Law, culture, and Catholicism...up in smoke!
Thursday, June 30, 2005
Show the world (or at least those following your car) your appreciation for the Holy Father in time for his historic trip to World Youth Day in Köln...or bring some with you if you're heading over there!
UPDATE: The top half of the bumper sticker has a white background (click on the image for a better idea). I notice Blogger has translated the white in the above version as "transparent," and the parchment is showing through. Nope: white and gold, just like the Vatican flag (and, in a bit of irony: black, red, and gold, just like the German flag)!
Wednesday, June 29, 2005
WHEREAS the Supreme Court of Canada has determined that the Parliament of Canada has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex;
Nothing quite like an advisory opinion from the Supreme Court informing Parliament of the reach of its power, eh? Now we know where the Massachusetts Supreme Court is coming from:
We face a problem similar to one that recently confronted the Court of Appeal for Ontario, the highest court of that Canadian province, when it considered the constitutionality of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v. Toronto (City), 172 O.A.C. 276 (2003). Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others." Id. at par. (36), quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that the limitation of civil marriage to opposite-sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. See Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity).
* * *
In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983).
Legislative information on the Canadian same-sex bill can be found here.Incidentally, yesterday's first reading recounted the destruction of Sodom: "Then the LORD rained on Sodom and Gomorrah brimstone and fire from the LORD out of heaven; and he overthrew those cities, and all the valley, and all the inhabitants of the cities, and what grew on the ground." Gen. 19: 24-25. Let those with ears hear.
Now if they can just figure out how to legalize same-sex divorces.
Tuesday, June 28, 2005
UPDATE: Below are the introduction and questions presented in Scheidler v. NOW III [PDF], and upon which certiorari was granted this morning [PDF].
In Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003), this Court reversed a decision of the Seventh Circuit that had affirmed a civil judgment and nationwide injunction entered under the Racketeer Influenced and Corrupt Organizations Act (RICO) against various anti-abortion protesters. In reversing, this Court explained (id. at 411 (emphasis added in part)): “Because all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.” On that basis, this Court determined that it “need not address the second question” on which certiorari had been granted, namely “whether a private plaintiff in a civil RICO action is entitled to injunctive relief under 18 U.S.C. § 1964.” Ibid.
The questions presented are:
- 1. Whether the Seventh Circuit, on remand, disregarded this Court’s mandate by holding that “all” of the predicate acts supporting the jury’s finding of a RICO violation were not reversed, that the “judgment that petitioners violated RICO” was not necessarily reversed, and that the “injunction issued by the District Court” might not need to be vacated.
- 2. Whether the Seventh Circuit correctly held, in conflict with decisions of the Sixth and Ninth Circuits, that the Hobbs Act, 18 U.S.C. § 1951(a), can be read to punish acts or threats of physical violence against “any person or property” in a manner that “in any way or degree * * * affects commerce,” even if such acts or threats of violence are wholly unconnected to either extortion or robbery.
- 3. Whether this Court should again grant certiorari to resolve the deep and important intercircuit conflict over whether injunctive relief is available in a private civil action for treble damages brought under RICO, 18 U.S.C. § 1964(c).
Folks, it is this alleged event and three other purported "acts or threats of physical violence" which became the rationale for (apparent) NOW member Judge Diane Wood of the 7th Circuit to resurrect this case after it had been so clearly reversed [PDF] by an 8-1 majority of the Supreme Court in Scheidler II. And these alleged acts are at the heart of questions 1 and 2 now before the high Court in Scheidler III.
When the 50ish, stylishly dressed "Miss C" took the stand, [NOW attorney Fay] Clayton gently led her through her story: Miss C told jurors she'd had an appointment on Feb. 11, 1989, at the Women's Medical Center for post-operative care following surgery for ovarian cysts. Her minister, "Pops" Johnson, had driven her to the clinic, she said. But before she could enter, "a crowd of people came running from both sides of the [clinic] ... they were carrying signs and shouting things at us. They were shouting 'murderer, baby murderer.'
"Then somebody grabbed me by the back of my hair and I fell up against the car. Then I remember rolling down the side of the car, and the people were hitting me.... I was yelling for Pops to help me.... As I looked up and yelled, 'Oh, God help me,' a man hit me in the head with a big old sign."
As Miss C sobbed on the witness stand, [Scheidler co-defendant Tim] Murphy noticed some jurors crying with her. [Scheidler's lead counsel Tom] Brejcha was floored: Such an assault had never been mentioned in any of the discovery material provided by NOW attorneys. Joe Scheidler remembers thinking that Miss C was either very confused or a very good actress.
Miss C continued: Following the alleged blow to her head, she passed out. When she came to, Pops Johnson and several orange-vested clinic supporters were carrying her aloft over the crowd. The pro-life crowd was "still grabbing" at her as those carrying her helped her into the rear seat of a small car. Her surgical sutures had ruptured, she said: "I was covered in blood from the waist down.... I was hysterical. I was afraid. I thought they were going to kill me."
But legal documents cast doubt on Miss C's testimony. After the jury issued its verdict in 1998, the defense filed a series of appeals. Katie Short, an attorney with Life Legal Defense Foundation in California, was writing a brief on behalf of the defense when she noticed something odd: Miss C's testimony sounded an awful lot like the testimony of a woman who was involved in another high-profile abortion case.
"I was reading through the RICO judgment issued in 1999," Ms. Short said. "I remember thinking, 'This deals with matters in California in 1989, just about the time we were litigating National Abortion Federation vs. Operation Rescue (NAF vs. OR)," a statewide suit filed against pro-lifers by the American Civil Liberties Union. Ms. Short maintained a storage room at her home office. "I had to go outside and paw through stacks of boxes to find the complaint." Sure enough, what Miss C. described in 1998 testimony had taken place on the same date in the same location as a protest cited in strikingly similar testimony in NAF vs. OR. And the witness, whose name was Carolyn Thompson, told the same story: Her minister had driven her to the clinic for a post-operative checkup; they'd encountered a pro-life crowd; and she'd fainted dead away.
What the witness didn't say in 1989 was anything about being scratched, clawed, and beaten over the head -- or waking up to find herself covered in blood.
"It looked very suspicious," Ms. Short remembers. "If I were the ACLU attorney and I had this blockbuster testimony about a bloody beating, I would have put something about it in the complaint."
And something else didn't add up: The California lawsuit was still pending. Why would someone who is a named class plaintiff in an open case need anonymity to testify about the same event in another case?
Armed with the new information, Pro-Life Action League's Mr. Murphy hired Jan Stoltenberg, a Los Angeles area, homeschool mom and pro-life activist, to investigate further. Mrs. Stoltenberg worked from a list of "Carolyn Thompsons" in her city. She visited 13 different courthouses (sometimes taking her 7-year-old daughter with her), searched voter-registration records, matched signatures and Social Security numbers, interviewed neighbors and apartment managers, and finally was able to determine with near certainty that Miss C and Carolyn Thompson were the same person.
The Scheidler team would later challenge the RICO verdict twice in the 7th Circuit -- and twice be denied (see [timeline of Scheidler case]) -- based in part on Ms. Thompson's hidden identity and arguably false testimony. Mr. Brejcha would charge in court pleadings that Fay Clayton had deliberately obscured Ms. Thompson's identity in order to prevent the defense from comparing her 1989 declaration to her 1998 story. He noted that declarations filed in the 1989 case -- one of which was from a clinic doctor who was specifically familiar with Ms. Thompson's experience that day -- mention no violence at the Feb. 11, 1989, rescue. Neither did newspaper accounts or archived footage of any local news broadcast covering that day's protest.
In pre-testimony questioning in 1998, Ms. Thompson herself appeared to forget she had been assaulted. When defense co-counsel Deborah Fischer asked Ms. Thompson, "Did anyone hit you?" she replied "No." There were also other significant differences in Ms. Thompson's testimony, including whether she obtained medical treatment at an alternate location, where that treatment did or did not occur, the extent of her bleeding, and when she discovered it.
In reply briefs [at the 7th Circuit], Ms. Clayton never admitted Ms. Thompson's true identity. She even made statements that seem calculated to cast doubt on the idea that Miss C and Ms. Thompson were the same person: "A central problem of Scheidler's new brief is the logical leap to the conclusion that the Los Angeles patient who testified at trial is Carolyn Thompson. Scheidler's statements to this effect are simply false," and, "It is impossible to determine from the record whether this is the same person as the woman who testified nearly three years ago."
From the record, perhaps. But not from Carolyn Thompson's lips. Working with Mrs. Stoltenberg, WORLD was able to locate Ms. Thompson. "I was an anonymous witness in NOW vs. Scheidler," Ms. Thompson said in a telephone interview. Asked whether she requested to testify anonymously because she feared the Scheidler defendants, Ms. Thompson replied, "No. The NOW people had already decided I would testify anonymously when they contacted me.... I was fine with that." Ms. Thompson told WORLD that NOW's investigator, who visited Ms. Thompson's L.A. apartment, told her it would be too dangerous for her to testify using her name.
In September 2002, a reporter working on a series of abortion-related articles for a journalism fellowship project also interviewed Ms. Thompson over lunch at Spago in Beverly Hills. On a tape WORLD obtained from that journalist, Ms. Thompson said twice that she was financially "accommodated" for her testimony, adding that she "broke even." But in 2000, Patricia Moore, a friend and neighbor of Ms. Thompson's during the 1998 trial, signed an affidavit in which she stated that Ms. Thompson told her she had a "lawsuit going on in Chicago," at the same time as NOW vs. Scheidler. "She told me that she had received a substantial amount of money from the Chicago lawsuit. She said that she used part of this money to pay her rent, three months in advance."
While it is important to know the underlying facts (read the WORLD piece for far more than those related here) behind NOW's accusations, the high Court is not going to consider whether the testimony was perjured. NOW has already won on that front. What remains -- in addition to the injunction-related question presented (#3) -- is whether the Hobbs Act will be expanded to include blanket prohibitions of any "acts or threats of physical violence," regardless of whether those acts are related in any way to robbery or extortion, the predicate acts found lacking in Scheidler II. As previously discussed on Fumare here, and quoting Lyle Denniston over at SCOTUSblog, if this broadening of that Act were to prevail, then "it could make the Hobbs Act -- a law enacted in 1946 to curb labor-management racketeering -- into a sweeping federal anti-violence law."
Is there no limit to NOW's myopic zeal?
Monday, June 27, 2005
What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that thumbs up or thumbs down as their personal preferences dictate. Today's opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, ante, at 11, n. 10, the Court acknowledges that the Establishment Clause doctrine it purports to be applying lacks the comfort of categorical absolutes. What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. The footnote goes on to say that [i]n special instances we have found good reason to dispense with the principle, but [n]o such reasons present themselves here. Ibid. It does not identify all of those special instances, much less identify the good reason for their existence.It doesn't take an Amish homeschooler or an unemployed peyote-smoking Native American to figure out that today's rulings have made things less clear when it comes to the religion clauses of the First Amendment. Just how much damage might have been done by the dictatorship of a shifting Supreme Court majority remains to be seen.
On a related note, I wonder how much excessive entanglement presents itself when the dissent paraphrases the "Dictatorship of Relativism" label coined by our new pontiff, Benedict XVI? Looks like an endorsement to me!
N.B. Click here for more on today's rulings.
Friday, June 24, 2005
I did not stay up late last night to watch all of Game 7 of the NBA Finals. But when I woke up this morning and commuted to downtown Detroit, I knew who had won. The skies over southeastern Michigan were inexorably hazy and gray. The I-75, with the exception of the ubiquitous semi rigs, seemed abandoned and empty, as if half the city had called in sick. Noticeably absent were the caffeinated drivers whizzing past me at 100 miles per hour, weaving in and out of traffic as they cherished the memories of a Pistons victory the night before. The U.S. Marshals who greeted me at the federal building seemed grim and grumpy--a typical sight to be sure--but a little unusual for a Friday.
Then espn.com confirmed what I already knew--the Detroit Pistons had lost. I confess that I felt a tinge of satisfaction upon learning this. It's not that I don't like the Pistons themselves. They are a group of talented and unheralded players who work hard and don't receive the respect they deserve. But I don't care much for some of the fans. I primarily blame the fans for the brawl with the Indiana Pacers. I concede that the fight could have happened in any number of arenas around this country, but it was certainly no surprise to me that it happened in Auburn Hills. My condolences to Fumare readers who are true Piston fans, but to those "fans" who have no qualms about chucking ice at players or running onto the basketball floor to take a swing, you only have my schadenfreude.
Tuesday, June 21, 2005
- The Supreme Court Nominations Blog, which may be unripe if Arlen Specter is right for once, has an interesting survey of the influence of Chief Justice Rhenquist's vote (though by far not the only yardstick of influence when it comes to a chief justice) over the last few Supreme Court terms.
- [Via Ignatius Insight Scoop] Have you heard about 26-year-old UD grad Susan (Rollins) Torres? On May 7th, the day before Mothers' Day, Susan collapsed. She was rushed to the Virginia Hospital Center in Arlington, where she has been diagnosed with stage four melanoma and is brain dead with no hope of recovery. Susan was 17 weeks pregnant with her second child at the time, and although the doctors have given her no hope of survival, they are fighting to keep her unborn child alive until at least July 11 where he or she will have a viable chance at continued life. The sacrifices her husband (also a UD grad) and family are making to keep her on life-support for the next several weeks is taking an incredible toll, financial, emotionally, and in other ways. Please keep Susan and her family in your prayers, and if you're a position to do so consider donating to the Susan Torres fund, which hopes to offset the enormous cost of ongoing life support. (UPDATE: If you have Flash installed and decent connection, click here to see an uplifting and wrenching presentation from USA Today, one of the very few MSM outlets to cover this story. Includes viability graphic, video clips of Jason Torres, and more.)
- Tom Goldstein (SCOTUSblog) has provided a thoroughly peer-reviewed, rock-solid theory on the outcome of the two Ten Commandments cases about to be released by the Supreme Court. Okay, I'm kidding, but he does provide an interesting hypothesis regarding their possible outcome. If he's right, here's a not-so-subtle early congrats to a certain member of our merry band who may or may not have collaborated with St. Raymond of Penyafort to lend his talents to the circuit court's dissent in McCreary County v. ACLU. Information about both cases is below:
- Van Orden v. Perry , No. 03-1500 , click here to access the question presented in this Ten Commandments case from Texas (argued March 2, 2005 )
- McCreary County v. ACLU of Kentucky , No. 03-1693 , click here to access the questions presented in this Ten Commandments case from Kentucky (argued March 2, 2005 )
Monday, June 20, 2005
Fight Club, 1999.
While denial of review remains a distinct possibility, the Court's decision may also be either a grant of certiorari, with or without a summary reversal (and with or without an accompanying opinion of the Court), or it could be the issuance of a writ of mandamus (compelling the lower courts to implement the high Court's mandate from February 26, 2003, when it ruled for Scheidler and his co-defendants 8-1 [PDF]). If review is denied, that could be accompanied by a dissenting opinion on the part of one, two or three Justices. (A vote of four would suffice to give the petitioners another plenary review, while a vote of five at this point would win the case for Scheidler right now "on paper," either by summary reversal or writ of mandamus.)
Stay tuned...although the Court could issue a an Order between now and next Monday -- perhaps on Thursday when it is next scheduled to release opinions -- a more likely prospect is that the decision might come in next Monday's scheduled Order List. Referencing an earlier post, it seems that it is not too late to say some Aves and Paters on behalf of Joe Scheidler, his co-defendants, and their families.
Saturday, June 18, 2005
As the nation's Roman Catholic bishops gathered in Chicago Thursday for a meeting to review their sexual abuse policy, Cardinal Francis George said homosexual men should not be admitted into seminaries.
George, who is archbishop of Chicago and vice president of the U.S. Conference of Catholic Bishops, said in light of the sexual abuse crisis, bishops are paying closer attention to the sexual backgrounds of men interested in entering the priesthood. Part of the commitment is that a man is celibate when he enters seminary.
The role, if any, of sexuality in the sexual abuse scandal is being debated. Critics have charged there is no evidence that gays are more likely to engage in abuse than heterosexuals. Others have said placing attention on homosexuality is a way of deflecting attention from bishops who allowed the scandal to unfold.
According to the John Jay Report, 81 percent of the minors abused by Catholics priests since 1950 were male. Of those males victims, 85.8 percent were 11 or older, meaning the vast majority of those cases fell outside the clinical definition of pedophilia. The abusers, of course, were 100 percent male.
Thursday, June 16, 2005
It's clear the author doesn't agree with Monaghan or his contention that, for instance, Catholic education as a whole is on the skids...he mentions the prestige that comes with graduating from Boston College High School, BC, and then BC Law, as though temporal success has anything but a reverse effect on getting to heaven.
Most fascinating, though, is the author's description of the current hand-wringing by such organizations as Americans United for Separation of Church and State, whose director obviously thinks someone died and made him grand poobah of city planning:
You can't create your own town and then decide what all of the rules will be for living in that town. You can't have a religious test for purchasing a house.... This kind of approach to creating your own little community is still governed by fundamental civil-rights and civil-liberties principles that are inherent in the constitution of the state of Florida and the federal Constitution. This is not a guy who's buying his own island out in the Pacific. If he did that, he might be able to get away with all of this.To this, Reilly points out that the town will start out unincorporated and consisting entirely of privately-held land. Stating that it is unclear what principles governing church-state separation this violates, if any, Reilly adds:
What's more, recent legal precedent may be on Monaghan's side. In 2003, the United States Supreme Court refused to hear a challenge to a federal appeals-court ruling that allowed Orthodox Jews in Tenafly, New Jersey, to create an eruv -- a demarcated area within which specific religious prohibitions would be followed on holy days and the Sabbath -- inside that community. It was an emphatic validation of the constitutional right to freedom of association. The parallel with Ave Maria isn't perfect, since the Tenafly case involved occasional behavior within a pre-existing community. But it bodes well for those who envision a more restrictive Ave Maria. So, it's worth noting, do Monaghan's ties with Antonin Scalia, the conservative Catholic Supreme Court justice who was recently a "justice-in-residence" at Ave Maria Law School, and Clarence Thomas, Scalia's Supreme Court colleague, who spoke at the law school in 1999 and 2004.Still, Reilly poses some fascinating scenarios which -- though wholly hypothetical at this point -- would be interesting to tackle:
What happens, for example, if an outspoken atheist tries to purchase a home in Ave Maria? If supporters of a political candidate who backs abortion rights attempt to canvass there, will they be turned away? If an individual or group of persons living inside Ave Maria deviate from Monaghan's conception of Catholic orthodoxy -- say, by possessing pornography or contraception -- what will the consequences be?As stated already, as much as a town without pornography and contraception would be great, I think possession of such items falls outside the scope of planned prohibitions. And, Reilly notes, it appears that Monaghan and his partners, Barron-Collier, already differ on the extent of the prohibitions Monaghan does plan to implement.
Finally, Reilly posits his theories for why a court challenge to Ave Maria might just help further Monaghan's cause (and orthodox Catholicism in general).
My thought: That frustration with the culture of death would lead thousands of people, and particularly families, to express interest in moving to a town like Ave Maria is understandable. But the entire reason for the Church is because humans are -- and will continue to be -- sinful. Monaghan does not, or at least should not, envision a town where sin is no longer present...were that the case he might as well call the town Heaven. Here's the catch: what sincere Catholics know is that once you move past the more obvious sins, such as porn and contraception, you are faced with the reality of a whole host of new vices and weaknesses, such as sins against charity, that those blinded by sexual sin are apt to miss -- or dismiss -- in their own lives. If Ave Maria, by making it just a bit easier to avoid sexual sin and the rest of the culture of death, helps its residents to achieve that next level in self-awareness and to come that much closer to God in the process, may it succeed and flourish.
But leave the law school in Ann Arbor.
The last time the Senate called a hearing to investigate the infringement of a person’s rights it was deemed a "flagrant abuse of power." Then again, questioning the Democrats’ favorite law maker, the courts, is of course overreaching.
And while I'm at it, how about a toast to all those people, women and men, who espouse true feminism or whatever they call the belief that -- while equal in dignity -- men and women are different in just about every other important way. And that, in the words of one celebrity whose jury actually did its job, is a Good Thing.
Wednesday, June 15, 2005
Tuesday, June 14, 2005
The 2001 Ordinance regulates comprehensively the operation of adult entertainment businesses in Gwinnett County. Establishments governed by the 2001 Ordinance include those where persons perform either fully or partially nude; where more than ten feet of floor space or five percent of net sales are derived from the sale of adult magazines, books, or movies; and adult movie theaters, minitheaters, video stores, arcades, hotels, and motels. 2001 Ordinance § 86-71. The 2001 Ordinance, in other words, regulates commercial entertainment akin to the "Huggin' and a kissin', dancin' and a lovin', wearin' next to nothing" that the B-52s famously described as occurring in a "funky old shack." The B-52s, Love Shack, on Cosmic Thing (Reprise Records 1989).The Court, in an opinion authored by Judge Pryor, held that the ordinance survived Plaintiff's challenge. The challenge was brought after the ordinance became an obstacle to Plaintiff's plan to open up multiple sex shops under the name "The Love Shack." Opinion here.
Sunday, June 12, 2005
Careful with that link—these guys make actual, honest-to-goodness, arguments that go right to some of the fundamental issues. Of course, the vast majority of their opponents dismiss them by saying that they oppose the destruction of embryos because of their belief.
Never, ever let someone get away with that in argument. Belief has got little or nothing to do with it. The Bible says nothing specifically about embryonic research, and when the Church speaks about the issue it doesn't just issue one page position papers with one sentence proclaiming "God says" destroying embryos is wrong—it gives reasons for it.
The tactic of the enemy these days is to dismiss all religious people in the public square by reducing their arguments for things to the basis of belief, which in the popular mind is simply your will. Thus the opponent can say, "You have your beliefs, that's fine, but don't force them on us."
This does two things: A) It makes it sound like one can't argue about the issue at all (e.g., you have your beliefs that you choose, I have mine, lets call the whole thing off and have the government be "neutral"). B) It allows them to seem to be the one with reasons and arguments for things, while you are dismissed as incapable of reason and being argued with—unscientific, as it were.
Saturday, June 11, 2005
Not willing to let the truth get in the way of a last-ditch legal argument, NOW's retort is primarily a rehash of its response brief [PDF] in opposition to Scheidler's cert petition, and its rationalizations are soundly refuted by the Scheidler defendants' reply brief [PDF].
Far more interesting than what she says is what Ms. Gandy doesn't say in her retort. For example, she says nothing about Judge Diane Wood's membership or non-membership in NOW. (For those just joining us, Judge Wood authored the opinion that the Supreme Court reversed 8-1 in 2003, the unpublished order a year later in 2004 resuscitating the case, and the published opinion this year denying the petition for rehearing.) You'd think that if anyone other than the judge knows this information, Kim Gandy would. If Sullivan's Judicial Profiles: The Illinois Judicial Directory were somehow inaccurate (e.g., Judge Wood resigned her membership and just overlooked the annual update forms that Sullivan's sends year in and year out to all judges listed), and if Prof. Gaffney were wrong in relying on the Sullivan's directory, wouldn't Ms. Gandy have jumped at the chance to point out such an error? How is the fact that the judge who authored the 7th Circuit's opinions in NOW's favor is listed as a member of NOW helpful to Ms. Gandy's credibility or that of her organization and its position?
Nor does Ms. Gandy utter more than a passing reference to the RICO injunction issue that -- beyond a doubt -- the high Court would have addressed and resolved in 2003, having had the benefit of full briefing and oral argument on the issue, if the Justices even remotely contemplated the possibility that some sort of private RICO injunction might still be entered in this case.
Instead, Ms. Gandy grasps at one of the weakest straws in NOW's argument: the issues raised by Scheidler "are simply not ripe for Supreme Court review at this point." Wrong, Kim. However, but for the 7th Circuit, they would be moot.
Bottom line: no matter how hard NOW tries to parse the clear, unequivocal language of Chief Justice Rehnquist's opinion for the 8-1 majority in Scheidler II, it will be unable to explain away the unambiguous commands -- three "musts" reinforced by the powerful adverb "necessarily" -- that require an end to this chicanery. Don't just take this blogger's word for it, though. Read and decide for yourself what the Chief Justice meant by these words, the final sentences of his Scheidler II opinion:
Because all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated. We therefore need not address the second question presented–whether a private plaintiff in a civil RICO action is entitled to injunctive relief under 18 U.S.C. § 1964.What is it about Chief Justice Rehnquist's successive phrases "must be reversed," "must also be reversed," and "must necessarily be vacated" that NOW and Ms. Gandy don't understand?
The only possible explanation is NOW's myopic zeal in intimidating and harrassing peaceful, non-violent abortion protesters. The unfortunate result? Now entering its 20th year, NOW's lawsuit continues to be rotten to the core, emitting a stench that undermines respect for law and the federal courts.
Thursday, June 09, 2005
Denniston's summary of the case, which he calls a "titanic struggle in the sidewalk wars over abortion," is very helpful in some respects, but disappointing in others. On the positive side, he states that while most public and judicial attention has focused on the use of RICO against abortion protesters, "there now lurks in the case a major issue of criminal law," which concerns the scope of the federal Hobbs Act. He points out that if this "broadening" of that Act were to prevail, then "it could make the Hobbs Act -- a law enacted in 1946 to curb labor-management racketeering -- into a sweeping federal anti-violence law." The problem with this issue, he notes, is that "at this stage...the 7th Circuit's latest ruling...stressed that it was not deciding that issue, and noted that that question could disappear after the new round in District Court."
Still, Denniston says that the high Court could "hear part of the case without getting to that issue itself, if it confined its review to clarifying the scope of its 2003 ruling [which] may well be the decisive issue as the Justices on Thursday ponder a grant or denial of review." What's disappointing about this blog post, however, is that Denniston goes on to quote the 7th Circuit's ruling [PDF] while ignoring the critical wording of the Supreme Court when it ruled over two years ago in Scheidler's favor, in an opinion by Chief Justice Rhenquist, by such a decisive (8-1) margin. Then the high Court held that "all" of the predicate acts supporting the jury verdict against the defendants under RICO "must be reversed." Further, it held that without any underlying predicate acts the judgment that the Scheidler defendants violated RICO also "must be reversed." And finally, the Chief Justice wrote for himself and seven other Justices (all but Stevens, J. who dissented) that without an underlying RICO judgment, the nationwide injunction granted against the named defendants and all other protesters in concert with them "must necessarily be vacated." Despite these unambiguous commands -- three "musts" reinforced by the powerful adverb, "necessarily" -- the 7th Circuit panel held that four of the hundred-plus predicate acts found by the jurors after the 1998 trial were unaffected by the high Court's ruling. The panel also directed the trial court to consider whether to enter another, more narrowly tailored RICO injunction against Scheidler, et al.
Thus when the Supreme Court said "all," the 7th Circuit panel held that the Justices only meant that "some" predicate acts must be reversed. When the Chief Justice wrote "must," the lower court panel held that this only meant that "maybe" the RICO judgment against Scheidler had to be reversed. And when the Justices ruled that the RICO injunction "necessarily" had to be vacated, the 3-Judge appellate panel took that to mean that vacating the decree was only "possibly" required. Indeed, NOW's contention before the 7th Circuit panel and in opposing Supreme Court review [PDF] that violent predicate acts were not before the high Court on the prior appeal is plainly spurious. References to allegedly "violent" protest activities were all too frequent in both the briefing and oral argument [PDF] of the earlier appeal (which this blogger had the privilege of attending). As Scheidler's reply brief [PDF] points out, belated claims by NOW and the abortion clinic respondents that the "four acts or threats of physical violence against persons or property" found by the jury were not before the high Court are belied by the respondents' own excessive rhetoric in briefing and arguing that appeal. NOW did its very best to depict all of the petitioners' protest activities in the worst possible light, describing peaceable non-violent sit-in's as violent mass assaults against physicians and abortion clinic patrons. Granted, the focus of NOW's theory of liability was that simply blocking access by sit-in's constituted "extortion," but their witnesses and lawyers went to great lengths to inject many references to "physical force" and "violence" into the record throughout the trial and on appeal as well. Thus there's every reason for guarded optimism that, despite the terrible odds against the Supreme Court granting review three times in the same case, some favorable action may be forthcoming next week.
Despite the 7th Circuit's rather transparent hedge that it was "not deciding" the Hobbs Act issue which the respondents were urging as an independent ground for upholding the four predicate acts that were allegedly unaffected by the prior ruling, the flimsiness of its reasoning in just deeming plausible such an expansive transformation of the Hobbs Act into "a sweeping federal anti-violence law" (while criticizing or ignoring the many powerful, really irrefutable arguments against such an interpretation of the Hobbs Act), by itself argues strongly in favor of some immediate, decisive intervention here. Coupled with that, of course, is the appellate panel's ignoring the plain and simple directions authored by the Chief Justice for such a decisive Supreme Court majority over two years ago. At any rate, failing Supreme Court intervention now, this marathon litigation will go on for still more years, perhaps into its third decade.
Also overlooked by Denniston is the third issue that the case presents for Supreme Court review, namely, whether the federal RICO statute authorizes issuance of any injunctive relief at the behest of private litigants such as NOW and the abortion clinic plaintiffs. On the earlier appeal, the high Court granted review of that issue but then stopped short of deciding it, as the Court held that the merits of the case didn't warrant the entry of any RICO injunction. That the 7th Circuit directed the trial court to consider entering another RICO injunction against Scheidler also flies in the face of this portion of the Supreme Court's 2003 decision. If, as NOW would have us believe, there remained predicated acts not addressed by the clear language of the Chief Justice (to the contrary), one really must wonder why the high Court would decline to address the injunction question in Scheidler II despite granting review of that issue?
If for no other reason than its treatment by SCOTUSBlog, How Appealing, and other great blogs, Scheidler III has likely achieved a high degree of visibility in upper regions of the federal legal system. It seems doubtful, then, that the case will now go away as quietly as NOW hoped it would. Indeed, NOW's brief in opposition argued that the 7th Circuit hadn't really decided anything and, therefore, that Supreme Court review would be premature. Premature?!? After 19 years of litigating and the specific directions for reversing the judgment and vacating the injunction that the Chief Justice wrote over two years ago in words as plain as the English language affords? Even back then, the end of this case was painfully overdue! As Valparaiso and Pepperdine Law School Prof. Ed Gaffney wrote in one amicus brief [PDF] filed in support of Scheidler's appeal:
This lawsuit has gone on for nearly two decades and makes the lawyers in Chancery described in Charles Dickens' Bleak House...look like models of efficiency as they wore down the estates of decedents through filing document after document.... [E]ndless litigation eats up the meager resources of people who espouse unpopular views. We now say respectfully to the Court, "Enough is enough." Grant the petitions...and summarily reverse the court of appeals.Prof. Gaffney also observed that the court of appeals had "held the case for a full year -- a long time to ponder a clear mandate -- and then took another year to rule on the petition for rehearing." And yet, after all that judicial deliberation, what finally emerged was "only a meek iffy supposition" that on remand the district court might find "it is not beyond the realm of possibility" that the revisers of the federal criminal code in 1948 "may have made certain substantive changes, either advertently or inadvertently" in the scope of the federal Hobbs Act. To this, Gaffney quoted Horace in Ars Poetica, to the effect that Parturient montes, et nascitur ridiculus mus. ("The mountains are in labor, and a ridiculous mouse is born.")
One very telling footnote in Prof. Gaffney's amicus brief voiced his observations about the author of the court of appeals panel's opinions, Judge Diane Wood:
The perception of dispassionate fairness in the disposition of this case by Judge Wood is blurred when one discovers that the same Circuit Judge who (1) authored the opinion that this court reversed 8-1 in 2003, (2) the unpublished order a year later in 2004 resuscitating the case, and (3) the published opinion this year denying the petition for rehearing has been throughout her judicial career a member of the Respondent National Organization for Women, or from the year 2000 to the present a member of the Chicago chapter of NOW....Gaffney cites Sullivan's Judicial Profiles: The Illinois Judicial Directory, but fails to note what a very reliable source tells this blogger: that Judge Woods is also affiliated with Planned Parenthood's Chicago chapter. Contrast these facts with the actions of Judge Ripple, who recused himself from the 7th Circuit's en banc panel simply because he is pro-life (and despite the fact that this case has implications far surpassing the pro-life movement).
In America's contemporary legal universe, only a case such as Scheidler v. NOW could have produced this bizarre series of zigs and zags, tracing such an erratic, aberrant trajectory over the space of two decades. Now it is time that this ill-conceived effort to enforce the federal antitrust, extortion, and racketeering laws against selfless, disinterested, and morally-inspired protesters be rebuffed and ended, once and for all. Perhaps we'll see the end of this marathon when the outcome of the June 16 conference is announced. Or perhaps we will be forced to recall the famous remark of Mr. Bumble in Oliver Twist, also quoted in a concurrence by Justice Blackmun in Estate of Wilson v. Aiken Indus., 439 U.S. 877, 880 n.3 (1978).
UPDATE: NOW's president, Kim Gandy, has issued a response to this blog post. Read about it here.
As the great Msgr. Knox once said, "A pipe that fails to light after breakfast is guilty of desertion in the face of battle." The same may also be said of cigars.
Tuesday, June 07, 2005
I'd like to thank Hillary, personally, for protecting me from my own vote. In my ignorance, I voted for the Republican party expecting them to actually get something done with the majority they achieved. If it wasn't for staunch protectors like the Democrats, who so successfully consolidate and motivate their minority position and use the partisan tactics of scare mongering and filibustering to effectively halt all efforts of the current administration to carry out the will of the people, my vote would have actually been responsible for furthering the American way of life I so love. Though, now I know how silly I have been for loving it.
When is the Republican party going to call these wormtongued Democrats to account? Since when was it a prerequisite to being an elected Republican that one be neutered?
Thursday, June 02, 2005
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