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Jewish World Review June 26, 2000 /23 Sivan, 5760

Don Feder

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GOP justices betray Constitution -- REPUBLICAN NATIONAL COMMITTEE CHAIRMAN Jim Nicholson is plainly provoked by the Supreme Court's latest prayer decision. Nicholson fumes, "Six of nine justices have chosen to severely weaken the First Amendment's explicit guarantee of freedom of religious expression."

But, fear not. The next president may name as many as three justices, Nicholson reminds us, "just one more reason to vote George W. Bush for president."

Has the chairman forgotten that two-thirds of the court's anti-religious expression majority were nominated by presidents of his party?

In Santa Fe Independent School District vs. Doe, the Court held an invocation before a football game, initiated and led by students, constitutes an establishment of religion.

Writing for the majority, Justice John Paul Stevens (a Ford legacy) declared the First Amendment does not allow a school to give students "the choice between whether to attend these games or risk facing a personally offensive religious ritual." Imagine the trauma the secular must suffer when hearing the Almighty invoked in a public forum.

Once, the Court was content to say government must not initiate prayer. Now, it requires the state to intervene to stop prayer that it suspects might take place in a public setting.

What about all of those other state-sanctioned, offensive rituals, like compelling atheists to handle currency with the motto "In G-d We Trust" or forcing the spiritually squeamish to endure hearing "One nation under G-d," when the Pledge of Allegiance is recited?

In the 6-to-3 decision, it was Republican nominees -- Stevens, Sandra Day O'Connor, David Souter and Anthony Kennedy -- who continued the ritual mutilation of the First Amendment.

It's not just prayer where the court's "centrists" have gone haywire. In their concurrent opinion in Planned Parenthood vs. Casey (1992), Kennedy, Souter and O'Connor found a new and novel way to enshrine abortion.

The right to abortion is based on "personal dignity and autonomy," the justices proclaimed. "At the heart of liberty is the right to define one's own concept of existence ... and of the mystery of human life." Thus the justices fashioned a free-floating right not connected to any provision of the Constitution.

In Romer vs. Evans (1996), the Santa Fe Four rode to the defense of unnatural acts, striking down a voter-enacted amendment to the Colorado Constitution barring the state from passing anti-discrimination laws based on bedroom behavior.

Justice Antonin Scalia called the amendment "a rather modest attempt ... to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores."

Nevertheless, discerning that the amendment was motivated by "animus" toward gays, the court's Republicans struck it down as incompatible with the Constitution's anti-animus clause.

We've had Republican presidents for 12 of the last 20 years. They gave us exactly two reality-based justices -- Scalia and Clarence Thomas.

On police powers and racial quotas -- battles which have largely been won -- Republican nominees are saner than the court's Democrats. On the left's corruption of the culture, on radical individualism at the expense of decency and community, and on the protection of the most vulnerable among us, a majority of the Court's Republican nominees are squarely in the enemy camp.

In his book "Slouching Toward Gomorrah," former federal appeals court judge Robert H. Bork explained the dynamic: "Republican presidents have appointed justice after justice with the avowed intention of changing the Court's direction. ... Most of those appointed turn out not to be restrained or started that way but then, having no firm judicial philosophy, migrate to the left."

Not that Republicans really try that hard. Reagan tapped O'Connor because he wanted to nominate a woman, never mind her pro-abortion record. After the borking of Bork, Bush wanted an easy confirmation and picked Souter with eyes wide shut -- relying entirely on New Hampshire's liberal Republican Sen. Warren Rudman.

Even assuming George W. cares about judicial restraint (he did file a brief on behalf of the school district), his election probably will have zero impact on the Court's anti-Constitutional drift.

JWR contributing columnist Don Feder's latest book is Who's Afraid of the Religious Right. Comment on his column by clicking here.


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© 2000, Creators Syndicate