26. BUSH (II) FUMBLES THE BALL

ONGOING CULTURAL CONFLICT

During the Bush years Boomers reached the age where they would begin to enter the ranks of federal judges, giving them the chance to put their cultural instincts into play as law, law entered into force by simple judicial decree.  To these new judges the law was "whatever" they felt it ought to be – in light especially of how they were inclined to read the First and Fourteenth Amendments.

The Boomers had never been fond of their parents' dedication to Christianity and had fought long and hard to put Christianity under the restraints of Secularism.  As the Boomers saw things, the First Amendment was about the people's right of free speech, press and assembly, that is, protection from dominance or control by the state.  But when it came to religion, the issue was viewed the other way around. As the Boomers understood the First Amendment, the "separation of church and state" was meant not to protect religion from dominance or even influence by the state, but rather to protect the state (meaning all public life) from dominance or control by their parents' religion.  Interesting, but not anywhere near what the original authors had intended by the First Amendment.

But there was more than just the Christian religion itself that Boomer federal courts felt that they must confine or restrict.  The Christian moral legacy, the Christian worldview, the Christian view on the value of life itself, came under strong Boomer challenge.  Even when the people themselves voted in state plebiscites, or when Congress, reflecting the spirit of the majority of the nation, passed legislation reflective of the continuing influence of this Christian ethic, the simple decree of a federal judge (usually with the help of the ACLU as the typical counsel for the anti-Christian plaintiff) could strike a deadly blow to the heart of such legislation.  All judges had to do was to cite the Fourteenth Amendment, claiming that the particular law as voted on by either a legislature or by a popular referendum deprived the complainant of life, liberty, or property, without due process of law, or denied them the equal protection of the laws.  "Due process" and "equal protection" were concepts that had the wonderful quality of meaning anything that the judges wanted them to mean.  All that they had to do was to decide that the complainant had some particular prior rights that had been taken away from them by the law.

A famous case pointing out how far the federal courts were able to go in re-legislating federal law was the Newdow v. U.S. Congress case.  In 2000 Michael Newdow brought suit against the local school board for requiring his daughter to recite the pledge of allegiance, which includes the words "under God," stating that this portion of the pledge was in violation of the Constitution's establishment clause. The U.S. Magistrate and Federal District Court claimed that the pledge did not violate the Constitution.  Newdow then appealed the decision to the very Liberal Ninth Circuit Court.  Unsurprisingly, a panel of three Liberal judges in 2002 sided with Newdow.  Their view was that the phrase was placed in the pledge for distinctly religious reasons by President Eisenhower and the U.S. Congress in 1954, quite in violation of the Constitution's non-establishment clause.

This decision of the Ninth Circuit Court drew a strong reaction around the country. 150 members of the House of Representatives gathered in front of the Capitol building to pledge allegiance as a sign of support for the pledge as it reads; the Senate passed nearly unanimously (one person absent) a resolution affirming its support of the pledge.

Soon thereafter the child's mother filed a complaint with the Court, pointing out that she alone had legal rights over the child, the father did not.  Her daughter was fully Christian and the father's intervention could prove harmful to the child.  The Ninth Circuit Court, in order to protect its original decision, answered that the father, though he did not have legal rights, did have paternal rights and therefore he possessed the same right as the mother to have his (atheistic) views presented to the child as she did her (Christian) views.  Then the following year, Newdow was awarded joint legal custody over his child, clearing away the objection that he had no legal right to present the case.

The Case then went to the U.S. Supreme Court, which in March of 2004 presented the decision that since Newdow did not have legal custody at the time the case was presented, his case before the Ninth Circuit Court was not valid.  Thus the Ninth Circuit Court's decision was overturned for technical reasons, although several of the Justices wrote separate opinions supporting the idea that the pledge did not violate the Constitution.

Another version of the pledge case again came up for action by the Liberal Ninth Circuit Court in 2005, and again the Court declared that the pledge was unconstitutional. This decision was then appealed by the Becket Fund in December 2007. The Becket Fund's most telling argument was that "under God" had long been in U.S. history a concept that protected rights, not denied rights; the long tradition in American politics was that the rights of Americans "are not given to us by the government, but by a source higher than the government."¹

Meanwhile, Newdow moved his anti-pledge crusade (supported by the Freedom from Religion Foundation) to New Hampshire in October 2007.  Here too the Becket Fund took up the challenge on behalf of the New Hampshire public schools.

Finally in 2010 the federal courts came to a decision on the matter.  In March the Ninth Circuit Court finally upheld the constitutionality of the pledge, and in November the First Circuit Court (Boston) also affirmed the right of the New Hampshire public schools to recite the pledge.

Another case that demonstrated the way the federal courts attempted to set the moral cultural agenda of the country occurred in the U.S. District Court of Judge John Jones III. On December 20, 2005 Jones issued his decision and supporting findings in the Kitzmiller v. Dover Area School District case.

This case concerned the Dover Pennsylvania School Board's requirement that beginning January 1st 2005, 9th-grade science teachers should read a short four-paragraph statement that advised that Darwin's theory of evolution is indeed just a theory and that Intelligent Design is an alternative explanation that students might want to explore in the book Of Pandas and People.

The decision to require the reading of this short passage had been bitterly fought within the school board during its deliberations on the matter in October and November of 2004.  And when the Board voted its approval, 6-3, the three opposing School Board members resigned in protest.

By the next month, December, the ACLU and eleven parents from the District had filed suit in the District Court to prevent the requirement of this reading of the passage from going into effect.

Judge Jones's decision the following December (2005) was that "it is unconstitutional to teach ID [intelligent design] as an alternative to evolution in a public-school science classroom."  His explanation was that ID was a religious view, and not science, because it violated a centuries-old ground rule of science by invoking supernatural causation.  ID was in fact nothing more than creationism in new clothing, which the Edwards v. Aguillard case back in 1987 had made amply clear was unconstitutional.  Jones was annoyed at the defenders of ID, claiming that they had used lies, illogic and disingenuous argumentation (pretending that ID was not simply creationism in disguise) to promote their case.  He assessed the actions of the School Board by stating:

The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial.  The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

This line of thinking automatically forbids any consideration of the origins of the universe and of life on this planet except in atheistic terms.  To close off consideration that creation might have started with some kind of "intelligent design" and to insist that creation resulted only through a natural process of random accident is itself to force a Darwinist article of pure faith, not science, on all learning.  The fact that the District Court chose to accept as scientific truth this article of faith presented by the experts of these strongly pro-Darwinist organizations was to enter into a realm considerably beyond its judicial capacity. But nonetheless that is exactly what Jones did.  He personally decided what was science and what was not.

On the other hand, the Foundation for Thought and Ethics (FTE), a very respectable organization of scientists and scholars who had quite compelling arguments against pure Darwinism, wanted to present its findings in answer to the experts brought in by the ACLU, AU and the NCSE.  Judge Jones denied their request, even though the FTE's publication Of Pandas and People was widely discussed in the course of the trial and FTE should have been allowed to answer the discussion.  But not only did Jones apparently know early on how he wanted to resolve this case, he also knew that he was developing a landmark case and wanted to make sure that everyone got the point.  There was to be no more such sneaking of creationist religion into the classroom through the guise of Intelligent Design.

In the end, the Dover Area School District, made up of new members (the six defendants in the case having been voted out of office by the Dover voters in November 2005 just prior to the court decision), had to come up with one million dollars in legal fees and damages due the lawyers in the case.  This too made the point quite clear.  As Richard Katskee of the AU put matters in the NCSE's February 24th, 2006 newsletter:

Any board thinking of trying to do what the Dover board did is going to have to look for a bill in excess of $2 million, I think $2 million is a lot to explain to taxpayers for a lawsuit that should never be fought.

¹(becketfund.org/ index.php/case/131)

²The financial penalty was enormous.  But the AU felt that it was being charitable in asking only for $1 million in settlement. The AU had this to say on its website concerning the case:

The district court approved $2 million in attorney's fees and costs, but AU and co-counsel agreed to accept only $1 million in fees because the new board members supported our position, and we wanted to ameliorate the financial burden on their ability to educate Dover's children.  Of this amount, roughly $267,000 went to cover costs, and the remaining amount was split between AU and the ACLU of Pennsylvania.

(https://www.au.org/our-work/legal/lawsuits/kitzmiller-v-dover-area-school-district)

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Newdow speaking at the Atheist Alliance International Convention in Long Beach, California, 2008

Judge John Jones III

The reaction of Time Magazine

The TV program NOVA

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THE BATTLE OVER "MARRIAGE"

The Boomers were never big on the idea either of Christian marriage, especially its notion of being a lifetime commitment.  Besides undercutting in the early 1970s the idea of marriage's contractual lifetime commitment through the invention of "no fault divorce," Boomers began by the 1990s to prove big on the idea that anybody should be able to enjoy all the social and legal benefits of the union of marriage, no matter for how long (short or long) but also no matter who (male and female, or not).  Why not also lesbians and homosexuals?  Why shouldn't such unions entitle gays not only to marry, but adopt (they were not likely to have children otherwise), and draw tax, pension and health benefits just like traditional marriages and families involving men and women and their natural offspring?  Why should a traditional marriage have any higher regard in the eyes of the society and state than homosexual unions? But this attitude was simply indicative of the low regard Boomers had for the institution of marriage and family itself – not realizing that American democracy had long been built on the independence, strength, and social formative power of the American family … not on the powers of the state and its "programs," no matter how "progressive" these might seem.  Strong society was built on a strong sense of community formed at a very early age under the direct guidance of a male and female parent – not on some "enlightened" agent of the state and his or her grand plans to engineer human existence along more rational lines. Ultimately that was the key difference between a moral order based on the one hand on the teachings of Jesus and the historical experience of those who endeavored to live a "Christian" life … and on the other hand those who thought that life would be better organized by the lofty "wise" ones with grand rational plans for the rest of the human race. And so Boomers pressed forward their case, another act in "liberating" America from its old Christian standards.  And once again the courts, properly chosen, rather than the legislatures, where the voice of the general American populace had some kind of opportunity to be heard, were the chosen path to rewrite the laws of the nation concerning marriage. Hawaii was chosen as the point of attack.  In the 1993 case Baehr v. Miike, the Hawaii state Supreme Court ruled that there was no compelling reason why homosexual unions should not be entitled to be considered the same as heterosexual or male-female marriages.   This so upset much of the nation that in 1996 Congress passed the Defense of Marriage Act, by a vote of 342-67 in the House of Representatives and 85-14 in the Senate.  President Clinton signed it into law, stating that his belief was that marriage was to be only between a man and a woman.3 Foiled by the democratic process of legislatures writing the laws of the land, the homosexual community pressed their case in the nation's courts where the magisterial process, more elitist and less democratic, could more easily secure their political objectives.   But the gay community found even that tough going, for older Americans were dead set against the idea.  The gay community would have to wait for the Boomer population to come to full ascendancy in the nation before things would begin to shift, despite the intense ideological battle that raged during the 1990s and first years of the 21st century to brand opposition to gay marriage as "homophobia," one of the few serious sins in the Boomer code of ethics. By the summer of 2008 California had turned into a major battle-ground on this issue.  That May the very Liberal California Supreme Court ruled in the In re Marriage Cases that laws blocking gay marriages violated the state constitution. Gays could thus get married in California.  For several months there was a rush of gays to have California recognize their unions as full-scale marriages.  But in the November elections of that year a state referendum was held on the issue, "Proposition 8," which was designed to amend the state constitution to make it clear that marriage was only between a man and a woman.  With a high turnout Proposition 8 passed, 52.24 percent to 47.76 percent.  The vote was challenged immediately in the Strauss v. Horton case.  In that case the California Supreme Court decided (2009) that the vote was valid (as a matter of procedure), but the 18,000 marriages prior to the November vote were also valid.  Furthermore the association of the word "marriage" with the union of a man and a woman did not take away any of the privileges of same sex unions, a rather interesting way of saying that the law stood as such, but ultimately this law also had little importance in how California was actually going to handle this matter of the legal entitlements of all unions, whether male and female or homosexual. 3But, like many Boomer Liberals, Clinton would soon switch to the other side, after having become more "enlightened" and less "homophobic" in his views – when the weight of national public opinion had swung Leftward enough for him to be able to safely change his political stand on the matter. THUS THE BATTLES OVER THE APPOINTMENT OF NEW SUPREME COURT JUSTICES The U.S. Supreme Court comes up with two key openings for Bush to fill.  Will he appoint conservatives – to tip the ideological balance of the bench?  Republicans are hopeful; Democrats are fearful. President Bush announces his nomination of John Roberts as the new Supreme Court Chief Justice John G. Roberts Jr. was sworn in September 29, 2005 as the 17th chief justice of the United States only hours after winning Senate approval with a solid 78-22 vote. A much bigger issue occurs with the retirement of Justice Sandra Day O'Conner – traditionally a swing voter who gave the liberal side of the bench support on key issues.  If Bush replaces her with a conservative, the liberals will no longer dominate the Court Judge Samuel Alito during the 3rd day of his hearing Judge Alito hearing Judge Samuel Alito at hearing Senator Kenneday addressing Alito at hearing January 31, 2006 – Alito is confirmed by a party-line vote of 58 – 42 (with only 4 Democrats siding with Alito) Go on to the next section:  Barack Obama Seeks to "Change" America   Miles H. Hodges