The New York Times in its Sunday edition criticized efforts in Iowa to remove three state supreme court justices for voting to redefine marriage to include same sex couples. The NY Times claims that the retention vote threatens the independence of these state judges, even though this is a routine vote that judges in Iowa face from time to time during their judicial tenures.  The New York Times quotes experts who say that voters should only remove judges for general unfitness, not because of one vote in one court case.  The Times paints this situation as ominous, as uninformed voters lashing out at progressive judges who are only doing their job.  However, the Times failed to mention a number of factors that show that it is reasonable and responsible for Iowa voters to consider removing these three justices from the bench because of their extreme votes in the Iowa marriage case.

    1. One court decision by judges can be so outrageous that the only appropriate response by voters is to remove them from office.  What if the Iowa Supreme Court had voted to disband the Iowa Legislature  and remove the governor from office and rule the state by judicial fiat from the Supreme Court chambers?  That one decision would amply demonstrate that the justices are unfit for office, and more than justify voters deciding to remove them from office in a regularly-scheduled retention vote.  Therefore, one bad decision, if it is significant enough, would be sufficient for the voters to remove those judges from office.  And the marriage decision qualifies as one significantly bad decision.

    2.  The Iowa Supreme Court decision redefining marriage was really bad example of judicial activism- it usurped constitutional authority from the people.   In Varnum v. Brien, the Iowa Supreme Court swept aside Iowa’s legal definition of marriage and imposed a redefinition of marriage by judicial decree. The Supreme Court usurped the authority of the people and their elected officials to define marriage by throwing out the definition of marriage that Iowa and all other states have shared since before the Republic was born.  The Iowa Supreme Court claimed that the Iowa Constitution dictated this decision.  The justices were in essence saying that they view the Iowa Constitution as elastic, giving them a blank check to reinterpret its provisions according to their predilections.  Such extreme reasoning creates more than enough justification for Iowa voters to consider whether these justices should remain in their jobs at the state supreme court.

      3. It is very difficult to amend the Iowa Constitution, so how else do Iowa voters respond to a renegade decision by the state supreme court?  It is difficult to amend the Iowa Constitution.  The Legislature must approve any proposed constitutional amendment in two consecutive legislative sessions, and only then does it go to the people.   This means  the people must wait several years even to get an opportunity to vote to overturn a bad court decision.   It is understandable that Iowa’s overly-restrictive amendment process would aggravate the frustration felt by voters’ to this egregious act of judicial activism on marriage, and that pent-up frustration would spill over into the retention elections for these three justices.

    4.  Judicial activism by runaway judges threatens a balanced, healthy governmental system just as much as “mob rule” by  emotional voters. The New York Times forgets that judges are people too, so they can be tempted to misuse their authority just as much as voters (who are people too) can misuse their power to vote officials out of office.   The fact that morally-flawed people occupy all positions of governmental authority is the reason why the framers of the U.S. and state constitutions set up checks and balances in our governmental structures, to restrain the evil tendencies in humans by dividing governmental power among the three branches of government, with the people using their votes as the ultimate check and balance on government officials.  There is nothing ominous or scary about the voters exercising this check on judges from time to time.

    5. The retention vote is one major way state judges in Iowa are accountable for their actions to the people of Iowa.  If justices on the state supreme Court misuse their judicial authority, one effective restraint on them is the retention vote. For the past half century or longer, Americans have battled judicial activism and debated it because it usurps power from the people and their elected officials, and constitutionalizes decisions that are best left to lawmakers and the voters.  Judges are not immune from the tempation to misuse their authority, so there needs to be a restraint others can impose on judges who misuse their authority when interpreting the state constitution. 

    6. The Iowa situation on the retention vote might have been averted if the people could amend the Constitution by initiative.   When state courts have found a right to same-sex “marriage” in their constitutions, voters in many of those states have responded by amending their state constitutions. Many of those states give its citizens the power of intiative, recall and referendum, so they can overturn judicial activism by passing a state constitutional amendment, or striking down an aberrant law, etc.  That is what the voters of California did when its state supreme court struck down Proposition 22, they approved a state constitutional amendment defining marriage as one man and one woman (a federal judge has declared that amendment unconstitutional, which is a separate act of judicial activism.  Needless to say, the California Supreme Court abided by the decision of the people to reverse its decision redefining marriage for same sex couples).  Voters in Maine in 2009 exercised their power of referendum to veto a law legalizing same-sex “marriage” that its state legislature enacted. 

      Interestingly, when state voters have the power to initiate a vote on a state constitutional amendment on marriage, they do not start a major effort to recall the judges who voted to redefine marriage.  But voters in Iowa have no authority to collect signatures and propose a state constitutional amendment for the people of the state to decide.  In Iowa, one of the few places where voters can voice their opposition to the state supreme court’s ruling on marriage is to vote against the three justices on the ballot this November.  If Iowa voters had the power of initiative to propose a state constitutional defining marriage without having to go through the legislature, this retention vote might be a ho-hum affair this November.

    7.  Regular people wrote and approved the Iowa Constitution – not exalted archangels from on high. Sometimes in these debates, many on the other side claim that “constitutional rights should not be put to a popular vote.”  In a limited way, I understand what they are arguing.  However, they take the argument much too far and basically disqualify the citizens of a state from being able to deliberate, write and amend the constitution that will govern them.   Those who do not want the people voting on whether to retain the Iowa justices tend to assume that the federal or state constitutions are like Holy Scripture, written by archangels and handed down to mere mortals from Mt. Sinai, etc.  But a majority of regular people enacted the Iowa Constitution, not archangels.  The Iowa Constitution, with all of its important provisions, was approved by “a tyranny of the majority.”  There is no reason to distrust the people’s exercise of their authority in the retention vote.  

     Those critical of the people’s retention vote on these judges also seem to assume that the only people qualified to interpret the Holy Scripture the state constitution are judges, who are in reality the enlightened ”high priests,” certainly not the uninformed masses of people known as ”voters” or “citizens.”   But the “voters” are not second class people of inferior intellect who are eagerly awaiting their next opportunity to deprive others of their rights. These  same Iowa voters approved their state constitution with all of its protections for minorities and everyone else in state.   The “high priests” (judges) are not more enlightened than the “voters.”  Therefore the “voters,” the people of the state, have the authority to amend the constitution and to hold the “high priests” of Iowa accountable. In November, the people of Iowa will decide whether the three justices remain on the Iowa Supreme Court.

Photo Credit: JOEL PAGE / Reuters

On Monday, Lady Gaga appeared at a rally in Maine to proclaim her support for repeal of the federal law that bans people from the military who engage in homosexual behavior.  She said at the rally, “I am here today because I want to propose a law … called, ‘if you don’t like it, you can go home.’… A law that sends home the homophobes, that sends home the prejudiced.”

Now, the media is reporting Lady Gaga’s comments as if she is making a substantive contribution to the debate, as if her remarks are well-researched and based on careful thought.  It is hard to keep a “poker face” in response to her comments, because she is no more informed on this issue than someone on the street.  The fact that she is a celebrity does not make her an authority.

For example, if Katy Perry came out with a new single called, “California Drills” or (“Dryllz”), with lyrics favoring aggressive drilling for oil off the Santa Barbara coast, in order to meet our nation’s energy needs, the media would probably not report it, or say, “what does she know about energy policy, she’s a singer!”  Bingo! It seems that the media is reporting Lady Gaga’s comments as informed mainly because they agree with her views, rather than because it means something in the debate. (Note: to my knowledge, Katy Perry has taken no public positions on oil drilling off the Santa Barbara coast, lest her publicist call me and ask for a clarification – this blog being so widely read and all).

ADF has been publicly commenting on the real threat to religious liberty and the right of conscience for military chaplains.  Major religions and the major branches of Christianity define marriage as one man and one woman only, and teach that certain sexual behaviors, such as same-sex activity, are immoral.  How will military chaplains from those religions be able to counsel servicemembers and preach to them if the chaplains believe in doctrines that conflict with new military policy?

The celebrity I want to bring forth to match Lady Gaga would be someone else who likes to wear wigs made of white hair – George Washington.  And he was a  “rock star” in his own way back in the late 1700′s. Did you ever wonder what he thought about soldiers serving in the military who engage in homosexual conduct?  He was against it. For example, on March 14, 1778, he issued an order separating a soldier from active duty for attempting homosexual conduct with another soldier:

At a General Court Martial whereof Colo. Tupper was President (10th March 1778), Lieutt. Enslin of Colo. Malcom’s Regiment [was] tried for attempting to commit sodomy, with John Monhort a soldier; Secondly, For Perjury in swearing to false accounts, [he was] found guilty of the charges exhibited against him, being breaches of 5th. Article 18th. Section of the Articles of War and [we] do sentence him to be dismiss’d [from] the service with infamy. His Excellency the Commander in Chief approves the sentence and with abhorrence and detestation of such infamous crimes orders Lieutt. Enslin to be drummed out of camp tomorrow morning by all the drummers and fifers in the Army never to return; The drummers and fifers [are] to attend on the Grand Parade at Guard mounting for that Purpose.

So, the U.S. military has had this policy since the time of the Revolutionary War.  It would be best to study history and military thinking on this issue, rather than listen to uninformed people like Lady Gaga.

   The 9/11 anniversary reminds me that nine years ago this month, I completed the legal pleadings for a lawsuit on behalf of a small church named Bronx Household of Faith against the Board of Education of the City of New York.  Joe Infranco and I represented (and still represent)  the small, intrepid church that has successfully challenged the Board of Education’s ban on private groups renting school facilities for worship services during nonschool hours. 

     I completed the documents on Friday, September 7, 2001 and shipped them to Joe Infranco’s office in Long Island for filing the next week.  He planned to file the papers on Tuesday, so I wrote that date on the complaint:  September 11, 2001.  The date looks eerie in light of the horror that was to come on that day.

   The federal courthouse in lower Manhattan stands only a few blocks from the site of the World Trade Center.  The devastating terrorist attacks disrupted everything in lower Manhattan – roads blocked by debris, businesses destroyed or shuttered,  phone service nonexistent or spotty for weeks.  Judges and others at the federal courthouse on Pearl Street were cut off,  communicating with the outside world only with cell phones.  For some reason, the only cases that the judges could deal with were the newly-filed ones, so Joe and I attended court hearings in the months right after the attack. 

      What I remember the most from those visits to lower Manhattan was the smell – the acrid stench of burnt plastic assaulted those emerging from the subway,  probably from the miles of wiring in the destroyed buildings.  The smell lingered for months after the attack.

    And I remember homemade signs – rows and rows of homemade signs posted on the plywood blocking the streets around the World Trade Center - signs looking for a lost uncle or mother or girlfriend or son “Last seen 9-11,” hoping that maybe their loved one was unconscious and nameless in some hospital rather than another one of the victims of the brutal and fanatical hatred. 

      One day, in November 2001, the state attorney general’s office invited us to their offices in Manhattan to discuss whether the State of New York should enter our case against New York City.  About a half dozen lawyers met us in a board room with a large window to the outside – a window that looked down on the devastated wreckage of the World Trade Center.  One of the state attorneys said something like, “we know to delay the start of any meeting we have in this room so that our visitors can see the horror of the destruction.”

    I also noticed the people on the streets.  They walked as if in shock, even weeks after the attack.  And they seemed united by the tragedy.   That got me thinking that maybe the terrorist attack might be the way to resolve this case quickly.  So I wrote a letter to the attorney for the Board of Education of the City of New York, dated September 26, suggesting that the Board of Education temporarily suspend its policy against worship services in order to help Bronx Household of Faith, as well as the people of New York suffering from the attack:

 My goal is to be flexible and work for a resolution of this matter in the best spirit of community that has arisen in New York City after the tragic September 11 attack.  I live in the D.C. area, and the attack on the Pentagon has given us a taste of what New Yorkers are going through.  In light of what has happened at the World Trade Center, and in light of the Supreme Court’s Good News Club decision, I think these policy restrictions barring religious services and instruction are now unconstitutional, are obsolete public policy and need to be abandoned.

    Sadly, the Board of Education ignored my olive branch, and continue their fight against religious groups meeting on weekends and weeknights for religious expression, including worship services. Right now, churches and other religious groups are meeting in public schools because of a permanent injunction prohibiting the Board of Education from enforcing the unconstitutional policy. The Board of Education has appealed the permanent injunction.  ADF defended that permanent injunction before the federal appeals court for New York City last October.  A decision could come any day now.

      As we approach the ninth anniversary of the murderous attack by Islamic terrorist on the World Trade Center, I hope that the school officials would recall those dark days of September 2001, and how New Yorkers and all of America pulled together for mutual comfort and support in a zenity of unity that our nation has not seen for some time.  In the spirit of those times right after the 9/11 attack, I pray that the school officials in New York would change this unconstitutional policy, and welcome churches and other religious groups to worship freely.

The Seventh Circuit issued its long-awaited decision in Badger Catholic case September 1.  It is an elegant and refreshing opinion, rightly analyzing the First Amendment issues.  The court ruled that the University of Wisconsin-Madison must treat religious student groups equally to nonreligious student groups, in terms of granting them funding for their expression and allowing them space to meet on campus. The Seventh Circuit also ruled that the Establishment Clause does not justify the University of Wisconsin’s discrimination against religious groups.  In other words, UW does not show neutrality towards religion by treating religious groups worse than other student groups.

     This case involved the student Roman Catholic group on campus, named Badger Catholic (formerly known as the Roman Catholic Foundation).  The Seventh Circuit pointed out that the University of Wisconsin promised the Supreme Court ten years ago in Southworth that it would distribute  student fee money in a viewpoint-neutral manner.  However, as the Seventh Circuit stated, the University “concluded that this promise does not apply to speech that constitutes the practice of religion.”  The University believed (wrongly) that it would violate the Establishment Clause if it funded a private group’s “prayer, proselytizing or religous instruction” when funding all the expression of nonreligious student groups.  UW officials embarked on a long and extensive effort to scrutinize what occured at Badger Catholic meetings, and to deny funding for meetings containing prayer, proselytizing or religious instruction. Yet the University had no problem funding the “proselytizing” of environmental groups, feminist groups, who also urged students to join their cause.

     The Seventh Circuit’s majority decision, written by the influential and respected Chief Judge Frank Easterbrook, rightly ruled that the Constitution requires equal treatment for religious groups, and that the government cannot use the Establishment Clause as an excuse to treat religious groups worse than other private groups.  The Seventh Circuit looked for guidance to two landmark Supreme Court rulings: Widmar v. Vincent, in which the Supreme Court ruled in 1981 that the University of Missouri-Kansas City could not deny equal access to a student Christian group to rent meeting space on campus on the same terms and conditions as other student groups. 

     The Seventh Circuit also relied on Rosenberger v. the University of Virginia, where the Supreme Court in 1995 once again rejected the argument that the Establishment Clause requires UVa to single out religious groups and exclude them from applying for student fee money intended to fund student newspapers on campus.

    The Seventh Circuit’s opinion is a sterling restatement of what the Supreme Court has said for at least 30 years that the Constitution requires: equal access for religious groups to forums the government sets up for private groups to express themselves.  The University of Wisconsin did not grasp this fact, and instead thought that by accommodating private religious speakers, the University was someone endorsing their religious advocacy.   The University does not endorse the private speakers it permits to speak.  As the Court put it, “there is a big difference between a university as publisher of its own newspaper, and as censor of a student paper.”  The University is not endorsing the religious views of Badger Catholic by allowing it funding the same way it funds the advocacy of other student groups.  

     It is disappointing that groups like the Alliance Defense Fund and its allies have to keep fighting for the commonsense constitutional principle of equal access for religious groups.  The Seventh Circuit’s opinion is an eloquent restatement of that important principle.

   With all of the caveats that Supreme Court Bingo is not an absolutely 100% accurate prediction tool, I am going out on a limb here to predict that Chief Justice John Roberts is writing the decision in the Christian Legal Society v. Martinez decision.  That would be good news for the supporters of First Amendment freedoms.

    For those of you new to this, the Supreme Court has patterns in assigning opinions to the justices, so as the decisions come down, there is a semi-accurate way to predict which justice is writing a specific decision.  At ADF, we call this process, “Supreme Court Bingo,” and that link explains the basics of how it works.

    Today, the high court handed down four more decisions, with eleven cases yet to be decided by the end of the term, which should be by the end of June.  For the cases heard in April, only two remain – the CLS case, and the Doe #1 case.  (Doe #1 concerned whether voters who signed a petition in Washigton State to repeal a “domestic partners” law could keep their names private from activists who oppose their views.  Jim Bopp argued that case for the petition signers). 

     Three justices have not written a decision from the April sitting, John Paul Stevens, Ruth Bader Ginsburg and the Chief Justice.   John Paul Stevens has written two decisions in March.  I think it is unlikely that he is writing an opinion from the April sitting, although he cannot be totally eliminated as an author of an opinion from a case heard in April.  That means that the Chief Justice and Ruth Bader Ginsburg are the most likely to be writing the last two April cases. 

     In a situation like this, Supreme Court Bingo shows its limitations and offers us no prediction on who is writing each decision.  However,   I was fortunate enough to attend the oral arguments in both of those cases (CLS and Doe #1).  I was able to watch the interpersonal dynamics among the justices on these cases.  John Roberts gave a strong, emotional defense of CLS’s legal positions in this case.  If the Chief is in the majority, he can assign the writing of the opinion to himself.  I can clearly see him doing so because of his strong support for CLS’s legal arguments.   If the Chief Justice is writing the CLS decision, I expect it to be strong and favorable to First Amendment rights.

     Also, Justice Ginsburg joined the chorus of other justices supporting Jim Bopp in the Doe #1 case.  Therefore, I believe she is writing a decision favorable to Jim Bopp in the Doe #1 case.

   The Court will hand down decisions on Thursday, June 24 and Monday, June 28, and perhaps another day.  I would predict that there will be a third day to hand down decisions, which will be the last day of the term – on Wednesday, June 30.   Stay tuned.