Dispatches from the Creation Wars

Jon Rowe has caught another great example of why the phrase “judicial activism”, thrown about incessantly by conservatives, means nothing more than “judges doing things we don’t like”. The example comes, predictably, from the Worldnutdaily. Illinois has just passed a law to become the 15th state to add sexual orientation to their anti-discrimination laws. The law was passed by the state legislature and signed by the governor. Peter LaBarbera, director of the Illinois Family Institute, is up in arms and wants it overturned by the courts because it does not exempt churches and religious organizations from the legislation.

Let me first say that I agree with LaBarbera that if the law does not exempt churches and religious groups, it should be overturned by the courts. Forcing churches not to discriminate in their hiring on the basis of their religious views violates the free exercise clause and is unconstitutional. But where is the screaming about “unelected judges” overturning duly elected laws that represent the “will of the people”? Oh, that’s right. It’s only “judicial activism” when the “will of the people as expressed through their elected representatives” is something conservatives agree with. If they disagree with the law, then by God we need to find an unelected judge to “run roughshod over the Democratic process”.

Comments

  1. #1 Rob Ryan
    January 23, 2005

    Likewise, I’ve noticed that the ACLU is only criticized when it seeks to protect minorities. Its efforts on behalf of conservative Christians are largely ignored.

  2. #2 Reed A. Cartwright
    January 23, 2005

    “States’ rights” is another catch phrase abused by the right.

  3. #3 Patterico
    January 23, 2005

    I disagree with this analysis.

    Principled conservatives say: if the actual language of the Constitution trumps a statute, the statute must be overturned.

    If there is no clear guidance in the Constitution, but squishy readings of vague constitutional phrases can be thought to invalidate a statute, we don’t support the overturning of the statute.

    There is no hypocrisy there.

    It is oversimplification to define any striking down of a statute as “activism.”

    If you can find me the Constitutional language that relates to sexual orientation, let me know. I know that the Supreme Court has stretched the meaning of “equal protection” to invalidate sodomy laws, but — while I agree with the policy of the decision — I find that decision completely bereft of any constitutional validity.

  4. #4 Jon Rowe
    January 24, 2005

    The point of Epstein’s article wasn’t so much the *technical* issue of finding the *right* in the Constitution, it was rather about putting too much value in majoritarian democracies v. individual rights.

    Also, the notion of F.E. of religion can only be taken so far. It indeed would prevent govt. from forcing churches to perform gay marriages or hire gay ministers, but does not, for instance, constitutionalize the right of individuals with religious convictions to discriminate in non-religoius contexts, event if they think they ought to have that right b/c they own the business or the property that in question.

    Take the Boy Scouts for instance. They are not a “religious group” in any sectarian sense, (even though they do impose a religious test, which happens to be fairly broad). Therefore, in the Dale decision, they couldn’t advance a Free Exercise claim. They instead had to rely on a F.A. freedom of association claim; but the words “freedom of association” are NOT mentioned w/in the text of the constitution.

    It seems to me that the type of “originalist” philosophy that you espouse couldn’t justify Dale any more than it could Lawrence.

    And the right in question in the Lawrence case was LIBERTY. There are plenty of specific things, like homosexual or heterosexual sodomy, or Choosing to eat breakfast at 4:00am in the morning that might fall into that rubric.

  5. #5 raj
    January 24, 2005

    Let me first say that I agree with LaBarbera that if the law does not exempt churches and religious groups, it should be overturned by the courts.

    Oh, really? On what basis? A law that exempts churches and religious groups is a law respecting an establishment of religion. Such laws are forbidden under the 1st amendment, both at the federal level and at the state level (via the 14th amendment).

    At the federal level, one might seriously inquire as to the purported power under which Congress passed the law. If it was purportedly passed under the interstate commerce clause, the power of Congress to pass the law might be limited. But if the law was passed at the state level, the powers of state legislatures are not limited in the same way or to a similar extent as congress.

    Regarding state law exemptions of church and religious groups from laws of general applicability, I’ll only cite the US SupCt decision in Oregon’s “peyote” case. If “establishments of religion” are not exempt from state laws of general applicability regarding drug use in their ceremonies, why should “establishments of religion” expect to be be exempt from laws of general applicability regarding anti-discrimination?

    It should be clear that a law that exempts an establishment of religion is a law respecting an establishment of religion, which is forbidden under the 1st and 14th amendments.

  6. #6 Ed Brayton
    January 24, 2005

    Hi Patterico, nice to see you again. You write:

    Principled conservatives say: if the actual language of the Constitution trumps a statute, the statute must be overturned. If there is no clear guidance in the Constitution, but squishy readings of vague constitutional phrases can be thought to invalidate a statute, we don’t support the overturning of the statute. There is no hypocrisy there.

    Well let’s look at the example that Jon mentioned above, the Boy Scouts case. The Dale decision was based upon a “right to association” that has long been established in law, but there is no mention of it in the Constitution whatsoever. Yet conservatives were unanimous, as far as I know, in their support for that decision (and rightly so).

    If you can find me the Constitutional language that relates to sexual orientation, let me know. I know that the Supreme Court has stretched the meaning of “equal protection” to invalidate sodomy laws, but — while I agree with the policy of the decision — I find that decision completely bereft of any constitutional validity.

    Again, this is not an argument that conservatives apply consistently. In addition to the right of association example above, there are numerous examples of rights not specifically mentioned in the text of the Constitution that are recognized and that conservatives strongly support. The right to send your children to a private school, for example, is well established since 1925. There is no mention of such a right in the Constitution. Do conservatives think that Pierce was decided wrongly? Of course not.

    Do you have a right to travel within the United States? The Constitution mentions no such right, but that right has been established since 1868. Do you have a right to marry the person of your choice regardless of race? There is no mention of marriage in the constitution at all. Does that mean that Loving was decided incorrectly? Of course not. Do you have the right to use contraception if you choose? Again, the constitution doesn’t mention it. Was Griswold therefore wrongly decided? I know Bork says it was, but his arguments are incredibly weak. If we were to apply your standard, that unless something is mentioned specifically in the Constitution there is no right that might be violated, we will have to throw out a vast range of limitations upon the government. We’ll also have to throw out the 9th amendment entirely.

    I can give you a thousand examples of the phrase “judicial activism” being used inconsistently. For instance, here is an example where anti-abortion activists, who scream constantly about “judicial activism”, are mad at Alberto Gonzales for not being activist enough to strike down the validity of an abortion law in a case where the validity of that law wasn’t even being challenged. Surely if that is not judicial activism, then nothing is. And see here for a discussion of how serious legal scholars view the phrase:

    Indeed, the charge of judicial activism has become a “ubiquitous epithet” and unhelpful “scare phrase,” Georgetown law professor Peter Edelman recently noted in The Washington Post. Constitutional law scholars across the political spectrum tend to cringe at the way the phrase is used in public debate.

    “It’s almost embarrassing for anyone who is a serious thinker about the Constitution to bandy it about,” says Harvard University constitutional scholar Laurence Tribe, who has spoken out in defense of the SJC ruling.

    “Most people who use the term don’t provide a coherent definition of it. It typically means judicial opinions with which they disagree,” says Randy E. Barnett, a law professor at Boston University who considers himself a libertarian and a defender of “original intent” in Constitutional matters.

  7. #7 Ed Brayton
    January 24, 2005

    Regarding state law exemptions of church and religious groups from laws of general applicability, I’ll only cite the US SupCt decision in Oregon’s “peyote” case. If “establishments of religion” are not exempt from state laws of general applicability regarding drug use in their ceremonies, why should “establishments of religion” expect to be be exempt from laws of general applicability regarding anti-discrimination?

    It is unconstitutional for two reasons. First, because of the free exercise clause. Applying anti-discrimination law to churches – requiring them to hire gay employees or perform gay marriages, for instance, or even to hire atheists or Muslims – requires that the government actually regulate the doctrinal beliefs and actions of a church. There is no way in hell that’s going to survive a free exercise challenge, nor should it in my view. Such an exemption in no way establishes a religion, but it does prevent the government from interfering with a church’s free exercise of religion quite clearly.

    Secondly, the right to free association. Just as in the Dale decision, there is a long established right of private groups to form whatever free associations they choose. Would you think a law saying that churches must hire atheists as ministers would be constitutional? I would certainly hope not.

  8. #8 CPT_Doom
    January 24, 2005

    Religious exemptions can be problematic when religions participate in the secular economy, for instance. While I don’t believe the Catholic church should be forced to hire non-Catholics, or divorced Catholics, to run the church’s affairs, I do believe that a Catholic hospital cannot discriminate based on religion when hiring nurses.

    I don’t know the specifics of the Illinois law, but I do know that some conservatives have advanced the religious exemption to apply to all private employers – e.g., the “Christian” doctor who refused to hire a lesbian office staffer. That is going to far and completely invalidates anti-discrimination laws. So when the religious right complains about lack of religious exemptions, are they merely talking about churches, per se, or are they making a broader comment?

  9. #9 raj
    January 24, 2005

    Ed Brayton at January 24, 2005 10:49 AM

    It is unconstitutional for two reasons. First, because of the free exercise clause. Applying anti-discrimination law to churches – requiring them to hire gay employees or perform gay marriages, for instance, or even to hire atheists or Muslims – requires that the government actually regulate the doctrinal beliefs and actions of a church.

    Oh, come off it, Ed. This is ridiculous. If it would be unconstitutional to apply a law of general application to an establishment of religion, the law itself is unconstitutional, because it would purport to exempt a law of general application to an establishment of religion. If Oregon’s law against use of peyote were to exempt an establishment of religion, it would be unconstitutional because it was a law respecting an establishment of religion. That’s basically what the US SupCt said. And I’m sure that you are able to understand that issue.

    Secondly, the right to free association.

    Oh, and where is that in the 1st amendment? I hate to tell you, but the fact is that that so-called “right” has been honored more in the breach than anywhere else. I need only cite the US SupCt case from the early 1980s regarding one of the formerly all-male “service” organizations, in regards sex discrimination. Look, Ed, some of us aren’t stupid. Some of us really do know that, as far as the US SupCt is concerned, there has been a rather substantial “fags need not apply” version to the equal protection clause of the 14th amendment. You and your pseudo-libertarian friends might want to do a little research in that regard.

    I’m going to put it to you bluntly. If religious establishments are exempted from anti-discrimination laws, it would be illegal for a gay guy to discriminate against a fundy christian because he was a fundy christian, but it would be perfectly OK for a fundy christian to discriminate against a queer because he was queer. As far as I can tell, that’s OK with you, from a constitutional standpoint. Sorry, I have to disagree.

    BTW, I have similar issues regarding so-called “hate crime” laws, but that’s for another post.

  10. #10 Ed Brayton
    January 24, 2005

    I don’t know the specifics of the Illinois law, but I do know that some conservatives have advanced the religious exemption to apply to all private employers – e.g., the “Christian” doctor who refused to hire a lesbian office staffer. That is going to far and completely invalidates anti-discrimination laws. So when the religious right complains about lack of religious exemptions, are they merely talking about churches, per se, or are they making a broader comment?

    In this case, it is only about churches. They may well make a broader argument than that, but I’m not making that argument so I don’t much care about it. Of course it is true that sometimes the lines are hard to draw, as they often are. There are situations where there are competing values and rights to weigh. But at the very least, a law that actually intervenes in the internal decisions of a church must meet the strictest possible scrutiny given the free exercise clause. Surely no one would suggest that the laws saying you cannot discriminate on the basis of religion would require a Baptist church to hire a Methodist minister, or for that matter an atheist or Muslim one. There may be a legitimate public policy goal in stopping religious discrimination, but the constitution does set some limits on how far it can reach, and by any reasonable standard it cannot reach into the hiring decisions of a church.

  11. #11 Ed Brayton
    January 24, 2005

    Oh, come off it, Ed. This is ridiculous. If it would be unconstitutional to apply a law of general application to an establishment of religion, the law itself is unconstitutional, because it would purport to exempt a law of general application to an establishment of religion. If Oregon’s law against use of peyote were to exempt an establishment of religion, it would be unconstitutional because it was a law respecting an establishment of religion. That’s basically what the US SupCt said. And I’m sure that you are able to understand that issue.

    I have no idea why you’ve suddenly chosen to be so derisive toward me, but it’s rather annoying. I think the Supreme Court’s decision in the peyote case was wrong, but even if it is correct I dont’ think it applies in this situation. I’ll ask again, do you think that laws against religious discrimation should be applied to churches? Should a Christian church be required to hire a Muslim minister, or vice versa? There is no relevant distinction between that and what you’re arguing, is there?

    Oh, and where is that in the 1st amendment? I hate to tell you, but the fact is that that so-called “right” has been honored more in the breach than anywhere else.

    There is an inconsistency here, raj. You are implying here that because the right of association is not mentioned specifically, it doesn’t exist. Yet you would certainly applaud the Lawrence decision when there is no mention of a right to sodomy in the constitution either. You’re making the same mistake the conservatives make, only on the other side. They support the right of association, but when a court rules for a right they don’t agree with they say, “Hey, where is that in the constitution?”. You’re doing the same thing, only you’re all for the right to sodomy but not the right of association. It’s just as inconsistent, and the argument that if it’s not specifically mentioned in the constitution it doesn’t exist is just as silly when applied inconsistently from the left as from the right.

    Furthermore, I would argue that you aren’t really opposed to the right of association at all. Would you force a gay rights group to hire an anti-gay fundamentalist? I certainly wouldn’t. But that would be religious discrimination under some anti-discrimination laws. But the reason why the gay rights group can’t be forced to hire an anti-gay employee is the same reason why a church can’t be required to hire someone against their religious views – the right of association. Only in the latter case, you also have the free exercise clause as a backup.

    I’m going to put it to you bluntly. If religious establishments are exempted from anti-discrimination laws, it would be illegal for a gay guy to discriminate against a fundy christian because he was a fundy christian, but it would be perfectly OK for a fundy christian to discriminate against a queer because he was queer. As far as I can tell, that’s OK with you, from a constitutional standpoint.

    raj, you really need to settle down and start reading and thinking instead of reacting. I said no such thing. In fact, I just said the opposite. A private gay organization obviously has every right not to allow anti-gay people to join. The same is true of a church. Both private groups have exactly the same protections under the right of association. But in the case of the church, there is a further legal consideration in the free exercise clause. Like it or not, the Constitution does set up religious views as a unique category with special legal considerations, but this works both ways. The government is free to take positions on lots of issues, but it cannot take a position on the truth or falsity of a religion because of the first amendment. By the same token, the constitution guarantees the free exercise of religion but not the free exercise of all other types of beliefs. There is a higher standard of scrutiny given to laws which intrude on the actions of churches and religious organizations, just as there is a higher standard of scrutiny on laws which might advance religion. The first amendment demands that by singling out the free exercise of religion from the free exercise of other categories of belief.

    And it simply isn’t true, so far as I can tell, that the Supreme Court has ever ruled that exempting a religious organization from a generally applicable law under the free exercise clause amounts to an establishment of religion. In Oregon v. Smith, they didn’t say that at all. They did rule, however, that a law that burdened religion but was not motivated specifically by that goal need not meet a strict scrutiny standard of proving a compelling state interest”. Brennan, Marshall and Blackmun disagreed; so do I.

  12. #12 Patterico
    January 25, 2005

    Ed,

    There is a difference between doctrines designed to effectuate the rights that were intended by the language of the Constitution, and doctrines designed to create new rights not contemplated by the Constitution.

    Loving was correct because the 14th Amendment’s equal protection guarantee, if it means anything, means that government may not discriminate on the basis of race, absent a compelling justification and a narrowly tailored law. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny. The statute in Loving was designed to protect white supremacy. It was right to strike it down.

    Griswold was wrongly decided. Good policy, bad constitutional law. Justice Stewart was right.

    Freedom of association, like the New York Times v. Sullivan standard, is seen as a way to implement rights that are clearly there in the text of the First Amendment.

    None of this is black and white. Judgments must be made. But they are made by principled judges according to the standards I mentioned. You can quibble on the specific judgments at times, but I think the principles are sound, and are rooted in the concept that people should be allowed to govern themselves, rather than be governed by a Platonic court of nine all-knowing philosopher-kings.

  13. #13 Ed Brayton
    January 25, 2005

    There is a difference between doctrines designed to effectuate the rights that were intended by the language of the Constitution, and doctrines designed to create new rights not contemplated by the Constitution.

    I don’t think it’s quite that simple, but I’ll get into that below.

    Loving was correct because the 14th Amendment’s equal protection guarantee, if it means anything, means that government may not discriminate on the basis of race, absent a compelling justification and a narrowly tailored law. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny. The statute in Loving was designed to protect white supremacy. It was right to strike it down.

    And I agree that it was right to strike it down. But remember that the exact same argument was used against that decision as is used against decisions like Lawrence today – that there is no “right to sodomy” in the Constitution. But one can make a very easy argument that the Lawrence decision was “designed to effectuate the rights that were intended by the language of the Constitution”. Remember the standard that you offered in your initial comment, that a decision must be based on “clear guidance” in the Constitution and that one must find “the Constitutional language that relates to sexual orientation” in order to justify any decision based upon sexual orientation. But if you applied that to Loving, the decision would clearly be invalid as there is no language that one has a “right to marry” at all. Marriage isn’t mentioned in the Constitution at all.

    There really was no equal protection problem based upon race in Loving because neither race was any less free than another – all races were equally forbidden from marrying someone of another race. The problem there is not the lack of equal protection but the violation of liberty regardless of whether it affects one race more than another. There simply is no Constitutional authority for such a law, and one of the major problems with the way conservatives view such situations is that they think that one must justify having a right to do something, when in fact the government should have to justify having the authority to prevent them from doing it. But I don’t think this logic is applied consistently. Let me explain…

    There are a million things one can think of that the government could do for which there is no right mentioned in the Constitution, but also no authority. A law that said you can’t wear a certain type of shoe, for example, or that if you had red hair you would have to dye it brown. Nowhere in the Constitution does it mention that an individual has a right to wear wingtips, or a right to have red hair. Those things are no more or no less related to rights that are mentioned in the Constitution than the Lawrence decision is. But I doubt any conservative (or anyone else for that matter) would think that such a law would be Constitutional. They would agree that the government has no authority to pass such a law, and they would do so on the basis of two things – the lack of stated authority in the Constitution for such a regulation, and the lack of justification for such a law. The government could not come up with a rational justification for such a law, there is no interest at stake, the decision of what shoes to wear or what color hair to have has no impact on anyone other than the individual making the choice, etc. All the same arguments that are made against sodomy laws, essentially.

    Now it seems to me that there is only one alternative to that argument, which is to say that such laws would be wrong but still constitutional because there is no expressed language against them. The problem with this is that, if applied consistently, it would mean that there are virtually no limits on what the government can do and it would render the notion of unenumerated rights meaningless. It would mean that there are no rights other than those expressly stated in the text of the Constitution, but that voids the 9th amendment. The founders made it absolutely clear that such a position was counter to their intentions by passing the 9th amendment.

    Also bear in mind what Madison said, that the Constitution is not a charter of liberty granted by power but a charter of power granted by liberty. That means that the burden of proof is not on the individual asserting a right to do something, but is on the government to assert a legitimate authority to justify forcing them not to do it. It is not assumed that government has whatever authority they claim to have unless the Constitution specifically says otherwise, it is assumed that the individual is free unless there is a compelling case for why they should not be. That is the entire purpose of the 9th amendment, to explicitly state that those rights not specifically enumerated are retained by the people.

    The other argument that the burden should always be on the government is from the Declaration of Independence. Remember what it said, that governments are instituted among men to secure the inalienable rights that they already had, not to give them whatever rights it deemed they should have, and that when government overstepped those boundaries, it was no longer legitimate. And that those rights included “life, liberty and the pursuit of happiness”. The Constitution was written in order to insure the protection of those rights, which was viewed as the only legitimate end of civil government. One could certainly make the argument that if one is guaranteed liberty and the right to pursue happiness, at the very least that must mean that they can make decisions about something as private and personal as whether to have children (Griswold) or with whom to be intimate (Lawrence) so long as those choices do not violate another person’s equal rights to liberty and pursuit of happiness. So while you are making a distinction between those rights that are required to effectuate specifically stated rights in the text, I would argue that the real question in evaluation of unenumerated rights is whether they meet the standard in the Declaration, the one that sets out the limits upon all legitimate government action, because that is the sole reason that the government was created in the first place.

    None of this is black and white. Judgments must be made. But they are made by principled judges according to the standards I mentioned. You can quibble on the specific judgments at times, but I think the principles are sound, and are rooted in the concept that people should be allowed to govern themselves, rather than be governed by a Platonic court of nine all-knowing philosopher-kings.

    And here again, I think you have it backwards, or at least are not following the logical conclusion of your premise. I agree that the principle is that people should be allowed to govern themselves, but what you’re arguing for is that they should also be allowed to govern others unless the Constitution specifically states otherwise. Your position is that if a right is not explicitly stated, a majority may do what they please (since all political power resides, directly or indirectly, in majorities). My position is that if a right is not explicitly stated, it is presumed to be retained by the people, meaning the individual. You default to democracy; I default to liberty. And I would argue that the ninth amendment, the Declaration and the voluminous writings of the founders strongly support the notion of defaulting to liberty, not to the authority of majorities. The bill of rights was written for the purpose of protecting liberty from democracy.

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