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Jewish World Review June 30, 2000 /27 Sivan, 5760

Paul Greenberg

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A confused Court: Once more into the murk

http://www.jewishworldreview.com -- WHEN THE NATION'S HIGHEST COURT is deeply divided, the law tends to be shredded. Who says the Supreme Court of the United States is not a democratic institution? Wednesday's flood of split decisions, with their dissents and concurrences, brash certainties and vague doubts, would seem to reflect the country's own confusions with a remarkable degree of accuracy.

The only thing missing is clarity. It usually lost out by a vote of eight to Mr. Justice Scalia.

The most expected and the most chilling decision had to be the latest landmark on the slippery slope down from abortion to infanticide to ... well, is there any limit in an age of assisted suicide and partial-birth abortion?

There was a time when even to describe this method of abortion as objectively and dispassionately as possible would have left no doubt about whether it had a place in either constitutional law or a civilized society:

"A woman who is pregnant between the fifth and sixth month has the opening of her womb dilated over two to three days. Instruments are then used to reach into the uterus and grab the feet of the fetus. ... The fetus is delivered until only the head remains inside the womb. The operator then uses a knife to make an opening in the base of the skull and a suction tube is inserted into the skull and the brain is sucked out. The skull then collapses, killing the fetus and allowing for delivery of the fetus in one piece'' -- Martin Haskell, M.D., pioneer and advocate of the procedure, in 1992.

It sounds like something translated from the original German -- perhaps in a transcript of the Nuremberg trials. Now the procedure has been upheld by a different court, which has ruled that no state can outlaw or even seriously limit so barbaric a practice.

Not long ago, we were all assured that partial-birth abortion is used only in the rarest cases, and of course we found out that was a lie. It is now most commonly used in the third trimester of pregnancy.

The only surprising aspect of the court's 5-to-4 decision was that Associate Justice Anthony Kennedy sided with the minority, for he's been thought of as a sure vote for abortion in all its forms. But this latest variation seems to have caught his conscience.

Her Honor Sandra Day O'Connor gagged a bit, too, but not enough to join the dissenters. Instead, she tried to find some middle ground between depravity and legality and, as she so often does, disappeared in the murk.

Antonin Scalia's dissent -- concise as it was rational and powerful -- began: "I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child -- one cannot even accurately say an entirely unborn child -- proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.''

But not on the part of this court, or of a society that has largely forgotten how to shudder. We may have only begun to descend.

Talk about confusion: Just the other day the Supreme Court handed down a disturbingly broad decision against any religious expression in the public schools, even though the prayer or testimonial offered might be free and voluntary. Yesterday the court turned around and decided that it's all right for government to supply parochial schools with various technical equipment -- so long as it does so in a "secular, neutral and non-ideological way.''

It's hard to avoid the impression that this court is out to separate religion from public education while mixing church and state finances.

Why, one wonders, stop with government-issue computers or lab equipment in church schools? Why not have the government pay athletic coaches, or English and history teachers, or principals in the parochial schools, too? Always in a "secular, neutral and non-ideological way,'' of course.

It's hard to decide whether the muddy flow of the court's reasoning in such matters represents a greater danger to the church or the state. Which will most influence the other? And will we be able to tell the difference between them as one, vague civil religion emerges? For the goal of all these compromises slowly emerges from the fog of the court's language: state-financed secular religion. Whatever that is.

At least the Boy Scouts escaped the court's confusions. Barely. One may disagree with the Scouts' policy against letting homosexuals serve as troop leaders but still recognize that it's the Scouts' policy, not the government's, to make. This is called freedom of association, and it's stronger today than it was before yesterday's decision -- but only slightly, since this was another 5-to-4 decision.

This wasn't a decision about homosexuality so much as about Americans' rights to form and maintain organizations with their own rules -- including monasteries, lodges, sororities and, yes, even Boy Scout troops. In short, the whole gamut of groups that this nation of joiners joins. When those organizations become public facilities, they may merit public control -- but not before.

Alexis de Tocqueville, that prescient observer of Democracy in America, called these voluntary associations a distinguishing and saving American characteristic -- for they break with the feudal pattern of a single, centralized regime that largely controls all of a society's social and philanthropic activities, sapping popular energies.

For that matter, organizations of homosexuals, too, should be able to determine their own policies -- just like the Boy Scouts.

As expected, the Supreme Court yesterday declined to hear the last appeal on behalf of little Elian Gonzalez. He was on his way out of the land of the free and the home of the wavering well before July the Fourth.

After that ... well, Senorito Elian wouldn't be the first to be turned away from the golden door. Some of the faces aboard the St. Louis, a boatload of refugees seeking asylum from Hitler in the '30s, still haunt. Nor would he be the first to eventually find his way back. Even wearing the uniform of the Pioneers in his little compound in this country, there was a brightness in the boy's eyes that did not bode well for a future career as a robotic member of the Party.

Who knows, maybe when he grows up and gets his doctor's license, he'll be sent to do the Party's work in Africa, where he'll seize the chance to appeal for political asylum once again, and this time a future attorney general might grant it. Even the Clinton administration has just done that in the case of two Cuban physicians. Or young Gonzalez might just hone his curve ball until one day, on an exhibition tour. ... This isn't Adios, Elian, just Hasta la Vista.

It would be foolish to look for some coherent theme in this court's incoherences. Why should it be any less confused than American society?

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