Saturday, June 21, 2008

The News Was So Bad ...

I have avoided blogging about the substantive legal cases and events that have transpired in the past few days. But, it is time to speak about these cases, briefly at least.

The United States Supreme Court recently ruled that enemy combatants in the custody of our military and intelligence agencies may have access to American civil courts for purposes of habeas corpus determination, etc. I don't think we now have a veteran serving on the high court or we would have had at least one justice say something to the effect of: "Very well my fellow justices. By your ivory tower logic and lofty aspirations you have crippled both our combat forces and our intelligence agencies to the point that they neither can nor will ever operate within the rules again. Dead men don't file politically motivated war crimes complaints or apply for habeas corpus and burn undercover intelligence operatives in the process. And there are still places all over the world to hide a prisoner, work on him until you get what you want and then dispose of him and for that matter there are plenty of discreet people willing to do it for a price. So, by your shortsighted actions and insistence upon meddling in a place where lawyers and judges do not belong, you have insured the effect that you hoped to avoid."

The California Supreme Court recently ruled that the gay marriage ban approved by a majority of California voters was unconstitutional and held that gay marriages could be performed in that state. The immediate effect in San Diego County was that fourteen county court employees who voiced religious objections to performing the ceremonies or participating in them will probably lose their jobs. So many court employees are objecting that the county government said that it could not offer them the reasonable accommodation of their religious beliefs that is their right under previous U.S. Supreme Court decisions. The long term effect is that there will be similar litigation all over the United States as gay couples travel to California to be married and then return to their home states and demand full recognition of their alleged "marriage" under the full faith and credit clause of the U.S. Constitution. My ethics professor in law school taught her classes that any candidate for the bar that did not approve of so called equal rights for homosexuals should not be allowed to practice law. That professor will soon be helping to select Oklahoma judges. So, it looks as though there may soon be no place in the court house for religious citizens who oppose so-called homosexual rights.

On a bright note, a Marine Corps judge dropped war crimes charges against Lt. Col. Jeffrey R. Chessani, citing undue political influence on the court martial process by members of the Marine Corp high command. Charges have already been dropped against most of the Marines involved in the so-called "Haditha Massacre." Chessani and his civilian attorneys with the Thomas More Law Center (an organization of which I am proud to be an affiliate attorney) are considering libel suits against members of congress who twisted the facts in this heartbreaking situation for political purposes. The bad news is that it looks as though the Marine Corps may appeal. The net effect of political witch hunts like this one is dead soldiers and Marines in the short term and an ineffective military in the long term. Over the years, I have talked to and read about dozens of career officers who resigned during the Clinton administration because they could no longer obey a draft dodging Commander in Chief that they did not respect and who did not respect them. If every American soldier and Marine is going to have to worry about being court martialled for killing the enemy in life or death situations like Haditha, then no one in their right mind will continue to serve, particularly, bright, aggressive career officers like Chessani. The net effect is that the courts are now doing to the American military the same thing that they have done to the American culture.

The Alliance Defense Fund is recruiting pastors to volunteer to endorse political candidates from the pulpit and thus generate legal challenges to existing IRS regulations, federal court cases and IRS operating procedures which forbid such activity. ADF Senior Counsel Erik Stanley makes a strong case that such activity is protected by the First Amendment. While I heartily endorse this project as the only way that current, very likely unconstitutional, IRS policies can be effectively challenged, I wish it was being done in an election year where there was a candidate that I, as a Christian, could feel comfortable endorsing. And, regardless of the candidates involved, I would advise local pastors to exercise caution until: (1) they are sure that their existing organizational documents, books and tax history will bear intense IRS scrutiny; (2) they fully understand the possible ramifications of their actions; and (3) they are absolutely sure that they have officially secured pro-bono (no cost) legal representation and are guaranteed full funding of the full cost of their defense.

I wish there was some clever way to summarize all of this and make a rational point. But, there isn't. A few years back, one of the most respected liberal constitutional law professors in the nation refused to release his always highly anticipated revised constitutional law text. The reason? This professor, one of the best minds in the legal profession, could make no sense of the current constitutional jurisprudence of the high court. Kennedy, the swing vote, is accused of being a legal existentialist, especially on First Amendment issues. I think Ann Coulter, quoting an un-named law professor said it better, "This is what happens when the swing justice is the dumb justice."

Nuff said.


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