"). (I posted a short synopsis earlier. I also must disclaim any expertise on McCain Feingold's provisions or this case in particular. These are purely my impressions from this morning's argument.)

Solicitor General Paul Clement gave his usual polished performance as counsel for the US government in arguing that McCain Feingold was constitutional in its application to the WRL ads. Chief Justice Roberts seemed concerned by the breadth of the government's argument and insisted that SG Clement spell out what kinds of ads would be protected by the First Amendment and not banned by McCain Feingold if WRL's ad could be banned as the government argued. SG Clement gave three examples: 1) a 501 (c)(3) organzation that did not have time to set up a separate PAC, noting that WRL had a separate PAC; 2) an ad run in a primary in which the candidate was running unopposed; and 3) an advertising series that had begun long before the blackout period but was continuing during the blackout period.

Justice Kennedy rebuffed the SG's argument that WRL's position was weakened by the fact that WRL did not run its filibustering ads until the 60 day blackout period was in effect, rather than running them earlier in the year when filibustering was also an issue. Justice Keenedy suggested that the public only pays attention near an election, so that it made sense to run ads during election periods even if the issue had arisen earlier. Justice Kennedy also raised the point that there might be political value in running ads regarding an unopposed (or "safe") candidate's positions in order to influence the conduct of the safe candidate after reelection.

Justice Scalia asked how the government could look at the subjective intent of the WRL in running the ad and eloquently reminded the government that in a First Amendment case citizens are not supposed to have the burden of proving that their speech is permissible. He spoke of the need for a clear line as to what ads enjoyed First Amendment protection from McCain Feingold regulation.

Former SG Waxman argued on behalf of Senator McCain. Chief Justice Roberts pressed him for what test he would use to determine whether an ad was protected by the First Amendment from regulation. He proposed that ads that were the "functional equivalent of express advocacy" would be subject to regulation. The Chief Justice further asked whether the burden of proof on a First Amendment challenge was on the government or the citizen.

Justice Alito also queried Waxman as to the test he was proposing and whether it was akin to "would a reasonable person see this ad as electioneering"? He also asked whether Waxman was troubled by the array of advocacy groups supporting WRL's position. Mr. Waxman responded with a lengthy discussion of why the ACLU was wrong to take a position in support of WRL's ads when the ACLU has a policy of not running political ads advocating any particular candidate. Justice Scalia interrupted to ask Mr. Waxman why he was picking on the ACLU.

Jim Bopp presented a very solid argument in favor of WRL's position. He began by directing the Court's attention to the fact that government experts in the trial court had said that WRL's ad was not a sham ad but was truly grass roots advocacy. In other words, even under McConnell's test, the ad should be protected. Otherwise, Bopp argued, the government would simply be relying upon the subjective intent of the speaker to determine whether or not speech was allowed, ie., if the speaker intended to be electioneering, the ad would be regulated, if the speaker had no such intent, the ad would be protected.

Justices Breyer and Souter ted the argument by insisting that context and intent (both of the speaker and of the listener) was all-important in determining whether an ad was protected speech or not. Justice Breyer insisted that WRL's goal was overturning McConnell, not simply protecting this particular ad. Mr. Bopp replied that basic First Amendment law does not allow the government to regulate protected speech simply in order to regulate unprotected speech.

Justice Kennedy asked Mr. Bopp to explain how the WRL ads were grass roots ads like hypotheticals that had been discussed approvingly in McConnell.

Justice Souter insisted that context was all important and that speech's meaning is determined solely by the listener. Mr. Bopp insisted that a subjective test was too vague if it depended on the listeners' intent and not the meaning of the actual words. Justice Souter insisted that context has always been considered in determining whether speech was protected. He also characterized Bopp's argument as saying that the voters are dumb, so their understanding of an ad's intent should not determine whether it is protected.

As a bright line, Justice Scalia and Mr. Bopp suggested that the government can regulate corporations writing checks to candidates but not the independent speech of the corporations.

Justice Stevens skeptically asked whether the real intent of the WRL ad could have been to get Senator Feingold to change his vote on filibustering judicial nominees. Mr. Bopp defended the plausibility of such an ad by claiming that Wisconsin's other Senator (Senator Kohl) had changed his position on the filibuster earlier. At this point either CJ Roberts or Justice Scalia interjected, "Is that called democracy?"

CJ Roberts ended questioning of Bopp by asking him to outline his argument for winning without overturning McConnell.

Justice Scalia Warns Liberals Not to Pick on the ACLU

During the Supreme Court oral argument this morning in FEC/McCain v. Wisconsin Right to Life, Justice Scalia asked former Clinton Solicitor General Seth Waxman to explain why he was "picking on the ACLU." Justice Scalia's truly unexpected question engendered laughter in the courtroom.

In response to Justice Alito's question pointing to the number of advocacy groups filing amicus briefs in support of Wisconsin Right to Life's ("WRL") freedom of speech, former General Waxman spent a great deal of time focusing on the ACLU's filing against application of McCain Feingold in this case, criticizing the ACLU for its position because the ACLU has a policy of not running ads in favor or against political candidates.

The relevancy of the ACLU's policy to its amicus arguments was not clear, and Justice Scalia finally cut off this particular argument by asking Mr. Waxman, "Why are you picking on the ACLU?"

Who would ever have expected to see Justice Scalia defending the ACLU from the criticism of a Clinton Administration official?

Papal Influence Over the Supreme Court Grows

In three opinions issued this morning, one written by that noted Papist Anthony Kennedy, the other two joined by him, the Supreme Court reversed 3 death sentences. Though the Vatican would no doubt have preferred the decision be on John 7:53-8:11 grounds, I’d guess that Pope Benedict will take it. The Holy See’s excommunication of non-conformists Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito is expected soon. On a rosier note for the Papacy, today’s decisions are evidence that Justices Ginsburg, Stevens, Souter and Breyer have converted to Catholicism.

Of course, this is all tongue-in-cheek. But I wonder how the same editorialists and scholars who saw a papal plot in last week’s Partial-Birth Abortion decision will see this week’s death penalty decisions. Will they now cheer Justice Kennedy for his legal brilliance and moral clarity? Will they observe that the four dissenters in today’s death penalty decisions were evidently able to break the yoke of Rome in their votes today? I’m guessing not. That wouldn’t fit the preferred narrative of unthinking religious believers who vote to impose their morality on the nation v. secular citizen-scholars seeking to defend the Constitution.

For my part, I think today’s decisions prove what we in the Center have known all along. Isaac Fong is right.

Supreme Court Hears Oral Argument in Free Speech Case Today

I just returned from listening to the Supreme Court oral argument in FEC/McCain v. Wisconsin Right to Life. The issue is whether application of the McCain Feingold Act to television ads by Wisconsin Right to Life ("WRL") violated the Free Speech Clause of the First Amendment. McCain Feingold's restriction on political ads for or against a political candidate by corporations or labor unions 60 days before a general election was held facially constitutional a few terms ago in McConnell.

WRL challenged its application to a television ad that WRL ran during the 60 days before a general election that stated that a group of senators,including Senator Feingold of Wisconsin, were threatening to filibuster President Bush's judicial nominees and urged viewers to visit WRL's website for further information.

Chief Justice Roberts and Justice Scalia fired most of the questions indicating they thought the law's application was unconstitutional. Justices Breyer and Souter consumed most of WRL's time with questions that clearly indicated their deep concern that the McConnell decision is in danger of being overruled. I have rarely heard either of those two sound so emotional in their questioning of counsel. They seemed truly upset by the possibility that McConnell might be abandoned as well as adamant that the ad in question should be banned under McCain Feingold.

Justices Ginsburg and Stevens seemed inclined to hold valid the law's application to the ad. Justice Thomas did not raise any questions. Justice Alito questioned Seth Waxman about the fact that so many advocacy groups from across the spectrum found application of the ad in this case troubling. Justice Kennedy asked several questions of both sides.

Toward the end of the argument, Chief Justice Roberts asked James Bopp, counsel for WRL, to spell out how the Court could rule that McCain Feingold had been applied unconstitutionally in this case without overturning McConnell. I would predict that is how the case will go: a win for WRL and a severe narrowing of McCain Feingold's applicability without overturning McConnell.

We'll know in 2 months.

I will outline the argument in more detail below for those interested in the flow of the argument.

Interesting Sidelight

I left out an interesting sidelight in my previous post, A Growing Consensus. The two cases to rule against the associational rights of student organizations, Kane and Truth, also happen to be unpublished. Perhaps this is an indication the courts deciding those cases aren't even sure themselves they got it right.

If you're interested, Kane is available on Westlaw at 2006 WL 997217, and Truth is available through the Western District of Washington's PACER website at docket no. 2:03-cv-00785. Both websites unfortunately require users to have a paid account to access content. If anyone knows of a free source for these opinions, I'm happy to post the links.

Hippocratic Hypocrisy

Abortion doctors [my apologies for the offensive term] are upset about the Supreme Court’s decision in Gonzales v. Carhart upholding the Partial-Birth Abortion Ban Act. Here’s a quote from the editor of the New England Journal of Medicine:

“With this decision the Supreme Court has sanctioned the intrusion of legislation into the day-to-day practice of medicine,” Dr. Jeffrey Drazen, editor of the journal, said in one of the commentaries, to be published on May 24. “Both health care providers and patients should be alarmed by the current degree of intrusion by our government into the practice of medicine and even more so by the apparent trajectory that it seems poised to follow in the near future,” Drazen added.

[Term withheld to protect sensibilities] doctors have now lost a little-used (the method prohibited by the Act accounts for less than 1% of all abortions annually) and unspeakably barbaric method of destroying unborn children. Rather than killing the child AFTER partially delivering it, they will now be required to kill it BEFORE delivery – or more accurately, a little earlier in delivery. For all Mr. Drazen’s complaints about the size of government and its overregulation of business, the PBA Ban is not a good example.

Here’s a better example for Mr. Drazen: The state of California asserts the authority to jail doctors who do not perform abortions. Yes, you read that correctly. In a lawsuit brought in January 2005 and still pending in the Northern District of California, State of California ex. rel. Bill Lockyer v. Gonzales, No. 05-00328, the Attorney General of California (now Jerry Brown), challenges the constitutionality of the Weldon Amendment, a federal law passed in 2004 that prohibits the federal government and state and local governments receiving certain federal funds from discriminating against healthcare workers and institutions that do not participate in abortions. The Center for Law and Religious Freedom represents the Christian Medical Association, American Association of Pro-Life Obstetricians and Gynecologists, and Fellowship of Christian Physician Assistants as Defendant-Intervenors in defending the Weldon Amendment.

The State of California contends that the Weldon Amendment prohibits it from enforcing a California law that, its Attorney General says, requires medical professionals and institutions to perform abortions in a “medical emergency.” Of course, the law then defines “medical emergency” to include any situation in which a woman’s “health” may be affected. It doesn’t define “health,” and under federal and California abortion caselaw “health” in the abortion context can include even “familial health.” So, if the Attorney General of California’s reading prevails, the law requires doctors to perform abortions in virtually any circumstance – under the threat of criminal prosecution and fines if the objecting doctor guesses wrongly and California thinks that the doctor’s refusal to provide the abortion risked the woman’s “health.” Simply put, without the Weldon Amendment's protection, any California medical professional who did not participate in any and all abortions would do so at the risk of criminal punishment.

Surely Mr. Drazen must be furious about this “intrusion of legislation into the day-to-day practice of medicine.” While I don’t know Mr. Drazen’s position on the rights of doctors not to be jailed for declining to participate in abortions, we do know what the California Medical Association thinks. The CMA filed a joint amicus brief with Planned Parenthood of California arguing for California’s position. So, the leading association of California doctors is putting its weight behind a law that would permit the state to criminally prosecute its own members. Attention California doctors: those are your membership dues at work.

Sticky/Pinned: Welcome!

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A Growing Consensus

I’m a little late to the party; nevertheless, it’s good to see yet another federal court hold that a public school cannot deny recognition or funding to a religious student group because of the group’s religious criteria for officers or members. Last month, in Roman Catholic Foundation v. Walsh, the Western District of Wisconsin enjoined the University of Wisconsin-Madison from applying its "non-discrimination" policy to deny the Roman Catholic Foundation recognition and funding.

Dare I say there is a consensus building? Out of the six courts to examine the issue only the Northern District of California in Christian Legal Society v. Kane and the Western District of Washington in Truth v. Kent School District have ruled against the expressive associational rights of student organizations.

The current case break down is as follows:

In favor of associational rights of student organizations:

• Christian Legal Society v. Walker
• Hsu v. Roslyn Union Free School District No. 3
• Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University
• Roman Catholic Foundation v. Walsh

Against associational rights of student organizations:

• Christian Legal Society v. Kane
• Truth v. Kent School District

Both Kane and Truth are now pending in the Ninth Circuit. Briefing concluded in Kane on February 2, 2007, and Truth was argued on July 27, 2006. I'm not too optimistic that the Ninth Circuit will get it right. But there's always the Supreme Court, right?

Was Roe anti-Catholic from its conception?

Interestingly Roe v. Wade was decided in 1973--two years after Lemon v Kurtzman in which the Supreme Court struck down various forms of assistance to religious schools, which at the time were almost exclusively Roman Catholic. In 1973 the Court struck down other aid to religious schools in the Nyquist decision. Is it possible that a majority of the Court had a bias, conscious or unconscious, against the Roman Catholic faith that manifested itself in two separate lines of cases holding unconstitutional government action perceived to be sympathetic to the Catholic Church (i.e.,restrictions on abortions and funding assistance to Catholic schools)?

Justices in Mitres

How not to visualize the partial birth abortion decision: Tony Auth's April 20, 2007 political cartoon has the Gonzales v. Carhart majority smugly preening in papal mitres, with the dissenters looking on in dismay. The caption reads, "Church & State." How unfair. What if Auth had drawn devil's horns on the dissenting justices, with pitchforks thrown in for good measure? That would have been just as unfair.

This is more than a problem of anti-Catholic bigotry or even anti-religious bigotry. It brings to the surface a deeper problem. A critic of a judicial decision feels free to disregard out of hand the judge's stated reasons and to substitute his own "true" reasons, while providing scant justification for why the judge's stated reasons ought to be ignored. Rational argumentation becomes conspiracy theory.

Of course, some reasons are pretextual, but surely the critic bears the burden of proving pretext. Simply counting the avowed Roman Catholic justices on the bench and matching them with the Carhart II majority cannot be enough proof that the sole motive of religious duty animated their decision. It may, however, constitute proof of bias on the part of the critic.

Of course, this hermeneutic of suspicion is not limited to law and politics, but rather permeates much of the current discourse on a variety of matters. A dose of healthy realism never hurt anyone, but today's intellectual climate seems to encourage megadosing.

High Court Passes on Church Autonomy Case

The Supreme Court today denied cert in Petruska v. Gannon University (No. 06-985), leaving in place a correct Third Circuit opinion applying the Church Autonomy Doctrine to dismiss a sex discrimination claim against a Roman Catholic university.

One manifestation of the Church Autonomy Doctrine is Title VII's "ministerial exception." By its terms, Title VII of the Civil Rights Act of 1964 exempts religious employers from its ban on religious discrimination. Above and beyond this, the courts have created the ministerial exception, which deprives the civil magistrate of the power to review a religious organization's decisions regarding clergy and their equivalents.

The first Third Circuit panel to adjudicate the case declined to embrace the ministerial exception. After the author of the majority opinion died, the court granted rehearing before a new panel. The new panel agreed with seven sister circuits and embraced the ministerial exception. It is that opinion that the Supreme Court let stand today.

The unsuccessful petitioner was represented by Prof. Marci Hamilton, author of God and the Gavel, a book deemed a "poorly executed rant" by none other than Prof. Douglas Laycock, one of the most prominent and thoughtful church-state legal academics in the country.

Has Ohio Gone from "Faith-Friendly" to "Faith-Hostile?"

What a difference a Chief Executive makes. After the Ohio gubernatorial election last fall, incoming Governor Ted Strickland virtually gutted the Governor’s Office of Faith-Based and Community Initiatives, reportedly firing over 90% of the staff two weeks after he took office. An office that had previously defended the religious hiring rights of faith-based organizations and encouraged active and equal participation by religious ministries in publicly financed social welfare projects seems to have become an arm of Rev. Barry Lynn's (Protestant and Other) Americans United for Separation of Church and State. In language Rev. Lynn must love, Governor Strickland called his predecessor's faith-based office “an ATM machine for some of the most politically right-wing organizations.” The previous administration's awardees and sub-awardees are now open targets for the administration and the media, as the state's main private partner in granting and administering faith-based contracts, We Care America, is under investigation by the state auditor at the behest of the governor. And the Governor's new faith-based office reportedly informed one grant recipient recently that it could not have a pubicly stated policy for its programs that contained the word “God” in it. Governor Strickland has also promised to go after abstinence education and school vouchers.

Ones wonders if this is a preview of the script a new administration would follow if the White House were to change hands in 2008. As we all know after the last election, as Ohio goes, so goes the Nation. Watch this space for developing news about the Buckeye State's newfound devotion to manning the ramparts of the "Wall of Separation."

MO Supreme Court Upholds Financial Help to Religious College

In an opinion dated March 17, the Missouri Supreme Court held that the City of St. Louis did not violate the state constitution's "Blaine Amendment" when it provided a form of financial assistance to Saint Louis University. The case is Saint Louis University v. Masonic Temple Association.

Article IX, Section 8 of the Missouri Constitution forbids state and local government from financially supporting schools "controlled by any religious creed, church or sectarian denomination whatever." The Missouri Supreme Court assumed that the complicated financing scheme in question (something called "tax increment financing") amounted to the sort of aid that implicated the Missouri Constitution, and proceeded to contemplate whether SLU was "controlled" by a creed, church, or denomination.

The court found that it was not, essentially reasoning that SLU was not really all that religious. Trustees and faculty need not be Jesuits, Roman Catholics, Christians, or even theists. The religious faith of an applicant for admission is apparently irrelevant. In the court's words, "religious doctrine" is not the foundation for "core decision-making" by the university does not attempt to "indoctrinate the faith." Aspirational references to its Jesuit origins and connections in its by-laws and other documents were not enough to put SLU on the wrong side of the line.

Although the court reached the right result, certain aspects of its language and reasoning are troubling. The opinion suggests that when religious commitments play a stronger role in a university's life, it inevitably engages in "indoctrination" rather than "education." There are many excellent institutions of higher education that are far more faith-infused than SLU (Wheaton, Gordon, Messiah, Taylor, Dordt, Azusa Pacific, Calvin, Biola, etc.); yet it is nothing short of slander to suggest that what they do is "indoctrinate" students.

Allowing such schools to participate in government financial assistance programs does not undermine church-state separation, properly understood. Unfortunately, too many opponents of theologically conservative religion use church-state law to punish and marginalize it. In their view, the government may bestow benefits upon the "secular" and the merely "religiously affiliated," but not the more seriously religious. Each of these represents and reflects a worldview (the functional equivalent of a religion), and there is no neutral standpoint from which one can credibly dismiss seriously religious institutions as unworthy of equal participation.

VA Allows Wiccan Symbol on Grave Markers

According to the AP, the Veterans Administration will allow the families of Wiccans to place a pentacle on their loved ones' gravestones, settling a lawsuit filed last November.

The report states:

The pentacle joins 38 religious symbols the VA already permits on gravestones. They include commonly recognized symbols for Christianity, Buddhism, Islam and Judaism, as well as those for smaller religions such as Sufism Reoriented, Eckiankar and the Japanese faith Seicho-No-Ie.

Is there any doubt that this is the right result? If the VA allows adherents of 38 other religions to put their symbols on their gravestones, what possible rationale could there be for forbidding Wiccans from doing so? When the government permits someone to express his faith in this way, it does not endorse his religion.

Hat tip: Baptist Joint Committee's Blog from the Capital.

This Wasn't the First Time "Abortion Doctor" Has Appeared in the United States Reports

In her dissenting opinion in Gonzales v. Carhart & Gonzales v. Planned Parenthood, Justice Ginsburg complains about the language used by Justice Kennedy in writing for the Court: “The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Slip. Op., at 19. Undoubtedly, for many medical professionals who take seriously their obligation to “do no harm,” any association with a medical procedure that partially births a child only to then rip open its skull and vacuum out its brains might seem “pejorative.” But I doubt this is her point. Is the majority being “pejorative” in describing these individuals as “abortion doctors”? Are they demonstrating their hostility to Roe and Casey by using this term? If so, they have lots of company.

No less a group of anti-Roe zealots than NARAL has used the pejorative term “abortion doctor” to describe those doctors who perform abortions. Here’s one example. Hat tip to Ed Whalen at the Bench Memos blog.

More importantly, however, the offending term has also appeared at least twice in the pages of the United States Reports prior to Wednesday’s opinion. In Hodgson v. Minnesota, 497 U.S. 417, 419 (1990), the syllabus of the Court’s opinion (addressing a portion written by Justice Stevens and joined by Justice O’Connor) states that the waiting period at issue provides the family time “to inquire into the competency of the abortion doctor.” In Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997), the syllabus of the Court’s opinion describes the respondents as “upstate New York abortion doctors and clinics and an organization dedicated to maintaining access to abortion services.” Of course, these are merely the syllabi of the Court’s opinions, not the opinions themselves, and as every Supreme Court opinion warns: “The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.” Since 1989 the Reporter of Decisions for the U.S. Supreme Court has been a man named Frank D. Wagner. Of course, this begs the critical questions: Why Does Mr. Wagner oppose women's rights? What role did Karl Rove play in Mr. Wagner's appointment as Reporter of Decisions? More seriously, one wonders whether Justice Ginsburg objected to Mr. Wagner’s use of the term “abortion doctor” in the Schenck syllabus. Did Justice Stevens, who joined Ginsburg's dissent in Gonzales, object to Mr. Wagner's use of the term "abortion doctor" in the syllabus of Justice Stevens' opinion in Hodgson?

Though Justice Kennedy did not use the term “abortionist,” that phrase has appeared in Supreme Court opinions before. If “abortion doctor” is pejorative because it is not the professional’s proper title, one would reasonably assume that the term “abortionist” must be at least as pejorative and likewise illustrate a “hostility to the right Roe and Casey secured.” So who was the right wing anti-abortion zealot who would have used such a term? In Roe v. Wade, 410 U.S. 113, 142 (1973), Justice Blackmun noted the AMA’s historical condemnation of “abortionists” performing abortions in violation of state criminal laws. The nation’s abortionists undoubtedly have forgiven the offense.

Our Laffy-Taffy, Elastic Justice

Pity poor Anthony Kennedy, who surely must be waking up to the realization that being the “swing vote” on the Court sometimes just means you can’t win for losin’. Witness his Gumbyesque stretch across the aisle of the Court in Carhart v. Gonzales. Pulled from the right by Justices Antonin Scalia and Clarence Thomas, to whom he had to cater in order to keep his majority from splintering into a very unsatisfying three-judge plurality (been there-done that), and from the left by Justice Ruth Bader Ginsburg, who ardently horsewhips him for “disrespecting” Planned Parenthood v. Casey and Roe v. Wade. How to bridge the gap?

Step One: Placate Scalia and Thomas by assuming, hypothetically speaking, Casey is controlling authority, without really treating it as authoritative. “The principles set forth in the joint opnion in [Casey] did not find support from all those who join the instant opinion.” Slip op. at 14. Reminds me of the old joke about the economist who, stuck on a deserted island with only a can of beans, solves the problem by pronouncing, "First, assume a can opener." When was the last time the Court took this approach? “Assume Miranda v. Arizona was correctly decided. If it were, the defendant should not be on death row today, since he was not properly advised of his constitutional rights.” Sadly, this kind of unmoored “blue skying” seems to be par for the course in abortion jurisprudence, so let it go for now. Step Two: Pretend that “Whatever one’s views concerning the Casey joint opinion” (why can’t we all just get along?), a “central premise” of Casey was that “government has a legitimate and substantial interest in preserving and promoting fetal life.” Uh-oh, here she comes. Whack! “You’re refusing to take Casey and Stenberg seriously!” (Dissent at 3 - paraphrasing here.) Whack! “You said in Casey and Stenberg that we won’t legislate ‘basic principles of morality!’” (Id. at 15.) Whack! “You’re showing your hostility to reproductive rights by using right-wing code words like "baby” and “abortion doctor!” (Id. at 19) (Never mind that such terms are by no means confined to the Right – see Casey Mattox’s blog on this.) Even Justice Kennedy’s Step Three – Apologize to the Left by allowing that the door is wide open to “as-applied” challenges to the Act in situations where the “health exception” pertains – is too little, too late. By the time Justice Ginsburg is through with him, she’s made it pretty clear that it’ll be awhile before the Left allows him off the downstairs couch.

Justice Ginsburg completely misses the point here, which is, of course, that Casey is whatever Justice Kennedy makes it to be as the defining Fifth Vote. She can pretend all she wants that Casey’s disembodied Platonic meaning hovers penumbra-like over the Court, but we all know – including her – that Justice Kennedy made Casey, and he has now largely unmade Casey. All the old rules are new again in abortion jurisprudence: The People, through their state and federal legislatures, can express moral outrage and protect women and the medical profession by outlawing or regulating abortion procedures, and will be given deference instead of a “zero tolerance” approach when they do so. Most importantly, perhaps, the “reproductive rights” crowd will no longer be able to bring facial challenges to strike down abortion regulations or notice and consent laws on flimsy and hypothetical circumstances implicating risks to a woman’s health; they will be put to the proof in every instance

Is Casey a Lemon? Will Casey’s main lot in life (or walking death) be to suffer periodic exhumation, doomed to shuffle about at night, frightening abortionists and the reproductive rights gang? Time - and presidential politics - will tell. But the Casey of the Roberts Court is not the Casey of the last Court. Can Roe be far behind?

The Supreme Court's Use of History in Religion Clause Cases

George Fox University professor Mark David Hall has published a law review article entitled "Jeffersonian Walls and Madisonian Lines: The Supreme Court's Use of History in Religion Clause Cases." It is published in volume 85 of the Oregon Law Review, starting at page 563.

Hall writes that "[t]he primary purpose of this Article is to provide a systematic account of how Justices have used history to help them interpret the Religion Clause." Hall analyzed appeals to history in 115 Supreme Court cases. He observes that Justices are more likely to invoke history in Establishment Clause cases than in Free Exercise Clause cases. Justices most frequently cite the writings of Jefferson and Madison. Hall contends that liberals are slightly more likely than conservatives to invoke history.