“But what about discovery rules?” I asked. He told me that if there were documents of which we were aware that hurt our client’s case, we have not only the right but the responsibility to destroy them, so the other side cannot see them and use them against us. When I pointed out that the statutes forbid this, he said “Laws are made to be broken. When our clients’ goals are at stake, we cannot afford to be fastidious with observing the rules.”

He went on to tell me that some people should not be entitled to the same rights we enjoy under the law, in any event. Some, he told me, subscribe to philosophies that we just should not approve of and it is entirely appropriate to fine them for that, forbid their discussing their discredited ideas and charge them a special tax for believing as they do. “What about the First Amendment?” I asked. He said the First Amendment is not absolute and as far as he is concerned it protects only “right” ideas, not all ideas. It would be absurd, he observed, to think that this society, or any society, should tolerate ideas so contrary to its values.

I was horrified and did not hire him. But did I have the right to discriminate against him on the basis of his ideas? He had clearly thought them through but it seemed to me that they were so contrary to what we stand for as lawyers devoted to the rule of law (not to mention the fundamental basis in individual freedom that defines us as a nation), I simply could not hire him when his views were so contrary to my own and what I perceive to be the nature and purpose of law. It seemed to me likely that he would undermine what we stand for and the work we do.

If you think I was right in refusing to hire someone whose ideas strike at the very heart of American justice, would your answer be different if I were to tell you that his views were tenets of his religion? We have laws that prohibit discrimination against people on the basis of religion. So, how can we square our horror at the views of a person that are so anathema to the fundamental philosophical foundations of our nation with the prohibition against discriminating against him on the basis of those views? Must I receive into my life and business people who seek to destroy what I hold dear, much less provide them with the resources with which to do so?

It is no mistake that the first freedom protected under the First Amendment of the Constitution is freedom of worship. That reflects not only the huge place religion, primarily the Christian religion, occupied in the minds of the Framers, but demonstrates the extent to which protection of religious freedom was the very object of the founding. From the earliest days of colonial America until the recent past, we have observed a deference to religion and religious belief that is unequaled anywhere else. Religious values, we believe, are those most deeply held. If religion means anything, it is as a guide to our lives and conduct, and informs and defines our very purpose. If religion is something to be compartmentalized and observed mainly on the Sabbath in houses of worship, and otherwise ignored during the rest of the week in the conduct of our lives, it has little value and does not hold the importance most people of faith believe it does.

So it is that the Constitution prohibits “religious tests” for holding public office and protects the free exercise of our various religious faiths. So it is that the first anti-discrimination laws were directed toward the protection of citizens from discrimination on the basis of religion. So it is that even now, we instinctively shrink from harsh judgment on the basis of religion and religious views. That is, in part, why this nation has avoided the sectarian conflicts that have torn others apart, even in the modern age: think of Ireland as a First World country, and India as a Third World nation.

But if religion informs the conduct of its adherents, it follows that one may judge the likely acts of a religious person by reference to his religion. There was no applicant to my law firm such as I have described here. But what if there had been? All of the views I set forth for my mythical applicant were consistent with Islamic teaching and the treatment of non-Muslims in Islamic countries. The views I described are contrary to the obligations we undertake as lawyers when we take our oaths of office to stand for the rule of law and zealously protect the integrity of the system of justice. How, then, could anyone give a lawyer who has those views a job which would require that he either violate the tenets of his faith or conduct his law practice in an unethical manner; thwarting, in the bargain, justice as we have defined it?

In pointing out the sacred place religion occupied in the minds of the Framers, I observed, advisedly, that their main object was the protection of the various sects of Christianity. I anticipated that some readers might be offended by that observation, even though it is true, but it was made to make the point that the Framers did not, could not, have anticipated that there might some day arrive on our shores a religion that preaches a body of thought that runs so completely counter to the very fundamental ideas that define this nation. Even as late as the 20th Century, Islam was virtually unknown to Americans and ill-understood by those with a passing familiarity with it. What was never clear was the extent to which fundamentalist Islam strikes at the heart of the notion of American liberty.

Perhaps, then, it is time to revisit our reluctance to judge and our prohibition of discrimination on the basis of religion. If religion governs ideas and ideas govern conduct, it might be time to refine our deference to religious impulses. Perhaps it is time to be more precise with what is protected. A good start would be for courts to begin to recognize that the free exercise of religion is no more absolute than freedom of speech and the press. There are times when speech may be stilled; when presses may be stopped. When religion becomes ideology or, worse, an anti-social movement of civil mayhem, it must lose the protection the Framers so lovingly conferred on that institution they held most dear. There is, after all, no prohibition against discrimination on the basis of political views. Charles Willis Manson devised a religion of sorts for his followers and got them to follow his murderous orders on the basis that, as he put it: “Charles’ will is man’s son.” Is our society constitutionally bound to tolerate the practice of that religion? What about Jim Jones’ religion? The answer is an emphatic “no.”

That is why constitutional analysis now must account for the existence of political/social movements cast as religion by more carefully reviewing what religious exercises must be tolerated and which need not be. Free speech jurisprudence allows the prohibition or punishment of defamation, “fighting words” and the disclosure of state secrets, among other things. Current jurisprudence allows for the prohibition of the use of certain drugs in religious observances. Legislators must now courageously consider what conduct, irrespective of religious basis, can, and must, be prohibited, and courts must not shrink from sustaining such laws on the basis of a broad reading of the constitutional protection of the free exercise of religion.

No one should be forced to support someone whose views are so anathema to him as to constitute an assault on his very being. So, perhaps now is the time to revisit our prohibition against religious discrimination on an individual basis. If my apocryphal applicant had truly sought work at my firm, I could never, in good conscience, have extended an offer to him and I should not be made to suffer for that discrimination against ideas. Religion is not, as race or gender, an immutable characteristic. It is a body of ideas one voluntarily assumes. And certainly, we may, and should, make judgments about people on the basis of their ideas.

This issue, as we have seen in the current presidential race, has broader implications. There are those who refuse to vote for Mitt Romney because he is a Mormon. I frankly know nothing of Mormonism, but my experience with dozens of Mormon friends over the years has been that they are honest, hard-working people of great integrity and traditional values for the most part consistent with my own. But what if a candidate for office embraced a religion that endorsed the ideas I put in the mouth of my mythical applicant? What then?

It is not enough to assure us that his religion would not affect his conduct in office. We have already seen many examples of religion’s actually having done so. Former Gov. Mike Huckabee, by many accounts, freed dangerous convicts on the basis of his religious conviction of Christian redemption. President Bush has forbidden federal funding of stem cell research and the use of federal funds for abortion on the basis of his religious belief in the sanctity of life and the immorality of abortion. Public policy has been governed by the religious views of public officials from the very beginning of the republic.

Because religion is a choice and a non-immutable adoption of a body of ideas, the embracement of one is a voluntary act upon which we may properly judge. Because religious conviction is that we hold most deeply, for the most part, and more thoroughly informs our behavior than any other set of ideas, it certainly must be a guide for predicting the conduct of its adherents. It is altogether legitimate, therefore, for a voter to consider the religion of a candidate, among other characteristics, such as his political views. If the candidate’s religion embraces ideas the voter believes may result in official conduct of which he would disapprove, there is nothing illegitimate in discriminating against that candidate on the basis of his ideas, irrespective of whether or not they are religiously based. To do otherwise would be to ignore what is probably the greatest single factor governing the candidate’s conduct.

Anticipating that someone will protest that my view in this regard violates the “no religious test” prohibition in the Constitution, I point out only that that prohibition is against government discrimination, not individual discrimination. In voting, the choice is entirely that of the voter. And the voter’s greatest obligation is to vote his conscience.

John W. Howard practices business and commercial law in the state of California.

http://www.familysecuritymatters.org/homeland.php?id=1386071

Comments are welcome at redstatepatriot@hughes.net. Please include the title of the article as your subject line. Selected responses, in whole or part, may be published (appended to the article).

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The sad snake oil sold to the American people is that a lawsuit is the economic equivalent of winning the lottery. They are told, and believe, that for every wrong there is a remedy and that courts are simply tools for the enrichment of those who have suffered some disappointment. As a result, courts throughout the nation are clogged with anxious plaintiffs complaining of simple slights that should never have seen a courtroom. A recent case was filed in San Diego by an electrician who got into an argument with a co-worker and was dismissed with a common epithet comprised of two words, the second of which was "you." It seems the poor dear experienced extreme emotional distress from this egregious act and asked for court intervention to relieve his suffering.

Though the case was dismissed, it consumed court and attorney time and resources – and is symptomatic of the resort to courts for civil relief for the slightest of insults. It arises at least in part from our culture of victimhood and the plaintiff's bar's success at squeezing ridiculous results out of juries. It comes, too, from the Left's success in getting the American people to buy the idea that companies should pay when someone is annoyed, irrespective of whether or not the companies have done anything wrong. And so plaintiffs roll the dice and see if they can cash in, encouraged by mobs of plaintiff's lawyers by promises of undeserved riches.

At the same time, the revolution wrought by Supreme Court jurisprudence in the 1950s and '60s convinced the public that they, by gosh, have rights. The Court found in the penumbras of the Constitution newly minted rights and issued attenuated opinions enshrining protections never contemplated by the Founders. A nation that freely accepted the death penalty at its founding suddenly discovered that it might violate the prohibition against "cruel and unusual punishment." Put aside the fact that the Congress that passed the amendment making that prohibition existed at a time when the death penalty was in full and frequent use throughout the land; a fact that did not seem to trouble those who passed the prohibition and who saw no contradiction in the act.

Criminal defense lawyers pressed ever more creative Constitutional theories and suggested inventive new remedies for their violation. So it was that criminals were set free by courts on the flimsiest of grounds to further engage in their predatory acts. The unsurprising result was an explosion of crime in the late '60s and throughout the '70s, as those inclined to criminality concluded that they were unlikely to be caught, less likely to be convicted, and still less likely to be punished if they were.

This prompted in the advocates of expanded readings of Constitutional rights no word of protest from their lofty perches high above the mean streets the citizenry had to navigate. It was easy to self-righteously suggest that this was an appeal to the best in us when they paid no direct consequence for it. Those paying the highest price were, as usual, the poor and most vulnerable who suffered a virtual holocaust of crime because modern Constitutional theory encouraged increased criminality. That is the trouble with idealism unleavened by experience and common sense. It is easy for a judge to let an obvious criminal free when protected by bailiffs and metal detectors in the armed citadels we call "courthouses."

It was only when the public, genuinely outraged by the excesses of a criminal justice system warped by Leftist academic legal theories, rose up in protest and handed votes to every politician who suggested he would fight crime and bring the courts to heal. It is no accident that Republicans who, until the late '60s appeared to be a permanent minority, began their inexorable political assent. They were for the death penalty. They were for determinate sentences. They were for putting the bad guys behind bars and leaving them there. And they were rewarded with votes.

But the impetus to odd Constitutional theory goes on. Today, the Supreme Court will hear arguments in Boumediene v. Bush, a case bearing on the "rights" of Guantanamo detainees. It is the next in line of a series of cases pressed for the purpose of vindicating odd notions of rights during wartime and the success of which would result in the same geometrical increase in international crime that was the result of the proponents' efforts during the Warren Court era.

The effort is no less than the ambitious attempt to apply all of the attenuated Constitutional theories that resulted in our last major national crime wave to international terrorism. It is an effort to extend American rights to non-Americans committing their crimes far from America against Americans. And it is being sold with same self-regard and self-righteousness that was employed in the '60s: "We are better than that. We must live up to our ideal of equal justice under the law." Equal justice under the law applies to those in the United States and only to those in the United States or subject to its laws.

The immediate question before the Court is whether Congress can oust the courts of jurisdiction to hear habeas corpus petitions. That is hardly a question worth debating. The "checks and balances" Leftists tout in other contexts exist so that each branch can, one way or another, limit the power of the others. Congress has always had the power to oust the federal courts of jurisdiction over matters of controversy. Indeed, the federal courts below the Supreme Court are a matter of grace by Congress, not a mandate of the Constitution. Congress has the power to repeal the various judiciary acts that create them without running afoul of the Constitution, which does not require that they be established.

Although the immediate matter before the Court is the more esoteric one of jurisdiction and Congress's power to limit it, there is no question but that the greater issue is whether American rights extend to other than those in the United States, subject to its laws. It has never been the law of this nation that the rights protected under our Constitution extend to every human being in every place on the globe. Law is a function of the culture in which it takes root. The United States was founded largely by the children of the enlightenment whose lives were informed by the profoundly civilized philosophical project of individual liberty. As a cultural institution, it depends on the underlying assumption that those who inhabit the culture have similar, if not congruent, social values and have bought into the overarching cultural assumptions that give cohesion to their society. Without the embracement of basic cultural and ethical norms, cultural standards will not be achieved by citizens, and the assumptions that make up voluntary obedience to law will not exist.

The fundamental mistake made by those who argue for American rights for Guantanamo detainees is that American law is effective for governing people who share neither American values nor American cultural norms. Law is the governmental imposition of the basic rules of a society. It is about the enforcement of fundamental cultural norms on those who accept an overarching cultural standard. Our treatment of foreign terror suspects is not about our values, it is about theirs. Our values are intact, but our constitutionally protected liberties can extend only to those who accept the basic cultural values that make them work. Those who reject those values do not accept the duties that go with living in the society that embraces them and, without the acceptance of those duties, the protections that accompany them for those who do, give only advantage to those who have no call on that benefit.

It is odd that the very people who argue that President Bush is hopelessly naïve in thinking we can promote democracy in countries that have no historical understanding of it, are the very same people who think that the complicated mechanisms of American law should be set to the wholly unprecedented situation of an inchoate international terrorist effort. The fact is that planted democracy is much more likely to take root than the imposition of American standards of constitutional protection is to serve the very function of law: to protect the innocent.

Extending American due process rights, including habeas corpus, to foreign nationals in time of violent conflict, has not only never been done by any nation at any time, it will lead to nothing but chaos and confusion in our soldiers who will be expected to understand legal norms that most lawyers do not even comprehend. The battlefield is a bad place to test new jurisprudential ideas and it is destructive to the mission. It has been said that the Constitution is not a suicide pact and where you are fighting people who will not be bound by the cultural values that serve as the basis for law, extending the protections of that law is not only inappropriate, it is wrong-headed.

That is why the plaintiffs in Boumediene are wrong. The cases are legion in which court after court, including the United States Supreme Court, has concluded that American Constitutional rights are enjoyed by Americans and those who commit crimes in our country. That is the conclusion of Johnson v. Eisentrager, a 1950 United States Supreme Court case in which it was decided that German detainees at the end of World War II were not entitled to habeas corpus. In ruling, the Court observed that extending the right to habeas corpus to foreign nationals in foreign countries would "hamper the war effort and bring aid and comfort to the enemy." Just so.

We live in a dangerous time with dangerous and determined enemies not tethered to formal governments. As such, they are not entitled to the protection of the Geneva Conventions. We have extended to them far more rights than any nation ever has enemy combatants. They have contested hearings before military judges; the same types of tribunals our military men and women get when accused of crimes in uniform. They have a review right in a federal court. For those who say "we are better than that" as if, somehow, extending less than the full protection of the Constitution of the United States to those not entitled to any of its rights is less than we should do, we must ask: how many nations provide due process to their own citizens as great as those we do these detainees? Why should these detainees receive more rights than our own soldiers?

Who, among nations, is in a position to criticize our handling of these prisoners? What nation would extend the protections we do? Where, then, does anyone get the idea that we lose our respect among nations when we provide more rights to these detainees than any of them would? Any nation or national leader who suggests that we are betraying our ideals in this regard is simply playing for political advantage. And, any such leader should be challenged to meet even these standards in his own country.

In the end, our treatment of these detainees is more civilized than they have any right to expect and certainly more humane than they would receive at the hands of any other nation. I spoke with a nationally known liberal radio talk show host who vigorously disagreed with my position in this regard, accusing me of being inhumane. When I pointed out that if we want to keep terrorists from being released by federal courts to terrorize again, the only alternative would be for soldiers to kill rather than capture them; he said that that would be more acceptable. So much for liberal compassion.

The original article can be found at http://www.familysecuritymatters.org/

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