State Imposed Religion

Just a comment right up front, Henry, that this battle cannot be won if it is framed simply as a struggle between secular and religious America. On a historical note, 18th century proto-unitarians are not 21st century secularists. But more to the point, the battle against the Bush administration’s and the Republicans’ attempt to over-ride all opposition must have the support of those of us who oppose some of these appointments on religious grounds. The secular Left needs to _stop_ equating the religious Right with religious America. Doing so aids and abets the religious Right and you’ll find no objection to that from them. I simply don’t understand why the Left continues to do it.

The Schiavo case was a case decided in a court, not within the family. The order to remove Terri Schiavo’s feeding tube was a court order, made by a judge after a hearing instigated by one member of the family, with other members of the family opposed. Whatever one’s feelings on the case, one can’t assert that a defense of the judge’s ruling is a defense of leaving these decisions in the hands of the family.

The criticism of the judicial decisions in the Schiavo case is motivated by a belief–accurate, in my opinion–that the judiciary didn’t follow the law, in part because the law in Florida is inconsistent with the considered moral views of most members of the judiciary.

The larger debate is a debate about self-government vs. individual freedom. There’s no evidence that on the hot-button social issues of the day the forces of conservativism would rather enforce their moral values through the judiciary. Rather, they insist that their values should be allowed to be reflected in law, just as everyone else’s values are. If the people of a state wish to allow abortion, or wish to enact gay marriage, fine (from a jurisprudential standpoint–certainly a conservative might oppose those positions politically).

To misstate the facts of the debate–to miss the point of contention–prevents the argument from going further. That’s unfortunate.

I don’t expect this “watch out for state imposed religion” strategy to go very far. Currently, the seperation of church and state issues are stuck on highly symbolic issues–pledge, ten commandments, etc. Occassionally, you’ll hear about faith based social services, but many of the objections can be quelled by using a voucher system rather than the Fed. Gov. funding them directly. I’m not really convinced the Republicans are that serious about these things. They just needed a line on poverty reduction that is more or less consistent with the religious beliefs of their constituits. Issues like right to die and abortion have a strong religious component, but they can be argued either way on secular grounds. Thus, the average person doesn’t see theocracy as much of a threat. In fact, crying “state imposed religion” makes one sound hysterical to many people who have seen the public presense of religion decline in their lifetime.

It’s a shame. Religious people have benefited greatly from the seperation of church and state. It’s worth mentioning it, but progressives are going to look elsewhere to prevent conservatives from packing the court.

**Actually, I’m not convinced that they are willing to pack the court. Instead, what we are seeing is a cynical campaign to focus anger and rage on one of the few institutions that is not under conservative control for short term electoral gain.

Rather, they insist that their [conservative] values should be allowed to be reflected in law, just as everyone else’s values are.

Which prompts the question: what is the constraint on directly passing laws that reflect these values? There’s a distinct sense from Congress that they don’t want to hear about Schiavo-type cases again, and in particular would not want to pass a law requiring that PVS patients be sustained indefinitely when the family (however defined) can’t agree on care. Which suggests that public opinion, as reflected in polls (shaky indicator, I know) is less “conservative” than proponents of conservative values would like to think.

Yes, Steve, they’re all guilty, it makes no difference, just two sides of the same coin, he said/she said, ‘shape of the earth – opinions differ’…

P.S. For the record, I’m a mildly liberal Democrat and I find the current Republican war on the judiciary repugnant and dangerous.

Henry, I wish I were wrong, but I’m afraid you’re the one who is mistaken.

Here’s a description of the case, from a Florida appellate decision in Jan. 2001:

Robert and Mary Schindler, the parents of Theresa Marie Schiavo, appeal the trial court’s order authorizing the discontinuance of artificial life support to their adult daughter. Michael Schiavo, Theresa’s husband and guardian, petitioned the trial court in May 1998 for entry of this order.
…

In this case, however, Michael Schiavo has not been allowed to make a decision to disconnect life-support. The Schindlers have not been allowed to make a decision to maintain life-support. Each party in this case, absent their disagreement, might have been a suitable surrogate decision-maker for Theresa. Because Michael Schiavo and the Schindlers could not agree on the proper decision and the inheritance issue created the appearance of conflict, Michael Schiavo, as the guardian of Theresa, invoked the trial court’s jurisdiction to allow the trial court to serve as the surrogate decision-maker.
____________

I don’t know how to make it more clear that it was Michael Schiavo who invoked the court’s jurisdiction, and the trial court which made the ultimate decision. Your confusion is a common one, but that it is common doesn’t excuse it.

The “striking agreement” you refer to is an agreement that the trial court judge didn’t abuse his discretion in finding the facts as he did. Showing an abuse of discretion at the trial court level is a very difficult thing to do. It is undoubtedly made more difficult when a majority of those reviewing the factual determination under that very high standard share the cultural predispositions of the trial court judge.

I’m not sure why you think a response on the more important point would be superfluous. My suggestion isn’t that conservatives don’t want to enforce their values in law, but only that they’re attempting to act democratically.

P–I don’t doubt that many in Congress would rather avoid these issues. I also don’t doubt that many in this country–perhaps now a majority–would favor death in almost every instance, regardless of the question. But let’s have the debate, not rule it out of bounds. And when conservatives win–as they had won, to a certain extent, in Florida (Florida law has a presumption in favor of life)–let them win, and follow the law.

As I’ve said elsewhere, it’s hard to tell what First’s political views are. He may well be a theocrat. However, I think it far more likely that he, as are the neocons, is an aristocrat masquerading as a theocrat. In other words, they are using those who really want a theocracy to advance an aristocracy. Aristocrats are more than welling to use the “little people” how ever they want. It is their birthright after all. Or so they think and have been taught.

Rather, they insist that their [conservative] values should be allowed to be reflected in law, just as everyone else’s values are.

Which prompts the question: what is the constraint on directly passing laws that reflect these values?

That is EXACTLY the point in conflict in the judicial nomination fights–the current judiciary has ruled that certain values (which have been expressed in law, in many cases, for a century or more) cannot be expressed in law, in Roe v Wade, Lawrence, the prayer in school cases, the gay marriage case in Massachusets, etc. Some people oppose any nomination of judges who believe these issues should be subject to legislatures, and much of their rhetoric has been virulently anti-religious; further, many of their statements (e.g. with regard to Judge Prior) have been such as to lead one to believe that they would be unwilling to confirm ANY devout Catholic or evangelical.

This article is wrong-headed in the extreme, in terms of its proposed political strategy.

“Corruption” is a far better weapon in this fight. Frist is USING the Religious Right to serve corrupt purposes. The judges he pushes through will not support establishment of religion, or anything more trivial symbolism. That’s not the danger. The immediate danger is that the Republicans will be able to leverage the religious right to push through a Federalist Society clone army, which will resurrect the Constitution-in-Exile, to end Federal regulation of business and wealth.

The goal of Frist and company is economic and (essentially) secular. Frist and company are using the religious right for corrupt purposes. The most effective political strategy is to “reveal” the corruption, and thereby peal the religious right away from Frist.

I think the process argument combined with the “these people are psycho & they’ll be focusing on your family next” argument should do the trick.

Henry, perhaps we’re talking past each other. My point is only that it is the court that made the decision, not the family, and that point is amply supported in the court documents, as I quoted above. In that court action members of the family were on both sides. To the extent that the guardianship relationship is relevant, I’d note that guardianship is not a spousal relationship, and is entirely a creature of law. There should be no doubt that this dispute was entirely an ordinary legal dispute. Whether this ordinary legal dispute is related to prior disputes is largely irrelevant, from my point of view, but it is certainly true that there was a prior action involving the same parties.

As for abuse of discretion: it isn’t easy to overcome, contrary to your assertion. Demonstrating that a trial court abused its discretion in finding facts is actually a very difficult thing to do, if one follows the law.

So respect for legal process and an ordinarily healthy collegiality and deference to another member of the judiciary likely played a part. It is also possible that the fact that only a minority of the members of the appellate courts shared those values (grant that factual conjecture for the sake of argument) lead to what Cass Sunstein, et al, would call “collegial concurrences.” (See Ideological Voting on Federal Courts of Appeal: A Preliminary Investigation for an explanation of a possible mechanism.)

As for the Congressional legislation: it promised only a new review of the facts of the case. It didn’t guarantee a particular substantive outcome to the review.

State’s rights? Are you serious?

In the Schiavo case, the Federal government– specifically the DeLay/Frist Congress– far overreached its boundaries and attempted to override the decisions of the Florida state courts, which were properly upheld by the Federal courts out of respect for, you guessed it, state’s rights.

This legislation was a direct attack on state’s rights, and the Christian Fundamentalists weren’t just looking the other way at it, they were howling in unison *demanding* it. How then could you assert that they are merely trying to assert state’s rights. I’m sorry, I’m going with the “state religion” hypothesis. Enough of the radical Fundamentalists represented in own Congress have gone on record stating their goal to turn the USA into “a Christian Nation” that I see little need to guess here.

That’s why I hate pure democracy. :)

Oh that arrogantly anti-democratic judiciary. And that arrogantly anti-democratic Bill of Rights, too – it’s a crying shame, that’s what it is. Means there’s some brake on the democratic right to vote to take away other people’s rights (it doesn’t always work, but nothing’s perfect) whenever the democracy feels like it. There oughta be a law.

it’s a crying shame, that’s what it is. Means there’s some brake on the democratic right to vote to take away other people’s rights

Direct hit. Thank you, Ophelia.