A federal judge has ruled that a history teacher at a Southern California public high school violated the First Amendment when he called creationism "superstitious nonsense" in a classroom lecture. The judge, James Selna, issued the ruling after a 16-month legal battle between a student, Chad Farnan, and his former teacher, James Corbett. Mr. Farnan's lawsuit said Mr. Corbett had made more than 20 statements that were disparaging to Christians and their beliefs. The judge found that Mr. Corbett's reference to creationism as "religious, superstitious nonsense" violated the First Amendment's establishment clause. Courts have interpreted the clause as prohibiting government employees from displaying religious hostility.
So a public school teacher is in violation of the first amendment by speaking disparagingly against a religious belief? Really?
Here's the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I guess someone can interpret that to mean that a teacher speaking in a classroom is establishing a religion or prohibiting its exercise by disparaging one, (or maybe because that comes first in the clause such an interpretation supercedes the very clear provision against abridging the freedom of speech) but it sure looks like a stretch to me. In fact, it seems like a ruling that could only be made in bizarroworld.
Bizarroworld, indeed. But that's really just par for the course.
On Friday, the Iowa Supreme Court, in a unanimous ruling, held that a state statute prohibiting same-sex couples from marrying under civil law violated the equal protection guarantees of the Iowa Constitution. The ink was barely dry on the ruling before right-wing critics predictably began hurling charges of "judicial tyranny" and "judicial activism" at the seven justices on the Iowa High Court. (Strangely, conservatives never seem to lob these charges at judges who strike down laws that protect individuals from discrimination or otherwise rule in ways that make it more difficult for Americans to obtain justice in the courts, but we digress.)
Underlying these charges is a dangerous misunderstanding of the role of the courts in our constitutional democracy. Whether at the state or the federal level, it is the role of the legislature to make the laws, but those laws must be consistent with the requirements of the federal Constitution and, in the case of state laws, with the state Constitution as well. And when a specific law has been challenged on the basis that it violates constitutional provisions, it is the responsibility, in fact the obligation, of judges to determine whether or not that is the case.
This is, of course, the principle of judicial review, affirmed more than 200 years ago by Chief Justice John Marshall in Marbury v. Madison. As Justice Marshall famously wrote, "It is emphatically the province and duty of the Judicial Department [the courts] to say what the law is." And as Chief Justice Marshall recognized, what would be the point of having written a written constitution, if the legislature could just ignore it in passing laws and the courts could do nothing but sit idly by?
In their opinion on Friday, the Iowa Supreme Court Justices in fact specifically addressed the nature of their obligations as judges to determine whether the challenged state law violated the Iowa Constitution:
The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage. The executive branch of government, in carrying out its role to execute the law, enforced this statute through a county official who refused to issue marriage licenses to six same-sex couples. These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Constitution.
(Emphasis added.) In proceeding to make that determination by applying the provisions of their state Constitution to the challenged Iowa marriage law, the Justices of the Iowa Supreme Court were doing what they, as judges, are supposed to do. They were acting in the best tradition of John Marshall, and they should be commended, not excoriated, for doing their jobs. Critics who nonetheless claim "judicial activism" in such decisions are doing a great disservice to our democracy and to Americans' understanding of the proper role of courts in our society. And some of those critics, undoubtedly, are hurling these charges in an effort to intimidate judges.
On Friday, in Iowa, that tactic thankfully did not work.
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the Constitution upholds progressive outcomes.
Before I discuss my critiques of McCain's speech yesterday on judicial activism, as a partisan Democrat, I'd like to request that he continue to give more speeches along these lines.
Given all the internecine fighting among Democrats over the course of the presidential campaign, I can think of few better ways to unite the Democratic party than hearing McCain loudly proclaim his desire to move the Supreme Court rightward. As much as Clinton supporters may loathe Obama and Obama supporters may loathe Clinton (and those numbers will go down drastically over the course of the general election), many will be scared shitless by the prospect of President McCain replacing the aging "liberal" justices (more on that later), Stevens (age 88), Ginsburg (age 75), Breyer (age 69) and Souter (age 68) with "people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist." (As an aside, I'm curious why McCain repeatedly leaves out Scalia in naming his model justices...)
