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the courts have ruled
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The
Year in Jurisprudence
(for frequent updates with the
latest court decisions, visit our message board)
Below
you will find analysis of court decisions that have either changed the law or
society in a significant way, without the consent of the people, or are simply
examples of poor decisions.
For
shorter summaries without as much analysis, use the following links:
Separation of people and faith
Freedom of speech
Same-sex marriage
Freedom of association
Foreign courts deciding our law
Historical bad law
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Case
Number 1: Free Speech, the 1st
Amendment, and “campaign finance reform”
In the case of McConnel
v. Federal Election Commission, decided by the United States Supreme Court in
December, 2003, the Court tells us some interesting things about the limits the
judges will place on free speech.
It is important to point out that what we call “campaign finance
reform” was passed by Congress and signed by the President, so all of
government has conspired, in this case, to restrict how much we, the people,
can try to influence government. It
is even more important to note that many either hoped or assumed that the
Supreme Court would overturn the legislation. The fact that it did not exposes the
myth of an “independent judiciary” needed to protect against the
excesses of political whim. The
courts do no such thing. Here are
some quotes from the case:
“Our
cases have made clear that the prevention of corruption or its appearance
constitutes a sufficiently important interest to justify political contribution
limits”
“Of
‘almost equal’ importance has been the Government's interest in
combating the appearance or perception of corruption engendered by large
campaign contributions”
So far, here’s what we’ve got: if those in power say that they are
corrupt, or appear to be corrupt, they can stop the people from trying to
influence them. Are we allowed to
participate in government if they are not corrupt?
“…the
First Amendment would render Congress powerless to address more subtle but
equally dispiriting forms of corruption.”
By all means, let’s not let the First
Amendment get in the way of empowering dispirited congressmen.
“if…restrictions
on solicitations are otherwise valid, they are not rendered unconstitutional by
the mere fact that Congress chose not to regulate the activities of another
group as stringently as it might have”
What?
Court approval to enforce the law differently depending on what group
you belong to?
In addition….
“[no
person or group may engage in] broadcast, cable, or satellite communication
that refers to a clearly identified candidate for Federal office; [and] is made
within 60 days before a general,
special, or runoff election for the office sought by the candidate; or 30 days
before a primary or preference election…”
Gag me

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Case
Number 2: you don’t have to
go home, but you can’t camp here
In the case of Barnes-Wallace v. Boy Scouts of
America, decided by a federal court in California in July of 2003, the
government voided a lease that the Boy Scouts had held since 1957 to use a
campground on public land, because punishing little boys is a great way for the
courts to declare their disapproval of anyone with traditional religious
beliefs. Some quotes from the opinion:
“the
reasonable observer would naturally perceive the leases as an endorsement of
the entire regional program of Scouting itself… [which] has, as its
fundamental and pervasive purpose, the inculcation of religious belief and
observance.”
“As an
initial matter, the Boy
Scouts is a religious organization with a "religious purpose"
“Belief
in God is and always has been central to BSA's principles and purposes”
“The
overwhelming and uncontradicted evidence shows that the BSA's purpose and
practices are religious”
Those are some damning accusations, don’t
you think? We sure are lucky to
have the judges protecting us from such things.
“Specifically
at issue is whether the City intended to discriminate
against Plaintiffs and those similarly situated, and whether there has been
actual discrimination. The Court finds that there is a dispute
of material fact concerning each issue…”
What that means is that the court cannot find,
as a matter of fact, that leasing a campground to the Boy Scouts has resulted
in “actual discrimination” of anyone. In fact, the court noted that no other
party even wanted the Boy Scout’s lease, but that does not matter. The Boy Scouts may not camp on public
land simply because its leadership, if not its members, attest to some basic
religious beliefs. This case is truly
heartbreaking. Imagine a single
mother who gets her perhaps fatherless son involved with Boy Scouts because she
thinks her son might benefit from the principles of the Boy Scouts, only to
learn that it is exactly those principles that get her son thrown off public
land. We’re talking about 9,
10, 11-year-old boys who are bearing the brunt of this judicial hissy-fit. Separate-but-equal is too good for the
Boy Scouts in
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Case
Number 3: We were all wrong about
marriage since the beginning of time
The
highest court in the
“[We
acknowledge that] many people hold deep-seated religious, moral, and ethical
convictions that marriage should be limited to the union of one man and one
woman, and that homosexual conduct is immoral. Many hold equally strong
religious, moral, and ethical convictions that same-sex couples are entitled to
be married, and that homosexual persons should be treated no differently than
their heterosexual neighbors. [We]
reaffirm that the State may not interfere with these convictions.”
The court chose one of those deep-seated views
over the other, and thus “interfered with these convictions.” What one really ought to take away from
these cases is not just that the word “marriage” now has no
particular meaning, but that individual courts feel perfectly free to ignore
governors, legislatures, and even the historic body of law issued by other
judges. Now other courts, such as
those in
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Case
Number 4: one Nation, under nothing
In several cases, named
Newdow I and Newdow II, and Elk Grove United School District v. Newdow, the 9th
Circuit Federal Court decided that including the words “under God”
in the pledge of allegiance, as recited in public schools, is
unconstitutional. It is interesting
for two reasons, first that the courts really have no idea what reasoning to
apply when finding the word “God” abhorrent. Any reasoning will do:
“We
are free to apply any or all of the three tests, and to invalidate any measure
that fails any one of them. Because we conclude that the school district policy
impermissibly coerces a religious act and accordingly hold
the policy unconstitutional, we need not consider whether the policy fails the
endorsement test or the Lemon test as well.”
Why do the courts have a
wide range of options for invalidating religious expression? Can’t the courts just pick one so
we know how to defend ourselves?
Second, the Court declares that words that suggest a belief in no god
are also unconstitutional:
“A
profession that we are a nation under God is identical, for Establishment
Clause purposes, to a profession that we are a nation under Jesus, a nation
under Vishnu, a nation under Zeus, or a nation under no god, because none of
these professions can be neutral with respect to religion.”
Understand what that
means. Even professing no belief at
all is not “neutral” with respect to religion. The men and women in the black robes, in
all of their wisdom and learning, have done us the favor of imparting the
revelation that believing in no god is the same thing as believing in some god,
and that none of that is permissible in school. What real societal or governmental
interest are they serving with this opinion?
The Supreme Court
recently overturned these rulings, on what the news calls a technicality. In fact, the Court reversed the Pledge
ban on a very unique interpretation of the rule of standing, saying that the
man who brought the lawsuit, Reverend Newdow (yes, he is a reverend of what he
calls the First Amendmist Church) could not do so because he does not have full
custody of his child. That decision
is troubling. While CourtZero is pleased
that the Pledge is allowed once more in the 9th Circuit, we do not
like how we got there, and fully expect the issue to come right back, either in
the 9th Circuit or in another, since the Supreme Court declined to
tell us if they believe the words under God to be constitutional.
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Case
Number 5: Can I study auto repair
if there is a fish on the bumper?
In the case of Locke v.
Davey, decided by the U.S. Supreme Court in February of 2004, the court decided
that a college student, an adult, coerced by no one, was not permitted to use
the scholarship he had earned to study theology. He could study anything else, (use your
imagination), but not theology. His
motivations for his studies do not matter, only that learning about belief
systems is horrible and dangerous.
The young man fulfilled the requirements, working hard, graduating in
the top 15% of his class, and getting at least a 1200 on his SAT. His family was near or below the median
income for families in
“
“This case involves the "play
in the joints" between the Establishment and Free Exercise Clauses. That is, it concerns state action that
is permitted by [the 1st amendment] but not required by the [1st
amendment].
Huh? Lemon test, establishment test, coercion
test, “play in the joints” test? I guess that means that if it is the
individual against the state, the state wins, period.
“Here,
the State's disfavor of religion (if it can be called that) is of a far milder
kind than in [another case], where the ordinance criminalized the
ritualistic animal sacrifices of the Santeria religion.”
The U.S. Supreme Court
just told us that disallowing the study of theology is trivial next to the far
worse discrimination of prohibiting animal slaughter. The Court also just told us that a
government can “disfavor” religion, as long as it wants to disfavor
other religions more. Look, folks,
the people in robes are simply not as smart as they claim to be. Even if you love the notion of
“separation of church and state”, you have to recognize that the
Supremes are choosing sides between religions here.
“
Then why are you
deciding that this student must choose between his religious belief and
receiving a government benefit?
“The
State's interest in not funding the pursuit of devotional degrees is
substantial, and the exclusion of such funding places a relatively minor burden
on Promise Scholars. If any room exists between the two Religion Clauses, it must be here.”
Don’t forget that the state’s
interest in regulating animal slaughter is not “substantial”
compared to keeping students from studying theology on the scholarships
they’ve earned. Also, does it
not seem cavalier to any of you that having to give up the means to pay for a
college education, which you have earned, because you happen to want to study
religion, is deemed by the court to be “a minor burden”?
“Davey had planned for many years
to attend a Bible college and to prepare [himself] through that college
training for a lifetime of ministry, specifically as a church pastor."
Your point, Supreme Court? The point they make is that the
student’s intentions to learn to minister to others is damning. Of course, he may have gotten turned off
and turned from the ministry and taken up other causes, but even the
possibility that he might become a pastor is worthy of the United States
Supreme Court citing the fact as part of its reasoning. Does that frighten you at all?
“Since the founding of our country,
there have been popular uprisings against procuring taxpayer funds to support
church leaders”
This quote is included because it is
hilarious. What are we to take from
this? That popular uprisings can be
cited as authority for Supreme Court decisions? That there is no difference in thinking
between the robed ones and fleeting historical mobs? What was that independence of the
judiciary thing your were talking about?
Tell us again whom you are protecting us from, please.
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Case
Number 6: Good news! Your husband has a Constitutional right
to kill you!
In the case involving a
woman named Terri Schindler-Schiavo, in the State of Florida, resides
everything you could fear about courts ignoring law, ignoring precedents, and
trampling on the most vulnerable to stand behind personal and radical beliefs.
This website cannot do
justice to the plight of Terri. Our
only comment is this: most, if not
all, you may have heard about this case is simply wrong. She is not in a vegetative state, and
she never clearly asserted a “right to die”. It is about a disabled woman and basic
human rights denied. I refer you to
the family’s website, TerrisFight.org,
for more and better information about the ongoing tragedy and perversion of
law.
[Note: in light of the recent Florida Supreme
Court ruling, this topic has been updated and given its own link, above, the
Euthanasia link.]
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Case
Number 7: Are Catholics still
permitted to stand in the corner and pray?
Another
The case is remarkable,
firstly for the aggressive stance the court takes on how much they can limit 1st
Amendment protections, and secondly for the long list of groups and attorneys
that lined up to put Catholics in their place. Simply reading the list of those filing
briefs against Catholic Charities is eye-opening.
Here is the
situation: there is a
Catholic Charities
provides social services. They help
to feed, clothe and otherwise aid the down-and-out. Catholic Charities has employees. Someone has to answer the phones and
spoon out the soup, after all. The
Catholic Church also happens to have a long-standing and genuine religious
policy against contraception.
So someone sued Catholic
Charities for not providing free contraception to their own employees. It was not a random event; Catholic
Charities were targeted by a multitude of advocacy groups, including the
AFL-CIO, the California Medical Association, the Progressive Jewish Alliance,
the ADL (why?), the Attorney General of California, and so on. Something like thirty-one different
organizations were allowed to file briefs and make argument in the case against
Catholic Charities, including ones you wouldn’t expect to care about what
a soup kitchen in California is doing, like The Education Fund of Family
Planning Advocates of New York State, Inc., and Vermont Catholics for a Free
Conscience, and the Women’s Ordination Conference. If you do not yet see a pattern in how
and why these court cases come about, this case might bring the point home.
Here are some quotes
from the court’s ruling:
“the
[statute] permits a ‘religious employer’ to offer prescription drug
insurance without coverage for contraceptives that violate the employer’s
religious tenets”
“The…purpose
of Catholic Charities is….to offer social services to the general public
that promote a just, compassionate society that supports the dignity of
individuals and families, to reduce the causes and results of poverty, and to
build healthy communities through social service programs…”
“…Catholic
Charities serves people of all faith backgrounds, a significant majority of
[whom] do not share [its] Roman Catholic faith.”
To make a long and
horrible story short, the court decided that providing social services is a
“secular” activity, thus the Catholic Church cannot, as long as it
is trying to help people, claim that the government cannot interfere with their
free exercise of religion. Holy
cow. Unholy cow, even. Because feeding the hungry is deemed
“secular” by the court, the Catholic Church must either stop
feeding the hungry or turn its back on its religious beliefs. That’s a great choice, and that
helps out everyone, right?
So what religious
beliefs and practices of the Catholic Church might be protected, then, by the
United States Constitution? If you
read this opinion carefully, the answer is: none. Do not reach out to your community, do
not provide social services; you may however stand in the corner and finger
your rosary. Otherwise, do as we
say.
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Case
Number 8: Just because I flash this
ugly picture of you doesn’t mean I think you’re ugly
The Catholics really are
having a bad year in the courts.
One wonders what an outcast a catholic boy scout must be. From the case of O’Connor v.
Here is the
background. The
“I
was brought up Catholic. I remember
being 7 and going into the dark confessional booth for the first time. I knelt down, and my face was only
inches from the thin screen that separated me and the one who had the power to
condemn me for my evil ways. I was
scared to death, for on the other side of that screen was the persona you see
before you.”
Before we go further, I
need to make some things clear.
First, your editor is not Catholic.
Second, I think the court in this case made exactly the right decision
in allowing the statue. Bear with
me, please. For those who believe
in the First Amendment, the test is this:
(1) does this statue create a state religion; (2) does this statue
restrict the free exercise of religion?
The statue, though ugly and offensive, does neither of those things,
therefore its display is not prohibited by the Constitution. The problem, however, is that the court
did not apply THAT test at all (no court does), and that this case is, well,
unfair compared to other cases involving, for instance, the Ten Commandments,
prayer by students, the Pledge of Allegiance, and Christmas Nativity scenes.
The Court said:
“[The]
requirement of government neutrality toward religion does not mandate a
‘complete absence of religious expression in public
institutions….[The Establishment Clause] prohibits hostility toward any
[religion].”
Cool! Can we display the Ten Commandments
again? No? Can we put out a Nativity Scene at
Christmas? No? Can Santa ride on the fire engine again
next year? No?....
“Plaintiffs
claim that mocking the religious beliefs of Catholics…can never be a
legitimate government purpose”
However “[the] University’s Campus Beautification Committee
organized the outdoor sculpture exhibition to advance its primary goal of
enhancing the beauty of the campus…We find that [the statue] functions to
aesthetically enhance Washburn’s campus…”
I am so glad that the
courts decide First Amendment cases based on whether or not a display is
aesthetically pleasing. We should
all be glad to be told by the robed ones what art is pretty and uplifting. Here’s the kicker:
“[T]he
court cannot conclude that ‘Holier Than Thou’’s presence on
Washburn’s campus would cause a reasonable observer to believe that [the
government] endorsed hostility toward the Catholic religion.”
That’s the primary
basis on which the court decided that the statue is not prohibited. It makes sense, but stands out for the
fact that the reasoning is never used to allow displays that are favorable to
religious Americans. The court
simply declares that most people wouldn’t see the statue, as ugly and
clearly anti-Catholic as it is, as anti-Catholic. Why, oh why can’t the courts
decide that the words “under God” in the Pledge of Allegiance are
not threatening because any reasonable observer would know that the schools
were not really trying to force any particular religion on students. Why, oh why can’t the courts
decide that football players joining to say a prayer before a game would not be
seen by a reasonable observer to be anything other than young fellows getting
psyched for the game?
Once again, I believe
that this court made the right decision, but for the wrong reasons. It is a shame that the reasoning that
allows the Catholics on Washburn’s campus to continue to feel ostracized
can not be applied to other things as well. The reason that it is not is
simple. The courts are hostile to
traditional beliefs and to Christians in particular.
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Case
Number 9: Are you Boy Scouts still
here? Take the hint!
The Boy Scouts of
America are also having a bad year in the courts. Really, in the age of the Global War on
Terrorism, it blows me away that people are so threatened by boy scouts. What kind of a nation of scoutophobes do
we have to be to spend so much time suing the scouts? In case after case, in state after
state, the scouts are chased like Osama, and your den dues are increasingly
spent on legal defense instead of s’mores and new tents.
On July 9, 2003, the
federal 2nd Circuit decided the case of Boy Scouts of America v.
Wyman. In March of 2004, the United
States Supreme Court made the decision not to hear the case, which means that
the Supreme Court has decided that the 2nd Circuit decision is the
law of the land.
It comes down to
this: in Boy Scouts of America v.
Dale, decided by the Supreme Court in the year 2000, the Court came up with the
startling conclusion that people are allowed to hang out with whomever they
want to hang out with. The scouts
happen to want to hang out with others who share their values. In particular that they don’t want
homosexual scout leaders to mentor young boys. You may find that offensive, and that is
fine. The point is that the scouts
are free to be offensive to gays if they want to be, and vice versa. Please remember that this website is
specifically NOT about using the courts to change social or personal
values. The result of the common-sense
decision of the court in the Dale case resulted in a firestorm blitzkrieg jihad
upon the boy scouts. In
In Connecticut, as in
other places, the government took the boy scouts off of the list of charities
that its government employees may contribute to because the State of
Connecticut finds the boy scouts offensive for “discriminating”
against homosexuals (as an aside, wouldn’t the establishment of an
alternative Gay Boy Scouts of America solve all of this? Where are they?).
The Court in Wyman
simply came to the conclusion that the State of
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Case
Number 10: If you’re old
enough to die for your country, you’re old enough to vote. But you’re not old enough to
handle a prayer at dinner. Or, can
your squad leader pray for you during a firefight in
In the case of Mellen
and Knick v. the Superintendent of the Virginia Military Academy (VMI), two
cadets, Neil Mellen and Paul Knick along with the ACLU (and with, inexplicably,
the Jewish Anti-Defamation League), sued VMI. In April of 2004, the United States
Supreme Court decided that it would not hear the case, meaning that the 4th
Circuit Court of Appeals decision, banning prayer at VMI, would stand. VMI was established in 1839. Cadets Mellen and Knick, who have since
graduated, were subjected to the following horror: freshman at VMI have to attend the
beginning of the evening meal.
Upperclassmen do not. If a
cadet finds himself in the mess hall at the start of dinner, he will hear a
prayer before the meal. The court
explains:
“Depending
on the day, the prayer begins with ‘Almighty God’, “O
God’, ‘Father God’, or ‘Sovereign
God.’….Each day’s prayer is dedicated to giving thanks or
asking God’s blessing…A prayer may thank God for [VMI], ask for
God’s blessing on the Corps, or give thanks for the love and support of
family and friends…[Each prayer] ends with…’Now O God, we
receive this food and share this meal together with thanksgiving. Amen.”
Standing at attention,
bending to the whim of upperclassmen, undergoing military training, etc.,
didn’t bother the plaintiffs enough to seek out the ACLU. Thanking God (not a specific god, mind
you, but a generic one) for the meal was too much for them. I have to note that it is not easy to
get into VMI. A potential cadet has
to show himself physically and mentally able to deal with the traditions of the
school and to accept the possibility that he will join the military and perhaps
die. In short, he has to bust his
tail to get admitted to VMI; he has to be above average in the area of dealing
with stress and conflict. This is
very, very different than deciding whether or not a 3rd-grader in
public school ought to hear a prayer.
In this case the court
first ignored the fact that the cadets had graduated and no longer needed the
court to address their concerns. In
fact, this court specifically noted that under these circumstances they would
normally send the case back to trial court with orders to dismiss it. But we’re talking about prayer
here, and the court decides to go to extraordinary lengths to combat the evil
of prayer.
“Where
a case has become moot on appeal, the established practice is to reverse or
vacate the judgment below and remand with directions to dismiss.”
The court in this case
says several times that the graduated cadets’ claims are moot (that is,
there isn’t anything the court can do to help them now). The court also says that the
cadets’ claims for injunctive and declaratory relief must now be moot,
but that their claims for monetary damages can survive. At the same time, the court says that
there are no ways to grant monetary damages, as the one they sued (VMI’s
Superintendent) is immune from suit.
The court says all this, which means the whole thing should end right
here, and then just sort of goes on…. That alone makes this a bad decision
that the Supreme Court should have reviewed.
The court goes on to
state that the prayer would have been Constitutional if it had a “unique
history”, saying only that the last Constitutionally permissible prayer
occurred in 1789, when the 1st Amendment was submitted at the same
time that the Founders appointed and paid chaplains for the Houses of
Congress. By their logic, the
Founders passed the 1st Amendment and forbade prayer by any
government entity at exactly the same time that the chaplains were
appointed. Folks, you can read this
opinion at 327 F.3d 355. It
doesn’t make a lick of sense.
This court decided that since the school was founded after 1789, its practices
cannot, as a matter of law, have a unique history.
The court also decided
that VMI cadets fall into the same category of 3rd graders when
evaluating whether or not they are coerced into hearing a prayer, completely
ignoring the fact that applicants to the military academies have to work very
hard, with eyes wide open, to be able to attend them in the first place.
It’s a horrible
decision, and the Supreme Court’s decision not to review it is a
dereliction of duty, no matter what they might ultimately have decided.
As an aside, when I was
a cadet at
Former Cadet Mellen,
having succeeded in banning prayer at an institution dedicated to nurturing
military combat leaders, is now a member of the Peace Corps. This story isn’t over,
either. If you read this decision
literally, and take into account that the Supreme Court has approved of it, it
is now illegal for a combat commander to say a prayer for his soldiers while
under enemy fire. Nobody in robes
has the right to take that away from our soldiers.
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If
you have suggestions for other cases to add to this section, send e-mail to postmaster@courtzero.org