Tuesday, July 1, 2014


The Supreme Court Justices and how they voted

In the Hobby Lobby case yesterday.







(Tuesday July 1, 2014 Washington, DC)   In the wake of yesterday’s highly controversial decision in the case of Burwell v. Hobby Lobby by the Supreme Court of the United States (SCOTUS), there have been passionate reactions on both sides of the argument.  Obviously the “Religious Right” faction of the Republican Party perceives the ruling as a clear victory while the “Left”, primarily Democrats, envision a dimmer future for women’s health issues. As is so often the case the Court’s 5 – 4 decision broke along Party lines with the majority representing Justices appointed by Republican presidents and the dissenting minority having made it to the Court during Democratic administrations.  Looking beneath this equation one catches a glimpse of the religiosity (or lack thereof) that influences the Justices that is by itself worthy of further examination.  When John F. Kennedy was running for president in 1960 there were many who were suspicious of his Catholicism fearing his allegiance to the Pope and Vatican would overly influence his decision making process.  That did not happen at that time but religious influences have ever so slowly come to shroud the political landscape like a creeping ground fog.

Despite our form of jurisprudence as defined in the Constitution and its Amendments, politics is an influential element in our courts on all levels and it is most prominent when one looks at the Supreme Court.  Supreme Court Justices are appointed to a lifelong tenure on the bench; they retire when they want to; there is no method by which to alter the make-up of the Court besides having a president of one Party or other presented with the opportunity to nominate a candidate of his or her own political persuasion if a vacancy occurs during their tenure in the White House.  So, by its very nature SCOTUS is a political body in that each Justice brings a political ideology and philosophy with them to our highest court.  Anyone who doubts this reality need look no further back in our recent history to the Bush v. Gore case.  The Supreme Court literally interfered with the recount of presidential recounts in certain counties in Florida and abruptly shut that process down essentially handing the United States presidency to George W. Bush.  The political aspect of that decision has resulted in the current composition of the Supreme Court in that two of the sitting Justices’ were appointed by President George W. Bush.


Beginning in the middle of the last century the Supreme Court - and all lower courts in the land - found themselves confronting issues that were not explicitly delineated in the Constitution.  As they faced issues involving ethics and morals as much as the law itself, there developed two brands of judicial identity.  On one hand were the “Strict Constructionists” claiming their position as the “one and only true” application of the Constitution and the volumes of precedents predicated upon Constitutional law.  The other hand held those justices who were inclined to claim the constitutionality of a particular issue using their “interpretation” of the Constitution, known as “loose Constructionism”, were paving roads far afield from the “original intent” of the men who wrote our Constitution. There have been groundbreaking, precedent setting decisions based on the “Framers Intent” which is often derisively viewed as “extra-Constitutional” reasoning by its critics.  After all, as the decades went by an increasing number of SCOTUS cases involved matters the Founding Fathers could never have envisioned and in some of these cases the overarching contention was one of applying Framer’s Intent. 

As this divide became a deeper schism, the strict constitutionalists labelled their opponents as “activist judges” meaning, under a guise of smoke and mirrors, semantics and some degree of theoretical extrapolation, these judges were actually “legislating from the bench” usurping those powers granted only to Congress.  Perhaps each side of this gulf had some merit to their assertions.  After all, the American Constitution was meant to be, as some assert, to be a “living document” allowing for the continued relevance in our ever evolving society.  But was it truly meant to be living?  Those who oppose this interpretation find little, if any, leeway, malleability or room to maneuver when it comes to the Constitution. They hold the Constitution in great esteem and view it to be aging gracefully and adroitly, still vigorously adept enough to handle the complex issues of today.  The other side sees it more of a growing organism that needs to periodically be pulled or pushed in a direction that it might otherwise not find on its own accord as a means of keeping the Constitution relevant as we continue to grow as a Country, develop an increasingly diverse and disparate populace and exist in a cultural/social milieu the Founders could not foresee.   Both viewpoints are each part of the same double-edged sword; their arguments are off-setting in that they cancel each other out.


We are a country founded on the notion of freedom of religion.  Some of our earliest settlers were fleeing religious oppression in European countries many of which enforced a “State Religion”.  In those countries there was no choice as to whom or what to believe in, pray to, or what catechism to hold allegiance with.  Some of the darkest periods in the history of mankind saw gross atrocities committed in the name of one god or another, one religious view or another, or the usually ill-fated attempts to convert others by force and violence.  It has been written that if God was to appear before us today and hold us account for all of our transgressions committed in His name, He would be appalled.  But human nature seems to predispose us towards beliefs of a higher being, a divine entity, a life force, maker, grand designer or some other superior elder ever watchful over his people.  But, as our Founding Fathers saw with such brilliant crystal clarity, there must be a complete separation between Church and State.  Freedom demands it.

For most of our history the separation of Church and State was accepted unambiguously. While the exact words “separation of Church and State” are not in the Constitution, the First Amendment does say that government shall make no law “respecting an establishment of religion or prohibiting the free exercise thereof.”  It has only been in the last 50 years or so that there have been legal issues with either overt religious questions at their core or some with inclinations encroaching on that hallowed barrier between Church and State that have led to some dubiously ambiguous judgments obscuring that heretofore hallowed barrier.

Since the post-Civil War era of Reconstruction the SCOTUS has had to rule on some very thorny issues with each side of the argument finding some biblical footing.  In some landmark cases such as the Dred Scott Decision where the Court ruled that a slave, even a “freed” slave was not a citizen of the United States their judgment would not stand the test of time.  Years later a different Court in a different time reversed that ruling providing a clear starting point to what would develop into many decades of a Civil Rights movement seeking equality for “all men” no matter the color of their skin.  After all the bruising years of that often bloody movement the first issue with unbridled religious overtones, an issue that plagues us to this very day despite being legalized by the Supreme Court in the seminal Roe v. Wade decision of 1973, is the right for a woman to have an abortion.  Before that case abortions were often performed in unsanitary conditions by untrained practitioners and an untold number of pregnant women died in obscurity sometimes alienated from their families. Many of those survived the “back alley” procedures scarred and unable to conceive due to damage inflicted during the “illegal” aborting a pregnancy by choice.  If there is any point of reference and prominence in the last 40 years of SCOTUS rulings that has ignited a debate between Right and Left, Republican and Democrat it is abortion.  Republicans lean to the “Right to Life” of the unborn child while the Democrats staunchly defend their hard fought “Pro Choice” position which has been the law of the land since 1973.  Despite the legal status of abortion for the last 41 years, it remains one of the most hotly contested issues and, as we saw yesterday, it and other womens health matters such as birth control, remains under attack from a vicious far rightwing faction of the Religious Right as well as “mainstream” Republicans.  It is what both sides consider as a “red meat” issue used to inflame the passions of their respective “base” constituents.


What good are all of our Constitutional rights and the huge body of laws built atop them if, for all intents and purposes, they appear devoid of any sense of morals or ethics.  We live with some laws that outright trump the lowest of the low clearances of morality and ethics with casual ease while wantonly cloaking other more trenchant matters in quasi-sacrosanct absolutes with questionable moral and ethical underpinnings.  We use our Faith as a weapon to bludgeon those of other Faiths, or no apparent faith, or self-proclaimed agnostics and atheists.  Yes, we are a church-going, God-fearing nation of stalwart true believers as long as it all comports well with our affiliations, politics and personal liberties.  If my god is the one “true” god, by virtue of that lone belief, I possess the high moral ground. Where is the moral “high ground”; is it codified in law or doctrine, statutes or dogma?

This thinking begs the question that just because something is or is not legal does that make it – or not – moral and ethical?  This is no rhetorical exercise or verbal sleight of hand; it speaks directly to matters that can deeply impact us as individuals, as American citizens while also impacting all of us as a society.  Most of us will likely never be in a position where our own morals and ethics will have a direct impact on those of another however; there are times when the wider world intersects with our own beliefs.  At such times many would run for the protection of the “law” and hide behind it rather than navigate that intersection alone. 


If one is to adhere to the “Right to Life” there can be no escaping the fact that that very same live, as yet unborn, once birthed, is automatically imbued with the same rights as any of us are.  The Rightwing zealots battle over an unborn fetus yet deny health care and coverage to the infant.  Holding to the Right to Life one must accept in a moral and ethical sense that there exists as urgent an imperative to see that that newborn is able to be tended to in a proper, humane manner; a manner as detailed in several passages of the Bible.  Protecting a zygote from the nanosecond of conception until birth is one matter; there comes with that “legal protection” a far greater, long termed plethora of responsibilities.  It is obvious that the most rabid of the Right to Lifers are among the most recalcitrant when it comes to the realities and needs that young girls and women face trying to properly provide for and raise that child.  Abortions are often the last recourse for young women many of whom simply have no access to proper health care, housing, nutrition or even the most remedial parenting skills.  So, one cannot truly, morally and ethically be a Pro-Lifer if in fact, you shirk the responsibilities.  Having a Congress populated by older, self-righteous white men crafting laws and bills that neglect, actually blatantly ignore, the very real, basic needs of a young mother and her infant is the apex of hypocrisy.

This latest assault on women’s health care issues focus on having their expenses covered under the insurance coverage provided by the Affordable Care Act derisively called “Obamacare” by its Republican and Conservative opponents.  Since the Supreme Court has yet to have the balance of power to reverse the Roe decision of 1973.  But, if none of the sitting Justices retire providing President Obama with the golden opportunity to put hi mark on the highest court, the day may come when Roe v. Wade is revisited.  In the meantime the Republican Party has vehemently chipped around the edges making it increasingly difficult for women to have access to proper health care including contraception and abortions.  Particularly hard hit are young women eking out a living below the poverty line be they White, African American or Latino.  How so called “Christian Conservatives” can reconcile their proud religiosity with their immoral politics defies all logic.  How these proponents of “small government” time and again insinuate themselves into the reproductive rights of women is another mind twisting logical summersault.   

Justice Samuel Alito wrote in the majority opinion that this ruling was “narrow” in regards to its practical application.  Alito is either unaware of the wider world or he is simply ambivalent, callously indifferent, and disingenuous.  In this day and age it is quite unbelievable that any Supreme Court Justice could actually believe that their decisions can be “narrowly applied”.  The SCOTUS rulings set legal precedent that will no doubt open the floodgates for broader applications concerning what constitutes a “private, sole ownership corporation”, one in which the employers personal beliefs can trump the health care needs of its employees.  Already there are those on the Right gearing up to widen the scope of this ruling.  To think that this decision hasn’t opened a Pandora’s Box and will only bolster and empower those on the Right to pursue further litigation is just dead wrong.  In many states it is already nearly impossible for a woman to get a medical abortion and this Hobby Lobby case will leave even more needy women out in the cold driving some of them to the horrid practices once so common prior to the Roe v. Wade case.

For all the self-professed Christianity of the Right it is stunning that they can be so devoid of conscience.

 Copyright The Brooding Cynyx 2014 © All Rights Reserved

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