What Are Supremacist Judges Up to Now? — October 2006

Because lower-court federal judges know how unlikely it is for the Supreme Court to reverse them, they have become increasingly aggressive in handing down supremacist decisions that are biased against parents’ rights and against religion, and in favor of feminist and gay-rights agendas. Parents’ rights cases are seldom accepted by the Supreme Court. This year, rather than hear a single case about parents’ rights to control the upbringing of their own children, the Supreme Court heard appeals from Osama bin Laden’s bodyguard and from prisoners demanding their right to read pornographic magazines.

California requires public schools to teach Islamic history, culture and religion in the 7th grade. At the time of the 9/11 attack, the Excelsior public school in Byron, CA was teaching 7th-graders how to act like Muslims, using a student guide stating, “From the beginning [of this module], you and your classmates will become Muslims.” The students were given Muslim names and told to recite Muslim prayers. They were required to give up things for a day to recognize the Islamic practice of Ramadan and given extra credit for fasting at lunch, too. Students were told to recite from the Koran and encouraged to wear Arab clothing. For the final exam, the students had to write an essay about Islamic culture. The assignment warned: “BE CAREFUL HERE — if you do not have something positive to say, don’t say anything!!!”

The parents filed suit, but the federal courts held entirely in favor of this school in Eklund v. Byron Union School District. On October 2, 2006, the U.S. Supreme Court refused to consider the parents’ appeal. The Byron school district continues to make the same instructional materials available for use by teachers. In 2003, this public school received a Distinguished School Award from the California Department of Education, declaring it to be one of the state’s “most exemplary and inspiring public schools.”

At the Linden Seventh-Day Adventist Grade School in Laurelton, New York, an unmarried Bible Studies teacher became pregnant and said she did not intend to marry. The school terminated her employment for exhibiting “unsatisfactory personal conduct inconsistent with the principles of the Seventh-day Adventist Church.” One would think that a private religious school should have the right to make that decision.

But the teacher sued, and the federal district judge appointed by President George W. Bush ruled against the school in Redhead v. Seventh-Day Adventists, citing a “compelling interest” in banning “discrimination.” This decision exposes the school to a huge financial jury award and sends the message to religious schools: don’t dare fire a teacher in order to protect your values or you may face financial ruin.

Chief Justice Rehnquist once said that federal courts “bristle with hostility to all things religious in public life.” We had a good example of this in Berry v. Department of Social Service when the Ninth Circuit Court of Appeals this year upheld a ban on social workers even having a religious conversation in their offices. In 2001, the Department of Social Services in Tehama County, California, sent employee Daniel M. Berry a letter of reprimand, prohibiting him from displaying religious items in his office if they were visible to the unemployed or underemployed who came in his office seeking government services. The letter said: “You may [only] put the Bible in your desk or in a large envelope which we are providing you. You are instructed to remove the �Jesus’ part of your �Happy Birthday Jesus’ sign which you have placed on the wall of your work area. The Bible and other religious non-verbal communications cannot be visible to your clients.”

Daniel Berry complied with the order and then complained to the Equal Employment Opportunity Commission, which granted him the right to sue. Berry sued and lost in district court, and then lost again on appeal to the Ninth Circuit. Although no one had ever complained about what Berry did, the Ninth Circuit upheld the ban on Berry’s speech, saying it violated the Establishment Clause of the First Amendment, and also rejected Berry’s free exercise and civil rights claims.

The U.S. Supreme Court refused to review the parental rights case called Crowley v. McKinney. The Seventh Circuit had ruled against the parent, saying that the school has a constitutional right of “the autonomy of educational institutions.” The parent had appealed to the Supreme Court to recognize the “settled law” of the famous case called Pierce v. Society of Sisters, which in 1925 recognized the constitutional right of parents to control the education of their own children, but the judges ignored its application to the right of a divorced father to see his son’s school records.

While state marriage amendments typically receive approval of 70% of the voters, the gay rights lobby is winning numerous lawsuits in public schools. This spring, federal District Court Judge David L. Bunning imposed a consent decree on a Kentucky school district that required mandatory staff and student diversity training, “a significant portion of which would be devoted to issues of sexual orientation and gender harassment.” Included in the mandatory one-hour video were dogmatic claims that homosexuality is immutable and that it is wrong to object to the gay lifestyle.

A lawsuit was then filed by students who objected to being forced to watch a pro-homosexual video. They lost in Boyd County High School Gay Straight Alliance v. Board of Education of Boyd County. Federal Judge Bunning, who was appointed by President George W. Bush, sided with the school and upheld the mandatory video.

After Poway High School near San Diego endorsed the “Day of Silence” sponsored by the Gay Lesbian and Straight Education Network (known as GLSEN), student Tyler Chase Harper responded by wearing a T-shirt inscribed with the words “I will not accept what God condemned.”

In Harper v. Poway Unified School District, the Ninth Circuit Court of Appeals ruled against the student, claiming that the First Amendment does not protect students expressing views opposing homosexuality. The dissenting opinion pointed out the hypocrisy of the majority who claimed they were promoting “tolerance for minority points of view,” but actually “demonstrated intolerance for a viewpoint that was not consistent with their own.”

An offensive anti-Bush T-shirt, however, received very different treatment from the judges. A federal court has just ordered a public middle school to allow Zachary Guiles to wear a T-shirt accusing President Bush of being a “crook,” a “cocaine addict,” a “Draft Dodger,” a “chicken,” and a “Lying Drunk Driver.”

When a school official merely asked the 7th-grader to tape over the images of drugs and alcohol and the word “cocaine,” the student’s father sued the school. The Second Circuit Court of Appeals ruled in Guiles v. Marineau in favor of a new judge-invented right to wear an anti-Bush T-shirt to school.

Federal Judge John E. Jones III, a President George W. Bush appointee, stuck the knife in the backs of parents in Kitzmiller v. Dover Area School District. Judge Jones permanently enjoined the school board from disparaging the theory of evolution, or from saying that the theory has gaps, or from notifying students that they could read contrary explanations of the origin of life in the school library.

The federal courts bend over backwards to award astronomical fees to ACLU-type attorneys, such as the obscene $2 million attorney-fee award for censoring intelligent design in Dover, Pennsylvania schools. But the Ninth Circuit ruled that parent-attorneys cannot recover attorney’s fees after winning a case under the Individuals with Disabilities Education Act.

A federal court gave the pornographers another victory this year in CleanFlicks of Colorado v. Soderbergh. CleanFlicks is a family-owned business in Utah that removes “sex, nudity, profanity and gory violence” from films in order to make them suitable for families. This is not any financial loss to Hollywood because CleanFlicks requires every customer to buy the unedited version of the films as well as the cleaned-up version.

The pornography-propagandists sued and got a federal judge to declare that CleanFlicks’ “business is illegitimate” and must turn over the entire inventory of sanitized films to the Hollywood studios for destruction within five days.

Should Courts Manage School Sports?  
The feminists have already used the federal law called Title IX to force colleges to cancel hundreds of men’s athletic teams. Over 170 men’s wrestling teams have been eliminated in order to meet quota goals that match female participation in sports to female enrollment in colleges on a proportional basis.

The obvious fact that girls are less interested in sports than boys is rejected by both feminists and judges. This year, Rutgers University, the large state college of New Jersey, abruptly cancelled four large men’s teams to satisfy Title IX quotas. This stranded over 100 Rutgers men who had planned to compete on those teams.

The feminists are now ruthlessly trying to apply Title IX to public high schools. If we allow the feminists to force compliance with the same gender quotas as are used in colleges, U.S. public high schools will be forced to eliminate a million boys from high school sports teams.

Michigan has been ground zero in the Title IX-high school battle. The issue in Communities for Equity v. Michigan High School Athletic Association, which has been in the federal courts for five years, is whether the Michigan High School Athletic Association should be forced to schedule girls’ basketball, volleyball and other sports in the same seasons as the boys. The Michigan high school athletic association has a tradition of scheduling girls’ sports in seasons different from the boys’ sports in order to maximize the convenient use of limited sports facilities.

But the feminists cried discrimination, and they won. The Sixth Circuit’s decision is one of the most sweeping in the country in commanding equal treatment of boys and girls, and it opens the door to many more lawsuits whenever and wherever a girl is treated differently from a boy in any way.

It is amazing that judges think they are the ones to decide which seasons high school boys and girls will play which sports.

Judicial Supremacists Strike Again 
Who could have guessed that Osama bin Laden’s bodyguard would be one of the privileged few to be granted a hearing by the high and mighty U.S. Supreme Court justices! After refusing to hear appeals from thousands of Americans during the past year, the liberals on the Court jumped at a chance to rule against President Bush. The judges weren’t showing compassion for the prisoners at Guantanamo. They wanted to use this case, called Hamdan v. Rumsfeld, to proclaim judicial supremacy over the other two branches of government and to slap the Bush Administration in the process.

The Supreme Court had no business taking the Hamdan case. Congress had passed the Detainee Treatment Act of 2005 withdrawing jurisdiction from the federal courts over petitions from Guantanamo prisoners. The Supreme Court could not dispute Congress’s power to do exactly that because the U.S. Constitution in Article III clearly grants that power to Congress. But the Court held that the law didn’t apply to cases that had already been started. Justice Scalia said that the Court “made legal contortions to get the result the Court wanted.”

Having thumbed its nose at Congress, the Supreme Court then attempted to invade the last remaining sanctuary thought to be beyond its power: military decisions of the Commander-in-Chief in wartime. The Supreme Court claimed final authority over international relations and military necessity by presuming to write its own version of the treaty called the Geneva Conventions.

The Supreme Court’s supremacist views will continue to expand if the other branches of government and the American people continue to accept the arrogant notion that whatever a judge says is the law of the land.

Wisdom from Judge Robert Bork 
The most eloquent commentator about the many outrages committed by the out-of-control judicial system is Judge Robert Bork. His several books should be required reading in our law schools. In a Wall Street Journal editorial (7-10-05), he described how, once Supreme Court justices depart from the text of the U.S. Constitution, as many of them have done, they don’t have any guidance for making decisions other than their own opinions, and they assume the authority to impose their own philosophy on us. The combination of absolute power and disdain for the text of our Constitution has been deadly to our culture.

Judge Bork invites us to consider a few of the Supreme Court’s decisions. The Court has diminished the vitality of religion through a false interpretation of the Establishment Clause, and at the same time permitted prior restraints on political speech, which was supposed to be the core of what the First Amendment is all about. The Court has denigrated marriage and family; destroyed taboos about vile language in public; protected as free speech the worst pornography including computer-simulated child pornography; created a right to abortion on demand, thereby invalidating the laws of all 50 states; whittled down capital punishment; normalized homosexuality; permitted discrimination on the basis of race and sex at the expense of white males; and made the criminal justice system needlessly slow and complex.

Not one of these decisions is authorized by the U.S. Constitution, and some are directly contrary to it. Judge Bork says that a counterattack by conservatives is long overdue. The bottom line is, Americans should monitor presidential nominations to the lower federal courts just as solicitously as nominations to the Supreme Court.

Counterattack for Private Property 
The good news is that grassroots conservatives are again asserting themselves forcefully and effectively against governmental impudence. Having defeated the Harriet Miers Supreme Court nomination and the Dubai Ports sellout, conservatives are now flexing their muscles against supremacist judges and money-grasping public officials.

It is remarkable how the 2005 Supreme Court’s 5-4 decision in Kelo v. City of New London has riled normally apathetic American people and motivated them into asserting people power over the twin powers of government and money. Thirty state legislatures have passed laws or constitutional amendments to limit the effect of the Kelo ruling and provide protection against abusive takings of private property for other private purposes.

In addition, eleven states will have ballot measures this year to protect property rights. The issue carries double-barreled clout because the voters are both repudiating government takings of private property AND repudiating the favorite liberal goal of increasing the flow of tax money into government’s clutches.

These slaps at local public officials and increased taxes also include a reprimand of the Supreme Court in the Kelo case, which has endangered the ownership of every home, business, church and farm. The Supremes thought they could evolve the U.S. Constitution’s words “public use” (which would include a highway or a public building) into the words “public purpose” (defined to include transferring private property of lower-income people to higher-income people who will pay higher taxes, and just about anything that comes under a redevelopment plan).

Taking private property in order to get more money into government is not authorized by the U.S. Constitution or any statute. Justice Thomas wrote in dissent in the Kelo case: “Something has gone seriously awry with this Court’s interpretation of the Constitution.” The justices only get away with this sort of decision because law schools have propagated the myth that whatever the Supreme Court says is the law of the land. The issue for the American people is: Are we a nation of self-government, or are we going to submit to rule by black-robed judges?

Since the Kelo decision, more than 5,700 private properties have been threatened by or taken over by this power of eminent domain, a tremendous increase over the preceding five years. The Kelo decision made local officials and developers bolder and bolder in the taking of private property.

We don’t expect the Supreme Court always to defer to the legislative process. We do expect the Court to implement the text of the Constitution as written, and that means defending our constitutional right to private property even when that requires knocking down a legislative action.

Even some judges are getting the message that citizens are rising up against the rulings of supremacist judges. On July 26, 2006 the Ohio Supreme Court handed down a stunning unanimous decision against a $125 million development project in a suburb of Cincinnati. This case, City of Norwood v. Horney, illustrates how abusive eminent domain takings are motivated by local governments seeking new sources of revenue. The city of Norwood had hoped to get $2 million a year in new taxes from the new property owners.

When the mayor of Norwood heard that the homeowners had won in the Ohio Supreme Court, he predicted that the city would run out of money by October, and it might actually have to lay off a government worker. But the Ohio Supreme Court concluded that “economic benefits alone,” such as increased taxes, do not justify a taking of private property. The court stated that “Ohio has always considered the right of property to be a fundamental right,” and that property rights are “believed to be derived fundamentally from a higher authority and natural law . . .”

In drafting their new laws against governmental takings, state legislatures should make clear that condemning authorities may not take possession of property until appeals are exhausted and the property is paid for, and that blight is defined as a danger to public health and safety (not mere underutilization or diversity of ownership). In most states, state legislation is needed to prevent government from ruining private property while a dispute is going on.

The Ohio Supreme Court’s decision underscores the fact that the U.S. Supreme Court is not infallible and we have every right to criticize and work to overturn wrong decisions made by supremacist judges who think they can rewrite or evolve the U.S. Constitution.