18 Dec Two Lawsuits, One Virtue
Two lawsuits, one filed in a federal court in New York dealing with anti-religion discrimination, and the other regarding Planned Parenthood – a case which the U.S. Supreme Court declined to hear – illustrate the limits and the frailty of our legal system. If I had decided to write a fictional outcome, both cases would likely have been different. But as I once told an audience of lawyers in Maryland at a book event for one of my legal-themed novels, writing fiction, even the kind studded with realism, gives you a certain luxury of wishful thinking. Real cases, at least in the short term, are more complicated, less predictable, and often less fair. But there is still a saving grace if we take the long view. We have a constitutional Republic that gives us the ongoing opportunity to get things right, if only we are willing to exercise a particularly daunting virtue.
The New York case is a continuation of a legal saga that spans decades. My part in this drama occurred in 1995 when I traveled to Manhattan on behalf of the Rutherford Institute to argue the plaintiff’s case before the U.S. Court of Appeals for the 2nd Circuit, an appeal entitled Rabbi Yitzhok LeBlanc-Sternberg v. Fletcher et al. and the Village of Airmont. In it, I argued that virulent and very public anti-Orthodox Jewish sentiment had motivated the decision of Airmont officials to incorporate their village and then construct a zoning code that would effectively prevent Jewish group worship in homes, all in violation of the First Amendment. The Court agreed and in a series of rulings an injunction was issued prohibiting any further religious discrimination. By 2008 however, Airmont was still creating problems, this time hampering a Jewish school, which resulted in a lawsuit by the Department of Justice and ended in a Consent Decree that created some breathing room for religious freedom, at least until it expired in 2015.
Recently there have been further efforts by that village to place a stranglehold on Jewish worship, and Airmont faces yet another lawsuit, this time by lawyers at the First Liberty Institute. Back in 1995 I had once considered asking the Court to legally dissolve the village. Now, after nearly three decades of continuing anti-Jewish discrimination by Airmont, that idea doesn’t sound so extraordinary. While courts can render edicts, human attitudes and biases are a hard phenomenon to change.
The second case, this one before the U.S. Supreme Court, involved an appeal from states that sought to halt the flow of public Medicaid funding to Planned Parenthood. Lawsuits ensued, with that abortion provider challenging the states. One of the reasons cited by the states for the defunding decision was evidence that Planned Parenthood traffics in aborted fetal remains. The news media was all abuzz when the Supreme Court recently refused to review the case on appeal after lower courts had sided with Planned Parenthood and halted the defunding effort by the states. Because it takes four justices to grant certiorari, particularly newsworthy was the fact that, while “conservative” Justices Alito and Gorsuch joined with Justice Thomas in his dissent arguing that the Court should have granted review, neither Chief Justice Roberts nor the newly installed Justice Kavanaugh agreed with them.
Speculation was rampant in the press about Justice Kavanaugh’s motives, but deciding another’s motive is always a tricky business, especially when it comes to the Supreme Court’s highly discretionary review power. As Justice Thomas pointed out in his dissent from the Court’s denial of review, those “cases are not about abortion rights. They are about private rights of action under the Medicaid Act.” This short-term result is of course disappointing to pro-life advocates, but in the long term there is a remedy – albeit a hard one. While Congress’ attempts to defund Planned Parenthood failed in this session, and likely will fail also come January when the House flips to Democrat control, the national election in two years will leave the issue squarely back in the lap of the America’s voting citizenry once again.
Which means, whether it is a matter of halting the hostility of a New York municipality regarding religious freedom, or removing public money from the coffers of this nation’s largest provider of abortions, dedicated persistence in the face of determined opposition will always be a virtue necessary to change things through our system of governance. It always has been.
[Craig Parshall is a civil liberties attorney serving as Special Counsel for the American Center for Law and Justice in Washington and a fiction author of 13 suspense novels that often feature themes of law, crime, justice, and faith. The opinions here are solely his own.]