Sunday, March 26, 2017

Canadian LifeSiteNews on the Virtues of the Late Justice Scalia

Steve Jalsevac
On Friday, Steve Jalsevac, managing director of the orthodox Catholic LifeSiteNews.com, expressed his misgivings about Judge Neil Gorsuch. It is actually a rather odd piece from a rather odd conspiracy theorist. Jalsevac exposes his fervent belief that United States public policy should be a reflection of the anti-LGBT, anti-choice teachings of the Catholic Church. To be clear, I remain opposed to the confirmation of Judge Gorsuch. I am not defending him

Jalsevac's polemic is titled: “Neil Gorsuch is NOT another Scalia.” Hopefully, there will never be another Scalia. According to Jalsevac:
Despite effusive praise from numerous pro-life and pro-family leaders, this man is NOT, as Trump has repeatedly been told, another Scalia. In my view, the President has been misled – although Gorsuch does have praiseworthy characteristics as a justice and has made some excellent, major rulings.
Jalsevac does not know what Trump has been told and by whom. In fact, we have no idea who compiled that list of potential candidates (Gorsuch was not on the original list). I suspect that Jalsevac would be hard-pressed to name and explain one of those “excellent, major rulings” that he finds so praiseworthy.
Gorsuch was asked by Senator Dick Durbin whether the intentional taking of unborn life is wrong.

He responded, "The Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person, for purposes of the 14th Amendment. That [decision] is the law of the land. I accept the law of the land."

To me, there was something unnerving about how far he went in accepting the current realities of that horrendous decision that was based on lies and deliberate misinterpretation of the Constitution.
Jalsevac should have first garnered some understanding of how our system works. I do not know anything about Canadian law. I would do some research in advance of writing about it. In the United States we expect our judges to respect precedent — stare decisis. Prior decisions must be maintained even if the current Court would rule differently. The objective is to promote stability and predictability. Sometimes the Court revisits a decision due to doctrinal or social changes. As a general rule of thumb, when the Court does overrule itself it expands rights. Lawrence v. Texas banned anti-sodomy laws in 2003 which overturned that 1986 ruling in Bowers v. Hardwick. The prior decision held held that Georgia's anti-sodomy statute was constitutional.

Furthermore we are a secular state. Just because something does not conform to the catechism of the Catholic Church does not mean it was a “horrendous” ruling. I have no idea what “lies” Jalsevac is referring to. Nor do I know who he believes lied. However, for over 200 years (since Marbury v. Madison) we have accepted the proposition that the Supreme Court is the final arbiter of the Constitution. Therefore, accusing the Court of misinterpreting the Constitution is oxymoronic.
Gorsuch on Obergefell

Also during the confirmation hearings, in response to a question about same-sex “marriage” and the results of the Obergefell decision – which many consider an even more outrageously corrupt, activist Supreme Court decision than Roe v Wade — Gorsuch stated it “is absolutely settled law."

He did not just call it “settled law,” which one could say, well, yes, at the moment, in legal terms that is what it could be said to be … for now. But he unnecessarily and disturbingly added the word “absolutely.” Why did he go to that length?
The word marriage in quotes. We get it. Steve disapproves. His approval is irrelevant to us and our lives. It is neither solicited nor required. Perhaps Jalsevac doesn't know that the Supreme Court is barred from re-considering a case that it has already ruled on. In order to overturn Obergefell a new case would have to make its way through the courts. As part of that process, someone is going to have to demonstrate that they have “standing” which requires showing a real injury (one that is neither prospective nor hypothetical) as a result of same-sex marriage. My opinion is that it will never happen. That might explain why, in spite of all the noise, there is no case in the system that could possibly challenge Obergefell.

Jalsevac's use of the word “corrupt” is very troubling because that implies dishonesty. Apparently, anything that does not conform to the will of the Church is corrupt. Nice. Furthermore, “judicial activism” is a cliche. It means a decision by a jurist that someone doesn't like.

A further thought on Obergefell is that no one has offered a compelling reason to overturn it. The fact that religious conservatives do not like it is irrelevant. “Absolutely settled” might also mean: “Who the hell wants to go through that again and why?”
That comment seemed to indicate Gorsuch is not a full constitutional originalist. No originalist would ever make such a comment that appears to betray the Constitution and the intentions of the Founders – considering the travesty of the Obergefell decision.
Jalsevac presupposes that originalism is a virtue, presumably because it was promoted by the uber-Catholic Scalia. The promise of originalism (which has two flavors — original understanding and original intent) is that the Constitution and the documents surrounding its adoption contain the historical information we need to address contemporary issues. To divine either the original meaning or intent one has to understand the historical context which depends upon who is doing the analysis. The point is that original meaning and original intent are opinions and not fact which means that they reflect personal biases. Rejecting originalism certainly does not “betray the Constitution.”

An example of originalism can be found in the 1883 case, Pace v. Alabama. This was a challenge to Alabama's anti-miscegenation laws which prohibited sexual relations or marriage between black people and white people. It was the opinion of the Court that the state had a valid interest in protecting the institution of marriage. They further opined that interracial marriage would cause serious harm to the institution and to white marriages (which has an oddly familiar ring to it). What were the justices thinking about original intent or the original public meaning of the Constitution?

It took 84 years for Pace to be overturned by Loving v. Virginia which would probably have been impossible for someone like Scalia if he were true to his originalist doctrine. Jalsevac should research the Court's decision in Dred Scott v. Sandford. A civil war and two constitutional amendments were required to reverse that bit of originalism. Many of the framers of the Constitution were also slave owners. How would that affect either original meaning or intent?
Justice Scalia had ripped the Obergefell decision to shreds for its inventions of nonexistent rights out of thin air, as he did with many other judicial activist decisions by his peers on the court and in lower courts. He described the decision as the “furthest imaginable extension of the Supreme Court doing whatever it wants.” He added, “Do you really want your judges to rewrite the Constitution? I don't know how you can get more extreme than that.”
Uh, Scalia's was the losing argument. Scalia failed to convince four other justices that his opinion should be the Court's majority decision.
Scalia even went so far as to argue that legalizing same-sex “marriage” was a “threat to American democracy.”
Actually, that is incorrect if the intended inference is that the marriages themselves threatened our democracy. What Scalia did write in his dissent is this:
I write separately to call attention to this Court’s threat to American democracy.

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. … Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
In other words it was not same-sex marriage that Scalia called a threat to American democracy (as Jalsevac seems to imply). Rather, it was Scalia's notion of lawmaking on the part of the Court. I think that Scalia was wrong. Using identical logic, Loving v. Virginia and numerous other cases were wrongly decided and then we would have to conclude that the pro-slavery decision in Dredd Scott was correct.
Gorsuch's criticism of Trump
[…]
I was taken aback by Gorsuch’s publicly expressed rebuke of Donald Trump’s legitimate criticisms of the court ruling that rejected his first immigration Executive Order.

Trump accused the appellate court of being “so political.” He labeled a judge who ruled on his executive order a “so-called judge” and referred to the ruling as “ridiculous.”

Perhaps Trump should not have used the term “so-called judge,” but the ruling was indeed “ridiculous” and totally out-of-order. It clearly violated established presidential privilege and was a raw abuse of the powers of the court for partisan and ideological intentions.
First off, Judge James L. Robart was appointed by George W. Bush and unanimously confirmed by the Senate. Partisanship is an absurd accusation. Moreover, his temporary injunction held up on appeal. Jalsevac is clearly ignorant with respect to what a president has the authority to do.

Trump can say that he disagrees with a federal judge's decision. Trump had no right, as president, to denigrate the judge or to call the ruling “ridiculous.” Mr. Jalsevac supposedly wants to limit the power of the Supreme Court (at least when it conflicts with the teachings of the Catholic Church). However, he wants our president to have the powers of a dictator when it comes to the rights of Muslims. In American law, Islam and Catholicism are on an equal footing.
Gorsuch told a senator that the president’s comments were “demoralizing and disheartening.” Did he really have to go that far? Why could he not have acknowledged that yes, there have been many very questionable rulings by activist judges in recent decades?
Yes he did have to go that far. It is most un-presidential to criticize a federal judge in the manner that Trump did. This was not the first time that Trump attacked the integrity of the courts. During the campaign he attacked a federal judge presiding over the class action suit against his scam “university” because the judge was of Mexican ancestry. That alone demonstrated that Trump was unfit to be president.
The Washington Post wrote that “Gorsuch ‘stated very emotionally and strongly his belief in his fellow judges’ integrity and the principle of judicial independence.”’ Really? All judges, given the many outrageous decisions we have seen?
Outrageous to Jalsevac means that the Church would not approve.
Justice Scalia never held back and had no regard for popular opinions, political correctness or what the other justices thought about him. As well, his solid Catholic Christian formation taught him about right and wrong and his serious duty to the American people and to God to honor the Constitution and the intentions of the Founding Fathers. He was not perfect, but he frequently issued highly prinicipled legal opinions.
Scalia liked capital punishment. With that exception Scalia tried to impose the teachings of the Catholic Church on public policy. Our laws are supposed to have a secular purpose to be valid. Scalia did not accept that constitutional doctrine and history will not be kind to his legacy. In the future Scalia's dissent in Lawrence v. Texas, with its opprobrium for “homosexual sodomy” will be viewed as an expression of bigotry comparable to the racist opinions in Dredd Scott or Pace v. Alabama.

But the best part of Jalsevac's polemic journey is this:
Serious questions about Gorsuch and homosexuality

There have also been other signs about Gorsuch that too many have tended to pooh-pooh as being significant. Well, they are important signs.

A Feb. 11 New York Times article indicated that Gorsuch is pro-homosexual. This may explain his excessively accepting comment on the Obergefell decision.

In a LifeSite article on the Times report, we noted,
“in his personal relationships with homosexual friends and co-workers, Judge Gorsuch has been very approving of homosexual relationships.”

Gorsuch also attends a socially liberal Episcopal church in Boulder, led by a pro-LGBT female pastor, Rev. Jill Springer, who reportedly supports homosexual “marriage.”
What precisely are those “serious questions?” Apparently someone needs to express themselves as a rabid anti-gay bigot to satisfy Mr. Jalsevac. The job is Justice of the Supreme Court, not Archbishop of [fill in the blank]. In the real world most people have gay friends, coworkers and family members. Their sexual orientation is viewed only as incidental to who they really are. We are not defined by our sexuality. People are not obligated to be judgmental of gay people.
There is no way that Justice Scalia approved of homosexual relationships. He would never have regularly attended such a liberal Church as Gorsuch has and Scalia would have run from a parish with a pro-LGBT pastor that strongly supports homosexual “marriage” and opposes any legal restrictions on abortion.

Scalia, from his orthodox Catholic Christian formation and affiliation, knew right from wrong and was frequently outspoken about such matters when circumstances demanded it. He did not deprive those who needed to hear uncomfortable truths from the charity of those truths.
Scalia's bigotry is not a virtue. Knowing right from wrong? That means — at least to me — treating people decently which takes precedence over slavish devotion to those ancient chronicles. If Mr. Jalsevac had a close association with the knowledge of what is right and wrong then he would not be so judgmental of LGBT people. In the final analysis this is predicated on the thoroughly punctured proposition that sexual orientation is some kind of choice.

Justice Scalia's son is a Roman Catholic priest associated with the Courage Ministry which is a pray-away-the-gay operation that should be referred to as pray-upon-the-gays. When conversion fails (which is inevitable) the gay guy is expected to be celibate. All of this nonsense is in defiance of overwhelmingly settled science. Hence Jalsevac is compelled to not just be a bigot. He must also be an ignoramus, voluntarily. Comparable bigotry and ignorance on the part of a nominee should disqualify someone from serving on the Supreme Court.

Jalsevac manages to be more outrageous:
Gorsuch is said to be a strong proponent of Natural Law. His above noted statements and actions on homosexuality defy that claim.

As well, no authentic, believing Christian would ever offer such affirmation to persons engaged in behavior that threatened serious emotional, psychological, and physical harm, and especially devastating spiritual harm.
There you have it. The essence of bigotry. Being gay is unhealthy. Really? Based upon what exactly? The revelations of some eunuch at the Vatican? In point of fact, it is bigotry and ignorance that are unhealthy for gay people. Mr. Jalsevac is a walking plague and an arrogant, superstitious fool.
We must continue to pray for the best outcome for the next justice of the Supreme Court. May God’s will be done on this because of the crucial importance of this and future Supreme Court nominations for the welfare of the United States.
If prayer actually accomplished anything then Scalia would have been writing for the majority in Lawrence v. Texas and Obergefell v. Hodges. If prayer worked then Roe v. Wade would be history.

What a waste of life. Following archaic rules while appealing to the good nature of a deity, pleading for approval and favor, while fearing displeasing the deity and, at the same time, fearing the anti-deity (the Devil). Religion and natural law have been used to justify the ethnic cleansing of Native Americans, slavery, segregation, racism, homophobia, antisemitism, the abuses of dictators and a whole host of offenses towards our fellow human beings. If there really is a god then he or she is likely to be extraordinarily pissed off at the judgmental, self-righteous blowhards who just know how everyone else should live.

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