Bladensburg Cross: Victory for Religious Freedom

From the Family Policy Alliance, a press release about the Supreme Court and the Bladensburg Cross:

Last week the Supreme Court released a 7-2 opinion that not only protected a 94-year-old World War I war memorial that is in the shape of a Cross, but it also took major steps to secure religious freedom for all.

What happened?

As a way of memorializing those who died defending freedom in World War I, a 40-foot Latin Cross was erected in Bladensburg, Maryland in 1925. The Cross stood relatively unmolested until several years ago when a group of atheists decided that merely viewing the Cross was offensive.

The Fourth Circuit ruled that the cross was an unconstitutional means of “government establishing a preferred religion” under an arbitrary legal test known as the Lemon test. The arbitrary nature of this test was highlighted in 2005 when the Supreme Court issued rulings on two different sets of religious monuments or displays on the same day and came to opposite conclusions.

What did the Court say?

In last week’s opinion, the Supreme Court not only reversed the decision of the Fourth Circuit in order to save the Bladensburg Cross, but it also took a hard look at the Lemon test. The Court spent the majority of its opinion discussing all the problems with the test itself. Justice Gorsuch further pointed out in his concurring opinion how it hasn’t been useful in deciding anything having to do with deciding whether government is “establishing a state religion” – not when it comes to religious displays, mottos, monuments, religious accommodations, religious subsidies or tax exemptions, religious expression in public schools, regulations of religious speech, or interference in internal church affairs.

So how would the Court have us deal with these sorts of challenges going forward?

Essentially, the Court will presume the constitutionality of long-standing monuments and traditions based on our history. This is a much simpler and much clearer way to deal with these issues.

Justice Gorsuch eloquently extended and clarified the Court’s rule this way:

“What matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.”

What does this mean going forward?

It opens a lot of doors to proactively advance legislation that protects our timeless history and beliefs. Prior to the Court’s recent ruling, when we worked on religious liberty legislation, we were inevitably asked about the Lemon test – which was normally just a way to try to kill whatever bill we were working on.

Now Lemon can’t be used as a threat to your religious liberties. We can work on laws that protect student and educator rights in schools, doctors’ religious conscience beliefs, tax exemptions for religious organizations, religious displays, and internal church decisions without the threat that the Court will arbitrarily use Lemon against the expression of our faith in these realms.

This decision could spell the beginning of the end of ridiculous lawsuits that certain groups who are bent on removing any reminder of God from our culture bring against many small towns or groups they view as vulnerable.

We are thankful for the Court protecting religious freedom in this case, and we look forward to working with state legislators and allies to advance policies that allow religious freedom to flourish for all.

Those hostile to religion (and this increasingly includes Democrats) tend to take the position that the Constitution requires anything invoking the Christian religion must be sanitized from the public square.

Of course, Judaism or Islam are different matters. The National Menorah on the White House Ellipse has never been particularly controversial.

But Jews and Muslims vote Democratic. Christians vote Republican.

But banning anything religious, while allowing anything not religious, and even allowing things contrary to a lot of people’s religious convictions (such as funding abortions or flying the gay pride flag over a state capital) is to discriminate against religion.

Which frankly, is what a lot of people want to do.

But not a majority of the current Supreme Court.

Blow Up the Process

Needing Repair

Five Clichés Used to Attack Free Speech

The “Living Constitution:” Trashing the Social Contract

An essay from The New American, a rather questionable source, but the essay itself is spot on:

This brings us to the opposition to President Trump’s Supreme Court pick, Judge Neil Gorsuch, who The New York Times actually calls a “Nominee for a Stolen Seat.” In reality, the Times advocates a perversion of judicial philosophy that long ago had stolen Americans’ birthright.

The paper complains that like Justice Antonin Scalia, Gorsuch “is an originalist, meaning he interprets the Constitution’s language to mean what it was understood to mean when it was written….” Leftists prefer the Constitution be considered a “living document,” interpreted to “suit the times” (and the Times). This just guarantees a dying republic.

Why? Consider: Imagine I violate the language of a contract to which you and I are party. You take me to court, but the judge determines that the contract can be interpreted to suit the times. You may object and say the “times” are being interpreted to suit me, but the judge is in my pocket.

Oh, he justifies this by saying he’s a “pragmatist.” Feel better?

The analogy is apt because, in essence, the Constitution is the contract the American people have with one another. It specifies the rights (of the people) and powers (of the different governmental arenas) of those party to it. It does have one significant flaw, however.

For it to work as intended, people must actually abide by it.

When they don’t, our very rights are in jeopardy.

Another analogy was drawn by Chief Justice John Roberts when, during his confirmation hearings, he said his job was only “to call balls and strikes.” Expanding on this, judges can in fact be likened to baseball umpires, while the players are the people, the game’s ruling body is the legislature and the rule book the Constitution.

Now, if a rule is thought inadequate, it’s the ruling body’s role to change it. Of course, the players, umpires or anyone else may lobby passionately in that regard. What, however, if an umpire considered the rule book living and said, “With the great pitchers in these times, three strikes are insufficient; I’m giving the batter four strikes”?

He’d be fired. And would it help his cause if he added an intellectual veneer to his cheating, saying “You don’t understand! I’m not a radical like those originalists! I’m moderate — a pragmatist”?

No, he’s a bad umpire — and he’d be history.

Likewise, all the terms describing justices — constructionist, originalist, moderate, pragmatic — are part of a pseudo-intellectual rationalization obscuring a simple truth: There are only two kinds of justices, good justices and bad justices. Good justices rule based on the founders’ original intent.

Bad justices don’t.

They put a spin on the Constitution to prove “by words multiplied for the purpose, that white is black, and black is white,” as satirist Jonathan Swift put it, so they can impose their agenda from the bench.

Some will say we mustn’t be hamstrung by a 200-year-old document. This gets at the big lie. There is a lawful way to make the Constitution “live:” the Amendment Process.

Yes, it can be long and difficult. This ensures that before our national contract is altered, the vast majority of those party to it (the people) agree on the change. “Living-document” judges, with an intellectual veneer and a sneer, usurp this power. The people are to decide when and how the Constitution will live — not five unelected lawyers.

Those who trade the rule of law for the rule of lawyers, to facilitate an unconstitutional agenda, tread a dangerous path. Their corruption of the establishment has led to precisely the kind of anti-establishment movement we see today. After all, if a game is judged and won or lost fairly, both sides can accept the outcome. But what happens when the vanquished know the judges fixed the contest for the other side?

That is the stuff revolutions are made of.

The living-document lie can be gussied up as “pragmatism” or something else, but it’s not a legitimate legal philosophy. We can have a living constitution or a living constitutional republic — but we cannot have both.

We don’t think the judges should literally always rule according to “original intent.” Sometimes previous Supreme Courts have made such a mess of the law that doing that would be like trying to unscramble an omelet. But what judges should not ever do is base their decisions on their policy preferences, violating each and every defensible rule of construction. That is indeed what most of the “landmark” decisions of the late 20th century did. We don’t need more of that.  We should, in fact, never vote for a presidential candidate who promises judicial appointees who will do that.

Where Will We Be When the Music Stops?

A Blow to Liberty

The Constitutionality of Obama Care

William Neidhardt, undergraduate student in Political Science (and former student of ours) has published an article in the Pi Sigma Alpha Undergraduate Journal of Politics arguing that Obama Care is constitutional.

The issue is fairly simple: if the Court abides by the intentions of the Founders, there is no way that Obama’s policy is constitutional.

However, since 1937 the Court has largely given up on limiting the power of Congress when Congress claims to be regulating commerce. (Two somewhat minor exceptions have been United States v. Lopez and United States v. Morrison.) Neidhardt does a fine job of citing chapter and verse of cases where the Court has done this.

So if the Court decides that Obamacare is unconstitutional, it will mark a clear change of direction.

Sotomayor “Wise Woman” Comment Part of a Pattern

From CQ Politics:

Supreme Court nominee Sonia Sotomayor delivered multiple speeches between 1994 and 2003 in which she suggested “a wise Latina woman” or “wise woman” judge might “reach a better conclusion” than a male judge.

Those speeches, released Thursday as part of Sotomayor’s responses to the Senate Judiciary Committee’s questionnaire, (to see Sotomayor’s responses to the Senate Judiciary Committee click here and here) suggest her widely quoted 2001 speech in which she indicated a “wise Latina” judge might make a better decision was far from a single isolated instance.

A draft version of a October 2003 speech Sotomayor delivered at Seton Hall University stated, “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion.” That is identical to her October 2001 remarks at the University of California, Berkeley that have become the subject of intense criticism by Republican senators and prompted conservative talk show host Rush Limbaugh to label her “racist.”

In addition, Sotomayor delivered a series of earlier speeches in which she said “a wise woman” would reach a better decision. She delivered the first of those speeches in Puerto Rico in 1994 and then before the Women’s Bar Association of the State of New York in April 1999.

The summary descriptions of speeches Sotomayor provided indicated she delivered remarks similar to the 1994 speech on three other occasions in 1999 and 2000 during two addresses at Yale and one at the City University of New York School of Law.

Her repeated use of the phrases “wise Latina woman” and “wise woman” would appear to undermine the Obama administration’s assertions that the statement was simply a poor choice of words. After details of the 1994 speech circulated before the questionnaire’s release, Sen. John Cornyn, R-Texas, emerged from his private meeting with Sotomayor and expressed new concerns about the nominee’s “identity politics.”

Was we have observed, the idea that Sotomayor is a racist and sexist is easy to believe, given that this sort of racism and sexism is entirely routine in academia, among minority activists, Democratic politicos, feminists and a large part of the media.

Indeed, given her liberal views, it would be odd if she were not a racist and sexist.

Sonia Sotomayor: Quota Queen

From Patrick J. Buchanan:

If the U.S. Senate rejects race-based justice, Sonia Sotomayor will never sit on the Supreme Court. Because that is what Sonia is all about. As the New York Times reported Saturday, the salient cause of her career has been advancing persons of color, over whites, based on race and national origin. “Judge Sotomayor, whose parents moved to New York from Puerto Rico,” writes reporter David Kirkpatrick, “has championed the importance of considering race and ethnicity in admissions, hiring and even judicial selection at almost every stage of her career.” At Princeton, she headed up Accion Puertorriquena, which filed a complaint with the Department of Health, Education and Welfare demanding that her school hire Hispanic teachers. At Yale, she co-chaired a coalition of non-black minorities of color that demanded more Latino professors and administrators.

At Yale, she “shared the alarm of others in the group when the Supreme Court prohibited the use of quotas in university admissions in the 1978 decision Regents of the University of California v. Bakke.” Alan Bakke was an applicant to the UC medical school at Davis who was rejected, though his test scores were higher than almost all of the minority students who were admitted. Bakke was white. After Yale, Sotomayor joined the National Council of La Raza and the board of the Puerto Rican Legal Defense Fund. Both promote race and ethnic preferences, affirmative action and quotas for Hispanics. But why should Puerto Ricans like Sotomayor, who were never subjected to slavery or Jim Crow—their island was liberated from Spain in 1898 by the United States—get racial or ethnic preferences over Polish- or Portuguese-Americans?

What is the justification for this kind of discrimination?

Like Lani Guinier, the Clinton appointee rejected for reverse racism, Sonia Sotomayor is a quota queen. She believes in, preaches and practices race-based justice. Her burying the appeal of the white New Haven firefighters, who were denied promotions they had won in competitive exams, was a no-brainer for her. In her world, equal justice takes a back seat to tribal justice.

Thus, there is little reason to think that Sotomayor somehow “misspoke” when she uttered her now famous statement:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

That’s not merely acceptable, but virtually unquestioned in the politically-correct sectors of society where Sotomayor has spent her life. Among college professors, Democratic political activists, in elite law schools and minority activist organizations, that’s just the way one is supposed to think.

Linda Clifford’s Desperate Phone Calls

The Clifford campaign for Wisconsin Supreme Court must be desperate.

Fred Dooley of Real Debate Wisconsin put the state’s blogosphere onto a questionable Clifford campaign tactic.

The campaign has been making automated phone calls, saying that that she will “support public schools, their students and their employees’ rights.”

Given that there is no disclaimer saying who is paying for them, the calls are illegal. They also came with no caller ID.

The rhetoric about “public schools” looks very much like a coded way of saying that Clifford will oppose school choice, something her earlier statements clearly imply. As part of a liberal majority on the court, she would have the power to kill Wisconsin’s choice program.

Another, apparently different call, went out that gave the impression that the Milwaukee Journal-Sentinel was calling and asking for support for Clifford.

The liberal Journal-Sentinel did endorse Clifford, but didn’t take kindly to the calls, labeling them “misleading” and having their lawyer call the Clifford campaign on Monday afternoon to demand that they be stopped.

Clifford, who has been attacking the judicial ethics of her opponent, Annette Ziegler, has run a stunningly unethical campaign.

Ziegler Lenient on a Sex Offender?

Most of the cases in which the Linda Clifford campaign has accused Annette Ziegler of being soft on sex offenders hardly need any further analysis. But let’s look at one that is featured in a Linda Clifford campaign ad.

From FactCheck.org:

No Prison Time for a Sex Offender?

The Greater Wisconsin Committee, a state-wide political action committee funded by labor, education and healthcare PACs, attacked the tough-on-crime image that’s been a staple of Ziegler’s own ads with a spot claiming that Ziegler gave a convicted sex offender a lighter sentence than even his own defense attorney asked. The ad is true only if the sentence is measured strictly by years in prison. The whole story is more complicated.

In December 1998 a jury found Gary Tate guilty of sexually assaulting his step-daughter repeatedly during a three-year period. Ziegler sentenced Tate to 25 years in prison but stayed the sentence, instead giving him a year in county jail and 20 years’ probation conditioned upon Tate successfully completing a treatment program for sexual offenders. At the time, admission of guilt was a requirement of the treatment program.

According to the Milwaukee Journal-Sentinel, Ziegler made this comment at the sentencing:

MJ-S: “I want very much to punish the defendant for what he did,” Ziegler said. “I want very much to protect the community.” Equally important is providing treatment “so this never happens to anyone else again,” Ziegler said.

Tate filed a motion asking for a new trial, but Ziegler denied it. Tate refused to admit he was guilty, which meant he automatically flunked his sexual-offender treatment. His probation was revoked as a result, and he began serving his 25-year prison sentence.

In November 2002, Tate appealed his probation revocation. The case went to the state Supreme Court. Tate’s lawyers argued that since his sexual-offender treatment required him to incriminate himself and thereby forfeit any possibility of future appeals, the revocation of his parole was unconstitutional. The Supreme Court ruled in Tate’s favor. He was released from prison and is living in Wisconsin, according to the Wisconsin Sex-Offender Registry.

The ad is misleading in implying that Ziegler sentenced Tate to nothing more than a year in county jail. It would have been accurate to say that Tate became a free man just four years after his conviction as a result of Ziegler’s sentence.

So we ask, as we did in a previous post: do liberals see anything ethically wrong with campaign ads that intentionally try to mislead?

Linda Clifford: Sleazy, Misleading Campaign Ads

One of the more bizarre things about the very expensive and rather dirty race for the Wisconsin Supreme Court is the fact that the liberal (Linda Clifford) has been accusing the conservative (Annette Ziegler)of being soft on sex offenders.

This isn’t merely a matter of opinion. It’s simply untrue, and Clifford is being intentionally misleading.

The facts of the case are outlined in this press release from the Ziegler campaign.

West Bend – Linda Clifford’s campaign has been caught lying again. In both a press release and new attack television commercial, the Clifford campaign deliberately attempts to mislead voters.

Clifford’s campaign claims that nearly 60% of the child sex offenders (1st and 2nd Degree Sexual Assault and Repeated Sexual Assault of a Child) sentenced by Judge Ziegler were given a year in jail or less. However, they include the following cases in their calculation:

• 1997CF000270 – The sentence in that case was handed down by Judge Richard Becker, not Judge Ziegler.
• 2001CF000271 – The defendant in this case was sentenced in multiple cases (see 2001CF000359) on March 15, 2002 and was given 25 years in prison by Judge Ziegler for his crimes.
• 2000CF000432 – The defendant in this case was convicted of a misdemeanor and not eligible for prison.

In eight of the nine remaining cases Clifford cites, Judge Ziegler simply was signing off on the district attorney’s joint agreement.

“Linda Clifford should be ashamed of herself for launching these desperate attacks against a judge who is known for her tough sentences of sex predators,” said Sheriff Maury Straub, who is one of the 54 sheriffs endorsing Judge Ziegler. “Linda Clifford has a clear problem with telling the truth and voters are going to reject her dishonest campaign on Tuesday.”

According to the Wisconsin Sentencing Commission, the median prison sentence given for Repeated Sexual Assault of the Same Child (948.025(1)) is 10 years. Judge Ziegler’s median sentence for the same crime is 20 years in prison – twice the statewide number.

Additionally, since 2000, Ziegler has been substituted ten times in child sex offender cases. During that same period of time, the other three judges in Washington County were only substituted for in a cumulative total of four child sex offense cases. That means Judge Ziegler has been substituted on over twice as many times in child sex offender cases as the other three judges combined.

“Judge Ziegler has one of the strongest records in the state when it comes to handing out sentences to child sex offenders,” said District Attorney Todd Martens, who is one of the 43 district attorneys endorsing Judge Ziegler. “Sex offenders actually work hard to get out of her courtroom because they know what her real sentencing record.”

Judge Ziegler is the only judge and only prosecutor running for the Supreme Court. In addition to the bipartisan support of a majority of Wisconsin’s sheriffs and district attorneys, Judge Ziegler has been endorsed by every law enforcement organization that has endorsed in the race.

The Clifford campaign has made a big deal of Ziegler’s failure to recuse herself from several cases that involved West Bend Savings and Loan (where her husband sits on the Board of Directors).

But nobody has even claimed that anybody was treated unfairly in any of these cases, which were mostly so routine that they were handled by a clerk.

But what are we do think about the ethics of a candidate who intentionally tries to convince voters that a judge who is in fact tough on sex offenders is actually lenient?

Is there an ethical problem about that?

Supreme Court Race: Future of School Choice on the Line

George Mitchell is a long-time Wisconsin political activist and policy wonk who has been a strong supporter of school choice. In a circular e-mail, sent Tuesday and reprinted here with permission, he lays out the danger to school choice that the election of Linda Clifford to the state Supreme Court would entail:

Take Note

Unreported in today’s article on the Supreme Court debate is a comment by candidate Linda Clifford, who responded to a question saying that the law regarding “school choice” needs “clarification.”

It does? What does that mean?

The Wisconsin Supreme Court in 1998 upheld the constitutionality of the Milwaukee Parental Choice Program. On a 4-2 vote, with Justice Ann Walsh Bradley recusing, the court rejected each and every point raised by lawyers for teacher unions.

In 2002 the United States Supreme Court upheld the constitutionality of the Cleveland voucher program.

There is no benign way to interpret Clifford’s comment. “Clarifying” the 1998 court decision can only suggest an adverse impact on Milwaukee’s program. This would affect not only Milwaukee but parents and families statewide, as some candidates for public office and some sitting officials favor an expansion beyond Milwaukee. While that likely would not occur while Jim Doyle is governor, he won’t be governor forever. However, Linda Clifford, his candidate for the Supreme Court, easily could serve for decades if elected April 3.

After April 3, three of seven Supreme Court justices on the court in 1998 will remain. They are Chief Justice Abrahamson, Justice Patrick Crooks, and Justice Ann Walsh Bradley.

Justice Abrahamson dissented in the 1998 decision. Justice Crooks voted with the majority. For reasons not publicly explained, Justice Bradley recused herself.

New to the court are Justice Butler, a Doyle appointee; Justice Pat Roggensack; and Justice David Prosser.

As an appellate judge, Justice Roggensack authored a lengthy dissent in support of the Milwaukee program’s constitutionality when the case was heard in 1997. Her dissent became the spine of Justice Steinmetz’s 4-2 majority opinion in 1998. So, she clearly is on record, as is Justice Crooks.

Justice Prosser was a member of the Legislature and strong supporter of school choice in the 1990s. He, too, presumably believes the law is constitutional.

So, that is three apparent votes to sustain the principles established in the 1998 Wisconsin and 2002 U.S. Supreme Court case.

Chief Justice Abrahamson is on record that the program is unconstitutional. When I asked Louis Butler his opinion during his candidacy against Diane Sykes, he pointedly declined to answer.

Justice Bradley’s reasons for recusing in 1998 are not known, as is whether she would recuse herself if another case came before the court. Justice Bradley often agrees with Chief Justice Abrahamson.

So, the math is clear. Three apparent votes to sustain prior rulings on choice. Three potential votes not to sustain.

Linda Clifford is seeking the fill the seat of Justice Wilcox, who voted with the majority in 1998. She could provide a fourth vote to “clarify” the school choice law.

I am unaware of Judge Ziegler’s position, though the presumption must be that she would vote to sustain the precedent set by the 1998 and 2002 decisions.

Linda Clifford’s comment is significant beyond the very ominous implications for school choice. If anything has seemed clear in the school choice debate, it is that the law is settled. Yet Clifford is saying otherwise, notwithstanding two court rulings (that happen to reflect the thinking first set down by Justice Roggensack).

What other established precedents does Linda Clifford think need “clarification”?

Does Clifford’s opinion on choice explain the Greater Wisconsin Committee’s issue ad in her behalf? Did WEAC fund that?

These and many related questions now are at the center of this race.

This is what happens when judges adopt an activist posture. Constitutions cease to matter. Precedents cease to matter. All that comes to matter are the policy preferences of the judges. And Clifford is a liberal, endorsed by all the usual liberal suspects. They must feel -- and they are probably right -- that she will give them the policies they want.

Vote Tomorrow!

Yes, it’s a crazy time to hold an election, but tomorrow is the primary election for the Wisconsin Supreme Court.

Via Sykes Writes, a rundown on the two significant candidates.

Bottom line: it’s a contest between a liberal activist would-be judge (Linda Clifford) and a conservative judge (Annette Ziegler).

Governor Jim Doyle has endorsed Clifford. That’s pretty much all you need to know.