Jay Sekulow: August 2008 Archives

As I mentioned previously, Alaska Governor Sarah Palin, the Republican Vice Presidential candidate, signed a proclamation which declared a week in October 2007 as "Christian Heritage Week" in Alaska. Governor Palin's acknowledgment of our nation's history and heritage is welcomed and encouraging.

Governor Palin's proclamation is part of a much broader tradition of presidents, congressmen, governors, and other public officials encouraging the public to reflect on our traditions or voluntarily pray and give thanks. For example, over the past two decades, nearly 40 states have issued similar proclamations on multiple occasions.

In fact, Congress, by Public Law 100-307, as amended, has called on our nation to reaffirm the role of prayer in our society by recognizing each year a "National Day of Prayer." Each year, the president issues a proclamation as President Bush did in April 2008.

Governor Palin understands that acknowledging our nation's heritage is consistent with the Establishment Clause of the First Amendment and does not represent a government endorsement of a specific religion. These proclamations are based on historical fact and simply encourage those who are willing to do so to celebrate our nation's heritage. No person is compelled to engage in religious activity or penalized for failing to do so. Acknowledging our heritage does not violate the Constitution.

Sen. John McCain is announcing that he has selected Alaska Governor Sarah Palin as his Vice Presidential Running Mate. Gov. Palin is now the second female vice-presidential candidate to represent one of the major parties.

Social conservatives are pleased with this selection, as am I. Gov. Palin is pro-life in both practice and policy. There are also some reports that she served as a member of Feminists for Life which played a significant role in Supreme Court litigation involving the issue of abortion. Reports are also beginning to surface that Gov. Palin was active in the Fellowship of Christian Athletes when she was in school.

One of the most interesting aspects of this selection is the issue of experience. This will be particularly interesting in light of some of the criticism directed towards Sen. Obama's level of experience. It will be worth watching how this plays out in the next several days.

One thing is for sure in this selection, and that is that John McCain did an analysis of where the base of the Republican Party is. Even a maverick has to analyze the base of his political support. Within the context of the Republican Party, the pro-life issue has been non-negotiable. The selection of Gov. Sarah Palin as a Vice Presidential Running Mate confirms Sen. McCain's understanding of this. This also makes sense in light of the fact that Sen. McCain himself has a strong pro-life voting record.

I mentioned in a previous post that a sharp contrast on Supreme Court nominees will now be in play. Sen. Obama and Sen. Biden both voted against Chief Justice John Roberts and Associate Justice Samuel Alito when they were nominated to serve on the Supreme Court of the United States.  Sen. McCain supported both nominations and, based on the information we're gathering concerning Gov. Palin, her judicial philosophy will be in line with our two most recent Supreme Court appointments.

Next week is the Republican Convention, and I expect the country will get to know Gov. Palin in a more personal way. We do know that she is the mother of five children, having her most recent son born in April of this year. It's already been reported that Gov. Palin refused to let the results of her prenatal genetic testing of her son, Trig, change her decision to have the baby. Trig was diagnosed with Down Syndrome. She's quoted as saying of her son: "I'm looking at him right now, and I see perfection. Yeah, he has an extra chromosome. I keep thinking, in our world, what is normal and what is perfect?"  And when she and her husband were told the news, here was her response:  "We've both been very vocal about being pro-life," Palin said. "We understand that every innocent life has wonderful potential."  (cited here) 

Barry, now here's the real controversy: Gov. Palin signed a proclamation which declared October 21-27th as "Christian Heritage Week" in Alaska. Here is the exact proclamation that was issued:

WHEREAS, the celebration of Christian Heritage Week, October 21-27, 2007, reminds Alaskans of the role Christianity has played in our rich heritage. Many truly great men and women of America, giants in the structuring of American history, were Christians of caliber and integrity who did not hesitate to express their faith. Some of their legacies are evidenced as follows:

WHEREAS, the Preamble to the Constitution of the State of Alaska begins with, "We the people of Alaska, grateful to God and to those who founded our nation and pioneered this great land"

WHEREAS, Benjamin Franklin, at the Constitutional Convention stated, "It is impossible to build an empire without our Father's aid. I believe the sacred writings which say that, Except the Lord build the house, they labor in vain that build it (Psalm 127:1)."

WHEREAS, George Washington enunciated, "animated alone by the pure spirit of Christianity, and conducting ourselves as the faithful subjects of our free government, we may enjoy every temporal and spiritual felicity."

WHEREAS, Thomas Jefferson, author of the Declaration of Independence, wrote, "Can the liberties of a nation be secure when we have removed the conviction that these liberties are the gift of God?"

WHEREAS, James Madison, father of the United States Constitution advocated "the diffusion of the light of Christianity in our nation" in his Memorial and Remonstrance.

WHEREAS, Patrick Henry quoted Proverbs 14:34 for our nation, "Righteousness alone can exalt a nation, but sin is a disgrace to any people."

WHEREAS, George Mason, in his Virginia Declaration of Rights, forerunner to our United States Bill of Rights, affirmed, "That it is the mutual duty of all to practice Christian forebearance, love and charity towards each other."

NOW, THEREFORE, I, Sarah Palin, Governor of the State of Alaska, do hereby proclaim October 21-27, 2007, as Alaska's 9th Annual Christian Heritage Week in Alaska, and encourage all citizens to celebrate this week.

This should certainly spark controversy from your end, Barry, so maybe we're the first to break it. I think it's constitutional to have a proclamation like this; I expect you to disagree. Let's go at it!

I'm glad to see that we can agree that Chief Justice Roberts and Justice Alito upheld First Amendment rights against overzealous regulation of political speech. In my view, however, the IRS restrictions on candidate endorsement are another example of "over-regulation of political ideas in the name of 'good government.'" As Barry knows, the "election sermon" was quite common throughout the country from colonial times until 1954 when then-Senator Lyndon Johnson introduced an amendment that became law that barred tax-exempt groups, including churches, from participating in political activity. A legislative repeal of these provisions is needed to restore unbridled free speech to religious leaders of all faiths.

Regarding abortion, millions of Americans believe in the personhood of the unborn for a variety of moral, legal, religious, and scientific reasons. Since Barry raised the issue of the Bible's discussion of the unborn, it should be noted that there are numerous Biblical passages that state that God creates and forms each person in their mother's womb and that unborn children can sense and react to God's presence. Regardless of one's theological views, however, the key question remains whether the Ninth and Fourteenth Amendments provide a constitutional right to abortion that trumps legislative efforts to protect human dignity.

On a different note, ds0490 made the following comment in response to an earlier post: "I'm curious to know if Mr. Sekulow disagrees with the Court's decision in Loving v. Virginia, Brown v. Board of Education, or Dred Scott v. Sanford. In the first two the Court 'created' rights and in the second it 'honored' the intent of Congress." Here is my response:

Brown v. Board of Education and Loving v. Virginia were correctly decided. The Court did not create any new rights but simply upheld the right to be free from invidious racial discrimination expressly provided by the Constitution.

The Fourteenth Amendment, enacted shortly after the Civil War, states in relevant part: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." This provision was designed to ensure that state and local governments would not treat African-Americans less favorably than whites, thus denying them the "equal protection of the laws."

In Brown v. Board of Education, 347 U.S. 483 (1954), the Court held that racially segregated public school systems "are inherently unequal" and violate the Equal Protection Clause. Id. at 495. The Court held that "the opportunity of an education . . . where the state has undertaken to provide it, is a right which must be made available to all on equal terms." Id. at 493.

In Loving v. Virginia, 388 U.S. 1 (1967), the Court invalidated a law prohibiting inter-racial marriage, noting that such provisions "arose as an incident to slavery." Id. at 6. The Court correctly noted that "[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States." Id. at 10. The Court applied the longstanding principle that "the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny.'" Id. at 11.

The Brown and Loving decisions recognized and applied the compelling interest in eradicating racial discrimination expressly stated in the Fourteenth Amendment.

Rejecting the idea of a "living Constitution" simply means that a Justice will respect the authority allotted to the legislative and executive branches (and the state governments) by the actual language of the Constitution and will not create new "rights" out of thin air. A Supreme Court Justice should fairly and impartially interpret the Constitution in light of the original meaning of its language, not seek to advance a social agenda by legislating from the bench.

One inaccurate critique of Chief Justice Roberts and Justice Alito during their confirmation hearings was that they would not respect the authority of Congress (it is unfortunate, but not surprising, that Senators would argue for the most expansive view possible of their own authority). However, a pair of cases shows that Chief Justice Roberts and Justice Alito impartially considered Acts of Congress on a case-by-case basis in light of the constitutional provisions at issue.

In Gonzales v. Carhart, 127 S. Ct. 1610 (2007), Chief Justice Roberts and Justice Alito joined the majority opinion which upheld the federal Partial Birth Abortion Ban Act. The Court concluded that "[i]t was reasonable for Congress to think that partial-birth abortion . . . undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world.'" Id. at 1635. The Court noted that its previous cases had "given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty." Id. at 1636.

It is interesting that Barry mentioned the Court's role in protecting the right of individuals "to speak out on vital issues," as Chief Justice Roberts authored the plurality opinion in FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007), which struck down a ban on grassroots issue advertisements near upcoming elections. Chief Justice Roberts, joined by Justice Alito, explained that, in drawing the line between political campaign speech and issue education, "the First Amendment requires us to err on the side of protecting political speech rather than suppressing it." Id. at 2659. He added that, "[w]here the First Amendment is implicated, the tie goes to the speaker, not the censor." Id. at 2669.

An Obama-Biden "living Constitution" judicial nominee would likely give Congress more leeway to ban religious and political speech--at the heart of the First Amendment's protection--than to limit, in any way, abortion on demand.

Senator Obama's selection of Senator Joe Biden of Delaware will, undoubtedly, represent a sharp contrast with Senator McCain and his running mate.  As I've mentioned in a previous post, the issue of the direction of the Supreme Court of the United States is literally at stake in this next election.  Two sharp contrasts have emerged through the nomination process.  For those who share a conservative judicial philosophy, the prospects of an Obama-Biden Supreme Court selection is troubling. 

Here's the contrast:  Senators Biden and Obama both voted against the confirmation of Chief Justice Roberts and Justice Samuel Alito to the Supreme Court of the United States.  Senator McCain voted in favor of both of them and participated in brokering the "Gang of 14" compromise which, in fact, allowed Chief Justice Roberts and Justice Alito to get up or down votes.  In stark contrast, Sen. Biden not only voted "no," but also voted to support a filibuster of Sam Alito. 

Justice Alito was confirmed by a 58-42 margin in the United States Senate.  In commenting on why he voted "no" to Judge Alito, Sen. Biden said:  "I think Judge Alito should not be on the court.  He's a decent man with wrong ideas."  Never once does Sen. Biden acknowledge the tremendous academic record of Justice Alito, who attended Princeton University for his undergraduate education and Yale for law school. As I mentioned, so concerned over the nomination of Sam Alito, Sen. Biden supported efforts for a filibuster staged by the Democrats which I called "an act of complete desperation." 

Sam Alito served in the Justice Department as well as a judge on the U.S. Court of Appeals for the Third Circuit.  He's considered one of the best legal minds in the country.  Yet when he came before the Judiciary Committee, Sen. Biden said, "When I look at all the evidence before us, Judge Alito's writings, his statements, his judicial records and his opinions, and the little we learned about him in these hearings, I am forced to conclude that he should not serve in the Supreme Court.  I will vote no." Sen. Biden's leadership in trying to derail the nomination of Sam Alito should cause pause for those conservatives who are considering the idea of supporting the Obama-Biden ticket.  Despite Sen. Obama's well-intentioned plans to reach out to evangelicals, the "no" votes on the confirmation of Chief Justice Roberts and Justice Alito will serve as a warning sign.  It must be remembered that both Sen. Obama and Sen. Biden voted against both Roberts and Alito. 

Concerning John Roberts, Senator Biden, who serves on the Judiciary Committee, said, "I have serious doubts that Judge Roberts will fall into the category of the justices from Chief Justice Marshall to Souter, Kennedy, Ginsburg, O'Connor, who look at the Constitution, quoting Marshall, as a Constitution intended to endure for the ages to come, and consequently to be adapted to the various crises of human affairs. That's an expanding document."  Sen. Biden went on to note that he had "closely reviewed Judge Roberts' past writings as a political appointee and a government lawyer, his personal statements and commentaries during his tenure in private practice and his testimony before this committee."  After considering all of this, Sen. Biden voted "no" as did Democratic Presidential Nominee Barack Obama.

John Roberts is one of the preeminent constitutional scholars and advocates in U.S. history.  I have had the privilege of arguing alongside Chief Justice Roberts as well as against him in cases.  He is a tremendous advocate who has a total grasp of the Constitution.  He fundamentally disagrees with Senators Obama and Biden's view of constitutional interpretation.  The Constitution cannot be effectively amended simply because a majority of the Supreme Court Justices say so.  The Constitution can be amended only by the people.  This is what our constitutional Republic requires.

Although there has not been much discussion on the issue of judicial nominees so far in the political campaigns--other than the excellent question to Barak Obama and John McCain posed by Rick Warren at the Saddleback Forum  - the issue is now sure to be front and center.   Senators Obama and Biden voted against Roberts and Alito; Senator McCain voted for them. 

As previously mentioned, despite Sen. Obama's attempt to reach out to the conservative, evangelical and pro-life Catholic base of the Republican Party, the Supreme Court nominee history will thwart that effort.  Young evangelicals are just as committed to the issue of life as their parents' generation.  Young people of faith understand the role of the Supreme Court in our constitutional Republic.  These same young people will look at the evidence and realize that Sen. Obama and Sen. Biden voted against two of the best-qualified Supreme Court nominees we've had in our lifetime.

Barry, you should be thrilled with the prospect of a change in the direction of the Supreme Court. I certainly would not be.