Whose “Conscience”?

Several Facebook friends recently posted the same cartoon: a pregnant woman lying on an examination table getting a sonogram is looking at the machine’s screen as her doctor moves the sensor over her belly. She asks “What’s that other thing in my uterus?”  The doctor replies “The State of Texas.”

The reference is to one of the latest assaults on women, legislation that would require any woman wanting an abortion to undergo a medically unnecessary sonogram. Since the vast majority of abortions occur within the first trimester, when a fetus is difficult to detect, this procedure requires the insertion of a sensor into the uterus through the vagina. In other words, it requires that the woman be penetrated.

In Virginia, proponents of this requirement defeated an amendment that would have required the woman to consent to that penetration.

Words fail.

Let me try to understand where we are, in the brave new 21st Century. It is a violation of religious liberty to require health insurers to offer birth control coverage to women who want it. It’s a violation of conscience to require a pharmacist to dispense birth control to a willing buyer if his religion disapproves of its use. But it isn’t a violation of personal and religious liberty to compel a woman to be penetrated by a device during a medically-unnecessary procedure before she can exercise a constitutionally-protected right to terminate a pregnancy.

We’re lucky women still have the right to vote.

And speaking of voting–the phrase “use it or lose it” has never seemed more apt.

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Irony-Challenged Santorum

In the dust-up over contraceptive coverage, Rick Santorum–along with a number of other GOP (male) elected officials–has condemned the Obama administration’s “assault” on “religious liberty.” This charge has produced some truly ludicrous moments; yesterday, for example, the news was filled with photos depicting the witnesses at a trumped-up congressional hearing into the pernicious effects on religious liberty of the requirement that health insurers cover contraception. The witnesses were all male.

But Santorum easily wins my vote for the most audaciously irony-challenged of these protectors of religious liberty.

Santorum is one of those Christian Nation folks who believes that his religious beliefs should dictate public policy; in his 15th-Century view, violations of religious liberty occur when the law fails to follow his version of God’s plan. Santorum’s God doesn’t like gay people, so Santorum believes the law should deny GLBT folks basic civil liberties, let alone the right to marry. Santorum’s God doesn’t believe in abortion, so no one else should be able to have one, no matter how dire the circumstances or how different that woman’s own belief system.

And with respect to contraception, as a fellow Catholic recently wrote:

“This confluence of politics and religion brings me right to Santorum’s public policy opposition to contraception. In his public (and apparently private) life, Santorum has, in effect, hewed to the Vatican line that so-called “artificial” contraception constitutes an “unnatural” frustration of the natural end of the sex act. But, like most good politicos Santorum hides his Catholic animus to contraceptive rights. Notably, he takes cover in legalisms. He opposed Griswold v. Connecticut—the judgment guaranteeing contraceptive right to married couples—because he disagreed with the Court that right of privacy exists in the Constitution. Beyond its cramped legalism, I find this maneuver devious. Santorum dare not say what truly moves him in this debate—namely his unswerving loyalty to the Vatican’s proscription of “artificial” methods of birth control and family planning as against nature.”

During his tenure in the U.S. Senate, Santorum consistently voted to impose his own religious views on others, and he is admirably forthright about his intentions to “Christianize” America should he be elected President. He is breathtakingly oblivious to the true meaning of religious liberty. (Hint, Rick: religious liberty means that you are entitled to live in accordance with your beliefs, but others are equally entitled to live by theirs.)

I am rooting for a Santorum Presidential candidacy. He is the perfect embodiment of today’s GOP base. If Romney is the nominee, and gets crushed, the Republican base will simply conclude he wasn’t conservative enough. A Santorum-Obama contest would allow the general public to send a decisive and needed wake-up message to the culture warriors who have captured one of America’s major political parties.

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Church and State in Texas

A friend recently sent me a copy of a Court Order approving a settlement in a hotly contested case from a small town in Texas. The Plaintiffs had complained that the school corporation engaged in pervasive and unconstitutional religious activities over a period of years–prayers over the loudspeakers, constant religious references by the Principal, prayers at athletic contests and graduation ceremonies and more. Students who complained were disciplined.

The judge’s opinion–especially the unusual “Personal Note” that he added–are worth reading in their entirety; the Personal Note appears below. His Appendix–which is not reproduced, but is also accessible on line–is a first-rate history of church/state relations through American history. I particularly appreciated the opening section of the Opinion, “What this case was NOT about,” in which he made a point not sufficiently emphasized: any child can pray in school at any time. The issue is whether public school officials–arms of the government–can promote or require that prayer.

Americans United for Separation of Church and State issued a press release detailing the major elements of the settlement:

* School district personnel will not display crosses, religious images, religious quotations, Bibles or religious texts, or other religious icons or artifacts on the walls, hallways, and other areas at the school.

* The district will not invite speakers, including government officials or community leaders, whom it has reason to believe will proselytize or promote religion during their remarks.

* The Medina Valley High School student handbook will contain a section on students’ rights to religious freedom, including the importance of respect for and tolerance of students from all backgrounds and the specific procedures for registering a complaint with district personnel about violations.

* The district will provide annual training to all district personnel who interact with students or parents or who supervise those who interact with students or parents. The training will cover a variety of topics related to students’ rights and church-state separation.

The release clarifies the terms of the agreement, but it’s only when you read the brief “Personal Statement” the Judge appended that you really appreciate the nastiness of the controversy, and the tenor of the “debate” conducted by the “religious” folk involved.

“A PERSONAL STATEMENT

During the course of this litigation,many have played a part:

To the United States Marshal Service and local police who have provided heightened security: Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination:In His name,I forgive you.

To those who have prayed for my death: Your prayers will some day be answered,as inevitability trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals:You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients’ respective positions:Bless you.”

What Governor Christie Doesn’t Get

Yesterday, the New Jersey Senate voted to recognize same-sex marriage. Indications are that the Assembly (the lower house) will do likewise. Meanwhile, an equal-protection lawsuit is working its way through the New Jersey courts; it would be mooted by this legislation.

Governor Christie has vowed to veto the measure–no surprise. But his professed reason means he is either dishonest or constitutionally ignorant.

Christie says he’ll veto the bill because so important a matter should be subjected to popular vote.

In the United States, we don’t get to vote on other people’s rights. The whole reason for the Bill of Rights was to protect minorities–not just members of different races or religions but people with unpopular ideas or different ‘lifestyles’–from unequal treatment by the government even when a majority of citizens wanted government to treat those minorities unequally. The Bill of Rights is what we call a “counter-majoritarian” instrument; it protects our individual rights against the passions and prejudices of the majority.

Perhaps Governor Christie should consult the famous explanation by Justice Jackson in West Virginia Board of Education v. Barnett. 

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

(Of course, in a consistent world, this principle would also apply to state legislatures. No one would get to vote on whether another citizen was entitled to equal rights. But in case it has escaped notice, this is not a consistent world. In any event, as my mother used to say, two wrongs don’t make a right.)

I don’t get to vote on the Governor’s rights, and he doesn’t get to vote on mine. If the legislature doesn’t override his threatened veto, the courts eventually will. That’s not “judicial activism.” It’s application of a bedrock constitutional principle.

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