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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 26, 2007
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Topic category:  Other/General

Thank Heaven for Jan Crawford Greenburg!

Rosie and Professor Stone are wrong and Ms. Greenburg is right: the charge that the five Catholic justices of the United States Supreme Court opted to impose their personal religious beliefs instead of to support the Constitution (as they swore to do) is ridiculous.

You don't have to be Catholic to realize that (1) the United States Constitution does not specify when life begins and leaves abortion to the people's elected representatives to regulate and (2) Pope Benedict XVI did not issue orders to the United States Supreme Court who are Catholic to vote to uphold the federal partial-birth abortion.

Comedienne Rosie O'Donnell and University of Chicago Law Professor Geoffrey Stone, among other Catholicphobes, apparently believe otherwise, however.

ABC News Legal Correspondent Jan Crawford Greenburg realized as much and wrote about it. She did not seem surprised with Rosie's latest anti-Catholic rant (aimed at Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito) and cited some other notorious and inane Rosie rants to provide context. Professor Stone is supposed to be an honorable law professor at a leading law school instead of a fool, however, so Ms. Greenburg tried to educate him in a powerful post on her blog on life and the law(blogs.abcnews.com/legalities).

Why Rosie?

Rosie: "If men could get pregnant, abortion would be a sacrament.”

Why Professor Stone?

Because Professor Stone has posted this on the University of Chicago's faculty blog:

"What...explains this decision [upholding the federal partial-birth abortion ban]? 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.... the intact D & E seems to resemble infanticide...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...."

Ms. Greenburg: "Good heavens. Where does one start? Perhaps with the law the Supreme Court interpreted. It was approved by a bipartisan congressional coalition that included the Republican and Democratic leadership. In all, 17 Senate Democrats voted for it, in addition to 47 Republicans, the vast majority—I think we can assume—who are not Catholic. You could say the five justices in the majority voted to uphold a law that reflected the choices of those legislators, not to mention the some 30 states that previously had imposed similar bans.

Careful, Ms. Greenburg:"Good heavens" may be construed as a sign that you are a religion-friendly lawyer and thereby buttress the myth that only religious people believe that the proper role of a judge or justice is to interpret the law and the Constitution-- not make up the law and deprive we the people of the right to govern ourselves and not use the power of the court to impose his or her personal or political agenda on the people!

Rosie and Professor Stone are wrong and Ms. Greenburg is right: the charge that the five Catholic justices of the United States Supreme Court opted to impose their personal religious beliefs instead of to support the Constitution (as they swore to do) is ridiculous.

If the five Catholic justices had imposed Catholic belief on America, they would have done what the judicial activists in Roe v. Wade did: read their personal views into the Constitution in the guise of construing it.

The problem of judicial activism is posed by secular extremists who want America to reject its traditional religious-based values and make government agnostic, if not atheist.

So-called conservative judicial activism is a secular extremist oxymoron that involves strict construction judges and justices seeking to undo the "fruits" of Far Left judicial activism.

In Federalist No. 78, Alexander Hamilton recognized that "the courts, on the pretense of a repugnancy, may substitute their own pleasure, to the constitutional intentions of the legislature" and "exercise WILL instead of JUDGMENT."

That's how abortion became a constitutional right.

Ms. Greenburg readily dismissed Rosie O'Donnell's attack on all the United States Supreme Court Justices who happen to be Catholic as another of her absurd rants, but noted with concern that it coincided with "[r]espected thinkers, including the former dean of[her] law school,...contributing to a growing anti-Catholic backlash over Gonzales v. Carhart."

Professor Stone is that former dean.

Ms. Greenburg:

"Geoff Stone (and Rosie and the cartoonist for the Philadelphia Inquirer who illustrated similar thoughts last week) is saying that the five justices voted to uphold the law only because of their religious beliefs. It’s only because they are Catholic—Stone, Rosie, et al, argue—that they could possibly interpret the Constitution to allow a federal law Congress passed with broad, bipartisan support. It’s only because the five are Catholic, Stone and Rosie argue, that they could possibly vote to uphold a law that banned an abortion procedure Congress found to be 'gruesome' and 'inhumane.'

"No, the five couldn’t possibly have legal views that that the Constitution doesn’t protect the right to a partial birth abortion."

Ms. Greenburg appreciated that the simplest explanation for the majority decision is the best: "The five justices took a more restrained approach to the law than their colleagues and declined to substitute their own policy preferences for the will of the people."

Ms. Greenburg traced Professor Stone's ad hominem attack on the majority justices to his own personal view of the proper relationship between church and state:

"Stone’s colleague Rick Garnett gets the better of him in a pointed, yet polite, response. http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased__1.html#more Stone 'misses the mark,' Garnett says—even when he was talking about another Catholic Justice, William Brennan, who Stone says got it right.

"Stone had clerked for Justice Brennan the year Roe v. Wade was decided. Stone notes that Brennan was the Court’s only Catholic in 1972-73 and that he 'struggled…to separate his personal religious views from his views as a justice.'

"But Brennan rose above it, Stone writes. Brennan 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.'

“'It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example,' Stone concludes."

Ms. Greenburg politely, but pointedly, presented plenty of facts:

"The separation of church and state?

"That’s not how they taught First Amendment law when I was at the University of Chicago. Nor did they tell us to jump to baseless conclusions without any evidence—such as suggesting religion drove those justices. Or that different religious views influenced the protestant and Jewish justices to vote against the law.

"Why not speculate that the five justices in the majority happen to like baseball--and therefore are more inclined to appreciate rules? That’s no less relevant or 'telling,' as Stone put it, than their religious views.

"And remember that Kennedy also refused to overturn Roe in 1992 in Casey, when he provided the key fifth vote to preserve a constitutional right to abortion. Four conservatives would have reversed Roe then: Rehnquist (Lutheran), White (Episcopalian), Scalia (Catholic) and Thomas (then Episcopalian/now Catholic).

"Responding to Stone’s blog, Garnett also points out that the former Dean of his law school—while he’s praising Brennan for allegedly setting aside his religious views on abortion—doesn’t mention Brennan’s views on the death penalty. Brennan sharply opposed it.

“'Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?' Garnett asks.

"Well?"

Professor Stone is NOT well.

And being a Catholic student of his may be hell.

This post by a student of his suggests that discriminating against Catholics is par for the course in his classroom:

"I am in Professor Stone's Con Law III class and am a Catholic.

"His bigotry against Catholics is not limited to this board. I and two other Catholic students have filed complaints (really, one complaint with all of us signing) with Dean of Students Michele Baker Richardson.

"We do not really expect to see any response or vindication, but we do have audio tape of comments he has made in class to the effect that Catholics are incapable of rendering decisions unless the Pope directs and specifically names the 5 Justices mentioned above. He specifically mentioned his clerkship to Justice Brennan, who he described as 'the only thinking Catholic I ever knew', the implication being most or all Catholics do not think and, in keeping with his other comments, simply do what the Pope directs.

"Please do not let the media bury our story."

Does the mainstream media care about Catholic-bashing?

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 www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org 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 gaynormike@aol.com.


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