Looking for Religious Right? Follow the Yellow Legal Pad
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Fri Nov 25, 2005 at 11:12:29 AM EST
Another big day for the American Center for Law and Justice is at hand. ACLJ is the religious right legal advocacy organization started by Christian Coalition's Pat Robertson.  On November 30, ACLJ has a role in two cases at the U.S. Supreme Court.  Jay Sekulow, ACLJ's Chief Counsel, represents anti-abortion protestors from Operation Rescue in one case.  ACLJ also filed a brief in another case, Ayotte v. Planned Parenthood of New Hampshire, an abortion case that could virtually undo Roe v. Wade, as I described in an article on Women's eNews. Add ACLJ to the legal mobilization described by Michelle Goldberg and you quickly have a picture of a powerful prong of the religious right that is increasingly using its well-funded legal advocacy to advance the goals of dominionism.
ACLJ, based in Virginia Beach, had income of $14.5 million to its main 501c3, according to 2003-2004 IRS reports, although it now ranges at $30 million annual budget in total, according to Time magazine.  Either way, it's a bundle, and the legal advocacy is as important to a religious right takeover as the naming of the next Supreme Court justice.  

The Ayotte case, widely underreported, is one example of how Christian fundamentalist legal groups are pushing the boundaries of the law.  The anti-abortion movement has been very deliberate and particularly clever at framing issues to take to the courts.  Judges, after all, can only decide the "cases and controversies" that come before them; lawyers like those at ACLJ put the cases in front of the judges.  

Anti-abortion legal activists scrutinize the existing law to find wormholes and get their right-wing allies in legislatures to put the drafted language into motion. The Frontline show, The Last Abortion Clinic, did a tremendous job of showing how this works.  Anti-abortion legal groups don't care that under existing law, proposals might be blatantly unconstitutional. They simply hope to get them before a court that will see things their way and offer a reinterpretation. And if it is the Supreme Court and there are new conservative justices on it, the jackpot is at hand.  

Ayotte is one example of such an anti-abortion initiative. Two lower courts rejected it, so it is somewhat worrying that four justices of the Supreme Court even agreed to take the case. The damage it can do to Roe v. Wade, with the twist of legal rules that is proposed by anti-abortion forces and the Bush administration, is incredible, if difficult to understand except by those steeped in legal procedure. But if Ayotte goes the wrong way, it won't matter whether the next justice supports Roe or not - Roe will be a memory already. It won't be necessary to overturn it and send it back to the states; the states that want to make abortion impossible or inaccessible will have all the firepower they need. I'll explain why.

The case arose about a parental notification law in New Hampshire. But that's not what is important.  The issues - those "cases and controversies" -- before the Supreme Court are not about parental notification per se, but two other issues.

One issue is about the legal standard for when anti-abortion laws can be challenged as unconstitutional. Packed with right-wing ideologues, state legislatures pass hundreds of anti-abortion laws. Many never take effect because they are challenged in court and found to be unconstitutional first. But what if they can't be challenged in federal court before they take effect? That's what the court is considering.

The practical result over the next two or three years is that states could go wild enacting all of the willy-nilly anti-abortion restrictions that the religious right can dream up, and they would go into effect. Then what? Clinics might close rather than deal with the laws.  Doctors might refuse to do abortions, or be forced to risk arrest. Women might be denied an abortion. Only these dramatic events will allow the law to be challenged in court as unconstitutional, sometimes with emergency medical considerations underway at the same time.

Legally, it's an issue of allowing a "facial challenge" to a law or an "as applied" challenge. David G. Savage in the ABA Journal called it a "broad change," reporting that it will require anti-abortion restrictions to be tested woman-by-woman.

This legal sleight-of-hand is similar to rulings that have tied the hands of litigators in challenging abstinence education, permitting it to mushroom with overt and covert religious intentions, and limiting legal challenges.

The other issue in Ayotte is whether it is okay to pass an anti-abortion restriction without an exception to protect a woman's health. The anti-abortion activists hate this so-called health exception which they consider a giant loophole to all of the restrictions and bans they want to pass - a doctor could just claim, they say, that a woman might get sick or get depressed and avoid an anti-abortion ban. ACLJ filed a brief stating that a health exception is not necessary. Justice Sandra Day O'Connor was the deciding vote in a 5-4 decision in 2000 that said women's health must be protected, but if a successor goes on the bench before the decision is announced, her potential vote will be nullified.  

The other case being heard by the court that day, Scheidler v. NOW consolidated with Operation Rescue v. NOW, raises the question of whether violent anti-abortion protestors are covered under anti-racketeering laws. This is the third time the case has been to the Supreme Court.

ACLJ and Sekulow represent Operation Rescue, which, under Randall Terry's reign, tried to blockade abortion clinics and stop women from entering.  Laura McGann of the
Medill News Service
described one incident:

During trial, one woman testified to being attacked by anti-abortionists in a clinic parking lot as she arrived for follow-up care after ovarian surgery. She was rushed to a hospital when the attack opened her surgical wound.

"All of a sudden, a crowd of people came running from both sides of the building ... somebody grabbed me by the back of my hair, and I fell up against the car," the woman testified in district court.

Jay Sekulow, Chief Counsel of ACLJ, has a long history of anti-abortion and religious right activities. He got his legal start representing Jews for Jesus, which he joined while in college. He supervised the legal department of Concerned Women for America and served on a committee of the Alliance Defense Fund. He has a daily radio broadcast on 550 stations, and frequently appears on the 700 Club. Time magazine named Sekulow one of the "25 most influential evangelicals" in 2005, writing:

Sekulow, 48, who was raised Jewish but converted to Christianity in college and now considers himself a "Messianic Jew," formed the law center with a group of other conservative litigators in 1990. Today the 700,000-member center has become, with a budget of $30 million, a powerful counterweight to the liberal American Civil Liberties Union.

Pat Robertson, a Yale law grad, understands the power in legal advocacy. In 1986, four years before founding ACLJ, he started Regent University School of Law to train a new breed of evangelical Christian lawyers. ACLJ's main office is housed at Regent. Ralph Reed was a founding member of the board. Among its original goals are "the defense of religious freedom and civil liberties under the First Amendment in an opposition to anti-religious hostility."  

Thomas P. Monaghan, a member of the board and lawyer with ACLJ (handsomely paid $208,920 annually in 2003-04, according to IRS reports) once served as general counsel for the Catholic League for Religious and Civil Rights. ACLJ's Benjamin Bull (earning $217,885 annually in 2003-04) is former general counsel of the American Family Association.

ACLJ now has affiliates in D.C. and several states, including Kentucky, Hawaii, Tennessee, Alabama, Connecticut and Texas. And there are international affiliates, as well, in London, Greece and Israel. Sekulow's bio says that "he is also Chief Counsel of the European Center for Law and Justice (ECLJ)."

In addition its anti-abortion advocacy, ACLJ got involved in representing the parents of Terri Schiavo, in opposing the right-to-die law in Oregon, supporting displays of the Ten Commandments, supporting prayer at public high school sporting events, supporting abstinence-only education, and opposing same sex unions in Hawaii.  

But to see the link to other right-wing ventures, there are other curious litigation entries that have nothing to do with Biblical beliefs and everything to do with being right-wing insiders. For example, ACLJ supported the Bush adminstration in legal briefs arguing that Guantanamo detainees could be held without charges and without trials.

And how does it all come together? ACLJ is now carrying on its website a Petition to Protect Military Prayer, written to President Bush:

It has come to our attention that in all branches of the military, it is becoming increasingly difficult for Christian chaplains to use the name of Jesus when praying.  We believe this suppression of religious freedom is a pervasive problem that must be dealt with and eliminated immediately.

It goes on:

(S)uch censorship of Christian beliefs is a disservice to Christian chaplains as well as the hundreds of thousands of Christian soldiers in the military who look to their chaplains for comfort, inspiration, and support, just as our military soldiers of other faiths look to their chaplains.

We respectfully request that you, as Commander and Chief, protect by Executive Order the constitutional right of military chaplains to pray according to their faith.

To see where the religious right and the Supreme Court are headed, you might just follow the yellow legal pads of ACLJ.




Display:
Thanks for walking us through the imlications of these cases.

For those unfamiliar with Regent University Law School. One aspect of this has alway stood out in my mind:  the founding dean was Herb Titus, who used the works of theoctratic theologian R.J Rushdoony in his classes. He considered them integral to what it means to be a "Christian lawyer."

by Frederick Clarkson on Fri Nov 25, 2005 at 02:32:43 PM EST

Herb Titus was also on the founding board of the American Center for Law and Justice.  What else do you know about him?  Beyond the clearly interlocking nature of these groups, the way that the religious right branches out and establishes institutions to spread its philosophy always fascinates me.  Have liberals done enough to emulate that?  

by cyncooper on Sat Nov 26, 2005 at 11:17:18 AM EST
Parent
A few interesting facts.  He was, as I recall, an ACLU lawyer who had a religious conversion that turned into a political conversion.

He is a longtime leader in the Constitution Party (formerly the U.S. Taxpayers Party). He was the 1996 USTP vice presidential nominee) and unsuccessfully sought the nomination in 2000.

Among other things, he believes that Roe and other cases decided by the Courts apply only to those who appear before the court and have no wider application. Thus, Roe should not be respected by state and local authorities, abortion clinics closed and doctors prosecuted. (See Eternal Hostility)

More recently, he has been a lawyer for Roy Moore and helped author the Constitution Restoration Act (which has not been passed.)

by Frederick Clarkson on Sat Nov 26, 2005 at 12:05:42 PM EST
Parent

From your description, there is actually a great deal of similarity between Titus' idea of Roe to what is happening in Ayotte.  Although the Supreme Court could decide Ayotte in any number of ways, one direction it could go it to say that decisions on anti-abortion regulations will only apply on a case-by-case basis, that is "as applied' to the people who come before the court and to no one else.  

The Supreme Court clearly sees Ayotte as important -- possibly more so than the public or the media.  New Chief Justice John Roberts has designated it as one of two cases for which the oral arguments will be released immediately for radio broadcast.  

by cyncooper on Sat Nov 26, 2005 at 01:45:36 PM EST
Parent

says that the court is "legislating from the bench", this is often what they mean.

by Frederick Clarkson on Sat Nov 26, 2005 at 03:50:05 PM EST
Parent
Liberty Counsel describes the Ayotte case just in the way that you describe Titus.  

Another religious right litigation group run by Matthew Staver, Liberty also filed a brief for the anti-abortion position.  Staver says: The Ayotte case pending before the High Court is enormously significant.

In a press release, Liberty Counsel explains its position:

(T)he broader legal issue involves an "as applied" versus a "facial" challenge to legislation. An "as applied" challenge contests the application of a law to a specific situation, and if found unconstitutional, it is unconstitutional in that specific application. If the law can be constitutionally applied to another set of facts, it remains constitutional to that set of facts. A "facial" challenge is an exception to normal litigation and can usually only occur in a limited free speech context. Even in that context, the plaintiff bears the burden of proving that the law is unconstitutional in every conceivable application. This is a heavy burden to prove.

Many legal challenges to abortion legislation have been preemptive, that is, facial challenges filed before the law has been applied or enforced. In 2000, the Supreme Court by a 5-4 decision in Carhart v. Stenberg struck down a law that banned partial birth abortion, and in 1992 the Court reaffirmed and strengthened Roe v. Wade by inventing the "undue burden" test in Planned Parenthood v. Casey. Both Casey and Carhart were facial challenges. Following the lead of the Supreme Court, lower federal courts have not only allowed pre-enforcement challenges to abortion laws, but have also struck down abortion laws based on one, albeit remote, hypothetical application of the law that places an "undue burden" on a woman's access to abortion. Although the law may be constitutionally applied in a myriad of ways, one remote hypothetical application has been enough to doom the entire law.


by cyncooper on Tue Nov 29, 2005 at 10:40:55 AM EST
Parent





For groups on the liberal side of things, creating strategically significant institutions iin answer to the is a relatively new thing.

George Soros and a group of Democratic oriented millionaires has started an encouraging-sounding effort to think in these terms, but the religious right and thier allies are two-to-three decades ahead.

by Frederick Clarkson on Sat Nov 26, 2005 at 12:34:00 PM EST
Parent





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