Is the Inconsistency of the SCOTUS Showing?
According to Rachel Maddow of MSNBC, there are some glaring inconsistencies in the recent Supreme Court ruling in the case of McCullen v. Coakley. As you know by now, the SCOTUS ruled unanimously that a Massachusetts law that set up a protest “buffer” zone 35 feet from abortion clinic entrances, is unconstitutional because it overrides petitioners’ right to free speech up close and personal. In his decision for the (unanimous) majority, Chief Justice Roberts actually wrote that petitioners (who said they wanted close up quiet conversations with women entering clinics to tell them about alternatives) were not protesters. The law blocked too much speech, he said, “sweeping in innocent individuals.” He also said that the state’s concerns about harassment, intimidation and obstruction could be addressed in other ways, including through creation of legislation on these matters.
The first inconsistency goes back to a 2000 decision that upheld a similar Colorado law in Hill v. Colorado. That “floating bubble” law established 100-foot buffer zones outside all health care facilities, not just abortion clinics. Inside those larger zones, the law banned approaching others within eight feet for protest, education or counseling without their consent. Only Justices Scalia, Kennedy and Thomas wrote that they would have overruled the Hill decision.
The second inconsistency has to do with the fact that such “buffer” zones, based on a need to control a surrounding environment are already in effect and unchallenged in the case of electoral polling stations. Most states and some municipalities have laws that prevent partisans from “lobbying” or “influencing votes” in or around a voting place. There is usually a “buffer” zone that extends about 50 feet from poll entrances in which “electioneering” cannot take place.
In the special case of military funerals, while the Court was consistent about putting free speech before the right of privacy in upholding the right of Westboro Baptist to protest America’s "approval" of homosexuality, the fact Justice Roberts said that the protesters from Westboro were far enough away not to be terribly hurtful to the family is a kind of unwitting approval of a buffer zone. Roberts in his opinion noted the Snyder family was not a “captive audience” to the protests that were conducted several hundred yards away. “Westboro stayed well away from the memorial service,” wrote Roberts. “Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing itself in any way interfered with the funeral itself.”
There are all manner of municipal laws that govern public protests, and many of them deal with conduct, space given, and length away from traffic, etc. However, I brought up Rachel Maddow at the beginning of this post because she rightly pointed out a much larger inconsistency: the fact that protests are barred from the white marble plaza of the U.S. Supreme Court building itself thus having a buffer in front of its own entrance! It appears that free speech is moot if you want to be up close to the Justices for a very personal and quiet counseling or conversation!!! Here is an interesting picture of police on the plaza guarding the Court building.
“One tool has now been taken away,” said Martha M. Walz, the chief executive of Planned Parenthood League of Massachusetts and a former state legislator who was a lead sponsor of An Act Relative to Public Safety, the law struck down by the court. “We will now use the other tools at our disposal,” including laws prohibiting entrances of clinics from being blocked and injunctions against protesters who go too far.
“By striking down the buffer zone today, the Supreme Court has taken away an essential measure to protect public safety and health care access in our state,” she said. “The opinion raises the question of whether the buffer zone at the Supreme Court is in fact constitutional.” (emphasis mine!). Unconstitutionality is one thing; hypocrisy is another! (source: NY Times)
There are two more things about the decision that concern me. One is the fact that the Court naively believes that this is a case about quiet conversation and personal counseling, and free speech rights that attach. It is not just about free speech. It is very much about personal safety, and about zealots who have no regard for the safety or welfare of the women seeking health care or abortion from Planned Parenthood centers, and about assassins who kill doctors who have performed abortions. It is therefore about rights in conflict: free speech and personal safety.
The Court has chosen free speech in this case, but it’s protected plaza is telling us that when it comes down to what the Justices really feel when they think of their own safety – free speech in the form of protest is not allowed near their building! My problem with the Justices is not their protection of free speech. My problem with them is that they did not pay attention to the right of personal safety. Instead, they passed it off to the legislature to come up with other laws. They ignored the safety of women who have to endure the hurt, the harm and the hell of having to seek this kind of help in the first place. It would seem from their decision that women are expendable; protesters of abortion (and apparently the Justices themselves) are not.
Finally, there is one more entirely ignored concern that lies at the foundation of these protests, and that is the imposition of a religious belief on others who do not chose to believe as the protesters believe. In protecting the free speech rights of the protesters, the Court has endorsed the concept that a religious belief can be imposed on others under the guise of free speech. As a branch of the federal government, the Court has thus allowed the establishment of a particular religious belief as a state-imposed norm.
In my estimation, free speech stops where my freedom to practice my religion or non-religion begins or when it is being trampled as it is here. The Justices have completely ignored this issue because they do not want to deal with the larger question of separation of church and state, which has been violated in so many ways, many of which have been allowed by the SCOTUS. One example: their latest ruling in Town of Greece vs. Galloway that allows a public entity to begin its public meetings with a Christian prayer in spite of objections of those who feel they are being imposed upon.
The liberal Justices have let us down in not recognizing the broader issues, but being willing to “go along” because the Chief left open the possibility of corrective legislative measures. Wrong; wrong; wrong! Going along with the religious tenets and acts of the right-wing is a dangerous precedent. For it is the sworn intention of right-wing evangelicals and conservative elements of other denominations, to make this a "Christian" society and government. They have no compunctions about forcing their beliefs on others because they have no room in their closed belief systems for any other legitimate beliefs; and certainly have no room -- or tolerance -- for those who profess no religious beliefs.
This is one more "crack in the wall" of separation of church and state. The wall cannot tolerate many more because it is already crumbling. The Supreme Court will be addressing opportunities to shore up that wall, but my guess is that they will fail to do so given the rulings that have recently been made. The decision in the Hobby-Lobby case will be crucial. It may come down at term's end tomorrow, but it may not. Whenever it comes down, ThinkProgress.org expresses it's significance well:
"Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius present the question of whether a business owner who objects to birth control on religious grounds can refuse to comply with federal rules requiring most employer-provided health plans to cover contraceptive care. Yet it is also the first wave of a much broader effort by religious conservatives to immunize themselves from legislative and judicial decisions that they expect to lose. For decades, the guide star of American religious liberty law has been a simple principle — one person’s religious liberty ends when it is used to strip away the rights of another. Hobby Lobby and Conestoga Wood seek to tear down this principle and replace it with a new rule that would subject every attempt to enforce a law against someone who objects to it on religious grounds to the 'most demanding test known to constitutional law'.”
A finding in these cases that supports a right to object to enforcement of a law on religious grounds would be equivalent to wielding a battering ram against an already crumbling wall of separation because what this comes down to is the same regime that pervades some Islamic governments of the middle East. The laws of the state would be subject to the rulings of the clerics. We could no longer claim to be a nation where law is supreme, because individual religious beliefs would determine which laws are viable and enforceable, and which are not. The fundamental issue, then, is not abortion or the right to life. The major issue, in my opinion, is the establishment of religious belief and practice as more important than the rule of law.
We are headed in a direction that will have dire consequences for this nation as a free society, all under the guise of protecting the right of free speech.