Everything Old is New Again -- The Return of Catholic Advocacy for Judicial Activism to End the Death Penalty

Okay. This time will DEFINITELY be my last post here. But just had to acknowledge one last thing on my almost blogiversary.

Two days from today, Saturday, 7 March, will be the 10th anniversary of this blog. The very first substantive post on this blog was about capital punishment. To be precise, it was about the then recent Supreme Court ruling in Roper v. Simmons, which held that it was cruel and unusual punishment in violation of the 8th Amendment to the U.S. Constitution to execute those who have been convicted of committing murder prior to their 18th birthday. The effect of the Roper decision was to abolish the juvenile death penalty in at least 19 states.

In that post, I acknowledged my opposition to the juvenile death penalty (which has now become an opposition to all forms of capital punishment). However, I also noted the troubling aspect of many anti-death-penalty Catholics hailing the Roper decision as a positive thing. While I agreed with the desired outcome of abolishing capital punishment for those who had committed murder before reaching the age of majority, I warned against the impulse of looking to the judicial branch to implement our agendas:

Catholics who are opposed to capital punishment in general, or who, like me, are opposed to the juvenile death penalty in particular, may be tempted to hail the Court’s Roper decision as a favorable development. Indeed, the U.S. Conference of Catholic Bishops on March 2 stated that it was “very encouraged that the United States Supreme Court has recognized that executing juvenile offenders is indeed cruel and unusual.” However, notwithstanding the desirable result, I would like to warn Catholics against viewing the Court’s decision in too positive a light, as the Court’s majority, in reaching its holding, relied on reasoning that could lead to outcomes that are problematic for Catholics.

First, it must be noted that what the Court did in Roper was, in my view, an abusive exercise of judicial fiat by unelected and life-tenured judges, who usurped what should be the function of the duly elected and politically accountable legislative branch of government. The majority on the Court ignored the views of the electorate on this issue and read its own policy preferences into the Constitution in order to create a constitutional right that was never there before. In doing so, the Court’s ruling flies in the face of over 200 years of 8th Amendment jurisprudence, and is at odds with the Court’s own previous ruling 15 years earlier in Stanford v. Kentucky, which held that the death penalty for minors was NOT unconstitutional. Amazingly, the Court essentially concluded, as pointed out by Justice Antonin Scalia in his dissenting opinion, “that the meaning of our Constitution has changed over the past 15 years – not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.”

This type of activist judicial lawmaking is essentially the same thing the Court did in creating (out of whole cloth) a constitutional right to abortion in Roe v. Wade, as well as in recently striking down laws banning the practice of partial birth abortion. Those Catholics who think the Court acted properly in abolishing the juvenile death penalty in the Roper decision, should not be surprised when the Court uses that same judicial fiat to rule in a manner opposed by Catholics, such as it did in Roe and subsequent abortion-related cases.

I also noted the troubling trend of the Court's increasing reliance upon foreign precedence and the potential ill effects that might have in the arena of creating additional "rights" -- some of which would undermine Catholic views of the family -- out of whole cloth.

Next, I noted the troubling acceptance of the Court's ruling by people who ought to know better:

Again, I realize that many Catholics, despite the concerns I have raised, will nevertheless be tempted to rejoice at the result of the Roper ruling, as evidenced by the positive statement coming from the Bishops’ Conference. I have corresponded with other Catholics who, although troubled by the Court’s reasoning, believe that the “legal technicalities” of the Roper decision should be ignored because the result was just. I would caution Catholics, however, to keep in mind that such good ends cannot justify improper means. And, in my view, running roughshod over the rule of law, as the Roper Court has done, in order to reach a particular desired result simply cannot be justified.

Finally, I concluded with a quote from A Man for All Seasons, and applied it as a warning for what was likely to come from an acceptance of raw judicial activism:

Roper: So now you'd give the Devil benefit of law! 

More: Yes. What would you do? Cut a great road through the law to get after the Devil? 

Roper: I'd cut down every law in England to do that! 

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake. 

Sir Thomas More’s admonition to Roper should serve as a warning and a reminder to Catholics that the activist Court that sides with us in this particular instance is the same activist Court that is likely in the future (as it has in the past) to “turn round on us” and use its increasingly strident activism to decide cases contrary to our Catholic values.

Now, fast forward 10 years, and along comes this joint editorial from "the national Catholic journals":

National Catholic Journals Unite: ‘Capital Punishment Must End’ 

Joint Editorial of America, National Catholic Register, National Catholic Reporter, and Our Sunday Visitor

Next month, the U.S. Supreme Court will hear arguments in Glossip v. Gross, a case out of Oklahoma that challenges the most widely used lethal injection protocol as being cruel and unusual punishment.

The court took up the case in January after a year of three high-profile, problematic executions in three states. The court will likely issue a ruling by June. Our hope is that it will hasten the end of the death penalty in the United States.

[...]

We, the editors of four Catholic journals — America, National Catholic Register, National Catholic Reporter and Our Sunday Visitor — urge the readers of our diverse publications and the whole U.S. Catholic community and all people of faith to stand with us and say, “Capital punishment must end.”

[...]

The Supreme Court has agreed with Archbishop Coakley and will consider the issue. We join our bishops in hoping the Court will reach the conclusion that it is time for our nation to embody its commitment to the right-to-life by abolishing the death penalty once and for all.

Read more: http://www.ncregister.com/daily-news/national-catholic-journals-unite-capital-punishment-must-end/#ixzz3TWgEeACO

So, here we go again. I can understand America's and National Catholic Reporter's affinity for judicial activism, since those publications have never been averse to the Court's using its raw power to push agenda items to which those editorials staffs are friendly. But National Catholic Register and Our Sunday Visitor should know better. They have seen the pro-life and pro-family causes burned time and time again by unelected, life-tenured, activist judges.

The editors at National Catholic Register did feel the need to at least provide an explanation, although they avoided discussing the problematic stance of urging the Court to engage in raw judicial tyranny. My response in the comments to the Register's statement was as follows:

I oppose capital punishment. I want it to be abolished.
***
BUT the remedy for which the national Catholic journals are advocating is a recipe for judicial tyranny. You are asking for unelected life-tenured judges to usurp a power unto themselves that they do not have—to find something in the Constitution that simply is not there (although they are certainly not shy about doing so when it comes to declaring a constitutional right to abortion on demand and same-sex “marriage”).
***
In fact, you are asking the Supreme Court to find “unconstitutional” something that is explicitly provided for in the Constitution. The Constitution itself, by its terms, validates the “constitutionality” of capital punishment by making it the penalty for treason. How can something be “unconstitutional” when it is called for by the Constitution? What this editorial proposes is for the Supreme Court to ignore the clear language of the Constitution and substitute the judges’ own personal policy preferences.
***
Yes, capital punishment should be abolished, but not by judges who, by doing so, would be making up the law, not following it. Instead, we should be advocating the abolition of the death penalty to those in the elected branches in the state and federal governments who are empowered to act in this regard. It is in the lawmaking branches across the nation—in the legislatures and executive branches—that we should be looking to for action. Movement in the right direction is already happening in several states throughout the nation, as this editorial acknowledges.

Well, that's all I have to say on the matter. Just thought it interesting to see this "joint editorial" encouraging the Supreme Court to abolish capital punishment almost 10 years to the day after I published my first blog post on exactly the same topic.

Thanks for a great 10 years. Goodbye.

UPDATE (6 March 2015)
Pat Archbold, writing at National Catholic Register, takes issue with the publication's advocacy of judicial tyranny, citing the same concerns I have cited here and that I cited 10 years ago in response to the Roper decision. (Hat tip: Paul Z at The American Catholic)

Protecting Religious Liberty in a Same-Sex "Marriage" Country

Given recent comments by Justice Anthony Kennedy, I'm not so sure that nationwide same-sex "marriage" is as inevitable in the short run as many of its proponents seem to hope. But I do believe it is unavoidable in the long run, and that - as I have written many times in the past (see links below) - the Church will suffer a loss of religious freedom at the very least, and even suffer outright persecution in some form, as a result.


A trio of legal minds (including Prof. Doug Laycock of my alma mater, UVA, who was lead counsel on the Hosanna-Tabor case) argue, wrongly in my view, that SSM is constitutionally protected under the 14th Amendment's Equal Protection Clause, but also argue, rightly in my view, that the Supreme Court needs to concern itself with the implications of such a ruling for religious liberty:

I understand that the Catholic bishops are a bit preoccupied at the moment, but they and other religious leaders who are worried about the implications of same-sex marriage for religious liberty should make time to read the amicus brief filed last Thursday by the American Jewish Committee in the Supreme Court’s Proposition 8/DOMA case. It shows them the way forward in a country where, sooner rather than later, SSM will be the law of the land.

Let it be noted that the brief is a Protestant-Catholic-Jewish affair, written by three of the most respected advocates of religious liberty in the American legal community: (Protestant) Douglas Laycock of the University of Virginia Law School, who served as lead counsel in last year’s Hosanna-Tabor ministerial exception case; (Catholic) Thomas C. Berg of the University of St. Thomas Law School, a prolific author who has done legal work for the archdiocese of Chicago; and (Jewish) Marc Stern, associate general counsel of the American Jewish Committee, who played a key role in drafting the 1993 Religious Freedom Restoration Act.

[More]

Agree or disagree with the outcome for which they argue, the arguments they make on behalf of protecting religious liberty in their amicus brief should be of interest to Catholics who desire to remain faithful to the timeless teachings of our faith in a nation increasingly moving to secularism and hostility toward religion.

Here is a direct link to the amicus brief.


UPDATE:
Here is a post on this topic at Mirror of Justice from a couple of weeks ago.

Looks like I'm late to the game in discussing this (which I suppose is always a risk when one cuts back on the amount of blogging one does).

Hat tip: Rick Garnett.



Previous Pro Ecclesia posts on this subject: 
Outside the Asylum: "How the Next Civil War Will Begin"

Archbishop Chaput: "Systematic Discrimination Against Church Now Seems Inevitable"

Pope Critical of Labour’s "Unjust" Equality Laws Ahead of UK Visit

Same-Sex "Marriage" and Religious Liberty

Bork Predicts “Terrible Conflict” Will Endanger U.S. Catholics’ Religious Freedom

Same-Sex "Marriage" and the Persecution of Civil Society

InsideCatholic on "The Unintended Consequences of Gay Marriage"

Secularist Attacks on the Catholic Church in Britain

Regular Guy Paul on What's Next for Same-Sex "Marriage"

Catholic Provocation?

Federal Judge: Catholic Church’s Position Against Homosexual Adoptions Justifies Government Hostility Towards Church

San Francisco's Hateful Anti-Catholic Resolution Prompts Lawsuit by Thomas More Center

Catholic League Says Gay Adoption Issue Spurring Anti-Catholic Bigotry

9th Circuit Rules Okay to Censor Terms "Marriage" and "Family Values" as Hate Speech

UK Catholic Schools Endangered by Sexual Orientation Regulations

Official Anti-Catholic Bigotry Returns to British Parliament

"A Charter for Suing Christians"

A Catholic Londoner on "The Last Acceptable Prejudice"

British Bishops: U.K. Sex Equality Law "Threatens Catholic Adoption Agencies"

UK: Churches "Could be Forced to Bless Gay Weddings"

The Coming Persecution of Churches Over "Gay Marriage"

The Coming Conflict Between Same-Sex "Marriage" and Religious Liberty

NOW He Tells Us

Where was THIS Anthony Kennedy 21 years ago when the Casey decision came down?

Justice Anthony Kennedy concerned that so many charged issues are shifting to US Supreme Court

Justice Anthony Kennedy says he is concerned that the U.S. Supreme Court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration. The 76-year-old associate justice said Wednesday that major policies in a democracy should not depend “on what nine unelected people from a narrow legal background have to say.” [ED.: Channeling our colleague Justice Scalia, are we?]

Rather, he said, it is important for political leaders to show the world that democracy works through compromise. [ED.: Which is EXACTLY what overturning Roe v. Wade 21 years ago would have allowed.]

(emphasis and editorial commentary added)

My Comments:
Like Ed Morrissey, I'm wondering if it's time for pro-lifers to throw caution to the wind and start doing all across the country what Arkansas has recently done by placing strict time limits on abortion. Heck, go all the way and start enacting some outright bans. It's time for the federal courts to catch up with science anyway.

Let's press the Supreme Court to once again determine whether Roe v. Wade will continue to be the law of the land thereby foreclosing any opportunity for compromise solutions to limiting or even ending abortion. If the above is any indication, perhaps Anthony Kennedy has begun to rethink his "switch in time that saved none ... and killed many" in the Casey decision. I know if I were in his position as a Catholic jurist, I certainly wouldn't want the blood of so many innocents on my hands as I faced the twilight years of my judicial career, not to mention the twilight of my life as I contemplated meeting my Maker.

San Fran Nan the Theologian: Bishops Don't Speak for Catholic Church

Seriously. Why is this woman STILL receiving Our Lord in Holy Communion?

... “Well, I don’t think that’s the entire Catholic Church,” Pelosi responded. “Those people have a right to sue, but I don’t think they’re speaking ex cathedra for the Catholic Church. And there are people in the Catholic Church, including some of the bishops, who have suggested that some of this may be premature,” Pelosi said...

This witch needs to be excommunicated. Like, over a decade ago.

Congressman Destroys Sebelius on HHS Mandate and "Appropriate Balance" for Religious Liberty

Gowdy has provided not only a roadmap for whoever argues the case before the Supreme Court, but elicited about the best piece of evidence one could possibly ask for showing that the HHS didn't do its due diligence in considering the appropriate balancing of religious liberty interests.

The HHS mandate is pretty much doomed once it gets to the Supreme Court. When it comes to "striking the appropriate balance" between the fundamental right to religious liberty and some purported government regulatory interest, as Justice Roberts wrote recently in the Hosanna-Tabor case, "the First Amendment has struck the balance for us ."

By the way, I just found out that Congressman Gowdy is a Baylor graduate. Couple that with RG3 being the #2 pick in the NFL draft, and it's YET ANOTHER big day for Baylor.

Sic 'Em Bears !!!


UPDATE
You know what the best part about this entire exchange is? That the words "contraception" and "women's health" NEVER ONCE came up. And that's because this issue isn't about those things - it's about whether the government is permitted to burden religious liberty by demanding activity that violates the fundamental tenets of that religion.

What Congressman Gowdy has done here is to focus on the LEGAL and CONSTITUTIONAL issues at stake, and whether Sebelius and the HHS gave due consideration (or any consideration at all) to what the LAW requires in order to burden a fundamental right like religious liberty. And Sebelius basically conceded that she and the HHS did not. Great work, Congressman!

Obama Administration Gives Opponents of HHS Mandate All the Evidence They Need to Convince Court of Free Exercise Violation

The latest meme from supporters of the HHS mandate is that it's okay to force Catholic institutions to violate the Church's teaching on contraception because allegedly 98% of Catholics are using or have used contraception. Leaving aside for a moment the fact that I find this somewhat dubious statistic something likely to have been pulled from someone's ass (or the Guttmacher Institute, which is the same thing), let me just say that, even were it true, Ross Douthat does a masterful job of demolishing this meme.

But it's one thing for supporters of the HHS mandate to cite that 98% figure; it's quite another thing for an official in the Obama Administration to cite that figure on the White House's website in response to the criticism the Administration has received from the Bishops and others regarding the HHS mandate:

The White House, defending a decision requiring many Catholic hospitals, schools and charities to offer contraception coverage to employees, argues that most women — including most Catholic women — use birth control.

Cecilia Muñoz, director of the White House Domestic Policy Council, marshaled this statistic in a Feb. 1, 2012, blog post:

"According to a study by the Guttmacher Institute, most women, including 98 percent of Catholic women, have used contraception."

Does anyone else find it particularly troubling that a government official - a member of the Obama Administration, no less - would use the White House website to argue that the "fact" of 98% of Catholic women allegedly contracepting justifies the decision to force Catholic institutions, against their consciences and in violation of Catholic teaching, to pay for and provide contraceptives, abortifacients, and sterilization? It's beyond troubling, it's unconstitutional.

Citing this statistic on the White House website is a clear indication that the Obama Administration is making a subjective value judgment in taking sides in an internal Church dispute (which really isn't even a "dispute" since the Church has its clear and unequivocal teaching and those who don't abide by it are doing what has traditionally been called "sinning").

Clearly, the Administration has violated the Free Exercise Clause in defining the religious exemption far too narrowly. In essence, by basically saying that anything the Church does outside the context of the Mass - you know, like feeding the poor, caring for the sick, providing for widows and orphans, and providing Catholic education - does not qualify as sufficiently "religious", the Administration (i.e. the government) has done no less than define for Catholics what it means to be "Catholic". However, the Administration could arguably assert (although I believe tenuously and unsuccessfully) that the narrowly tailored religious exemption was formulated on the basis of broadly applicable and objective criteria not intended to infringe on religious liberties. Again, I think that argument is bogus and would be unsuccessful, but it could be made.

But the use of the 98% statistic to bolster the Administration's position vis-a-vis the Bishops is clear evidence of subjective intent on the part of the Administration to officiously intermeddle by taking sides on an internal Church matter. If I were an attorney filing suit on behalf of a Catholic organization seeking to overturn the HHS regulation, a print out of the White House website citing the 98% figure would be Exhibit A as evidence of the Administration's violation of the Free Exercise Clause.

The Administration's very act of engaging in such a calculus by declaring the Church's teaching to be out of step with its membership will be all the evidence the Supreme Court will need to conclude that the Administration is impermissibly inserting itself into internal Church affairs in violation of the 1st Amendment.

Victory for Free Exercise Clause - Supreme Court Unanimously Upholds "Ministerial Exception" to Employment Discrimination Laws [UPDATED]

From the blog of The Federalist Society:

The Supreme Court just published its decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case regarding the "ministerial exception" in employment discrimination law. As FedSocBlog previously noted, for 40 years, lower courts have held that the First Amendment forbids the government from deciding who may be a religious minister--despite the fact that federal statutes outlawing employment discrimination based on race, sex, age, and disability contain no express exception.

In its decision, the Court unanimously upheld the ministerial exception in the case at hand. SCOTUS thus ruled against the position of the Obama Justice Department, which had asked the court to disavow the ministerial exception altogether.

[More]

UPDATE
Justices Thomas and Alito each wrote concurring opinions. Although I generally find myself in agreement with the constitutional philosophy espoused by Justice Thomas, in this instance I find that I am most in agreement with the concurrence authored by Justice Alito, in which he was joined by ... Justice Kagan of all people:

I join the Court’s opinion, but I write separately to clarify my understanding of the significance of formal ordination and designation as a “minister” in determining whether an “employee” of a religious group falls within the so-called “ministerial” exception. The term “minister” is commonly used by many Protestant denominations to refer to members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists. In addition, the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in some Christian denominations and some other religions. Because virtually every religion in the world is represented in the population of the United States, it would be a mistake if the term “minister” or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one. Instead, courts should focus on the function performed by persons who work for religious bodies.

The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groups must be free to choose the personnel who are essential tothe performance of these functions.

The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.

[...]

Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance. Different religions will have different views on exactly what qualifies as an important religious position, but it is nonetheless possible to identify a general category of “employees” whose functions are essential to the independence of practically all religious groups. These include those who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, and those who are entrusted with teaching and conveying the tenets of the faith to the next generation.

Applying the protection of the First Amendment to roles of religious leadership, worship, ritual, and expression focuses on the objective functions that are important for the autonomy of any religious group, regardless of its beliefs. As we have recognized in a similar context,“[f]orcing a group to accept certain members may impair [its ability] to express those views, and only those views, that it intends to express.” Boy Scouts of America v. Dale, 530 U. S. 640, 648 (2000). That principle applies with special force with respect to religious groups, whose very existence is dedicated to the collective expression and propagation of shared religious ideals. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 882 (1990) (noting that the constitutional interest in freedom of association may be “reinforced by Free Exercise Clause concerns”). As the Court notes, the First Amendment “gives special solicitude to the rights of religious organizations,” ante, at 14, but our expressive-association cases are nevertheless useful in pointing out what those essential rights are. Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.

When it comes to the expression and inculcation of religious doctrine, there can be no doubt that the messenger matters. Religious teachings cover the gamut from moral conduct to metaphysical truth, and both the content and credibility of a religion’s message depend vitally on the character and conduct of its teachers. A religion cannot depend on someone to be an effective advocate for its religious vision if that person’s conduct fails to live up to the religious precepts that he or she espouses. For this reason, a religious body’s right to self-governance must include the ability to select, and to be selective about, those who will serve as the very “embodiment of its message” and “its voice to the faithful.” Petruska v. Gannon Univ., 462 F. 3d 294, 306 (CA3 2006). A religious body’s control over such “employees” is an essential component of its freedom to speak in its own voice, both to its own members and to the outside world...

There's more to Justice Alito's excellent concurrence (again, which Obama appointee Justice Kagan joined), which you definitely should read in full, along with the majority opinion authored by Chief Justice Roberts.


UPDATE #2
At National Review, Notre Dame law professor Rick Garnett offers his take on the ruling:

... In today’s opinion, the Supreme Court affirmed what the overwhelming majority of lower federal courts and state courts in the United States have already ruled, and rejected the well-outside-the-mainstream view advanced by the Obama administration’s lawyers. This last point is worth emphasizing: The administration’s lawyers had pressed an extreme view — one that no other court, and few scholars and experts, had embraced — and they convinced no one.

I co-authored an amicus curiae brief in support of the religious school, on behalf of a diverse array of religious organizations and my friend, First Amendment expert Prof. Eugene Volokh. I was delighted by the extent to which the chief justice’s opinion is consistent with the positions advanced in that brief. He and his colleagues answered several key questions clearly and correctly: First, they affirmed that the “ministerial exception” — which limits the government’s role in selecting religious communities’ ministers, leaders, and teachers — is required by the First Amendment. Next, they rejected a crabbed approach to that exception, which would limit its reach only to ordained clergy or to ministers who spend a majority of their time on “religious” activities. And they noted that the ministerial exception constrains the reach of government with respect to religious communities’ decisions about ministers whether or not the employment decision in question was motivated or required by theological reasons.

This case matters for many reasons, but especially because it reminds us all that the separation of church and state — when it is properly understood — is an important mechanism for protecting the religious liberty of all — believers and nonbelievers alike. Church-state separation is often misunderstood and seen as an anti-religious program, or as requiring that “religion” stay out of politics or public life. But this is not the point of church-state separation at all. The idea is to constrain government regulation, not religious expression and practice. Separation is an arrangement that protects religious authorities, institutions, and communities from unjustified interference by governments...

Make no mistake: the Obama Administration's war on faith, which began almost immediately from the moment he took office 3 years ago, was dealt a HUGE blow today. A blow from which we can hope the secularists will not recover.


UPDATE #3
The Catholic League: "HUGE DEFEAT FOR OBAMA".


UPDATE #4 (12 January)
From the Becket Fund for Religious Liberty:

Today the Supreme Court decided its most important religious liberty case in twenty years, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The government lost 9-nothing as the Court unanimously rejected its narrow view of religious liberty as “extreme,” “untenable” and “remarkable.”

The unanimous decision adopted the Becket Fund’s arguments, saying that religious groups should be free from government interference when they choose their leaders. The church, Hosanna-Tabor, was represented by The Becket Fund for Religious Liberty and Professor Douglas Laycock, University of Virginia Law School. For years, churches have relied on a “ministerial exception” which protects them from employment discrimination lawsuits by their ministers.

“The message of today’s opinion is clear: The government can’t tell a church who should be teaching its religious message,” said Luke Goodrich, Deputy National Litigation Director at The Becket Fund for Religious Liberty. “This is a huge victory for religious freedom and a rebuke to the government, which was trying to regulate how churches select their ministers.”

The Court rejected the government’s extremely narrow understanding of the constitutional protection for religious liberty, stating: “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

“This is a huge win for religious liberty,” said Professor Doug Laycock. “The Court has unanimously confirmed the right of churches to select their own ministers and religious leaders.”

“It is amazing when a church from Redford, Michigan stands up for its rights and ends up going all the way to the Supreme Court,” said Reverend Paul Undlin of Hosanna Tabor. “Praise God for giving the Justices the wisdom to uphold the religious freedom enshrined in our Constitution!”

The Court found that the ministerial exception is rooted in both Religion Clauses—the Free Exercise and Establishment Clauses. Justice Thomas filed a concurring opinion. Justice Alito joined by Justice Kagan also filed a concurring opinion.

“For six years I fought the government, sacrificing my practice and livelihood because I believed the government had no right to choose teachers for our small school,” says Deano Ware, local attorney for the church. “In the end, we showed up at the steps of the Supreme Court with our sling and stone, in the company of the Becket Fund and the greater community of faith, fought the government and won. This is a great day for all Americans of every of faith and all freedom-loving citizens.”

The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. The Becket Fund has a 17-year history of defending religious liberty for people of all faiths. Its attorneys are recognized as experts in the field of church-state law.

UPDATE #5 (12 January)



Thanks to Catholic Cartoon Blog.

Liberal Legal Scholars Reassess Clarence Thomas and Finally Acknowledge His Jurisprudential Brilliance [UPDATED]

My favorite Supreme Court Justice, and one of the greatest men I have ever had the honor of meeting, is finally receiving his proper due and grudging respect from the liberals that make up the bulk of constitutional legal scholars:

Lord of the Rings aficionados know that the evil lord Sauron paid little attention to the danger posed by two hobbits slowly struggling across the mountains and deserts of Mordor until he suddenly realized that the ring on which all his power depended was about to be hurled into the pits of Mount Doom. All at once the enemy plan became clear; what looked like stupidity was revealed as genius, and Sauron understood everything just when it was too late to act.

Jeffrey Toobin’s gripping, must-read profile of Clarence and Virginia Thomas in the New Yorker gives readers new insight into what Sauron must have felt: Toobin argues that the only Black man in public life that liberals could safely mock and despise may be on the point of bringing the Blue Empire down.

In fact, Toobin suggests, Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.

[...]

At most liberals have long seen Thomas as the Sancho Panza to Justice Antonin Scalia’s Don Quixote, Tonto to his Lone Ranger. No, says Toobin: the intellectual influence runs the other way. Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.

If Toobin’s [revisionist] take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work... (emphasis added)

[Definitely read the whole thing, as well as Toobin's piece]

My Comments:
High time that the community of legal and constitutional scholars began to recognize and openly acknowledge what I have long known about this brilliant man.


UPDATE
And let's be clear about one thing: Justice Thomas' chief crime in the eyes of his left-wing critics has never been that he couldn't think for himself, as they have so often accused him, but rather that he DARED to think for himself rather than subscribing to the groupthink orthodoxy that supposedly condemns all African-Americans to having to think and act a certain way in order to be "authentically black".


Previous Pro Ecclesia posts on the subject:
Pay No Attention to the Caricature Painted by His Mean-Spirited Detractors ...

Kmiec's "Bridge Too Far"? Obama's Attacks on Justice Thomas

Sen. Obama Demeans Justice Thomas' Intellect [UPDATED]

National Review on Justice Clarence Thomas' New Memoir

Justice Clarence Thomas Tells 60 Minutes That Abortion Was Real Issue at His Confirmation Hearings

The Supreme Court’s Most Interesting Catholic

Defending Justice Thomas

Reading the Constitution Right: The Jurisprudence of Justice Clarence Thomas

Public Discourse: “William Brennan and the Creation of a Right to Abortion”

Gregory J. Sullivan writes:

No matter how heavy the theorizing may get, the project of interpreting what is known as the “living” Constitution is nothing more than the dishonest use of the law to reach ideologically pleasing results. This is one of the salient lessons of a new biography of Justice William Brennan, Jr., Justice Brennan: Liberal Champion, by Seth Stern and Stephen Wermiel. This book, though not without flaws, provides a balanced and lucid portrait of this masterly behind-the-scenes law bender whose influence is, alas, alive and well on the current Court.

This biography confirms the most essential point about the internal workings of the Warren Court. Although the Court was nominally under the leadership of Chief Justice Earl Warren, the revolutionary jurisprudence that emanated in such profusion from it was orchestrated by Brennan. Though not a profound thinker, Brennan knew exactly where he wanted the Court to go. He used his considerable charm and shrewd capacity for self-effacement to form the majorities that transformed judicial review into the most potent instrument of liberal social engineering in American government.

Brennan’s interpretive approach was to consider the Constitution a “living” document that should be construed with current, as opposed to original, meaning. When the Constitution lives, judicial discretion is maximized. In one area of law after another, Brennan used this virtually boundless discretion to make his extremely left-wing policy preferences those of the nation—not all at once but carefully, incrementally. It was a revolution in slow motion. Brennan cared very little for the legal reasoning required in a case: whatever his clerks could use to justify the result he wanted and keep a majority together sufficed for him.

Abortion is the classic example of this process...

[More]

Filibuster the Nomination of Elena Kagan! [UPDATED]

My friend Don McClarey has the story on the outrageous actions of Elena Kagan in working to overturn legislative bans on partial-birth abortion: "Kagan Engaged in Falsification of Evidence to Defeat Partial Birth Abortion Ban"

The late Daniel Patrick Moynihan, Democrat Senator from New York, was a pro-abort, but he voted to ban partial birth abortion, which he correctly described as “barely disguised infanticide”. Many pro-aborts draw the line at this gruesome killing of an infant. Not so Supreme Court nominee Elena Kagan apparently. Shannen W. Coffin has written a fascinating article at National Review Online. Coffin was the deputy attorney general in the Bush administration who defended the partial birth abortion ban law. In this article he details how Kagan falsified evidence in an attempt to defeat a partial birth abortion ban in Congress during the Clinton administration...

[...]

Go here to read the rest. Go here to read the Kagan memorandum of June 22, 1996, here to read her memorandum of December 14, 1996, and here to read Kagan’s note where she spoonfed the language to the [American College of Obstetricians and Gynecologists (ACOG)] which she wished to substitute for their prior accurate statement. Needless to say, I think Kagan’s support for partial birth abortion alone should be sufficient in any sane society to disqualify her from the Supreme Court. However, even supporters of the “barely disguised infanticide” known as partial birth abortion, should be repelled at the idea of an officer of the court altering evidence presented to Congress by the ACOG. Kagan lacks the ethics to be an attorney, let alone a justice of the Supreme Court.

My Comments:
I now wish to withdraw my initial assessment of President Obama's nomination of Elena Kagan to the Supreme Court, in which I concluded that it could have been much worse. I no longer believe that to be the case. Even Diane Wood would be preferable to this nominee. Kagan's nomination should be opposed with every tool available to defeat the nomination, including the filibuster.

The Democrats believed the mild-mannered, highly qualified, and well-respected Samuel Alito to be so “extreme” that his nomination to the Supreme Court merited a filibuster.

I believe the filibuster to be borderline unconstitutional when exercised in the case of judicial appointments, and believe it should have been “nuked” when the Republicans had a chance. But thanks to the Senator who just received a rare GOP primary endorsement from National Review, the filibuster is still available to defeat nominations to the judiciary.

Therefore, working within the system we have [i.e. playing by the rules the Democrats have established for judicial nominations], I now support a filibuster of Elena Kagan’s nomination to the Supreme Court. Her views on abortion are the very definition of extreme, but that’s hardly surprising coming from a Democrat-appointed nominee. But her falsifying a scientific report that was used as evidence before Congress and subsequently in court to defeat legislative bans on one of the more brutal abortion procedures ever dreamed up shows her to be not only extreme, but unethical and untrustworthy and makes unfit to be an officer of the court, much less a life-tenured member of the highest Court in the land deciding the very issues on which she has manipulated evidence to affect the outcome.


UPDATE (1 July)
Don has an excellent follow-up regarding Kagan's Clintonian parsing of what "is" is in response to questions about her involvement in drafting the memo manipulating and falsifying the ACOG findings.

The woman is unfit to sit on the Supreme Court. The filibuster is a tool that the Dems have given us to defeat judicial nominations, and you can be quite assured that they WILL use it again in the future to try to defeat Republican nominees who are far less "extreme" than the one currently sitting before the Judiciary Committee. We may not like it, but we are handcuffing ourselves and ensuring our own destruction if we don't play by the rules that have been set for us out of some misguided notion that we might look like "hypocrites" if we use a procedure of which we've been critical in the past. (And, before anyone goes there, please spare me the One Ring analogies).


Previous Pro Ecclesia posts on this subject:
Elena Kagan to the Supreme Court: Not As Bad as It Could Have Been ...

Once Again, the Supreme Court Tells Us What We Already Knew

For the second time in just over 2 years, the Supreme Court by a narrow 5-4 ruling has revealed to us that we have a constitutional right that (1) we already knew we had, (2) the Constitution plainly states we had, and (3) 200-plus years of a tradition of individual gun ownership in this country attests we had.

Item number (3) above, a guiding principle long championed by Justice Scalia in the application of so-called "Substantive Due Process" jurisprudence, is KEY to the majority's holding in McDonald v. Chicago.

Especially read Justice Scalia's concurrence, which eviscerates Justice Stevens' dissent and the "judge-as-enlightened-philosopher-king" mentality that undergirds the philosophy and jurisprudence of the judicial left.

It remains troubling, however, that constitutional protections such as the 2nd Amendment hinge on the swing of one Justice's vote.


UPDATE
I think the approach of my favorite Justice and personal judicial hero, Justice Thomas, which relies on the 14th Amendment's "Privileges and Immunities Clause" rather than the 14th Amendment's "Due Process Clause", is probably the "correct" one as a historical matter and from both an originalist and textualist standpoint.

Unfortunately, that ship has sailed, and we're stuck with having to limit, if we can't outright undo, the damage wrought by an expansive and substantive reading of the Due Process Clause. Given the parameters within which the modern Court is working, I believe the preferable approach from a jurisprudential (as opposed to historical) standpoint is to follow Justice Scalia's lead in reading the substantive/fundamental "liberty" component of the Due Process Clause - i.e. those rights “implicit in the concept of ordered liberty” - as one to be interpreted and applied in light of our nation's long-established traditions.

Hopefully, one day, Justice Thomas' constitutionally correct views will rule the day.


UPDATE #2
Another interesting component about today's ruling is that we're bound to hear from leftist commentators about the Court's "activist" ruling. "Activist" because the Court acted to strike down a locality's gun control law. But read the opinions (including the concurrences) of those who voted in the majority and then read the dissenting opinions.

Which ones read like the opinions of Justices interested in limiting the judicial role in creating Constitutional rights out of whole cloth, and which ones read like the opinions of Justices with a prediliction for picking and choosing which rights are "acceptable" for constitutional protection (even if found NO WHERE in the Constitution) and which are not (even if they ARE found in the Constitution)?

If the word "activist" means anything, it certainly applies more to the latter than it does to the former.

But this is nothing new to the constitutional debate over the incorporation of the Bill of Rights against the states. I encourage you to read the history of the incorporation controversy in the Supreme Court, especially the debates between the late Justices Black and Frankfurter. Throughout most of their tenures on the Court, it was Black who was viewed as the "liberal" and the "activist" and Frankfurter as an almost reactionary "conservative". Black pushed for "full incorporation" of the Bill of Rights; Frankfurter opposed him.

Yet, Black's purpose for pushing for full incorporation was, in fact, one of judicial restraint. A huge opponent of the "Substantive Due Process" jurisprudence that held sway on the Court in the 1910s-1930s, Black sought to limit the role of the Court in picking and choosing which rights were deemed "fundamental" to ordered liberty and which were not, and saw full incorporation as one means of accomplishing his goal of protecting the constitution from judicial interference.


Previous Pro Ecclesia posts on this subject:
Dale Price on Heller (and Tony's Temper Tantrum)

Supreme Court Tells Us What We Already Knew

Because That's Not, Like, You Know, Unconstitutional or Anything

This guy sounds like a frickin' genius:

The author of Arizona’s controversial immigration law is considering a new proposal that would block the children of illegal immigrants from becoming citizens if they are born in the United States. [ED.: Block them from "becoming" citizens? They already ARE citizens by virtue of being born here. See below.]

[...]

Pearce contended that the bill would not violate the 14th Amendment, saying only that “we would write it right.”

(emphasis and editorial commentary added)

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

~Section 1, 14th Amendment, U.S. Constitution

(emphasis added)

You'd "write it right", huh? Good luck making that one work, Einstein.

In fact, you're so blasted intelligent that you've likely discovered the only way a 9th Circuit opinion will ever be affirmed by a unanimous 9-0 decision by the U.S. Supreme Court.

Tradition, Authority, Religion, and Constitutional Jurisprudence

A fairly interesting discussion from yesterday at The American Catholic, in case you're interested.

Elena Kagan to the Supreme Court: Not As Bad as It Could Have Been ...

... but being not quite as radical as Diane Wood is not exactly the ideal standard and is cold comfort once one realizes Kagan is only 50 years old and, lack of radical bona fides notwithstanding, nevertheless represents a vote in favor of furthering a leftist, anti-life agenda via an unelected and life-tenured judiciary.

As my friend Steve "Feddie" Dillard says, "elections have consequences". And our First Thoughts co-blogger, Prof. Rick Garnett, writes on that topic today: "Kagan Proves Elections Matter":

... No one should think that this nomination is inconsequential. Some commentators have suggested that it will change little—that the Court’s “balance” will stay the same—because the President is simply replacing one “liberal” justice (Justice Stevens) with another. This is not the right way to view the matter, though. With the confirmation of Justice Sotomayor, and now with this nomination, President Obama is entrenching (as any President would want to do) on the Court a particular approach—his approach—to constitutional interpretation. A “conservative”, attached to a different approach, may someday win back the White House, but he or she will probably have to settle for playing defense with his or her Supreme Court selections.

With his second Supreme Court pick—and, to be clear, he will almost certainly have more—President Obama is on the way to having had more influence over the Court than any President since Reagan, and perhaps even Roosevelt. Future elections might undo some of the President’s policies, but his views about the Constitution, the powers of the national government, and the role of unelected federal judges, are now being locked in securely on the Court. Again, elections matter.

Obama Culture of Death Update™: Will Obama Pick Judge Diane Wood for Supreme Court?

Thomas Peters is reporting that President Obama may be leaning toward picking a radically pro-abortion judge to fill the Supreme Court vacancy left by the retiring Justice Stevens:

The buzz around DC is that Diane Wood is in the final run-off for President Obama’s next Supreme Court nominee pick.

She would be the worst possible choice for life issues, because as Bill Saunders wrote for APP, she has the most radical views:

But probably no one, at least at the top of most short-lists, would elicit the fight that Wood would provoke. She is a sitting appellate judge (the 7th Circuit), and she has a record of rather outrageous opinions – she dissented against partial-birth abortion bans in Illinois and Wisconsin, and dissented against an informed consent law in Indiana that was nearly identical to one upheld by the Supreme Court in Planned Parenthood v. Casey. Wood even ruled that the federal law designed to counter organized crime, the Racketeer Influenced and Corrupt Organizations Act (RICO), was properly applied against pro-life demonstrators – an opinion summarily rejected by the Supreme Court.

If Obama, who it is reported is “impressed” by Wood, nominates her to be the next Supreme Court Justice, he will only further cement his reputation as the most pro-abortion President to date. This even as the number of Americans who want to see Roe v. Wade overturned reaches a new high. The majority of Americans sure wouldn’t be impressed by Wood (or Obama’s) views on abortion and the law.

My Comments:
For those pro-life activists who I warned against going on the attack with Sandra Sotomayor's nomination: THIS is the person (should she be nominated) that you want to go after with EVERYTHING YOU HAVE.

Diane Wood is, indeed, a judicial radical with the intellectual bona fides to shift the Court SIGNIFICANTLY to the left. Our friend, Steve Dillard, refers to Wood as a "brilliant radical". She is manifestly pro-abortion, as her record shows. Wood would vote to strike down anything remotely seen as a restriction on unfettered access to abortion on demand at any time, for any reason, and using any gruesome procedure (such as partial birth abortion).

I'm not sure the GOP would have much success derailing the noimination, but they may be able to peal off enough Southern and Midwestern Democrats who want to make amends to angry constituents for their Obamacare votes to make it a little bit of a closer vote. And maybe there would be enough of a public backlash against Wood's radical views - assuming those opposing the nomination can successfully bring those views to the fore - that a big confirmation battle could pay dividends.


This Obama Culture of Death Update™ has been brought to you by Douglas Kmiec, all the fine folks at Catholics in Alliance for the Common Good / Catholics United / Catholic Democrats, and countless other Catholics for whom "Hope" and "Change" trumped LIFE.

Carter-Appointed Judge Declares National Day of Prayer "Unconstitutional"

Can a judge declaring Thanksgiving as a national holiday "unconstitutional" be far behind?

This decision will likely be overturned, but it’s always fun to point out judicial lunacy.

A federal judge on Thursday struck down the federal statute that established the National Day of Prayer, ruling that it violates the constitutional ban on government-backed religion.

“[I]ts sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function,” a Wisconsin judge wrote in the ruling, referring to the 1952 law that created the National Day of Prayer.

“In this instance, the government has taken sides on a matter that must be left to individual conscience,” wrote the judge, Barbara B. Crabb.

Issued from the pen of George Washington on October 3, 1789:

By the President of the United States of America, a Proclamation.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor– and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness...

[More]

I mean, a national holiday for the purpose of giving thanks to the Almighty (not to mention kicking off the "holiday season" leading up to the celebration of the birth of Christ)?

Heaven ... (oops) ... judge acting as our robed master ... forbid.

Coming to the Supreme Court: "Religious Liberty’s Battle of Hastings"

At Southern Appeal, Quin Hilyer reports on an important religious liberty case that will be coming before the Supreme Court this spring:

Imagine a law school that refuses to recognize a Christian student group because it requires its officers to be… yes, Christian. We at the Washington Times editorialized on it today. More on the case available here. A key paragraph from the masterful lead brief for the Christian Legal Society by the peerless Michael McConnell is here:

A “variety of viewpoints” is far more likely to beachieved when students are allowed to sort themselves out by interest and viewpoint—Republicans in one club, Democrats in another; Muslims in one organization, Lutherans in another. Without such sorting, all viewpoints are blurred. The Democratic Caucus becomes the Bipartisan Caucus; the Christian, Jewish, and Muslim clubs become the Ecumenical Society; and every other group organized around a belief becomes a Debate Club. Each group becomes no more than its own diverse forum—writ small. The all-comers rule thus defeats the very purpose of recognizing any group as a group in the first place. Preventing students from organizing around shared beliefs does not foster a robust or diverse exchange of views.

This is a crucially important case. Free speech, free religion, and free association all hang in the balance.

(Hat tip: Opinionated Catholic)

Alito to Obama: "You Lie!"

Well, close enough.


UPDATE
More, including video.

This constitutional power play and effort at intimidation by Obama (with the full Court present at the SOTU speech) has to be about the most graceless and classless thing the man has done since taking office (although his mocking of the notion that morality might place some limits on scientific research during his speech announcing that he would fund ESCR ranks right up there).

The man has no class and absolutely no moral compass beyond his own wants and preferences. The rightness or wrongness of a thing is wholly dependant upon whether Obama wants it or not. This demogogic and patently false attack on the Court with the members of the Court front and center during the speech was nothing short of a disgusting display of arrogance and raw hubris.


UPDATE #2 (28 January)
Georgetown University Law Professor Randy Barnett writes:

In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.

Ed Whelan on Ramifications of Supreme Court Opinion Blocking Broadcasting of Prop 8 Show Trial

At Bench Memos, Ed Whelan writes on the "Ramifications of Supreme Court Opinion Blocking Broadcasting" of the Prop 8 show trial here, here, and here.


Previous Pro Ecclesia posts on this subject:
Prop 8 Trial Watch: San Francisco Hates Catholics

Why "Personhood" Laws Will Not Affect Roe

Clark D. Forsythe, senior counsel at Americans United for Life, pours cold water on the myth that "personhood" laws create an opportunity for a direct challenge to Roe v. Wade:

... Basing state personhood amendments on extrapolations of Blackmun’s language in Roe is futile. This does not mean that establishing some form of legal personhood in the states is not a worthy goal. It simply means that (because of our system of federalism) it will not — it cannot — establish 14th Amendment personhood or set up a test case to overturn Roe.

First, not one justice on the current Supreme Court supports the proposition that the unborn are protected as “persons” within the meaning of the 14th Amendment. Not one. All have rejected it, explicitly or implicitly.

Second, these proposals would be better designed if they followed the Missouri statutory preamble enacted in the 1980s...

***
Since the U.S. Supreme Court reviewed the Missouri preamble in the 1989 Webster case and found it constitutional, the preamble has been applied by Missouri courts to extend protections for unborn children in non-abortion situations.

Third, state legislation concerning fetal development will not supply facts that the justices are not already aware of. Justice Blackmun clearly thought he understood the “well-known facts of fetal development” in 1973. Moreover, the two partial-birth-abortion cases in 2000 and 2007 amply supplied facts about the humanity of the unborn and what abortion does to the unborn child. Even the most pro-abortion justices acknowledged this by noting that D&E (dilation and evacuation) abortions are no less brutal than D&X abortions. The Supreme Court’s majority opinion in the 2007 Gonzales case used the words “kill” or “killing” at least 18 times to describe abortion. The problem is not that the justices do not understand, but that they do not care.

Fourth, legislation is needed that will protect the unborn, but there’s no reason to believe such legislation will be an effective vehicle to challenge Roe, given the Court’s current composition. And while public education about fetal development will always be important, the notion that such facts will have a significant impact on the current justices is based on a profound misunderstanding of why most of those justices support Roe.

The emphasis on the unborn child completely overlooks the fact that the Court’s rationale for the abortion “right” shifted dramatically in the 1992 Casey decision, where it became a sociological rationale that women need abortion as a backup to failed contraception. Facts about fetal development have no bearing on this sociological rationale. The real challenge for pro-lifers in 2009 is to effectively address the assumption that abortion is good for women...

[More]