Supreme Court Clear Cuts State Health and Safety Protections for Women

You were in the workshop, using your router on wood that you intended to incorporate in a lovely accent table in your formal living room. As so many of us have done, you failed to wear safety glasses or goggles. You bent low to follow the line that your router bit cut into the wood. Then, suddenly, you are clawing at the painful wooden bits that spewed onto your face. Unfortunately, some of the wood chaff got in your eyes.

Rinsing with water did not resolve your problem. You and your spouse hope into the car and head to the local freestanding urgent care center. After registering and waiting, you wait for about 30 minutes. When a staffer at the clinic calls you back, you confront an ugly scene in your treatment room.

Filth: Gosnell's way of practice

Ceiling tiles and insulation have fallen.

A leaking ceiling drips into a plastic bin.

In the corner near that counter a bucket of water sits, with an electric water heater suspended in the bucket. You look inside the bucket and notice a small collection of medical surgical instruments.

The tiny, tawdry, filthy treatment room seems spacious by comparison with the hallway leading from the waiting room to it. In that hallway, you could

Water heating in a bucket to "sterilize"
Gosnell's Surgical Instruments

not walk side by side with your spouse.

When the doctor finally enters the treatment room, he looks a great deal like a cross between Mel, the short order cook from the old TV series “Alice,” and a Bugs Bunny caricature of a witch doctor. You find it odd that he is smoking while he examines you. Because he has not donned gloves, you observe the dark crust under his fingernails. He coughs spasmodically, and you remember hoping that the cough evidences a longtime habit of smoking, rather than some communicable illness.

Who in their right mind would allow the doctor to take a pair of tweezers from the counter, after digging them out from under the ceiling tiles and insulation, and begin removing wood flecks from their eye?

Cramped Procedure Room at Gosnell House of Horrors

Maybe cautious living, up until the woodworking accident, contributed to your longevity? Perhaps you are the sort to research a doctor on the internet, and to look for evidences of medical licensing, and health and safety inspections, before even considering allowing something important, like your self, to undergo such an intimate kind of touch by a complete stranger?

Got Germs? Gosnell apparently set a low bar
for environmental concern in the office

The fact is that, in Texas, if you sought a surgical procedure of the kind that can be done on an outpatient basis at a freestanding clinic, you would not have confronted the conditions I described above. Instead, because of a regime of health and safety laws and regulations, the center described above would be closed. 

Texas requires a clean environment for the provision of such care. Here's the basic regulatory framework for ambulatory surgical centers in Texas:

(a) The ambulatory surgical center (ASC) shall have the necessary personnel, equipment, and procedures to handle medical emergencies that may arise in connection with services sought or provided. At a minimum, the ASC shall provide:

  (1) periodic instruction of all personnel in the proper use of safety, emergency, and fire-extinguishing equipment;

  (2) procedures, including adequate surveillance techniques, that minimize sources and transmission of infections;

  (3) a comprehensive emergency plan to address internal and external emergencies, including:

    (A) a provision for the safe evacuation of patients during an internal emergency, especially patients who have difficulty walking;

    (B) a provision for the most efficient use of available facilities and services during an external emergency; and

    (C) a requirement for at least four drills a year of the internal emergency plan.

(b) Hazards that might lead to slipping, falling, electrical shock, burns, poisoning, or other trauma shall be eliminated.

(c) Facilities shall be clean and properly maintained.

(d) An emergency call system shall be provided and readily accessible to staff and patients in all areas of the facility.

(e) All equipment, including emergency equipment, shall be properly maintained and periodically tested.

(f) There shall be a system for the proper identification, management, handling, transport, treatment, and disposition of hazardous materials and wastes whether solid, liquid, or gas.

  (1) This system shall include, but is not limited to, infectious, radioactive, chemical, and physical hazards.

  (2) The system shall provide for the protection of patients, staff, and the environment.

(g) An ambulatory surgical center shall meet the requirements set forth by the department in §§1.131 et seq. of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities).

(h) Sufficient space, equipment, and supplies shall be provided to perform the volume of work with optimal accuracy, precision, efficiency, and safety in the laboratory and x-ray. The ASC shall furnish equipment for basic diagnostic purposes, depending on the extent of services provided. Dressing area(s) shall be required, depending on services provided, with convenient access to toilets, and may be shared with patient changing/preoperative rooms

Yes, it is stunning, isn't it? 

All these outpatient clinic categories are subject to
health and safety regulations ... but not abortion businesses

As you read these requirements, knowing that a plastic surgeon enhancing your nose must meet these requirements but an abortionist terminating a pregnancy need not do so, you realize just how far afield the justices of the Supreme Court have wandered.

Just as with basic health and safety, Texas requires basic, frankly commonsense, minimum standards for construction. For example, the architectural review conducted by the State’s Health and Human Services Commission would insure that internal hallways leading to treatment rooms would be wide enough to accommodate a stretcher so that, if an emergency arose, a patient could be retrieved by emergency personnel and quickly transported to a hospital for possibly life-saving care.

In case you were not aware of the facts, most of the nightmare of filth and danger described in the opening paragraphs above are not the fruit of a vivid imagination.

Instead, those “hypotheticals” are drawn from the very real conditions of a Pennsylvania abortion business run by Doctor Kermit Gosnell. Dr. Gosnell, you may recall, is spending the last of his days in prison. His role in murdering children born alive and causing women to die and/or suffer permanent scarring is the story of the filth, disorder, and dangers in the paragraphs above. In fact, the pictures accompanying the paragraphs above were taken from the evidence in his trial.

Today, five black-robed magicians testified in unison that the States have no legitimate interest – not in the lives, safety, and health of women that may seek or obtain abortions – in preventing other Kermit Gosnells from maintaining medical houses of horrors across Texas. Ass. Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined Ass. Justice Breyer in a decision striking down two provisions of Texas law enacted by the Texas Legislature in 2013. The case was Whole Women's Health vs. Hellerstadt.

In 2013, Texas passed new statutory requirements for abortion services in Texas. Two requirements became the subject of a lawsuit that led to today’s Supreme Court decision. Texas amended its health laws to require that physicians performing surgical abortions have “admitting privileges” at hospital within the vicinity of their practice. Texas also extended public health and safety regulations that already applied to all other outpatient surgical businesses.

No! The temerity of Texas!

Ambulatory surgical centers that participate in Medicare, for example, are required by federal law and regulations to meet a similar admissions standard. “To further protect patient safety, ASCs are also required to have an effective means of transferring patients to a hospital for additional care in the event an emergency occurs.Written guidelines outlining arrangements for ambulance services and transfer of medical information are mandatory. An ASC must have a written transfer agreement with a local hospital, or all physicians performing surgery in the ASC must have admitting privileges at the designated hospital.”

The answer is obvious:

None. 

Each of the justices is the product of remarkably similar LEGAL training. None of the current justices holds joint degrees in law and medicine. None of them possesses any relevant training or specialized experience that suggests that their collective judgment about patient health and safety and standards of medical care is trustworthy at all, let alone more trustworthy than a legislative body to which the determination of such questions is reserved by the federalism embodied in our Constitution.

In the same way that requiring admitting privileges is eminently reasonable and well within the public health and safety regulatory power of States, requiring abortion businesses that provide abortion services in the office to meet basic requirements of sanitation, environment, safety, and health is also eminently reasonable. In fact, virtually every State (outside the context of abortion businesses) requires ambulatory surgical centers to meet such basic requirements.

So what about the idea of requiring that doctors that perform so-called “ambulatory surgery” to have admitting privileges at a nearby hospital? Was that some outsized and burdensome hurdle invented by rabidly “anti-choice” representatives in the Texas Legislature?

In fact, the American College of Surgeons adopted a set of ten “core principles” for office based surgery. The fourth of the core principles states: “Core Principle #4 – Physicians performing office-based surgery must have admitting privileges at a nearby hospital, a transfer agreement with another physician who has admitting privileges at a nearby hospital, or maintain an emergency transfer agreement with a nearby hospital.” You can find that Core Principle on the American College of Surgeons in its “Statement on Patient Safety Principles for Office-Based Surgery Utilizing Moderate Sedation/Analgesia, Deep Sedation/Analgesia, or General Anesthesia.”

California was one of the first State’s to liberalize abortion restrictions before the decision in Roe v. Wade. The State government and bureaucracy are hardly bastions of pro-life sentiment. California thinks that surgeons that perform outpatient surgery should have hospital admitting privileges. In fact, accreditation depends on ambulatory surgical centers “a written transfer agreement with a local accredited or licensed acute care hospital” and on only permitting “surgery only by a licensee who has admitting privileges at a local accredited or licensed acute care hospital, with the exception that licensees who may be precluded from having admitting privileges by their professional classification”

Even Consumer Reports considers hospital admitting privileges an important consideration in selecting a doctor. In their online report, “How to Find a Good Doctor,” Consumer Reports offers a collection of nine factors to consider in selecting a doctor. The second criteria (only after insurance coverage), Consumer Reports advises, “Your choice of doctor can determine which hospital you go to, if needed, so find out where the doctor has admitting privileges.”

Now, with respect to admitting privileges, the question must be asked: With what specialized training and experience in medical care, and in patient health and safety, are the justices of the Supreme Court invested? How is that judicial body better situated than a State’s legislature to make the necessary kinds of judgments that are, necessarily, legislative in character, as with crafting statutes setting standards for medical care?

Yet the same dusky solons that know better than the medical community on the topic of hospital admitting privileges concluded that it knows better than Texas about the need for health and safety regulations of abortion businesses.

We live in a time when laws being made at the Supreme Court is so commonplace that few outside the pro-life community are likely to be perturbed at today’s decision. 

Still, when you go to get the wood scraps scraped from your eye, you will expect a reasonable standard of care, a modicum of cleanliness above men’s gas station restrooms, and available specialized care if your treatment results in an emerging medical crisis. And because all you are doing is having wood scraps removed, you’ll find your legitimate expectation is usually satisfied. If, on the other hand, you were going to have your offspring scraped from within you and disposed of as medical waste, you will be at the hazard of the next Kermit Gosnell, and for that, be sure to thank the Ass. Justices of the Supreme Court.

Court Rejects Once-a-Month Bill of Rights

Eric Segall has an article on the Daily Beast that seems to suggest that, given the chance, the Supreme Court would reverse a decision out of the US Court of Appeals in Washington. The DC Circuit, in a split 2-1 vote, struck down DC's “one gun a month registration rule.” Limiting gun registration to one a month effectively limits additions to an individual's gun safe to one a month, because such guns have to be registered.

The recent decision reflects the continued battle by Dick Heller to vindicate his rights under the Second Amendment. While the three judge panel upheld six gun regulations in what was, once, the Murder Capitol of the United States, the Court struck down a rule that only one gun a month could be registered with the City.

Taking cases to the Supreme Court is what attorneys do ... when they are paid well, or when they work on hotly contested issues of public policy.

I know.

I did exactly that for twenty five years, including twenty one years as Senior Counsel with the American Center for Law and Justice. Still, a good attorney knows when to call it quits, when not to suggest that his client spend money that will, essentially, be wasted. Segall apparently thinks an attempt at Supreme Court review would not waste the time and money expended.

One of the tasks of attorneys that regularly practice before the Supreme Court – a task I undertook many times for my employer – is to evaluate the facts of a case, the condition of the law on a subject, and the opinions and decisions of the justices of the Supreme Court, so that a client has the most well-informed basis on which to decide whether to pursue review of their case at the Supreme Court. That kind of consideration makes lots of sense, just given the costliness of seeking Supreme Court review. Depending on legal fees and the costs of printing and service of legal documents, a request to the Supreme Court to review a case can cost into the six figures. Just the preliminary stage of asking for review can run that high.

Obviously, issue organizations, the one I worked for, and others, like the ACLU, the NRA, the NAACP, raise significant funds to carry such cases to the Court, and carefully select cases for the purpose of winning strategic decisions from the Court. Segall’s post urges the District of Columbia and gun control advocates to go all in on this particular case. His advice rests on two principal points.

First, in his view, the temper of the times is quite different today than nearly a decade ago when the Supreme Court issued its decision confirming that the Second Amendment protects an individual right to keep and bear arms. Segall’s post suggests that the school and public shootings and the public temper resulting from them puts the Court in a different position than when the Court decided Heller. Until District of Columbia v. Heller, gun control advocates persistently claimed that cities, States, and the federal government had a free hand in regulating, restricting, even prohibiting gun ownership, because, as they saw the matter, the Second Amendment only protected the right of States, rather than the rights of individuals. Heller rejected that view.

Second, Segall asserts, because the restriction that the DC Circuit struck down only regulated the pace of gun purchasing and accession to a private owner’s “armory,” it is different in its essential character. On that point, of course, he is not entirely wrong. There is a none-too-subtle difference between telling a man he cannot own a single weapon and telling him that he may only register one gun a month with the District. If that rule had been in place since the day the first Heller decision came down, and a gun enthusiast had wanted to do so, he could have added nearly 75 handguns to his Washington, DC, based collection in the intervening period. So, sure, there is a difference between restricting and forbidding.

The judges that struck down the one a month rule explained their decision as follows:

The District has not presented substantial evidence to support the conclusion that its prohibition on the registration of “more than one pistol per registrant during any 30-day period,” D.C. Code § 7-2502.03(e), “promotes a substantial governmental interest that would be achieved less effectively absent the regulation.” []

It is therefore unconstitutional.

The District argues that the limitation could reduce gun trafficking and that it would further promote public safety by limiting the number of guns in circulation, as the District “could reasonably conclude that more guns lead to more gun theft, more gun accidents, more gun suicides, and more gun crimes.” 

As for the District's first argument, what little expert testimony it presented indeed indicates that limiting gun purchases in turn might limit trafficking in weapons. The experts' conclusion that limiting gun registrations would likewise reduce trafficking is, however, unsupported by the evidence.  For example, Chief Lanier stated "[s]tudies have shown that laws restricting the registration or purchase of multiple firearms in a given period are effective in disrupting illegal
interstate trafficking of firearms."  Yet the only study she and the District's other witnesses cited has nothing to do with "laws restricting registration[.]"

One of the experts also testified from his own observation that w hen Virginia limited firearm purchases to one every 30 days, fewer guns bought in Virginia were used in crimes committed in the District; traffickers , he observed, instead sourced more guns through straw purchasers in Maryland. But even if this is true, t he suggestion that a gun trafficker would bring fewer guns into the District because he could not register more than one per month there lacks the support of experience and of common sense . Indeed, as Heller notes, even Chief Lanier acknowledged that the efficacy of purchasing limitations in preventing trafficking may have little bearing upon the efficacy of registration limitations in doing so. 

As for the District's second argument, one of its experts testified that, in his opinion, "the most effective method of limiting misuse of firearms, including homicide, suicide, and accidental injuries, is to limit the number of firearms present in a home."  Accepting that as true, however, it does not justify restricting an individual's undoubted constitutional right to keep arms (plural) in his or her home, whether for self - defense or hunting or just collecting, be cause, taken to its logical conclusion, that reasoning would justify a total ban on firearms kept in the home.

Now as to the temper of the times being different today, Segall forgets, or ignores, that the Supreme Court decided Heller in 2008. The case was briefed by the parties, the case was argued before the Court, the justices conferenced their views, and the Court issued its decision in the immediate aftermath of the 2007 mass shooting at Virginia Tech. The shadow of Columbine stretched out too, though it was nine years since that shooting. The immediacy of the Virginia Tech shooting, however, belies the notion that more recent shootings make for a different social construct today.

Against the DC Circuit’s reasoning, Segall contends that now is the time to act, to pursue review in the Supreme Court, and to do so with his seeming expectation that the Court would overturn the decision of the DC Circuit and affirm the power of municipalities like DC and, presumably, States, to restrict the pace of gun purchasing by individual gun owners.

Segall expressly invokes a notion popularized by Mark Tushnet, a professor of constitutional law, about the kinds decisions one is likely to see issued by the Supreme Court. Tushnet’s view, simplified, is that, if you cannot imagine a New York Times headline reporting the outcome of a Supreme Court case, then it is likely the Court would not issue the decision.

Tushnet’s theorem, however, is not so nearly helpful a tool as Segall believes.

A few examples suffice to show what is wrong with the theorem. Remember that the notion is, if you cannot imagine the decision of the Supreme Court as a headline on the New York Times, then it is unlikely the Court would render the decision.

Yet, the Supreme Court struck down the laws of virtually every State in the Nation, and its first decision on the topic of abortion, created a legal vacuum in which women were free to have an abortion at anytime during the ninth months of gestation, and for any reason at all, or for no reason whatever.

Could you picture, back in time, the New York Times publishing the headline:

“Supreme Court Greenlights Killing Babies Day Before Scheduled Delivery”

or

“Constitution Guarantees Right of Women to Murder Children”

Well, no, you probably could not. 

Travel back to the eve of the last century. We are in an era following a bloody civil war that cost nearly half a million lives and, in today’s value, Eighty Billion Dollars in plundered wealth. The war ended, the Nation undertook its long, slow healing, beginning with the addition of three amendments to the Constitution. One of those amendments, the Fourteenth, contains the first, and only, express requirement that governments must guarantee to all their citizens the equal protection of the law. In that clime, how likely would you consider a headline such as this one:

“Negro Complaints Over Segregated Train Cars Have No Merit, Supreme Court Rules”

or

“In 9-1 Decision, Court Holds Equal Protection Does Not Require Equal Treatment”

Although the “Greatest Generation” is fading into memory by the minute, could men and women that lived alongside, worked with, did business with, Americans of Japanese descent imagine a headline such as this:

“No Harm, No Foul: Locking Up Japs Without Due Process A Necessary Tool In War Time.”

Of course, in these cases, and in most every one that the Court ever decides, there is more than one way to describe what it is that the Court is doing. For example, in the Roe v. Wade case, it could be easily imagined that the New York Times might run a headline such as this one:

“Abortion Ban Denies Women Due Process of Law.”

Or, in the era of Jim Crow laws, one could imagine a headline saying,

“Constitution Does Not Prohibit States From Regulating Private Contractual Relationships.”

Or, in the aftermath of Pearl Harbor, one could easily picture a headline such as this one:

“Temporary Relocation Protects Japanese Americans From Danger, Provides Port Security.”

You see, I think, the problem with a tool like Tushnet’s. Every circumstance in life can be described in more ways than one. If one version of a story makes a plausible headline, then the Court might take a case that produces such a headline? There are better ways to predict what cases the Supreme Court will take to review. Imaginary headlining is not typically a line item in a lawyer’s billing to his client.

So, in this case, Segall says, “Strike now, while the iron might be hot.” Perhaps he correctly reads the temper of the Court. Perhaps a petition from review, asking the Court whether a government can legitimately restrict a citizen to the exercise of a constitutionally protected right to a periodic occurrence of one time a month. Perhaps the Court would uphold a City ordinance limiting demonstrators to one protest a month. Perhaps the Court would uphold a federal statute guaranteeing an accused to representation by counsel once a month. Perhaps the Supreme Court would sustain a state law limiting the New York Times to a schedule of once a month publication.

Yes, guns are different.

Yet, a persons rights with respect to guns, their ownership, and their availability to them as a tool of political participation, are full partners in the Bill of Rights, and in the essential rights of man.

Segall can imagine the Court taking a case in which it would affirm limits on the periodic addition of weapons to one’s personal armory. I can too. But only because I do not find it difficult to imagine a Supreme Court unhinged from the Constitution, unconnected to the natural law that the Bill of Rights respects, and too full of its purpose and mission to realize how its aberrations of law foment political and social instability.

A Satchel of Embarrassments: Opinions for Which Justices Should Be Ashamed

Allow me to diminish myself in your eyes by making the following observation:

Of sitting Justices on the Supreme Court, two are genius writers/editors: Antonin Scalia and Clarence Thomas. Truth be told, I think Thomas is far and away the better of the two. But Scalia knows how to pack a punch, and when not to hold one, too.

His dissent in Obergefell v. Hodges, the decision imposing a constitutional duty to recognize same-sex marriages under the Fourteenth Amendment, contained a plaintive cry, a confession, that if he should ever join an opinion of the kind represented by the Court's majority in Obergefell, he would hide his head in a bag:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. 

That quoted portion, "The Constitution promises liberty to all...," is taken from the opening paragraph of the majority's opinion. That opening reads as follows:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex. 

The quotation and the majority opinion containing it came from the mind of Anthony Kennedy. Scalia's remark certainly seems to suggest that Kennedy ought to be hiding his head in a bag.

Mind you, if a Justice serves for a decade, he will have the opportunity to join, write or dissent from perhaps as many as a thousand opinions issued after briefing and argument. Were I a justice on the Court, I would hope that I would get it right every time. Yet, Scalia's "head in a bag" comment put me to thinking. Setting aside considerations such as overall quality of a justice's service, which Justices would make my top ten list for the Scalia "head in a bag" category, the justices whose opinions ought to have embarrassed the authors into silence, or early retirement?

The problem with a list is that it will reveal the biases of its creator. The value of a list is that it may reveal the biases of its critics. If you have been following JimsJustSayin for a while, you know that I do not make a secret of my biases.

To be clear, a justice can sometimes go awry, off the beaten path. You may find a justice here that you think highly of, as a constitutionalist, as a libertarian, etc. This list is NOT my list of the TEN WORST JUSTICES EVER. This list gathers those justices who should definitely have put their head in a bag after authoring a particular opinion for the Court.

Two examples illustrate my meaning. I've included Justice Stephen Field, although he is clearly an excellent economic libertarian. He would not ever appear on my list of the worst justices. To the contrary, Harry Blackmun, who appears in the bag of this blog, would definitely be on that list of the worst justices. He was an overwrought and semi-competent researcher and not a powerful writer.

This task has required more extended writing. I have, for that reason, broken the post into separate parts. Each Justice in the Satchel of Embarrassments has a separate blog entry, you will find links to those entries, with a brief synopsis, below.

So dig in. Here, in reverse chronological order are the Ten Justices whose heads most certainly belong (or belonged) in bags, together with a brief sketch of the decision by each justice that warrants dropping their head into a bag:

Anthony Kennedy (Obergefell v. Hodges)

Justice Kennedy authored the opinion for the Court in Obergefell v. Hodges. He wrote the words, quoted by Justice Scalia, "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,"

John Roberts (National Federation of Independent Business v. Sebellius)

Roberts misread and misrepresented the Shared Responsibility Payment by calling it a tax. His intentional twisting of the statute did not constitute the ordinary meaning to be accorded to the language of the provision. In fact, he refused to say whether his twisted reading of the statute was anything other than a "fairly possible" reading. Worse, having concluded that the penalty was a tax, and thus within the power of the Congress, Roberts committed a further error.

Harry Blackmun (Roe v. Wade)

Blackmun's opinion in Roe v. Wade combines the worst in historical research with the worst in constitutional interpretation. It is, I'm sure, coincidental, but Blackmun's opinion for the Court in Roe v. Wade opens with language strikingly similar in tone and florid appeal to Kennedy's opening in Obergefell. Blackmun wrote:

"We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion."

Hugo Black (Korematsu v. United States)

Justice Black, though a KKK member earlier in life, often stood for civil liberties in a class alone, as an absolutist. Nonetheless, in this case, arising from the Japanese Exclusion Orders, Black authored dark chapter in our history, and made an indelible stain of racism on himself.

Robert Jackson (Wickard v. Filburn)

Justice Jackson wrote Wickard v. Filburn, and in doing so, he crafted a rule by which the power of the federal Congress to reach deeply into highly local, intra-State activities was established. That rule, the rule in Wickard v. Filburn, in a case from 1942, is relevant today as Americans wonder how Congress acquired the power to coerce them to purchase health insurance.

Oliver Wendell Holmes (Buck v. Bell)

Justice Holmes affirmed the constitutionality of Virginia's program of forced sterilization for the handicapped. His reasoning suggests that, because society chooses to create a social safety net, it can impose on those that fall into the net such "smaller sacrifices." It is no wonder that Nazi doctors invoked Holmes' reasoning to try (unsuccessfully) to avoid conviction for their identical program of forced sterilization. One might say, three generations of imbecilic Supreme Court opinions is enough.

Stephen Field (Chae Chan Ping v. United States)

Justice Stephen Field, a brilliant jurist, committed his constitutional foul ball in a case that recognized, for the first time, a power of the Congress to control immigration as part of the sovereignty of the United States federal government. What Justice Field omitted from his opinion was an actual provision of the Constitution granting Congress such power to exclude foreigners.

Horace Gray (Elk v. Wilkins)

Justice Gray makes his way into the Bag of Shame, shiny pate and all, because when he had the opportunity to give to the Fourteenth Amendment its plain, textual and natural reading, he did not do so. Rather, he strained at the Clause's obvious language to produce a decision in many ways indistinguishable from Dred Scott v. Sandford, except that Dred Scott at least predated the Fourteenth Amendment.

Roger Taney (Dred Scott v. Sandford)

Taney's conclusion, that even free born blacks were not, could never be, citizens of the United States or of the States, helped to precipitate the Civil War. His conclusion that Congress could not regulate slavery in the territories risked de-legitimizing Congressional regulation of the slave trade in the territories. It took a Civil War and two amendments to the Constitution to eradicate Taney's stain on the Constitution.

John Marshall (Marbury v. Madison)

John Marshall laid the groundwork for the rise of the Supreme Court from a separate, co-ordinate, and equal branch of the federal government, one described in the Federalist No. 78 as "the least dangerous branch" to "the most dangerous" one. 

Looking Back: July 2014 on JimsJustSayin

He's George Takei and It's Okay ... For Him to Be Wrong 

Ensign Sulu, I won't tell you how the Enterprise slipped into a worm hole, and you don't tell me  how the Free Exercise Clause and Religious Freedom Restoration Act work.

A False Claim and A True Bill 

Like all sensible folk, I wasn't watching the Sunday morning talk shows when UN Ambassador Susan Rice appeared on all FIVE network shows.  So, until it was reported later that day and in subsequent days, I did not know that the Administration was asserting that the attacks on our Benghazi compounds resulted from a spontaneous response by people of Islamic faith who were offended by a YouTube video deemed blasphemous of Islam.

Boehner's Boner: Ineffectual Parenting of the Boyking 

If Boehner wants to do his job, he needs to forget about suing the President. Even if he can get every Republican in the House to authorize the suit, the federal courts will, ultimately, throw the suit out (a) because of lack of legal standing to sue, or (b) as presenting a non-justiciable political controversy.

Devising a Code of Conduct for the Supreme Court? 

Adopting yet another federal law -- the resort of scoundrels as a general rule -- rather than deploying the law as it exists now, is not the answer.  It is, however, in keeping with the temper tantrums of our times.  Rather than proceeding on Articles of Impeachment, the proposed solution is to adopt a statute.

DREAM Act Birds Come Home to Roost 

We are three days past Independence Day.  I hope, nonetheless, that you will recognize that usurpation of legislative authority by King George III constituted the principal basis for our rebellion against English tyranny.  Obama's tyranny is no less offensive to the republican self-government to which our Declaration aims, our State Constitutions frame, and our National Constitution commits.

Stolen Page from the Obama Diary, July 9, 2014 

Dear Diary, I visited the border today.

Why Having Two White Parents That Remain Together Through Life Is Sucky 

The fact is, having one black parent is good enough to make Barack Obama America's first "black president."  So what that he didn't know his father?  So what that his father bedded and illegally wedded Barack's mother?  So what that his father's influence in his life is an after the fact construct for a book ghost written for a future president by a past domestic terrorist?

Bob Goodlatte vs. Alexander Hamilton: Why Obama Can Be Impeached 

That Goodlatte believes that the basis for impeaching Obama does not exist leaves me with a dread sense that the one truly representative body of our federal government is captained by the ignorant or the damned.

Senate Prefers Pandering Over Responsibilities of Office 

Not heard in the background of that noise are the soft crunching of gravel under boots as American service members walk into, through and beyond dangers on virtually every continent.  Ignored in the press to do this entirely sophistric act of legislative Kabuke theater are the pleas of communities along the southern border to act to reduce the tidal wave of illegal entries into the United States, along with the warnings of those with reason to know that the flood is not just of those seeking a better life here, but also includes, or is at risk of including, those who meld into the flood, so that, on entry into the best and brightest hope of mankind on earth, they can bring terror to the people whose interests have been sacrificed in the Senate in the interest of partisan politics.

A Tale of Two Courts 

With news of federal appeals court decision out of Washington, DC, in the morning on July 22nd, I thought, "this is the best of times."  By the time the day had ended, and word came of another appeals court's decision on the same issue out of Richmond, Virginia, I thought "this is the worst of times." 

The War Between the States Isn't Over ... Next, We Face A Monumental Question

 As we move deeper into the battle over the display of Confederate flags, the maintenance of statuary and other memorials honoring Confederate dead, we can pretend that we are entering into uncharted waters, and have no way to plumb the depths of disruption that permitting the battle to proceed will entail.

Or, we can examine the history of thirty years persistent and unending attacks by groups such as the Freedom From Religion Foundation, the American Civil Liberties Union, and, yes, Westboro Baptist Church on public displays of monuments depicting the Ten Commandments. If we choose to study the past, we may not be condemned to relive it through this latest iteration of attacks on our common, and yes, dare I say it, Judeo-Christian heritage.

There has been a Thirty Years War on Ten Commandments displays in public places. The public notoriety of that War arose with the Supreme Court’s decision finding unconstitutional a statute requiring the posting of the Ten Commandments on the walls of every classroom, in every school building, in every school district in the Commonwealth of Kentucky. Then, in Stone v. Graham, a 1980 decision of the Supreme Court, the Court, in an unsigned opinion, concluded that the intended result of the ubiquity of the displays of the Commandments was disconnected from any legitimate pedagogical purpose.

That observation compelled the Court to conclude that the statute violated one of the tests the Court uses to measure whether government actions violate the constitutional prohibition against Establishments of Religion. The Court’s decision did not, however, project an absolute prohibition on all possible public displays of the Ten Commandments. Rather, the Court relied on the absence of a pedagogical purpose in the pervasive display:

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. [] Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commanadments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.

Subsequently, many cases have been brought in trial courts, and numerous appeals heard by the federal courts of appeal, on issues related to public displays of the Ten Commandments.

At the Supreme Court, however, the issue has only recurred in three additional cases. In one case, McCreary County v. ACLU, the Court concluded that a display of the Ten Commandments as part of an interior display in a public building violated the Establishment Clause. In the other two cases, the Court’s decisions permitted the continuation of the displays. In Van Orden v. Perry, the Ten Commandments were depicted on a public monument on display on the State Capitol grounds in Austin, Texas. In Pleasant Grove City v. Summum, the Ten Commandments were depicted on a monument in a city park.

Pleasant Grove City v. Summum is a case with which I am quite familiar due to my role as co-counsel for the City in their case at the Supreme Court.

During the skirmishes over the public display of monuments containing depictions of the Ten Commandments, I provided research and editing assistance to my learned co-counsel, Walter M. Weber when we were representing Pleasant Grove City, Utah. Back then, Pleasant Grove City, had been ordered by the US Court of Appeals for the Tenth Circuit in Denver, Colorado, to immediately allow a religious organization, Summum, to erect a monument in the City's Pioneer Park. The Tenth Circuit's decision proceeded from its determination that the particular park was a "traditional public forum," and that another monument, depicting the Ten Commandments, was a private monument that the City had allowed to be placed in the park.

I have published a brief guide to the right to free speech in public places elsewhere, and it explains the idea of the public forum in a bit more detail. For present purposes, the appeals court's decision that Pioneer Park was a "traditional public forum" simply meant (a) it was the kind of publicly owned property were we expect and often encounter others engaged in expressive activities and (b) the government's ability to restrict speech in the location is severely limited. The Tenth Circuit ordered our client, Pleasant Grove City, immediately to allow Summum to set up their proposed "Seven Aphorisms" monument. Our task was to obtain two decisions from the US Supreme Court.

First, Pleasant Grove City needed the Supreme Court to agree to consider its request to review the Tenth Circuit decision. To obtain review at the Supreme Court, except in a very small category of matters, a party asks the Court to consider their case. This request is a called a petition for a writ of certiorari. That "writ of certiorari," if the Court agrees to hear the case, is an Order to the court below to send up its record of the case.

Second, Pleasant Grove City needed the Supreme Court to agree with its position that, while Pioneer Park was a traditional public forum, the Ten Commandments monument belonged to the City, and by displaying it there, the City had not created a legal obligation for itself requiring that it put on display any privately owned monuments. To get to this second decision, however, we had first to convince the Court to consider the case.

The Tenth Circuit's decision had the potential to work substantial mischief across the United States. Hundreds of cities, thousands of counties, towns, villages, and hamlets, have public spaces, such as Pleasant Grove City's Pioneer Park. If the Tenth Circuit's legal reasoning was sound, every one of those parks, if they were home to a monument or sculpture that had been donated to the local government and placed on display there, would be opened to the donation of all manner of monuments, sculpture and displays of a permanent nature.

You actually already know just how vast the statuary and monumental holdings of American communities are if you give thought to your own life experience visiting States across the Nation. One of my tasks was to quantify just how extensive the reach of the Tenth Circuit's decision could be. It was while I was assisting Walter in his preparation of the petition for a writ of certiorari that I discovered a fascinating research tool maintained by the Smithsonian Institute. That tool, called SIRIS, allowed interested researchers to scour the Smithsonian's substantial informational database of artwork, statuary, and monuments. The database included more than the Smithsonian's own holdings. It included records of such items identified in one of several different national surveys of such works over many years. Our petition to the Supreme Court contained an Appendix providing the Court with a list of displays of particular relevance to that case.

I haven't used SIRIS since we won Pleasant Grove City v. Summum, Today, however, I used it again. I used the database today to try and plumb the depths of a looming national crisis. The Confederacy crisis, if you will, looms on the national horizon. We are hearing more and more stories about the offensiveness of displays that include the Confederate Battle Flag, or that honor Confederate soldiers. We have seen the removal of the Confederate Battle Flag from the South Carolina State House. We are about to witness the disinterment of the remains of Confederate General, Democrat, and KKK Founder Nathan Bedford Forrest and his wife, from their resting place in a Memphis, Tennessee park.

"The Purge" is just getting started.

Just how deep, just how extensive, the Purge will need to be, I think, can only be answered by asking, just how many signs, symbols, and memorials of the Confederacy are displayed across the United States. And it was that question I pondered when SIRIS came to mind. I located SIRIS on the Smithsonian Institute website.

SIRIS is a powerful tool. It provides results that extend far beyond outdoor statuary. An initial search on the site located well over a thousand items whose title or description included the word "Confederate." Eventually, I honed the search down to one that appears only to identify statuary and monuments of the Confederacy.  Here's the search I used. That search indicates nearly 500 items of statuary, monumental markers, plaques, busts, steles, and the like.

When you enter that search, here is what you'll see:

As the circled information indicates, this search produced nearly 500 results. Each item gets a separate summary report. The summary can be expanded and more detail, including photographs, sometimes obtained.

Here is the expanded view of the record entry for the North Carolina Monument at Gettysburg National Battlefield Park:

The circled button is the feature that allows a reader to expand the summary view to obtain further details on the item. From here, I learned that the sculpture was crafted by Gutzon Borglum. With the information provided, a wealth of additional information becomes available, including this webpage about the artist and the statue, and the following photograph was taken during the dedication of that monument, along with remarks by the US Government official accepting the donation of the monument:

I found the remarks of Major General B.F. Cheatham, reproduced below, of particular note. Gracious in victory and gracious in the passage of time, Cheatham engages in no recriminations against the Confederates of North Carolina. He doesn't spoil the memory of the beloved and lost of North Carolina's men who died at Gettysburg, by dwelling o'er long on the contentious causes of the Civil War.

Rather, Cheatham notes, with respect and honor, how the men of North Carolina served and fell there. His penultimate observation could guide all our considerations of these matters:  

Always opposed by superior numbers and with the advantage of position against them, their courage, discipline and leadership carried them to the very muzzles of the guns, and over by a kindly providence, which has taken away the pain yet permitted to remain every sentiment of pride, honor and intense admiration for the heroic accomplishment of our fathers.

Remember, there are nearly five hundred entries in the SIRIS system. That number likely represents over 400 objects scattered throughout the United States, principally in battlefield locations, and southern cities and towns. Also, remember, there are many, many more statuary or monumental items than those noted in the SIRIS system.

While time continues its inexorable work of removing us from any sense that we ought to have of the sensibility of the descendants of Confederate soldiers, sailors, and citizens, we have words like General Cheatham's rekindling that sensibility. If we actually undertake this maddening enterprise of removing emblems and markers of our history, the reminders of our national bloodletting, monuments to the loved and the lost, we should think carefully and long about the extractions we pursue, because the pain will be more than a root canal and more extended than the war these monuments recall.

The Know-Nothing Boomerang: Blaine Amendment Denuding of PublicMonuments

The Oklahoma Supreme Court recently ordered the removal of a monument from the State Capitol grounds. In current circumstances, you wouldn't be faulted for suspecting the monument was one dedicated to some Confederate general, or bearing an etched image of a Confederate flag. No, you wouldn't be faulted, but you would be wrong. The monument contains a version of the Ten Commandments.

The Ten Commandments Monument at issue is a replica of one on display on the Texas State Capitol grounds. The US Supreme Court previously considered, and rejected, a challenge to the display of that monument in Texas.* Before the Oklahoma Supreme Court issued its decision, the complaining attorneys had asked for a similar order from a federal trial court but were denied.

State Representative Mike Ritke, a doctor, donated $10,000.00 and raised an additional $10,000.0 to set up the Oklahoma State Capital Grounds version of the monument. He also proposed the legislation allowing the display of the monument after his donation of it to the State. The monument went on display in 2012.

The Oklahoma Monument has garnered some notoriety since being erected.

In late October 2014, a man with some history of mental illness urinated on the Monument, and then drove into it with his car, knocking it off its pedestal and breaking it in pieces. Michael Reed identified himself as a Satanist, and told police he was ordered by Satan to urinate on, and crash into, the Monument.

Following the placement of the Ten Commandments Monument on the State Capitol Grounds, representatives of other religious groups -- Satanists and Hindus -- have expressed interest in having religious monuments placed on the State Capitol Grounds too. A New York based Church of Satan stated that it would like to have a statue of "Baphomet" placed on the grounds. A recently formed group, the Universal Society of Hinduism, requested placement of a statue honoring Lord Hanuman, a Hindu deity.

Now, the Oklahoma Supreme Court, in a separate case from the federal one that rejected a request for an Order barring the Monument, has issued a very brief decision finding that the Monument violates the "Blaine Amendment" in Oklahoma's State Constitution. On the basis of that finding, the Oklahoma Supreme Court ordered that the Monument be removed.

Reacting, the Governor and the Commission responsible for the placement of artworks on the Capitol Grounds filed a request for reconsideration with the Supreme Court. While that request is pending, the Governor, Mary Fallin, has issued her own order keeping the Monument in place, pending a decision  by the Court on her request to reconsider its decision.

In addition to possible reconsideration by the Oklahoma Supreme Court of its decision, the Oklahoma legislature is now being asked to consider proposing an amendment to the Oklahoma Constitution the effect of which would be to allow the Monument to remain. If the Oklahoma Supreme Court reconsiders its decision, it will re-examine the effect of a so-called "Blaine Amendment" in the State Constitution. If the legislature decides to propose an amendment to the State Constitution, the amendment would likely target the scope of the State's Blaine Amendment.

Blaine Amendments: Sticking It to Catholics in the 19th Century, Getting Stuck in the 21st

So just what is a "Blaine Amendment"? Why do so many State Constitutions include them? What is their origin and history?

Before such State constitutional amendments gained the moniker, "Blaine Amendment," they were adopted by a dozen or so States. Precisely the reason why States adopted constitutional provisions prohibiting the use of state monies or properties for parochial or sectarian schools is disputed. The Becket Fund for Religious Liberty, a premier nonprofit legal group working to defend religious liberties, points to the reality of the 19th Century in the United States, namely, that bias against immigrants, typically Catholic, in a largely Protestant nation, and in particular the efforts of the "Know Nothing" Party, led to efforts to stymie funding of sectarian schools. Marvin Olasky, writing in World put this view pointedly:

The state constitutional roadblocks that educational choice now faces grew out of anti-Catholic bigotry, anti-Southern politics, and the myth of educational neutrality.

The progressive group, Americans United For Separation of Church and State (formerly Protestants and Other Americans United for Separation of Church and State), suggests that the claim that Blaine Amendments and similar State constitutional provisions were products of anti-Catholic bigotry misstates the history of the times and the constitutional amendments.

[Our history belongs to each of us, to read, to research and to discover. Although I share the view of the Becket Fund regarding the origins of these amendments, you can (and should) read, research and decide for yourself. ]

Still, today, "Blaine Amendments" bear the name of former Congressman, Speaker of the House Senator, and Secretary of State, James Blaine of Maine. As President, Ulysses S. grant made an impassioned plea for a constitutional amendment barring the States and the federal government from using any monies for the support of sectarian schools. Grant's speech was made in Iowa, at a reunion of the Army of the Tennessee. His speech concluded with this stirring appeal to nativistic bigotry:

If we are to have another contest in the near future of our national existence, predict that the dividing line will not be Mason and Dixon's, but between patriotism and intelligence on the one side, and superstition, ambition, and ignorance on the other. Now, in this centennial year of our national existence, believe it is good time to begin the work of strengthening the foundation of the house commenced by our patriotic forefathers one hundred years ago at Concord and Lexington. 

Let us all labor to add all needful guarantees for the more perfect security of free thought, free speech, and free press, pure morals, unfettered religious sentiments, and of equal rights and privileges to all men, irrespective of nationality, color, or religion. Encourage free schools, and resolve that not one dollar of money appropriated to their support, no matter how raised, shall be appropriated to the support of any sectarian school. Resolve that neither the State or nation, nor both combined, shall support institutions of learning other than those sufficient to afford to every child growing up in the land the opportunity of good common school education, unmixed with sectarian, pagan, or atheistical tenets. Leave the matter of religion to the family altar, the church, and private school, supported entirely by private contribution. Keep the church and state forever separate.

It is at this point that it would be helpful to understand the political background of U.S. Grant.

Religious differences among the People of our Nation have, from time to time, erupted in brutal ugly moments, even injuries, and deaths. Key incidents of religious conflicts relate to the immigration, settlement, and assertion of rights to equality by Catholics from Ireland, and by Germans. These incidents have come to be known as the "Philadelphia Bible Riots" and the "Cincinnati Bible War." In particular, the Philadelphia Bible Riots reflected the rapid rise to prominence of a political faction sometimes referred to as "Know-Nothings" but that organized politically as the American Party.

The American Party, when it was initially formed, called itself the Native American Party. The party renamed itself in time for the 1856 presidential election, the only presidential election for which it had a sufficient base to conduct a nominating convention. Their nominee, Millard Fillmore, finished third in the general election. The poster shown here gives you some idea of the reason members of the party called themselves "Know Nothings," with its motto, "I know nothing but my Country, my whole Country, and nothing but my country." The American Party, or Know Nothings, were nativistic. They dreaded the influx of Catholic Irish and Germans.

In various States they pursued agendas to limit availability of alcohol, to prohibit Catholics from becoming teachers in the common schools, to reduce immigration from "undesirable" countries. Among members of the American Party, Ulysses Simpson Grant, later Lincoln's favorite Union general and subsequently President, was probably the most well known.

Know Nothings not only feared the influence of the growing population of Catholics in the United States. They not only sought to prevent the influence of Catholics over impressionable youths by disqualifying them as teachers. They also made it a centerpiece of their efforts to preserve Protestant America by denying any use of tax funds or properties by the States through the adoption of State constitutional provisions barring funding of sectarian schools or instruction.

After the 1856 election, the party passed into ignominy. Members filtered out, some joining the Whig component of the newly formed Republican Party while others, sympathetic with the sovereignty claims of the slave-holding States, joined the Democratic Party. Ulysses S. Grant was among those Know Nothings that joined the Republican Party. Years later, Grant not only concluded the Civil War at Appomattox Courthouse, but rose to the Presidency. His beloved status among his former troops brought him to the moment when he made that speech to the Army of the Tennessee at its Iowa reunion.

Seemingly in response to Grant's call for an amendment, Speaker Blaine proposed, nearly successfully, an amendment to the US Constitution. That amendment would have required States to provide a free public education to their citizens, and would have barred the States from using public monies for parochial schooling. The Amendment stated:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

The House of Representatives passed Blaine's Amendment by a stunningly overwhelming margin. The Senate, however, fell four votes short of passage. But the defeat of the Blaine Amendment was, in fact, a Pyrrhic Victory for those who fought to prevent a Nationwide prohibition on using public monies for parochial schooling.

With the defeat of the amendment, Blaine and those that supported his proposal in Congress turned from that effort with great and lasting effect to enshrining "little Blaine Amendments" in the Constitutions of States admitted to the Union thereafter. As a consequence of that effort, more than thirty States of the Union have such amendments. The Institute for Justice, for example, estimates that thirty-seven States have Blaine, or Blaine-like, amendments in their State constitutions:

This Map from the Institute for Justice show just how widespread Blaine Amendments Are in The USA

But If A Blaine Amendment Limits Use of Funds and Property for Parochial Schools ... How Does a Ten Commandments Monument Violate It?

Yes, indeed, that is a good question.

At the start, we were discussing a Ten Commandments Monument on Oklahoma's State Capitol Grounds, not a Catholic grade school, or a program of scholarships for a Baptist seminary. So how is it that a State constitutional amendment designed to prevent the use of State monies and property for religious schools ends up being the basis for tearing down a Monument associated with no particular religious affiliation?

Here's the language of Oklahoma's Blaine Amendment:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

The intent and purpose of prohibiting the funding or support of parochial schools is undeniable. The candid observer must admit, as well, that the restriction is not strictly limited by its words to schooling questions. The language, given its natural meaning, would bar a decision by Oklahoma to give land it owns for the building of a church, a religiously affiliated school, a pastor's manse, or other religious enterprise.

Still, the Ten Commandments Monument on the Oklahoma State Capitol Grounds does not fit the bill on these obvious prohibitions.

Representative Ritke donated or raised from donations all funds for the building and maintenance of the Monument. So, obviously, there is no basis in the facts for the Oklahoma Supreme Court to have found a violation of the Amendment's "appropriated, applied, donated, or used" language.

Consequently, and as the opinion makes clear, the "offense" against the Amendment must result from the Court's determination that the display of the Monument results in "the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such." In fact, the Court's entire opinion on this point states as follows:

As concerns the "historic purpose" justification, the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths.

Because the monument at issue operates for the use, benefit or support of a sect or system of religion, it violates Article 2, Section 5 of the Oklahoma Constitution and is enjoined and shall be removed.

That's it. That is all the explanation offered. No subtle explications of the constitutional text are offered. It is just and only that "the Ten Commandments are obviously religious in nature" and that they are "an integral part of the Jewish and Christian faiths." But that isn't the language of the amendment. Rather, the Amendment bars such "use" of "public ... property" for the "use, benefit, or support" or "any sect, church, denomination, or system of religion," or "any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such." But the Monument accomplishes those prohibited goals, if it does so at all, in precisely the same way that the Capitol Building itself does. The Monument is nothing more than a passive display. It lends nothing in support to anything.

The Court's construction of the Amendment is severely strained, does not reflect the language of the Amendment, and is contrary to its purpose. The Court had the guidance of a "friend of the Court" regarding the inapplicability of the Blaine Amendment to the passive display of the Monument. The Court -- without discussion of that seemingly important distinction -- gave no apparent consideration to it.

The irony of the Oklahoma Supreme Court's application of Oklahoma's Blaine Amendment cannot be blinked. An amendment steeped in anti-Catholic biases of another century, now distant to us, is twisted by the Court to obtain a result that would shock Know Nothings, and which disappoints many in the evangelical community.

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* The Texas Ten Commandment monument case was Van Orden v. Perry. Then-Chief Justice Rehnquist announced the Court's judgment (allowing the display) and offered an opinion for himself and Justices Scalia, Kennedy and Thomas. Justice Stephen Breyer agreed with the outcome but did not agree with the legal analysis offered by Rehnquist. Four justices dissented from the holding in Van Orden