nebraskalawprof at yahoo.com
Fri Oct 28 08:33:48 PDT 2005
I think Roe is on my list, Marci. Roe is a SDP decision of the first order, an "exercise of raw judicial power."
I don't think it is being a "true conservative" to refuse to enforce the Free Exercise Clause against laws (including generally applicable laws) which do indeed prohibit and restrict the free exercise of religion. But if this makes me and Mike (and ADF's Alan Sears and ACLJ's Jay Sekulow) liberals, than I am a proud liberal, a proud defender of the First Freedom. But please tell the MSM to stop calling us the "far right."
By the way, if the 14th Amendment provided "nor shall any state prohibit abortion prior to fetal viability," I would be working for a Human Life Amendment to the Constitution, but I would not argue that the Court should refrain from protecting the explicit liberty of abortion. A judicial activist is a judge who substitutes his preferences for those of the written Constitution. Both the Roe Court and the Smith Court practiced judicial activism.
Hamilton02 at aol.com wrote:
It's interesting McConnell is not being defended here on federalism principles, which is as it should be. His public stance against Roe v. Wade is also not in this list, which is interesting.
"Most social conservatives," when they come to understand that is meant by the likes of RFRA and Brennan's approach to free exercise issues, do not think Smith is wrong. Conservatives, in general, have a strong regard for (1) the rule of law and (2) the capacity of the legislative process to set social policy, like exemptions. If you ask a conservative if he or she thinks that religious organizations or individuals should have to obey neutrally, generally applicable laws, the invariable answer is "yes."
Scalia, Rehnquist, and Kennedy are the true conservatives on the Free Exercise Clause. On these issues, McConnell is joining Brennan, O'Connor, Breyer, and the liberal con law professors. That is why so many jumped at the opportunity to support him for the court of appeals. His instincts are liberal.
How does one square RFRA with a view that judges should not set social policy from the bench? It's okay in the religion context, but it's not okay in the privacy context?
In a message dated 10/28/2005 10:27:52 A.M. Eastern Standard Time, nebraskalawprof at yahoo.com writes:
1. He is no friend of Substantive Due Process, whether of the Lochner or the Lawrence strain. He will not impose his own list of "fundamental" liberties to strike down laws duly enacted by state legislatures. He knows that the Due Process Clause codifies neither Mr. Herbert Spencer's Social Statics nor the Kama Sutra.
2. Scalia's views about free exercise (he thinks it doesn't exist) are not the views of most social conservatives. Smith is wrong and Michael knows it is wrong.
3. Michael is also a strong supporter of the Free Speech Clause, including the right to equal funding (Rosenberger and Davey) and to expressive association (Dale).
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
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