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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  April 21, 2007
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Are Our SCOTUS Justices Faithless or Faithful?

One does not have to be Catholic to oppose partial-birth abortion, or abortion generally, or to support strict construction of the Constitution and to refrain from legislating from the bench

The United States Constitution (Article VI) is explicit: no religious test as a qualification to be a United States Supreme Court Justice and each Justice to take a binding oath or affirmation "to support this Constitution."

The University of Chicago Law School's Professor Geoffrey Stone surely should know better than to blame a Justice's religion for a strict constructionist decision that is faithful to the Constitution as well as compatible with, among other religious teachings, Roman Catholic teaching. Professor Stone's law school's website describes him as follows:

"Geoffrey Stone has been a member of the law faculty since 1973. From 1987 to 1993, Mr. Stone served as dean of the Law School, and from 1993 to 2002 he served as Provost of the University of Chicago. Mr. Stone received his undergraduate degree in 1968 from the University of Pennsylvania and his law degree in 1971 from the University of Chicago Law School, where he served as editor-in-chief of the Law Review. Mr. Stone served as a law clerk to Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit and to Justice William J. Brennan Jr. of the Supreme Court of the United States. Mr. Stone was admitted to the New York Bar in 1972.

"Mr. Stone teaches primarily in the areas of constitutional law and evidence, and writes principally in the field of constitutional law...."

Notwithstanding his undeniably impressive credentials, when the United States Supreme Court upheld the federal partial-birth abortion ban, 5 to 4, Professor Stone's frustration got the best of he and he resorted to unabashed Catholic-bashing in lambasting the majority for their decision.

It is Professor Stone, not a single majority justice, who has earned scorn and derision, for his bigotry, and mockery, for his carelessness.

Professor Stone:

"In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called 'partial birth abortions' (properly described as 'intact dilation and evacuation' or 'intact D & E') despite the absence of an exception to protect the health of the woman. Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.

"In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.

"Among Congress’s clearly erroneous 'findings' were its assertions that no medical schools provide instruction on intact D & E, that intact D & E is never necessary to safeguard the health of the woman, and that intact D & E is less safe than alternative procedures. Each of these 'findings' was and is false. In fact, many laws schools, including Chicago, Northwestern, Yale, Columbia, teach intact D & E; there is a clear medical consensus that in particular circumstances intact D & E is necessary to protect the heath of the woman; and there is a clear medical consensus that in particular circumstances intact D & E is safer than the alternative procedures.

"It is not unusual for the Supreme Court to give deference even to implausible legislative findings. But the findings must at least be rational and, when a law restricts a fundamental constitutional right, the findings must be almost unimpeachable. In this instance, every federal court that reviewed these congressional findings rightly described them unreasonable, unbalanced, polemical, and unsupported by the facts.

"The five justices in the majority in Gonzales have put at risk the health of women who suffer from heart disease, uterine scarring, bleeding disorders, compromised immune systems, and certain pregnancy-related conditions, such as placenta previa and accreta, as well as those women carrying fetuses with certain abnormalities, such as severe hydocephalus. In all of these circumstances, and many others, the use of the intact D & E is necessary to ensure the health of the woman.

"It is important to note that the prohibition of intact D & E has nothing to do with preserving the life of a fetus. The 'partial birth abortion' law does not prohibit any abortions. Rather, it prohibits only a particular means of performing abortions. If the woman is willing to undergo a greater than necessary risk to her health, she may terminate her pregnancy by other, less safe, methods. She may, for example, have the fetus terminated by injection prior to extraction, or removed by cesarean, or extracted by non-intact D & E (which involves dismembering the fetus in utero).

"What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is 'immoral' and may be prohibited even without a clear statutory exception to protect the health of the woman.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman 'to determine her life’s course' is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.

"In 1972-73, I had the privilege of serving as a law clerk to Justice William Brennan, then the Court’s only Catholic justice. It was in that year the Court decided Roe v. Wade. Justice Brennan struggled in that case, as he struggled in earlier cases involving such issues as school prayers, to separate his personal religious views from his views as a justice. He joined the decision in Roe because he believed in the separation of church and state and because he was convinced that his religious views must be irrelevant to his responsibilities as a justice.

"As the Court observed fifteen years ago, 'Some of us as individuals find abortion offensive to our most basic principles of morality, but than cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.' It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example."

Where to begin?

First, Justices Roberts, Scalia, Kennedy, Thomas and Alito upheld the ban as justices who are Catholics, not Catholic justices Ironically, Justice Kennedy previously voted to uphold instead of to overrule Roe. He surely would not have done that if he had voted as a faithful Catholic. Yet, when he voted to uphold the federal partial-birth abortion ban (just as he had voted to uphold a state partial-birth abortion ban years earlier), he too was condemned as a justice who chose to be faithless to his oath in order to be faithful to his religion. Actually, all five were faithful to their oath and the Constitution.

Second, the majority did not make a personal moral decision to ban partial-birth abortion. They simply recognized that the Constitution empowers the people's elected representatives to decide whether or not partial-birth abortion should be banned.

Third, the essential difference in the approaches of the majority and the minority in the federal partial-birth abortion case is the difference between strict construction and judicial activism. As the Judicial Confirmation Network explains it on its website ( "[T]he proper role of a judge or justice is to interpret the law and the Constitution – not make up the law and deprive the people of the right to govern ourselves....not [to] use the power of the court to impose his or her personal or political agenda on the people." Professor Stone fumed that the majority was imposing its personal (Catholic) moral belief, but if any justice or justices were trying to thwart the majority will (there is not a Catholic majority in America or in Congress and the President who signed the federal partial-birth abortion ban is not Catholic), she, he or they were not part of the majority.

Fourth, Professor Stone read the majority decision (if he read it at all) very carelessly and wrote his condemnation of it and the justices who happen to be Catholic the same way: (1) the majority did NOT simply accept all of the Congressional findings in support of the ban ("Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress’ findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake."); (2) the majority expressly rejected some erroneous Congressional findings ("As respondents have noted, and the District Courts recognized, some recitations in the Act are factually incorrect."); (3) the majority found that some medical schools do teach intact D&E and that there is not a medical consensus that intact D&E is never medically necessary; (4) Gonzales overruled (not "reversed") Stenberg; and (5) the "medical procedure" that Professor Stone prefers to refer to euphenistically as "intact D & E" involves the abortionist dilating the mother's cervix, extracting the baby's body by the feet until all but the head has emerged, stabbing scissors into the baby's head, sucking out the baby's brains, collapsing the baby's skull, and delivering the dead baby is taught in some medical schools, but NOT in law schools.

Fifth, Professor Stone's denial that morality is a reasonable consideration for legislators and insistence that justices should not uphold a morality-influenced statute because the First Amendment mandates absolute separation of church and state are nonsensical secular extremist rantings directly traceable to the United States Supreme Court's judicial activist decision in Everson v. Board of Education in 1947 that government must be neutral as between religion and irreligion and must not support religion generally.

The Gonzales majority did not decide based on their personal views, but in Everson the justices legislated from the bench, disregarding history and misconstruing the Constitution at the urging of the secular extremist minority and the expense of the overwhelming religious majority in ruling that neither federal nor state governments "can pass laws which aid...all religions...."

In so ruling, the Court presumptuously substituted its personal view for the views of those who founded the United States, wrote and ratified the Articles of Confederation and the Constitution, and adopted the First Amendment and misused a letter in which Thomas Jefferson had described the First Amendment as "building a wall of separation between church and state."

The First Amendment did not create a wall between church and state. It prohibited Congress from making a law "respecting an establishment of religion, or prohibiting the free exercise thereof." The Constitution provided that there would not be a religious test for public office, but not that religious values must not inform public policy and must be banished from the public square.

As Founder and later President John Adams put it: "We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

Founder Gouvernor Morris explained why: "Religion is the only solid Base of morals and Morals are the only possible Support of free governments." On that basis, Morris called for education to "teach the precepts of religion, and the duties of man to God."

Justice Clarence Thomas wrote in his concurrence in Gonzales that the Court's jurisprudence on abortion has no basis in the Constitution, and sided with the majority for that reason. He was right about the Constitution and right to join the majority, and he did so as a strict constructionist, not a Catholic.

Edward Whelan, president of the Ethics and Public Policy Center, deemed Professor Stone's allegedly "painfully awkward observation” that the Supreme Court's justices who are Catholic "failed to respect the fundamental difference between religious belief and morality” as equally "offensive" and "baseless."

Mr. Whelen's reasoned rebuttal:


1. The five justices in the majority were not imposing their own religious beliefs. They were deferring to the entirely reasonable moral judgments of the American people, manifested through bipartisan majorities in Congress. Justice Kennedy’s majority opinion explains that the law serves the proper governmental objective of expressing respect for the dignity of human life and of protecting the integrity of the medical profession. Stone may well disagree with those objectives, and he may well disagree that the law serves them, but it is absurd for him to contend that the five justices are imposing their own religious views when they let the democratically enacted law take effect.

2. It is the four justices in dissent who have a consistent record of misconstruing the Constitution to impose their own substantive policy preferences. Stone claims that the dissenters 'all voted in accord with settled precedent' but that precedent is neither settled nor faithful to the Constitution.

3. Stone presents his former boss, Justice Brennan, as a model of a Catholic justice 'separat[ing] his personal religious views from his views as a justice.' From Stone’s account, one would think that Brennan reluctantly joined Roe v. Wade because the Constitution compelled him to. That account is ridiculous at many levels. Whatever Brennan’s 'personal religious views,' he plainly favored abortion as a matter of policy, and it’s clear that he was the moving force behind the ludicrous Roe opinion."Edward Grant was irate. He posted this comment at the University of Chicago faculty blog mocking Professor Stone for his selective anti-Catholic bigotry and unsupported assertions: "Professor Stone's commentary reflects the not-so-soft bigotry against Catholics and/or Catholicism that pervades the 'upper echelons' of the media and academia.

"I trust that for reasons of space alone, Prof. Stone neglected to cite those provisions of the Constitution that enshrine the right to deliver a child virtually to the point of birth, and then plunge scissors into the back of the head, all for the purpose of 'evacuating' the contents of the cranium, i.e., the brain. Perhaps another correspondent can enlighten us regarding this. In the meantime, many of us will sleep just a bit easier knowing that this marginal nod in the direction of human dignity has survived the gauntlet of what passes for 'constitutional law' in this country.

"Prof. Stone's analysis does not address those hundreds of Senators and Representatives who voted for the PBA law, including such liberal and Catholic stalwarts as Tom Daschle and Patrick Leahy. Why are they spared his anti-Catholic attacks?

"Memo to Professor Stone: Aside from the fervid Judge Dooling in the Hyde Amendment case, no federal court, and certainly not the Supreme Court, has bought the canard that laws protecting unborn life are violative of the Establishment Clause or the Free Exercise Clause. Yet, your entire argument here is premised on that utterly fallacious proposition.

"Those of us on the receiving end of this bigoted nonsense have had enough. We're the ones who are mortified, Prof. Stone. And you and your fine institution should be ashamed."


Finally, George Liebmann's wistful post at that faculty blog highlighted fundamental flaws in Professor Stone's diatribe:

"When I was at the law school, there were still realists like Levi and Llewellyn about. Whatever happened to Holmes' notion that 'the law is the external expression of our moral life' or of his view that 'the Constitution was made for persons of differing views' or of his view that 'the felt necessities of the time have more to do than the syllogism with the way men are governed'?

"The notion that the majority here is driven by religious views rather than views as to the appropriate scope of the judicial function is absurd. Holmes, Brandeis and Cardozo were not Roman Catholics. Can one picture any of them joining in Roe, or in Justice Ginsburg's dissenting opinion in this case?

"Prof. Stone says no fetus is preserved by this ruling. But does not society have a right to be squeamish about what looks like killing of a viable fetus outside the womb? That may not be the best place to draw the line between abortion and infanticide, but doing so overrules no precedent.

"Stenburg, in any case, is a very murky precedent. No previous case, on its facts, involved a third term abortion, or a statute even arguably limited to third term abortions. Roe's declarations on this subject were pure dicta....

"Does Prof. Stone think that it is only Roman Catholic morality that is being vindicated here? The state and federal legislators who enacted the federal act and the thirty odd state statutes are not predominantly Roman Catholic; in some Southern states few if any of them are. As any number of writers... have pointed out, the prohibition on infanticide is an important point at which Judeo-Christian moral teachings diverge from the Roman.


"Finally, the refusal to veto a non-First Amendment law on its face is a becoming recognition of the difference between courts and legislatures, between legislation and adjudication. The Constitution does not give the courts a veto over legislation; proposals to do so were three times rejected by the constitutional convention. No intelligible reason exists for making abortion laws an exception to the general rule. Women after all have been enfranchised since 1920; Justice Ginsburg may dislike paternalistic legislation but she certainly seems to favor maternalistic judicial decisions debasing the political process, to say nothing of judicial confirmation hearings."

Jesus invited one without sin to cast the first stone, leaving no one with the gall to throw a stone.

Professor Stone took it upon himself to throw stones (figuratively) at every United States Supreme Court Justice who happens to be a Catholic, for not kowtowing to the secular extremist/judicial activist agenda.

One does not have to be Catholic to oppose partial-birth abortion, or abortion generally, or to support strict construction of the Constitution and to refrain from legislating from the bench.

Professor Stone should know that.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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