Men in Black (28 page)

23.
Although the Supreme Court first mentioned Jefferson’s metaphor in 1879, in the case
Reynolds v. United States
, in which the Court upheld a law banning polygamy, it didn’t become constitutional doctrine until
Everson
.

24.
Dreisbach, 1–2.

25.
Ibid., 21–

22.
Michael Knox Beran, “Behind Jefferson’s Wall,”
City Journal
, Spring 2003, 68–79.

26.
Dreisbach, 57–58.

27.
Everson v. Board of Ed. of Ewing
, 330 U.S. 1, 3 (1947).

28.
Ibid., 16.

29.
Ibid.

30.
Ibid., 18.

31.
Roger K. Newman,
Hugo Black, A Biography
(New York: Pantheon Books, 1994).

32.
Gerald T. Dunne,
Hugo Black and the Judicial Revolution
(New York: Simon & Shuster, 1977), 269, quoting Hugo Black, Jr.,
My Father
(New York: Random House, 1975), 104.

33.
Bruce Fein, “Religious Season, Consideration of State Influence; Scrutiny of government’s assistance to religions should focus on the furthermore [sic] of predominant secular purposes,”
The Recorder
, December 27, 1993.

34.
Wallace v. Jaffree
, 472 U.S. 38, 92 (1985).

35.
Robert Chanin, FOX
Special Report With Brit Hume
, February 19, 2002.

36.
Rev. Barry Lynn, “Court Upholds Vouchers; Cleveland tuition program OK’d in 5–4 decision,”
Cleveland Plain Dealer
, June 28, 2002.

37.
Ralph Neas, “Bully Pulpit,”
Richmond Times Dispatch
, February 15, 2004.

38.
Wallace v. Jaffree
, 472 U.S. 38, 107.

39.
Ibid., 107.

40.
Ibid., 110–111.

41.
Zelman v. Simmons-Harris
, 536 U.S. 639 (2002).

42.
Ibid., 662.

43.
Ibid., 686.

44.
Locke v. Davey
, 124 S.Ct. 1307 (2004). The scholarship was open to students graduating in the top 15% of their class or achieving a score of 1200 or better on the Scholastic Aptitude Test or a 27 or better on the American College Test. The student’s family income had to be “less than 135% of the State’s median.” Each student had to enroll at least half time in an eligible postsecondary institution in Washington.

45.
Ibid., 1311.

46.
Engel v. Vitale
, 370 U.S. 421 (1962). See the discussion in David Limbaugh’s
Persecution
(Washington, D.C.: Regnery, 2003), 18–20.

47.
Lee v. Weisman
, 505 U.S. 577 (1992).

48.
Ibid., 93.

49.
Vincent Phillip Muñoz, testimony before the Senate Judiciary Committee, June 8, 2004.

50.
Elk Grove Unified School District v. Newdow
, 124 S. Ct. 2301 (2004).

51.
Ibid., 2306.

52.
Tony Mauro, “The Custody Dispute Behind the Pledge of Allegiance Case; Court could duck issue by finding father’s unsettled status voids standing,”
New Jersey Law Journal
, November 10, 2003.

53.
Howard Fineman, “One Nation, Under…Who?”
Newsweek
, July 8, 2002, 20.

54.
Ibid.

55.
Mauro, “The Custody Dispute Behind the Pledge of Allegiance Case.”

56.
Newdow v. United States Cong.
, 328 F.3d 466, 483 (9th Cir. 2002).

57.
Newdow v. United States Cong.
, 292 F.3d 597, 607 (9th Cir. 2002).

58.
Ibid., 602.

59.
Mauro, “The Custody Dispute Behind the Pledge of Allegiance Case.”

60.
Ibid.

61.
Newdow v. United States Cong
., 313 F.3d 500, 502–03 (9th Cir. 2002).

62.
Maura Dolan, “They Pray for Judicial Restraint; Advisors to a volatile atheist hope he is up to the delicate task of arguing his Pledge of Allegiance case before the Supreme Court,”
Los Angeles Times
, March 23, 2004.

63.
Elk Grove Unified School District v. Newdow
, 124 S. Ct. 2301, 2316 (2004).

64.
Ibid., 2320.

65.
Ibid., 2321.

66.
Ibid., 2301.

67.
Ibid., 2328.

68.
On August 19, 2004, the U.S. Court of Appeals for the Third Circuit struck down a law that required schoolchildren to either sing the national anthem or recite the Pledge of Allegiance. Associated Press, “Judge: Pa.’s Pledge law violates First Amendment,” August 20, 2004. We have now reached the point at which judges are striking down laws that embrace the very traditions our nation is founded upon.

69.
Available at www.aclu.org/ReligiousLiberty/ReligiousLibertylist.cfm?c=38.

Chapter Four: Death by Privacy

1.
Ronald Reagan, “Abortion and the Conscience of the Nation,”
National Review Online
, June 10, 2004, originally appearing in the
Human Life Review
, Spring 1983.

2.
Poe v. Ullman
, 367 U.S.497 (1961). The first legal mention of a “right to privacy” was in an article in the
Harvard Law Review
in 1890, written by Louis Brandeis and Samuel Warren, but it was about a different issue entirely: protecting people from an intrusive press. See Gary McDowell, “Private Lives, Perverted Law,”
New Jersey Law Journal
, June 20, 1991.

3.
Melvin L. Wulf, “On the origins of privacy; constitutional practice,”
The Nation
, May 27, 1991.

4.
Poe
, 367 U.S. 539.

5.
Wulf, “On the origins of privacy; constitutional practice.” Emphasis added.

6.
Tamar Lewin, “The Bork Hearings; Bork is Assailed Over Remarks on Contraceptive Ruling,”
New York Times
, September 19, 1987.

7.
Griswold v. Connecticut
, 381 U.S. 479 (1965).

8.
Ibid., 484.

9.
Webster’s New World Dictionary (third edition, 1991).

10.
Griswold
, 381 U.S. 485.

11.
Ibid., 508.

12.
Ibid., 509.

13.
Ibid., 510.

14.
Eisenstadt v. Baird
, 405 U.S. 438 (1972).

15.
Ibid., 453.

16.
Ibid.

17.
Ibid.

18.
Roe v. Wade
, 410 U.S. 113, 118 (1972).

19.
David Gergen,
Eyewitness to Power: the essence of leadership: Nixon to Clinton
(New York: Simon & Schuster, 2000), 20.

20.
Transcript, “Justice Harry Blackmun’s newly released papers,” National Public Radio, March 8, 2004.

21.
Ibid.

22.
Aaron Epstein, “Abortion Decision is his Legacy; Blackmun Defended Individuals’ Rights,”
Detroit Free Press
, April 7, 1994.

23.
Bob Woodward and Scott Armstrong,
The Brethren
(New York: Avon Books, 1981), 214.

24.
David G. Savage, “The Nation; Papers of Roe-Wade Author to Be Released,”
Los Angeles Times
, February 29, 2004.

25.
Woodward and Armstrong, 215.

26.
Lyle Denniston, “Blackmun, author of Roe vs Wade, dies; Retired justice, 90, saw 1973 abortion ruling as women’s rights victory,”
Baltimore Sun
, March 5, 1999.

27.
Woodward and Armstrong, 272–73.

28.
Ibid., 196.

29.
Roe v. Wade
, 410 U.S. 113, 116 (1972).

30.
Ibid., 152–53. (internal citations omitted).

31.
Ibid., 162.

32.
Ibid., 159.

33.
Stenberg v. Carhart
, 530 U.S. 914 (2000).

34.
Ibid., 930.

35.
Savage, “The Nation; Papers of Roe-Wade Author to Be Released.”

36.
Chris Bull, “Balance of justice: cultural advances, openly gay clerks, and speculation about the sexual orientation of one of their own have substantially changed the way the Supreme Court justices weigh civil rights,”
The Advocate
, March 4, 2003.

37.
Callins v. Collins
, 510 U.S. 1141, 1145–1146 (1994).

38.
Responding pointedly to Blackmun’s pronouncement, Justice Scalia stated: “Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared to that!” Ibid., 1143.

39.
Paul Sullivan, “Retired Justice Blackmun Dies,”
Boston Herald
, March 5, 1999.

40.
Planned Parenthood v. Casey
, 505 U.S. 833, 923 (1992).

41.
Planned Parenthood v. Casey
, 505 U.S. 833 (1992).

42.
Fred Barbash, “Blackmun’s Papers Shine Light Into Court; Justice’s Trove Opened by Library of Congress,”
Washington Post
, March 5, 2004.

43.
Pennsylvania had enacted the Abortion Control Act, which required informed consent, a twenty-four-hour waiting period, spousal notification for adult women, and parental consent for minors. There was a provision for minors to seek consent from a judge when parental consent was impracticable. In
Casey
, the Supreme Court created a new test for future legislative abortion limits: the undue burden test. It found that only the spousal notification provision failed this test.

44.
Casey
, 505 U.S. at 850–51.

45.
Ibid., 851.

46.
Lawrence v. Texas
, 123 S. Ct. 2472, 2489 (2003).

47.
Ibid.

48.
Ibid., 2475.

Chapter Five: Justices in the Bedroom

1.
Lawrence v. Texas, 539 U.S. 558, 602 (2003).

2.
Nancy Dillon and Michael Saul, “Say ‘nay’ to gay nups,”
New York Daily News
, March 15, 2004.

3.
Lambda Legal Defense and Education Fund, Freedom to Marry/Marriage Project Brochure, available at www.lambdalegal.org.

4.
Bowers v. Hardwick
, 478 U.S. 186 (1986).

5.
Lawrence v. Texas
, 539 U.S. 558 (2003).

6.
Romer v. Evans
, 517 U.S. 620 (1996).

7.
William F. Buckley Jr. “Bedroom Rights: Should Kerry be denied communion?”
National Review Online
, May 4, 2004. Available at www.nationalreviewonline.com.