Men in Black

by Levin, Mark R.

  A related controversy made national headlines in 2004 when the Supreme Court heard the case of the Elk Grove Unified School District v. Newdow. The question before the Court was whether voluntary recitation of the Pledge of Allegiance—with the phrase “under God”—in a public school classroom unlawfully violates the establishment clause.50

  Michael Newdow, who brought the case, was “ordained” in the Universal Life Church, a ministry that “espouses the religious philosophy that the true and eternal bonds of righteousness and virtue stem from reason rather than mythology.”51 He now calls himself the head of the “First Amendmist [sic] Church of True Science.”52

  Newdow also has a law degree and is determined to have his beliefs imposed on society through the courts. He told Newsweek magazine that he had the idea to begin his crusade in a checkout line in 1996. After buying some soap, he looked at the change in his hand and saw “In God We Trust” on it. He thought to himself, “This is offensive. I don’t trust in God.”53 He did some legal research and decided that it would be easier to challenge the Pledge than the motto on currency. In 1998, he brought a legal challenge to the Pledge’s recitation in Florida public schools but failed because his daughter wasn’t school-age,54 and she was living with her mother, Sandra Banning, in California.55

  After Newdow moved to California, his daughter was enrolled in kindergarten in the Elk Grove School District. As in most public schools across America, the school led the children in the Pledge every morning. On behalf of his daughter—who, ironically, had no objection at all to reciting the Pledge—Newdow filed suit in March 2000 in federal district court against everyone he could think of: the president, Congress, the state of California, and the Elk Grove Unified School District and its superintendent. He claimed his daughter was harmed because she was forced to “watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our’s [sic] is ‘one nation under God.’”56 The district court threw out his case, declaring that the Pledge was constitutional. Newdow appealed to the Ninth Circuit Court of Appeals. In an opinion that caused shock waves across the country, the Ninth Circuit held that the Pledge ran afoul of the establishment clause because it was an endorsement of monotheism.57 The court found that the Pledge failed all the varying judicial tests created to determine establishment clause violations, including the state endorsement of religion and the state coercion of religious activity. Furthermore, the court found that Newdow had standing “to challenge a practice that interferes with his right to direct the religious education of his daughter.”58

  Sandra Banning, the child’s mother, whom Newdow had never married, became aware of the case for the first time in the newspapers. Although she and Newdow shared physical custody, she obtained sole legal custody in February 2002.59 A parent granted legal custody by a family court has the right to make decisions about the child’s upbringing. Once Banning had sole legal custody, Newdow had no standing to bring a lawsuit in the child’s name. Moreover, Banning said that she and the child were Christians with no objections to saying the Pledge. In fact, Banning’s daughter led her class in the Pledge the day after the first Ninth Circuit ruling.60 Newdow’s claim that his child had been harmed by watching and listening to the Pledge was patently untrue.

  The Ninth Circuit reconsidered Newdow’s standing and ruled that while Newdow no longer represented the child, he still had standing as a noncustodial parent “to object to unconstitutional government action affecting his child.”61

  When the case reached the Supreme Court, Newdow asked Justice Antonin Scalia to remove himself from the case, because Scalia had commented on the subject in public. Scalia did so. Newdow, who doesn’t practice law, demanded the right to argue the case, even though attorneys normally need three years of legal experience before they can appear before the Supreme Court. The Court bent its own rules and gave Newdow permission to argue the case himself.62 What happened next was an illustration of the Court’s confusion.

  The Supreme Court ruled unanimously against Newdow, but the justices couldn’t unite behind an opinion. Stevens wrote that Newdow simply did not have standing to file suit. So there was no reason for the Court to decide whether the Pledge violates the establishment clause. Rehnquist dismissed that argument, pointing out that the Supreme Court defers to lower courts on questions of standing.63

  Rehnquist went further and argued that the Pledge was constitutional. Justices Sandra Day O’Connor and Clarence Thomas agreed, although for different reasons. Rehnquist wrote that, “reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith or church.”64

  O’Connor urged the Court to create yet another test for deciding religion clause cases. The Pledge’s reference to God was “ceremonial deism” in her view, and she invented a new test for ceremonial deism based on history and ubiquity, absence of worship or prayer, absence of reference to a particular religion, and minimal religious content.65 Absent in her decision was why these tests were necessary when the language and intent of the First Amendment should have been the only test that mattered.

  Kennedy joined the most liberal justices in Elk Grove, ruling against Newdow on standing grounds.66 He could not do otherwise because the Ninth Circuit relied, in part, on the logic behind his coercion test in Lee v. Weisman. He either had to affirm the ridiculous—that the Pledge represented an establishment of religion (based on a precedent established by his own decision)—or dodge the issue by dismissing Newdow’s standing to bring the case. So Kennedy dodged.

  Thomas took the most intellectually honest approach. He candidly admitted that if you followed Kennedy’s coercion test and the related cases to their logical ends, then the Pledge would have to be struck down. He argued it would be better to discard the many layers of ill-considered opinions and “begin the process of rethinking the Establishment Clause.”67

  Unfortunately, Thomas’s advice isn’t likely to fall on receptive ears any time soon. And the Pledge—with its phrase “under God”—remains in a state of judicial limbo.68 Like the public is now, the framers would be appalled. This is the point to which judicial activism has brought us. In the meantime, the assault on religion in American life accelerates.

  Most infamously, judges are now the tool by which the American Civil Liberties Union (ACLU) pursues its obsession against displays of the Ten Commandments on public property. The ACLU, in fact, has filed so many suits against public display of the Ten Commandments that a separate page on its website is devoted to them.69 Its legal victories or pending cases against the Ten Commandments stretch the length and breadth of the land, from Montana to Georgia, from California to Kentucky.

  And the ACLU is not alone. Americans United for the Separation of Church and State has filed similar actions. Their most notable case was the challenge to the courthouse display of the Ten Commandments by the chief justice of the Alabama Supreme Court, Roy Moore. The case resulted in the removal of both the Ten Commandments and Moore from the bench.

  By the standard activist judges use today, I wouldn’t be surprised if at some point displaying the Declaration of Independence on public property is challenged. After all, the Declaration speaks of “Laws of Nature and of Nature’s God” and that “all men…are endowed by their Creator with certain unalienable Rights.” It declares that the founders are “appealing to the Supreme Judge of the world” and relying “on the protection of divine Providence.” Rabbis, ministers, and priests at public high school graduation ceremonies can be legally barred from saying as much.

  We should remember that the Declaration of Independence is not merely a historical document. It is an explicit recognition that our rights derive not from the King of England, not from the judiciary, not from government at all, but from God. The keystone of our system of popular sovereignty is the recognition, as the Declaration acknowledges, that “
all men are created equal” and “endowed by their Creator with certain unalienable Rights.” Religion and God are not alien to our system of government, they’re integral to it.

  The intensive and concerted effort to exclude references to religion or God from public places is an attack on our founding principles. It’s an attempt to bolster a growing reliance on the government—especially the judiciary—as the source of our rights. But if our rights are not unalienable, if they don’t come from a source higher than ourselves, then they’re malleable at the will of the state. This is a prescription for tyranny.

  CHAPTER FOUR

  DEATH BY PRIVACY

  “Our nationwide policy of abortion-on-demand through all nine months of pregnancy was neither voted for by our people nor enacted by our legislators—not a single state had such unrestricted abortion before the Supreme Court decreed it to be national policy in 1973.”

  Ronald Reagan, 19831

  Today, legalized abortion is the law of the land because the Supreme Court decided in 1973 that its recently created constitutional right to privacy also included a new constitutional right to abortion. If you look in the Constitution, however, you will find no general “right to privacy” any more than you will find a right to abortion—and for good reason: It’s not there. The framers assumed no general right to privacy because, to state the obvious, criminal and evil acts can be committed in privacy. Criminal codes are full of such examples—from murder to incest to rape and other crimes.

  How Judges Make Law

  The modern argument for a right to privacy began in 1961 in Justice John Marshall Harlan’s dissent in Poe v. Ullman.2 The case was brought by Planned Parenthood on behalf of a carefully selected group of people: a married couple, a single woman, and a Planned Parenthood obstetrician, C. Lee Buxton. Planned Parenthood’s suit was directed against a Connecticut law that prohibited the sale and use of contraceptives.3 The Supreme Court dismissed the case because the law had not been enforced against the people in Planned Parenthood’s case. It is a basic judicial principle that there has to be an actual legal dispute to be adjudicated. But Justice Harlan issued a dissent, writing, “I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life.”4

  Harlan provided an extensive rationale for his position, which became the theoretical cornerstone for the right to privacy. Where did Harlan derive his notions about privacy rights? Melvin L. Wulf, a lawyer for the American Civil Liberties Union, claims credit for first raising the idea with Harlan in the ACLU’s friend-of-the court brief in Poe v. Ullman. Wulf later explained his strategy for getting the Court to adopt the privacy rights approach:

  Judges dislike breaking entirely new ground. If they are considering adopting a novel principle, they prefer to rest their decision on earlier law if they can, and to show that the present case involves merely an incremental change, not a wholesale break with the past. Constitutional litigators are forever trying to persuade courts that the result they are seeking would be just a short step from some other case whose decision rests soundly on ancient precedent.

  Since the issue of sexual privacy had not been raised in any earlier case, we employed the familiar technique of argument by analogy: If there is no exact counterpart to the particular case before the Court, there are others that resemble it in a general sort of way, and the principles applied in the similar cases should also be applied—perhaps even extended a little bit—to the new case. 5 [Emphasis added.]

  In other words, Wulf understood that the Court would be open to rewriting the Constitution by pretending to uphold it. Although Harlan’s was a minority opinion, and had no immediate legal effect, its impact would soon become clear. After Poe was decided, Planned Parenthood officials found a way to get arrested so they could mount another challenge to Connecticut law.6 In 1965, Justice William O. Douglas adopted Harlan’s reasoning in the majority opinion in the case of Griswold v. Connecticut, and the right to privacy became constitutional law.7 Douglas, who was appointed by President Franklin Roosevelt in 1939, is most famous for being the longest-serving justice and, to conservatives, for writing one of the most parodied phrases in Supreme Court history. In order to strike down the Connecticut law prohibiting the sale of contraceptives, Douglas wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”8

  Don’t be embarrassed if you don’t know what emanations from penumbras are. Young lawyers across America had to pull out their dictionaries when reading Griswold for the first time. A penumbra is an astronomical term describing the partial shadow in an eclipse or the edge of a sunspot—and it is another way to describe something unclear or uncertain. “Emanation” is a scientific term for gas made from radioactive decay—it also means “an emission.”9

  Douglas’s decision not only found a right to privacy in a penumbra of an emanation, it manipulated the facts of the case: Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, the group’s medical director, gave information and prescribed birth control to a married couple. Griswold and Buxton, not the married couple, were later convicted and fined $100 each. The relationship at issue, then, was doctor-patient, not husband-wife. Yet Douglas framed his opinion around a presumed right to marital privacy. He expounded at length about the sanctity of marriage but used vague phrasing to describe the rights at issue, never explicitly stating that married couples have a right to use contraceptives. He even raised the ugly specter of sex police, though no police had intruded into anyone’s bedroom. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”10 This little phrase has been used as holy writ by judicial activists ever since to further expand the right to privacy in a variety of areas, including abortion and sodomy, as we’ll see.

  Justice Hugo Black, in his dissent, was not impressed. He attacked the way Douglas had turned constitutional law into semantics by replacing the language of actual rights with the phrase “right to privacy.” He wrote, “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities.”11

  Black, normally an ally of Douglas, feared that using such a phrase as “right to privacy” could be a double-edged sword. “One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning…. ‘Privacy’ is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures.”12 Black concluded by saying, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”13

  Seven years after the issue of married couples and contraceptives was decided in Griswold, the Court considered contraceptives and unmarried couples in 1972 in Eisenstadt v. Baird.14 Although he quoted Griswold frequently in the majority opinion, Justice William Brennan nonetheless found that Massachusetts law could be overturned on Fourteenth Amendment equal protection grounds without having to rely on the marital privacy rights created by Griswold. While Connecticut’s law in Griswold prohibited the use of contraceptives, Massachusetts had laws restricting their distribution. Married people could obtain contraceptives only from doctors or pharmacists by
prescription, while single people could obtain them only to prevent the spread of disease. Massachusetts law was challenged when William Baird gave a speech at Boston University about birth control and overpopulation. He exhibited contraceptives and gave “Emko vaginal foam” to a young woman in the audience, both of which actions were illegal, and Baird was convicted. His conviction for showing contraceptives was overturned by the Massachusetts Supreme Judicial Court on First Amendment grounds, so distribution was the sole issue before the U.S. Supreme Court.

  Brennan found that the statute was a prohibition on contraception per se and ruled that “whatever the rights of the individual to access contraceptives may be, the rights must be the same for the unmarried and the married alike.”15 Yet again, a major Supreme Court decision rested on a naked assertion of opinion instead of legal reasoning. Nowhere does the Constitution require that married couples and single people be treated the same where contraception is involved.

  Brennan then argued for expanding the right to privacy: “If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup.”16

  In other words, Douglas’s rhetoric about the sanctity of marriage was essentially irrelevant. The right to privacy belonged to individuals, not the couple.