UN Approval of Resolution Could be Devastating for Many Christians

November 17, 2010

Pakistan Sentencing of Christian Woman to Death for ‘Blasphemy’ Demonstrates Why Defamation Resolution Must Be Defeated

SANTA ANA, Calif. (MetroCatholic) — Ten days ago Asia Noreen, a Pakistani Christian mother of five previously referred to as Asia Bibi by most media, was sentenced to death by hanging on “blasphemy” charges. She became the first woman to receive the death sentence in Pakistan.

Noreen was originally arrested in June 2009 after local Muslims accused her of denying that Muhammad was a prophet and insulting him and the Quran, according to Compass Direct News. She reportedly was under pressure from her fellow workers to convert to Islam.

Compass reported Monday that attorneys for Noreen have filed an appeal of the verdict. Ataul Saman of the National Commission for Justice and Peace (NCJP) said that lower court verdicts in blasphemy cases are usually overturned by higher courts, according to Compass. He said lower court proceedings take place under intense pressure, with local Muslims gathering outside and chanting slogans to pressure judges. Saman added that NCJP research showed that up to 80 percent of blasphemy charges are filed against people to settle personal scores.

Compass says rights groups have long criticized Pakistan’s blasphemy laws as too easily used to settle grudges or oppress religious minorities, such as the more than 4 million Christians that Operation World, an international prayer guide for countries, estimates out of Pakistan’s total population of 184.7 million. Compass reports that to date no one has been executed for blasphemy in Pakistan, as most are freed on appeal after suffering for years under appalling prison conditions. Vigilantes have killed at least 10 people accused of blasphemy, rights groups estimate.

In 1999 Pakistan was the first country to introduce a bill at the United Nations called the “Defamation of Islam.” It later was renamed the “Defamation of Religions Resolution.” Many countries now supporting the resolution are the Islamic-majority countries of the Organization of Islamic Conference (OIC). The group says the bill focuses on promoting tolerance and protecting religious freedom.

However, it does the exact opposite for Christians, other religious minorities and even Muslims who do not adhere to government-approved versions of Islam. In effect, the Defamation of Religions Resolution is an international blasphemy law. If the resolution passes again, it would give international legitimacy to Pakistan’s blasphemy laws and restrictive legislation in other mostly Muslim countries.

“It is incredibly sad and ironic that Pakistan has sentenced a Christian woman to death by hanging just days before a vote on the resolution at the United Nations that many countries are backing to purportedly protect religious freedom,” says Open Doors USA President/CEO Carl Moeller. “This sentencing should alert countries and individuals to the serious consequences of passing this resolution.”

Lindsay Vessey, Director of Advocacy for Open Doors USA, says: “I was recently in New York City lobbying various countries at the United Nations to change their vote on the Defamation of Religions Resolution. Open Doors was privileged to work with a group of other organizations and church groups during these lobbying efforts. We met with officials of over 20 countries. We had some very productive meetings and look forward to see if some of these countries vote against the non-binding resolution which comes up for reaffirmation each year. If defeated this year, the OIC will be forced to compromise on its efforts to create an international blasphemy law.”

Vessey says the resolution will be voted on in the United Nation’s Third Committee later this week, while the General Assembly vote will likely be held in early December.

Open Doors launched an advocacy campaign called “Free to Believe” two months ago. The campaign focuses on helping persecuted Christians who currently do not have religious freedom like Christians do in the United States and other free countries. Over 200,000 Open Doors supporters worldwide have spoken out against the resolution. To add your voice, go to www.freetobelieve.info.

An estimated 100 million Christians worldwide suffer interrogation, arrest and even death for their faith in Christ, with millions more facing discrimination and alienation. Open Doors supports and strengthens believers in the world’s most difficult areas through Bible and Christian literature distribution, leadership training and assistance, Christian community development, prayer and presence ministry and advocacy on behalf of suffering believers. To partner with Open Doors USA, call toll free at 888-5-BIBLE-5 (888-524-2535) or go to our website at www.OpenDoorsUSA.org.

Divided Illinois Supreme Court Rejects Thomas More Society’s Request for Immediate Transfer of Parental Notice Challenge

September 3, 2010

CHICAGO (MetroCatholic) — Tuesday, August 31st, a divided Illinois Supreme Court denied a request by the Thomas More Society to transfer the legal case pending against the Illinois Parental Notice of Abortion Act of 1995 from the Appellate Court to the Supreme Court. Justices Robert R. Thomas and Thomas L. Kilbride dissented from the order denying the transfer.

“We’re obviously disappointed with this ruling, but we remain committed to doing everything we possibly can to bring these appeals to a speedy and positive conclusion,” said Tom Brejcha, president and chief counsel of the Thomas More Society. “The latest constitutional attack on this law by the American Civil Liberties Union was deemed legally meritless and tossed out of court by both a federal appeals court and a Cook County trial court, and yet the Attorney General agreed — inexplicably and without any legal basis — that the enforcement of parental notice should still be stayed, that is, suspended pending the outcome of the ACLU’s appeal.”

With the transfer motion denied, the proceedings will continue in the Illinois Appellate Court, First District, where Thomas More Society attorneys are due to file their opening appeal brief on Friday.

About the Thomas More Society
Founded in 1997, the Thomas More Society is a national public interest law firm that exists to restore respect for life in law. Based in Chicago, the Thomas More Society defends the sanctity of human life, the family and religious liberty in courtrooms across the country. The Society is a nonprofit organization wholly supported by private donations. For more information or to support the work of Thomas More Society, please visit www.thomasmoresociety.org.

Thomas More Society Files Motion for Immediate Transfer of Parental Notice Challenge to Illinois Supreme Court

August 19, 2010

CHICAGO (MetroCatholic) — This morning, Thomas More Society attorneys delivered the justices of the Illinois Supreme Court a motion to immediately transfer the legal case pending against the Illinois Parental Notice of Abortion Act of 1995 from the Appellate Court to the Supreme Court. Arguing that pregnant minors at risk for abortion suffer harm every day that the Act is not enforced, the Society invoked the Supreme Court rule allowing transfer of an appeal when the “public interest requires prompt adjudication.” The pending appeal, brought by the American Civil Liberties Union (ACLU), is currently in the Illinois Appellate Court, First District, where a decision is not expected for a year or more.

“More than fifteen years ago, with overwhelming bipartisan support, parental notice was supposedly made the law in Illinois, but as we sit here today, secret abortions on pregnant minors continue unabated,” said Peter Breen, Thomas More Society executive director and legal counsel. “With this motion to transfer, the Supreme Court has the opportunity to immediately and definitively decide the constitutionality of parental notice in Illinois.”

Earlier this year, Judge Daniel Riley of the Cook County Circuit Court allowed the Thomas More Society to appear as “friends of the court” as he rejected the ACLU’s Illinois state constitutional challenges to the Parental Notice Act. However, after the decision, both the ACLU and the Illinois Attorney General’s office agreed to an indefinite stay of the law, extending through the duration of the appeal a temporary restraining order entered earlier by Judge Riley.

Since the Parental Notice Act was signed into law in 1995, more than 50,000 abortions have been performed on pregnant minors in Illinois, including almost 5,000 abortions on girls 14 years of age and younger. Illinois is the only state in the Midwest that does not have a law requiring parental notification or consent prior to an abortion, and more than 55,000 abortions have been performed on non-residents in Illinois since 1995, including an unknown number of out-of-state pregnant minors.

While the Act was passed in 1995, it was in late 2006 that the Illinois Supreme Court issued the Act’s required “judicial bypass” rules, which allow a minor a confidential bypass proceeding in court in lieu of notifying her parents. Notwithstanding the bypass rules, the Act also allows a minor to forego notification if she declares in writing that she is the victim of abuse. In early 2009, the United States Court of Appeals for the Seventh Circuit rejected the ACLU’s federal constitutional challenge to the Act.

It is not yet known whether the Attorney General and the ACLU will support, oppose or remain neutral on the motion to transfer. A copy of the motion to transfer can be downloaded at www.thomasmoresociety.org.

About the Thomas More Society
Founded in 1997, the Thomas More Society is a national public interest law firm that exists to restore respect for life in law. Based in Chicago, the Thomas More Society defends the sanctity of human life, the family and religious liberty in courtrooms across the country. The Society is a nonprofit organization wholly supported by private donations. For more information or to support the work of Thomas More Society, please visit www.thomasmoresociety.org.

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Legal fund calls on University of Illinois to reinstate Catholic professor

July 13, 2010

Champaign, Ill. (CNA/EWTN News) — In a letter sent Monday to the University of Illinois, the Alliance Defense Fund (ADF) called for the immediate reinstatement of Dr. Kenneth Howell, a professor who was fired for explaining in a class on Catholicism that the Church teaches homosexual behavior violates natural law. If the university does not reply to the letter by July 16, the legal fund said it will advise the professor to file a lawsuit.

In his Introduction to Catholicism class this past spring, a class that he had taught regularly at the university, Dr. Howell covered the topic of homosexuality, teaching the Catholic Church’s position on same-sex attractions and behavior. As part of this discussion, Dr. Howell sent an e-mail to his class contrasting how utilitarianism and natural law theory would each determine the morality of homosexual conduct.

A student complained that Dr. Howell’s words were “hate speech” in an e-mail to the head of the department, Dr. Robert McKim. Howell was called into McKim’s office at the end of the semester and told that he would no longer be allowed to teach for the University because his e-mail had “violate[d] university standards of inclusivity.”

Travis Barham, litigation staff counsel for the ADF Center for Academic Freedom, wrote a letter on July 12 to several officials at the University of Illinois, including the president, the Dean of the College of Liberal Arts and Sciences and the head of the religion department.

“In relieving Dr. Howell of his teaching responsibilities, the University is firing him for teaching Catholic doctrine in a class about Catholic doctrine,” Barham said.

He noted that “the University’s only reason for removing Dr. Howell is that other students, faculty, and staff disliked his speech.” However, he continued, the First Amendment “exists precisely to protect controversial ideas from being silenced” and “affords broad protection for a professor’s speech in the classroom.”

In his letter, Barham noted that Dr. Howell has taught in the Department of Religion at the University of Illinois since 2001, and that he has consistently earned excellent marks on his student evaluations.

Throughout the semester, Barham underscored, Dr. Howell emphasized to his class that they did not need to agree with Catholic thought, but simply needed to understand and analyze it to succeed in the class.

In a legal analysis of the situation, Barham explained that “public university professors retain free speech and academic freedom rights in the classroom and on campus.”

Looking at legal precedent, Barham noted that the U.S. Court of Appeals for the Seventh Circuit, which has jurisdiction over Illinois, has stated that “the First Amendment protects the right of faculty members to engage in academic debates, pursuits, and inquiries.” Federal courts across the country have agreed with this statement, he said.

“These clearly established First Amendment principles easily encompass Dr. Howell’s lectures and e-mail,” Barham stated. “In a class on Catholic thought, he explained Catholic teaching on sexual morality and answered students’ questions and responded to their objections.”

“According to decades of Supreme Court precedent, the University simply cannot relieve Dr. Howell of his teaching post based on how third parties respond to his speech,” Barham said. “For decades, the Supreme Court has consistently held that university campuses are ‘not enclaves immune from the sweep of the First Amendment.’”

Emphasizing the violation of the right to free speech and academic freedom, Barham called for the University to restore Dr. Howell to his previous teaching position.

“In light of these clear constitutional violations, we demand that you immediately reinstate Dr. Howell and restore to him the teaching responsibilities he has discharged so excellently for almost a decade,” Barham said in the letter. If the University does not respect Dr. Howell’s First Amendment freedoms, ADF will advise the professor “to vindicate his constitutional rights in federal court.”

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Homeland Security Drops Opposition to Son of Hamas Political Asylum Request

June 30, 2010

SAN DIEGO (MetroCatholic) — Today in a hearing in United States immigration court in San Diego, prosecutors for Homeland Security chose not to oppose Mosab Hassan Yousef’s application for political asylum in the United States. Yousef is the author of the “New York Times” bestselling book, “Son of Hamas,” which details his life as a spy for the Shin Bet, Israel’s security agency.

This change in heart by Homeland Security comes after Yousef recently gained support from prominent members of Congress, the Foreign Affairs and Defense Committee of the Israeli Knesset, and a number of other prominent supporters.

The following is a statement from Mr. Yousef about the results of the hearing:

    “I came to the United States because I believe in liberty. The liberty that makes men great. The liberty that makes men free. America is great because of its commitment to the idea that all men are created equal and that freedom is his inalienable right. I wrote the book, Son of Hamas — which the prosecution used to try to deport me today — so that people in my country might be encouraged to think freely, and rise above their fear.

    “It was hard for me that statements made in the book might be used to take away my hope of freedom here in the United States, a country that inspires people around the world to pursue freedom.

    “But today, my faith in America is restored. I am very grateful to the Department of Homeland Security for carefully reviewing my case and choosing to withdraw it’s opposition to granting me asylum. Thank you for recognizing that my actions in associating with terrorists in Hamas was purely to bring them to justice and save lives in my role as an operative for the Shin Bet.

    “I’m first of all thankful to God, to Jesus Christ, whose teachings changed my heart from hating my enemies, to loving my enemies, and whose ultimate sacrifice for my sake inspired me to risk everything.

    “And I’m so grateful for the many friends I’ve gained here who have, and continue to, show their faith in me and my desire to work for peace in the Middle East. You’ve prayed for me, you’ve stood up for me, and you’ve supported me through this journey. I could not continue on without you. Thank you Sarah Stern and Endowment for Middle East Truth (EMET) for your efforts on my behalf. And thank you to my attorney, and to the congressmen and senators who spoke out on my behalf.

    “And I’m especially grateful for my friend, and former Shin Bet handler, Gonen Ben-Itzhak, who revealed his true identity, and traveled here at the risk of his own freedom and safety, to testify on my behalf. Thank you Gonen, my brother.

    “Whatever happens from here, I will continue to fight — for freedom for my beloved Palestinian brothers and sisters in Palestine, and for peace in the Middle East. Thank you.”

Yoest to Testify Tomorrow in Kagan Hearings: Americans Do Not Want Agenda-Driven Judges

June 30, 2010

WASHINGTON, (MetroCatholic) — Americans United for Life President and CEO Dr. Charmaine Yoest will add her voice to the distinguished panel of experts testifying on the nomination of Elena Kagan to the Supreme Court, calling on the Senate to reject another agenda-driven justice. When she testifies on July 1st, it will be the second time since 2009 that Dr. Yoest has been invited to illustrate concerns with a nominee to the nation’s high court.

Dr. Charmaine Yoest, President and CEO of Americans United for Life, to give testimony before the Senate Judiciary Committee on the nomination of Elena Kagan to the U.S. Supreme Court.

July 1st — afternoon - exact time to be determined.

Hart Senate Office Building, Hearing Room 216

To read Dr. Yoest’s written testimony as submitted to the Committee, click here. For analysis of Kagan’s political and legal record, go to www.aul.org. And contact the AUL media office for interviews and analysis of the impact of this highly political nominee.

Americans United for Life (AUL) is a nonprofit, public-interest law and policy organization whose vision is a nation in which everyone is welcomed in life and protected in law. The first national pro-life organization in America, AUL has been committed to defending human life through vigorous judicial, legislative, and educational efforts at both the federal and state levels since 1971.

AUL’s legal team has been involved in every pro-life case before the U.S. Supreme Court including the successful defense of the Hyde Amendment. AUL also publishes Defending Life, the most comprehensive state-by-state legal guide of its kind, which is distributed annually to legislators across the nation.

Recently, Americans United for Life detailed the facts on taxpayer-funding of abortion during the debate over federal health care legislation, provided legal assistance to states working to opt out of abortion provisions created by federal health care law, and has played a major role in educating policymakers on the record of Supreme Court nominee Elena Kagan.

Salon’s Walsh Jumps the Shark — Calls GOP Senators Bigots for Invoking Manhattan’s Upper West Side

June 29, 2010

By Jeff Poor Business & Media Institute

Did you know that calling attention to an area where a Supreme Court justice nominee is from, which happens to be a well-known bastion of liberalism, is bigoted?

If you didn’t, you want to take a look at the wisdom of Salon.com’s Joan Walsh.  In her June 28 post “It’s not even coded bigotry anymore,” Walsh argued that references to SCOTUS nominee Elena Kagan’s Upper West Side of Manhattan roots are bigoted –since the neighborhood has Jewish features, references to it are anti-Semitic and as she puts it, “not even coded.”

“That said, Republicans on the Senate Judicial Committee are trying to make the case she’s outside the mainstream of American jurisprudence, by attacking her clerking for (and admiring) legal giant Thurgood Marshall, the first African American Supreme Court justice, while singling her out as a denizen of ‘Manhattan’s Upper West Side’ – you know, the neighborhood known for Zabar’s and bagels and, well, Jews,” Walsh wrote.

Walsh wasn’t clear about what she thinks these Senate Republicans are trying to accomplish. Conventional wisdom suggests Kagan will be easily confirmed, but pointing out the neighborhood she is from, with documented evidence of having an ideological liberal leaning, is going to accomplish what?

She also took a stab at ranking Senate Judiciary Committee Republican Sen. Jeff Sessions, with her own efforts to be coded – by invoking his middle name, “Beauregard.” (Remember when liberals hemmed and hawed over using President Barack Obama’s middle name, “Hussein,” as if that were a coded effort to suggest he was Muslim?) Her beef with Sessions was that he voiced his disapproval of judicial activism.

“Sen. Jefferson Beauregard Sessions of Alabama, who wasn’t crazy about Sonia Sotomayor, you’ll recall, denounced Kagan having ‘associated herself with well-known activist judges who have used their power to redefine the meaning of our constitution and have the result of advancing that judge’s preferred social policies,’ and he cited Marshall, the NAACP Legal Defense Fund leader who argued Brown vs. Board of Education,” Walsh wrote.

Therefore with that evidence, Walsh declared any GOP senator that opposes Kagan a bigot.

“So there you have it. Unable to find any personal statements by Kagan they can use to prove she’s beyond the pale, so to speak – no ‘wise Latina’ moments on her transcripts – they deride her for coming from the Upper West Side, and admiring one of the heroes of American justice, who happens to be black,” Walsh wrote. “Stay tuned for more not-so-coded bigotry from the GOP.”

Feds Demand Court Toss Virginia Lawsuit Against Health Care Law

May 26, 2010

By Peter J. Smith

RICHMOND, Virginia (LifeSiteNews.com) – The federal government has requested a U.S. District Court toss out Virginia’s lawsuit against the health care reform law, which the state says conflicts with a statute declaring Virginia residents will not be forced to carry health insurance, saying that the state lacked standing to invoke federal jurisdiction.

The Associated Press reports that the Justice Department filed the motion to dismiss on Monday just hours before the midnight deadline to respond to Virginia’s legal challenge.

U.S. Health and Human Services Secretary Kathleen Sebelius argued that Congress was well within its rights to impose a national health insurance mandate under the interstate Commerce Clause of the U.S. Constitution, and said Virginia and other states could not “manufacture its own standing to challenge a federal law by simple expedient of passing a statute purporting to nullify it.”

The new law mandates that all U.S. citizens must purchase health insurance or face a fine starting in 2014.

The federal government further claimed that, because the mandate applies “only to individuals, not the state government,” the commonwealth has no standing to pursue the case. Officials also insisted that Congress had broad authority to issue the mandate, which it called “essential” to the whole scheme of the health care reform law.

In a statement following the filing of the motion, Virginia Attorney General Ken Cuccinelli stated: “We are still looking through the motion and 39-page brief that we received late Monday, but at initial glance, this is pretty close to what we expected.” Cuccinelli has until June 7 to respond to the motion.

Virginia had been the first state to fire a warning shot against the federal government over constitutional overreach as the health care bill was impending, by passing a bill declaring any federal mandate to require individuals to purchase health insurance null and void in the commonwealth.

The law states that, within Virginia, “No law shall restrict a person’s natural right and power of contract to secure the blessings of liberty to choose private health care systems or private plans.”

Within eight hours of the passage of the Patient Protection and Affordable Care Act, Cuccinelli filed suit in U.S. District Court in Richmond alleging that the Constitution does not permit the federal government to force citizens to buy a product.

“At no time in our history has the government mandated its citizens buy a good or service,” said Cuccinelli at the time of the filing. “We believe the federal law is unconstitutional as it is based on the commerce clause. Simply put, not buying insurance is not engaging in commerce.”

Well over a dozen attorneys general have followed Virginia’s lead by filing their own group lawsuit with the U.S. District Court in Pensacola, Florida, contending that the insurance mandate exceeds the limited scope of the powers granted to the federal government under Article I of the US Constitution.

Furthermore, they assert that the mandate violates the prohibition against the direct taxation of individuals outlined in Article I, sections 2 and 9 of the Constitution, and also invoke the Tenth Amendment reserving to states all powers not delegated to the federal government.

AUL’s Kagan File: The “Foreign Justice” Memo

May 21, 2010

McKinney, TX (MetroCatholic)

FROM: Americans United for Life Legal Team

DATE: May 21, 2010

RE: Constitutional law or International law?


During her Senate confirmation hearings last year to become U.S. Solicitor General, Elena Kagan was asked her view of the role of foreign law in statutory interpretation. Kagan responded: “At least some members of the Court find foreign law relevant in at least some contexts.When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking.”[1]

Kagan’s high regard for International and Comparative law comes as no surprise. In addition to her admiration for judicial activist Judge Aharon Barak, who encourages judges to rely on Comparative law, Kagan led curriculum reforms in 2006 that changed Harvard Law School’s 100 year-old curriculum to require International and Comparative law.

What course is no longer required? Constitutional law. It became a course students could elect if they so desired.[2]

Our entire legal system is rooted in and dependent on the U.S. Constitution. To no longer require law students preparing to be lawyers to take Constitutional law is like ceasing to require medical students to take biology or accounting students to take math.

Kagan’s role in revamping the first year curriculum to require students to take International and Comparative law, but not Constitutional law, is especially important given her nomination to the Supreme Court.

  • Kagan said: “The courses in international and comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world.”[3] Would Kagan’s opinions as Supreme Court Justice rely on international laws and the “choices different societies” have made instead of the U.S. Constitution?
  • As Dean of Harvard Law, Kagan said: “A great law school reflects in everything it does a global perspective and a global context.”[4] Would Kagan seek to make the Supreme Court “great” by reflecting a “global perspective and global context” in her judicial opinions?
  • Kagan also stated: “We must seek to train leaders—creative thinkers and problem solvers capable of designing new institutions to meet individual and social needs during a time of tremendous—perhaps unprecedented—social and economic change.”[5] Would Kagan endeavor to create a “new” Supreme Court to meet the individual and social needs she values rather than adhere to the Constitution?

Kagan led the reform of Harvard’s curriculum to emphasize International law and to de-emphasize American Constitutional law. She should be deeply questioned during her Senate hearings as to her view of the role of Constitutional law and International law in judicial decision-making.

[1] See Written Questions for Elena Kagan, Nominee to be Solicitor General of the United States available at http://judiciary.senate.gov/nominations/111thCongressExecutiveNominations/upload/Kagan-QFRs.pdf.

[2] Legislation and Regulation was another course added to the new curriculum in 2006, which includes some elements of traditional Constitutional law courses.

[3] See http://www.courts.state.nh.us/press/Kagan_NH_speech_distribution.pdf.

[4] See http://www.courts.state.nh.us/press/Kagan_NH_speech_distribution.pdf.

[5] See http://www.courts.state.nh.us/press/Kagan_NH_speech_distribution.pdf.

Americans United for Life ( AUL) is a nonprofit, public-interest law and policy organization whose vision is a nation in which everyone is welcomed in life and protected in law. The first national pro-life organization in America, AUL has been committed to defending human life through vigorous judicial, legislative, and educational efforts at both the federal and state levels since 1971.

AUL’s legal team has been involved in every pro-life case before the U.S. Supreme Court including the successful defense of the Hyde Amendment. AUL also publishes Defending Life, the most comprehensive state-by-state legal guide of its kind, which is distributed annually to legislators across the nation.

Recently, Americans United for Life detailed the facts on taxpayer-funding of abortion during the debate over federal health care legislation, provided legal assistance to states working to opt out of abortion provisions created by federal health care law, and has played a major role in educating policymakers on the record of Supreme Court nominee Elena Kagan.

Yes, the Constitution, as Originally Drafted and Conceived, was ‘Defective,’ but that Document Still Does Not Empower Unelected, Imperfect Supreme Court Justices to do Whatever They Please

May 17, 2010

NEW YORK, May 17 /MetroCatholic/ — Elena Kagan, President Obama’s nominee to replace Supreme Court Justice Stevens, served as a law clerk to Justice Thurgood Marshall. Following the latter’s death in 1993, Ms. Kagan penned an “In Memoriam” (71 Tex. L. Rev. 1125, 1130) where she wrote the following:

“…Justice Marshall gave a characteristically candid speech. He declared that the Constitution, as originally drafted and conceived, was ‘defective’; only over the course of 200 years had the nation ‘attain[ed] the system of constitutional government, and its respect for…individual freedoms and human rights, we hold as fundamental today.’ The Constitution today, the Justice continued, contains a great deal to be proud of.  [B]ut the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice,” and “equality,” and who strived to better them.’ The credit, in other words, belongs to people like Justice Marshall. As the many thousands who waited on the Supreme Court steps well knew, our modern Constitution is his.”

Robert Peters, President of Morality in Media, commented:

In addition to Justice Marshall, the many others who refused to acquiesce in such “outdated notions” include President Abraham Lincoln, who issued the Emancipation Proclamation, President Franklin D. Roosevelt, who banned racial discrimination in hiring in all industrial facilities receiving federal contracts, President Harry Truman, who desegregated the American military, and Presidents Kennedy and Johnson, who provided leadership in the enactment of civil rights laws in the 1960s. Congress also enacted civil rights laws in the 1800s and in 1957 and approved the 13th, 14th and 15th Amendments to the Constitution. The latter Amendments also required ratification by the States.

Another aspect of Constitutional history left out of the “Memoriam” is that for a significant period of our nation’s history, the Supreme Court was part of the problem. See, e.g., Dred Scott v. Sanford (1857), Slaughter-House Cases (1873), Civil Rights Cases (1883) and Plessy v. Ferguson (1896).

Neither the Constitution itself nor Constitutional history therefore justify the notion that it is up to five or more Supreme Court Justices to correct every perceived defect in acts of Congress, the Executive Branch, or State governments. In particular, there are at least two problems with the notion that it is the Supreme Court itself should have the final say on all constitutional matters.

First, this notion places the Court above the Constitution itself. And second, the Supreme Court has not been endued with greater wisdom and a grasp of the truth than other branches of government.

Justice Marshall is a case in point. Along with being a lion-heart in fighting the evils of racial segregation and discrimination, as a Supreme Court Justice he also voted to:

* Permit children under age 16 to view films (shown in theaters) that portray “brutality, criminal violence or depravity in such a manner as to be…likely to incite or encourage crime or delinquency on the part of young persons” (Interstate Circuit v. Dallas, 1968)

* Legalize possession of obscene materials (Stanley v. Georgia, 1969)

* Legalize “bottomless dancing” in bars (California v. LaRue, 1972)

* Legalize the sale of obscene materials (Miller v. California, 1973)

* Permit “adult businesses” to locate near residential zones (Young v. American Mini Theatres, 1976)

* Legalize broadcast indecency (FCC v. Pacifica Fdn., 1978)

* Permit “adult businesses” to locate near schools (Renton v. Playtime Theatres, 1986)

* Permit an “adult bookstore” found to be used as a place for prostitution and lewdness to remain open (Arcara v. Cloud Books, 1986)

* Permit a high school student to give a lewd speech at a school assembly (Bethel School District v. Fraser, 1986)

* Legalize obscene and indecent dial-a-porn communications (Sable Comm. of Calif. v. FCC, 1989)

* Legalize the possession of child pornography (Osborne v. Ohio, 1990)

* Legalize “totally nude dancing” in bars and peep show booths (Barnes v. Glen Theatre, 1991)

The above listing is not intended to discredit Justice Marshall’s commendable and courageous work on behalf of racial justice, but rather to show that entrusting the well-being of our nation to activist Supreme Court Justices, without checks and balances, is and will continue to be a mistake of great proportions.

Contact: Robert Peters, Morality in Media, 212-870-3210

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