Tag Archives: supreme court

Seeking Justice For All Under The Constitution

Brett Kavanaugh, who was heading toward Senate confirmation at press time, would be one of five Catholic justices on today’s Supreme Court.

Kavanaugh, 53, until recently had been a judge on the Washington D.C. Circuit Court of Appeals. If confirmed, he will succeed Justice Anthony Kennedy, also a Catholic, who was often a swing vote in many of the high court’s closely decided decisions.

During the heated question-and-answer exchanges during September’s confirmation hearings, Kavanaugh’s mere use of the phrase “abortion-inducing drugs” was enough to incense abortion advocates. But when all was said and done, the hearings didn’t alter his trajectory.

In introducing Kavanaugh during a White House press event on July 9, President Donald Trump praised him as “a brilliant jurist” with “impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law.”


“For the last 12 years, he has served as a judge on the D.C. Circuit Court of Appeals — with great distinction — authoring over 300 opinions, which have been widely admired for their skill, insight, and rigorous adherence to the law,” President Trump said.

Kavanaugh has served on the D.C. Circuit Court since being confirmed 53-36 by the Senate in 2006. Prior to that, he clerked for Kennedy and served as a staff secretary and senior associate counsel for President George W. Bush.

Legal commentators have described Kavanaugh as a well-respected federal judge with a philosophy of interpreting the Constitution as it is written.

“He’s a person of the highest intellect, very much in the mode of Neil Gorsuch,” said Robert George, a constitutional scholar and the McCormick Professor of Jurisprudence at Princeton University, referencing Trump’s first appointment to the Supreme Court.

In a conference call with reporters shortly after the president announced Kavanaugh’s nomination, Marjorie Dannenfelser — Legate and president of the Susan B. Anthony List — welcomed the news as a positive step for the pro-life movement.

“We have a man who’s devoted to interpreting the text of the Constitution as it is written and as it applies to today’s debate,” Dannenfelser said.


Some of his rulings from the D.C. appellate bench offer a window into Kavanaugh’s approach. In 2017, Kavanaugh dissented from an appeals- court vote to allow an undocumented pregnant 17-year-old in immigration detention to seek an abortion. He said the majority decision represented “a radical extension of the Supreme Court’s abortion jurisprudence.”

In the 2015 case of Priests for Life v. U.S. Department of Health and Human Services, Kavanaugh said the Affordable Care Act’s requirement for contraceptive coverage in employee health insurance plans violated the religious freedom of religious nonprofits.

“My judicial philosophy is straightforward,” Kavanaugh said from the White House on July 9. “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”


In addition to being a respected conservative jurist, Kavanaugh is also a practicing Catholic who serves meals to the homeless as a volunteer for Catholic Charities and coaches CYO basketball in the Washington, D.C., area.

“I am part of the vibrant Catholic community in the D.C. area. The members of that community disagree about many things, but we are united in our commitment to serve,” Kavanaugh said at the White House.

Kavanaugh is a former altar boy who graduated from the Jesuit-run Georgetown Preparatory School near Washington, D.C. before attending Yale Law School. He has also taught law, primarily at Harvard Law School.

In his White House remarks, Kavanaugh, a married father of two daughters, emphasized that his Catholic high school’s motto was “Men for Others.”

Said Kavanaugh, “I’ve tried to live that creed.”

BRIAN FRAGA is a Legatus magazine staff writer.

Marriage: democracy on trial

DOUG WARDLOW: The Supreme Court’s upcoming decisions will shape the culture . . .

Doug Wardlow

Doug Wardlow

by Doug Wardlow

The U.S. Supreme Court heard oral arguments in Obergefell v. Hodges on April 28. As the arguments progressed, countless court watchers, politicos, lawyers, and others (myself included) were glued to their computer screens, eagerly awaiting live-blogged updates on the proceedings from inside the courtroom.

The high court expedited the release of transcripts and audio of the arguments, posting them on its website shortly after the proceedings concluded. Within minutes, a multitude of attorneys, reporters, analysts, and activists had downloaded, dissected, and devoured them, scrutinizing the justices’ every word for signals as to how each might be disposed to rule (a futile exercise).

Later this month, the Supreme Court will decide whether the people of our republic will remain free to affirm marriage as the union of one man and one woman in the laws of their respective states. To anyone who values liberty, democracy, and the rule of law, the feverish antics surrounding the oral arguments in the marriage cases should be more than a little disturbing.

Arguing in 1788 that Americans had no cause to fear the federal courts which the newly proposed Constitution would set up, Alexander Hamilton wrote in Federalist No. 78 that the judiciary possesses “neither force nor will, but merely judgment.”

The experience of the last 227 years suggests that Hamilton overstated his case. Now, opponents of marriage (that is, those who oppose the man-woman definition of marriage that has persisted in all human cultures for millennia) are asking the Supreme Court to force every sovereign state in our federal republic to adopt an entirely novel “any two persons” definition of marriage — an exercise of will, not judgment.

The power of the Supreme Court to circumvent the democratic process shifts public attention away from the people and toward the court — hence the hosts of Americans hanging on the justices’ every utterance like supplicants to a king.

The opponents of marriage say that they simply want the Supreme Court to invalidate purportedly unfair state laws that bar same-sex couples from marrying. But that is not true. In fact, they want the Supreme Court to stand in judgment over the ancient, pre-political institution of marriage itself. They want the court to repudiate the combined judgment of billions of human beings from cultures spanning the globe, transmitted through cultural and legal traditions reaching back millennia, that the life-producing union of a man and a woman is fundamental to human flourishing and worthy of special protection. They want the court to deny the people the freedom to affirm the definition of marriage that is apparent in God’s design of mankind.

Nothing in the Constitution, however, justifies redefining marriage. Man-woman marriage laws do not run afoul of the Constitution’s equal-protection requirement. States recognize marriages so that, to the greatest extent possible, children will be raised by their mother and father. A man-woman couple can naturally procreate and provide the resulting children with both a mother and a father. A same-sex couple cannot. The Equal Protection Clause does not require the states to treat differently situated groups the same.

Moreover, there is no right to same-sex “marriage,” let alone a fundamental one. To establish a fundamental constitutional right, it must be deeply rooted in the history and traditions of the nation. This is clearly not true of same-sex “marriage.” For all of American history until a Massachusetts court ruling in 2003, marriage was universally understood to be the union of a husband and a wife.

The opponents of marriage seem unconcerned about the serious consequences that will flow from the radical transformation of society’s most fundamental institution. Redefining marriage to include same-sex couples will disconnect marriage from procreation and natural family formation. It will enshrine in our Constitution a view of marriage that focuses on the desires of adults rather than the needs of children. And it will send the message that children do not deserve to be raised by both their mother and their father — a message that over time will lead to many more children being raised apart from one or both of their biological parents.

In a democratic republic like ours, such weighty matters of public policy should be decided by the people of each state and their representatives, not by unelected jurists. Public attention, discourse, and debate should focus not on oral arguments before a court, but on legislative processes that the people can meaningfully influence at the ballot box.

DOUGLAS WARDLOW is legal counsel with Alliance Defending Freedom.

Supreme Court affirms liberty

Kevin Theriot: The Supreme Court made the right call in the Hobby Lobby case . . .

Kevin Theriot

Kevin Theriot

The U.S. Supreme Court issued a remarkable decision on June 30 in favor of religious liberty against the Obama administration’s abortion-pill mandate.

The Court’s ruling is especially noteworthy because the radical left (which lost) often casts itself as the protector of civil rights. In fact, the Religious Freedom Restoration Act, the federal law the Court used to protect the religious convictions of these family businesses (Conestoga Wood Specialties and Hobby Lobby), was championed by the late Sen. Ted Kennedy (D-Mass.) and was signed in 1993 with much pomp and circumstance by then-President Bill Clinton. But the liberal establishment has shown its true colors by sharply criticizing the Court’s affirmation that religious liberty is more important than the government’s interest in coercing employers to violate their deepest religious convictions regarding abortion and reproduction.

The Court’s ruling broadly protects people of faith (and their businesses) from those who would seek to repeal our constitutionally protected freedoms, as the U.S. Senate itself recently tried and failed to do. Five Supreme Court justices unequivocally held that government officials don’t get to decide whether a law violates someone’s conscience. That’s a determination only the religious individual or entity can make.

This is significant because the Obama administration has argued from the beginning that forcing family-owned businesses to provide religiously objectionable drugs, devices, and procedures only minimally affects their religious liberty. The Supreme Court rejected that argument out of hand, and rightly so. After all, neither government officials nor judges, for that matter, have the ability to determine how important a religious conviction is or when it’s violated. The ruling for Conestoga Wood Specialties and Hobby Lobby settles this issue. From now on, if people of faith demonstrate that their religious convictions are sincere, and the government is placing substantial pressure on them to violate these convictions, they can invoke the protection of federal law.

After it is clear that a government edict is burdening religious freedom, government officials must then prove that they have a compelling reason to justify this restriction on religion. This is what is known as the “compelling interest test,” the strictest test for protecting civil rights. It means the government must have an extremely good reason — on the level of protecting national security or the ability to collect taxes — to justify the law.

Importantly, that reason cannot be general but must specifically apply to the individual who is being coerced to violate their religious conscience. For instance, lower courts have held that the government’s general interest in protecting women’s health is not a compelling interest — especially since there are so many exceptions to the administration’s mandate (like grandfathered plans, which may never have to comply if they don’t change). The interest is not very “compelling” if the government itself allows numerous exceptions to its rule.

Another important aspect of the compelling interest test is that the law must be the least restrictive way of accomplishing the government’s objective. The legal term for this is “narrow tailoring,” and it is what the Supreme Court used to rule in favor of Conestoga Wood Specialties and Hobby Lobby. Because the government already has developed less intrusive, alternative ways to provide coverage of abortifacients and sterilization for women, the mandate’s attempt to force the businesses of religious families to provide these items directly was not the narrowest option.

In addition to the Hahn family, the Mennonite owners of Conestoga Wood Specialties, the Alliance Defending Freedom also represents, in other cases, several brave and devout Catholic families. These include the Newlands, Legatus members and the owners of Hercules Industries in Colorado. ADF secured the very first injunction against the mandate on the Newlands’ behalf. The Grotes in Illinois are also Legates. ADF and its allied attorneys represented them in the U.S. Court of Appeals for the Seventh Circuit. ADF was able to obtain an injunction protecting their freedom as well. Based on the Conestoga- Hobby Lobby decision, the Supreme Court affirmed both injunctions.

These victories pave the way for Catholic owners of family businesses across the country to live by their convictions and not include abortifacients, contraception, sterilization, or counseling regarding these things in their health care plans.

The implications for religious freedom are profound for all Americans. The Supreme Court has shown it will not tolerate government officials trampling on religious freedom in a headlong charge to further an anti-life agenda.

KEVIN THERIOT is senior counsel with Alliance Defending Freedom, which represented the Hahn family and Conestoga Wood Specialties in their lawsuit against the Obama administration’s abortion-pill mandate.

Marriage and the Supreme Court

Maggie Gallagher says the Supreme Court’s ruling on marriage will impact everyone . . .

Maggie Gallagher

Maggie Gallagher

Do the American people have a right to retain marriage as the union of one man and one woman — or will nine black-robed justices decide that this perennial, cross-cultural, interfaith understanding of marriage is now bigoted, discriminatory and unconstitutional?

The debate over gay “marriage” comes to a head as the U.S. Supreme Court hears oral arguments on March 26-27 in two cases that could decide the fate of marriage in all 50 states — and indirectly the rights and liberties of Catholics and Catholic institutions nationwide.

In Hollingsworth v. Perry, the Court will consider whether California voters may keep the right to define marriage as the union of one man and one woman in their state constitution, as the majority of states now do. After being approved by more than 7 million voters in 2008, California’s Prop 8 was overturned by Judge Vaughn Walker in a ruling upheld by the liberal Ninth Circuit.

The Supreme Court will also consider U.S. v. Windsor, which turns on whether Congress may enact its own definition of marriage for federal purposes as one man and one woman, or whether it must defer to states’ definition of marriage, including gay “marriage.” Mandatory gay “marriage” for all 50 states or the freedom to protect marriage in law, culture and society? Those are the stakes in the epic battle being fought by legal eagles Chuck Cooper and Paul Clement on behalf of millions of Americans’ traditional understanding of marriage.

As the push for gay “marriage” continues not only here but internationally, Pope Benedict XVI has boldly called Catholics first to understand and then to stand for the truth about marriage in the public square. In his message to the Roman Curia at Christmas, he laid out the deep spiritual significant of this fight: “The attack we are currently experiencing on the true structure of the family, made up of father, mother and child, goes much deeper. It is now becoming clear that the very notion of being — of what being human really means — is being called into question.”

In the Christian view — and the view of most of humanity until about a decade ago — we are born male and female. We are called to come together in love to make the future happen — a future in which the child has the dignity of being welcomed into the world and loved by the mother and father who made him or her.

As Pope Benedict put it, there is a powerful push to deny “man and woman as created realities. [Instead,] man calls his nature into question. From now on he is merely spirit and will. The manipulation of nature, which we deplore today where our environment is concerned, now becomes man’s fundamental choice where he himself is concerned.”

The consequences are grave at the deepest spiritual and cultural level: “When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God, as the image of God at the core of his being. The defense of the family is about man himself,” the Pope said.

Repeatedly, at every turn, the Holy Father is trying to alert Catholics to the truth beneath the Big Lie — that gay “marriage” is just about what two adults do in private with their own lives.

Instead, he asks us to recognize that the question of marriage raises the most profound questions about humanity itself: Can we recognize the reality that children only come from a union of male and female? That both men and women are necessary to the good of the child? Will we continue to aspire to build a marriage culture that connects the goods that otherwise fragment: marriage unites male and female, bodily, spiritually, emotionally, and financially in the service of the great truth that children have a right to know the love and care of their own mother and father?

In a broken world, it is not always possible to achieve the ideal for every single child, but it is possible to give to each of America’s children a vision and an ideal of what marriage is, which corresponds to the reality of what it means to be human and which satisfies the deepest longing of a child’s heart.

Conversely, if the Court redefines marriage on the grounds that the Biblical understanding of marriage is bigotry and discrimination against gay people, the consequences for our culture and for Catholic institutions will be grave. Our faith itself and its common-sense understanding of marriage will be redefined as the legal equivalent of racism by our own government.

MAGGIE GALLAGHER is a nationally syndicated columnist, author and a leading voice in the new marriage movement. She is a former president and chairman of the National Organization for Marriage.

California court clamps down on religious freedom

Supreme Court ruling crosses the line, critics say

The California Supreme Court ruled that patient demand for nonessential, electice care trumps physicians’ freedom of conscience and their ability to practice medicine in accordance with their religious or moral beliefs.

According to the court’s Aug. 18 ruling, physicians’ constitutional right to practice their faith doesn’t exempt them from following state law prohibiting discrimination on the basis of sexual orientation.

That holds true, Justice Joyce L. Kennard wrote in the 18-page decision, “even if compliance poses an incidental conflict with the defendants’ religious beliefs.”

If a doctor wants to refuse a service on religious grounds, the court found, he or she must refuse all patients or provide a doctor who can provide the service to everyone. The decision comes only three months after the same court struck down a ban on same-sex “marriage.”

Catholics were quick to dispute the ruling.

“No one has the right to demand a nonemergency medical procedure from someone who finds that procedure morally unacceptable or religiously objectionable,” said Los Angeles Auxiliary Bishop Thomas J. Curry. “This case did not involve a life-and-death situation but only a possible inconvenience — one which required the patient to ‘walk across the office.’”

Guadalupe “Lupita” Benítez, a lesbian, filed suit after a San Diego-based clinic refused her a fertility treatment in 1999. The doctors, who are Christian, said that they denied the treatment because Benítez was unmarried, and that they were allowed to do so under the First Amendment’s guarantee of freedom of religion.

Kenneth R. Pedroza, who represented the doctors, said the ruling would probably cause many physicians to refuse to perform inseminations at all. Pedroza said his client did not violate the law because it did not bar discrimination on the basis of marital status in 1999. The state law has since been amended.

The Capitol Resource Institute, a California family policy advocacy group, said in a statement that “the California Supreme Court’s decision proves that these activist judges are willing to deny our First Amendment religious freedom in order to create rights for homosexuals.”

“This case starkly demonstrates the take-no-prisoners approach of the gay rights movement,” said Brad Dacus, president of the Pacific Justice Institute, a legal defense organization specializing in the defense of religious freedom. “They will not stop until they have silenced or bankrupted every voice of conscience who disagrees with them.”

This article includes reporting from LifeSiteNews.com and Catholic News Service.