The Private Religious School Case at SCOTUS and “Establish”ing School Funding Reform

An upcoming major Supreme Court case, Carson v. Makin, concerns an education policy in the state of Maine that prohibits public tax money in the form of financial aid from going towards tuition of students in private religious schools. Parents have brought suit. This case will likely provide the Supreme Court with an opportunity for further clarification as to the relationship between government and religious interests.  

The debate over religious funding is not a new concept to the Supreme Court as in recent years the Supreme Court has heard the Trinity Lutheran and Espinoza matters. As a recap, Trinity Lutheran concerned church access to public funding to sustain its recreational grounds. There, the Supreme Court held that the state cannot discriminate against a religious institution in granting them access to the funds.  

In Espinoza, the Supreme Court considered a Montana tax-credit program that allowed for scholarship funding for private schools. Montana’s constitution barred any payment to religious institutions and schools. The Montana Supreme Court invalidated the program entirely to prevent religious schools from receiving the funding. The U.S.  Supreme Court held that the state cannot discriminate against private schools that were religious in nature as it constituted a violation of their Free Exercise rights. The U.S. Supreme Court invalidated the decision of the Montana Supreme Court. 

Following these two major cases, the Carson matter builds off the issues of public funding towards religious institutions. Here, it appears that the Supreme Court would be inclined to rule in favor of the parents who brought this suit and seek to have access to public financial aid for private religious schools based on the recent precedent in the religious funding cases. We do note, however, that there are alternate paths to come out in favor of the parents and invalidate the state’s measure that clearly shows animus towards religion. At the Supreme Court, a plausible deciding factor will be how narrow or broad the Court wants to rule in the parents’ favor and the degree of willingness to address long-standing law and religion debates at the Supreme Court.

The most natural reading to address Carson could possibly be through applying the Establishment Clause. Chief Justice Roberts, however, may be reluctant to go in this direction with its potential for a wider impact on Establishment Clause jurisprudence. For institutionalist concerns it is not unrealistic for him to seek more justices across a wide range of ideological spectrums to join a narrower opinion based on the Free Exercise Clause. If he is in the majority, he has the discretion to compose the opinion or assign it to another justice, thus it is unlikely you will see an Establishment Clause based majority opinion from a stricter constitutionalist such as Justice Thomas. 

The more natural Establishment Clause based opinion, however, void of institutionalist concerns would likely consider the following principles. The Establishment Clause in the First Amendment is as follows: 

“Congress shall make no law respecting an establishment of religion. . .” 

On its face, tax money to support students attending private religious schools does not infringe on the spirit of the Establishment Clause. First, religious schools are just a form of private school and there are allocations already going towards secular private schools, thus exclusion of private religious schools could be viewed as discriminatory. Second, religious schools are broad in nature, not specifying a form of religion that would benefit from the financial aid supported by tax revenue. The state is not promoting a specific religious establishment likened to the Puritan or Anglican style in the early foundations of the nation rather it is supporting the private religious education experience as a general matter in conjunction with other forms of valid education. It does not constitute a state endorsement of a particular religion or creed rather it is simply state supported among other educational initiatives. 

This case also provides an opportunity to reform if not overturn the Lemon test that has been largely abandoned with the Roberts Court, although not explicitly overruled. This test, derived from the 1971 case, Lemon v. Kurtzman provides that legislation concerning religion must (1) have a secular legislative purpose; (2) the principal and primary effect of the statute must neither advance nor inhibit religion and (3) the statute must not result in an excessive government entanglement with religion .

The Lemon test is filled with contradiction especially when considering prongs (1) and (2). The law at issue must have a secular legislative purpose in prong 1, however in prong 2 the principal and primary effect of the statute may not inhibit religion. To put things in perspective, if a secular purpose is paramount, by its very nature it is restricting influences of religion from other sources, most specifically under the Carson facts when considering the role of education. The Maine policy expressly refused to offer parents of students any religious affiliated private school benefits with regard to financial aid. This is discriminatory and inhibits religion based on the “staple” secular intent of the policy. The original understanding of the Establishment Clause was to discourage a state religion that controlled levels of government such as the Church of England and forms of theocracy. The allowance of public funding to support private school financial aid does not pose a threat to the government system it is simply helping provide equal education opportunities. In the twentieth century, the Supreme Court refused to recognize this core original understanding of the Establishment Clause of not compelling or promoting a state religion and used as its vehicle the school prayers cases and cases involving school transportation to begin selectively ushering faith out of the public forum based on misconstrued separationist principles. 

Finally, the third prong of the Lemon test is very vague in nature as it discusses excessive government entanglement. This pong is not pointed and specified and gives the judiciary a blank check to undermine the intent and principles bound in the Establishment Clause if the government becomes “too relational” with religion. Here, this concept creates a further cloud when considering religious education. Private religious schools do have religion as part of the curriculum, however, the staples of other areas such as math, science, history and writing are also within the curriculum and resemble the public education experience. Supporting a religious school does not create an excessive entanglement with the concept of religion in of itself, it is first and foremost supporting an educational initiative that contains a religious component, not one that is actively promoting and threatening a theocracy and “government” sponsored church. 

Despite the principled objections to the Lemon test and opportunity in Carson to reform the error filled plague that stemmed from the Supreme Court jurisprudence on the Establishment Clause, the Free Exercise Clause poses a more likely means for the Supreme Court to address Carson as it presents a less controversial approach.  

A Free Exercise opinion would likely not depart significantly from the recent Espinoza legal precedent which based its reasoning to invalidate religious education disabilities propounded by the state on the concept of “protecting religious observers against unequal treatment” and against “laws that impose specific disabilities on the basis of religious status.” As discussed earlier, Espinoza relied on some of the reasoning from the Trinity Lutheran decision, namely that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character imposes a penalty on the Free Exercise of religion that triggers the most exacting scrutiny.” 

This reasoning that invokes language discussing the discrimination towards religion provides a plausible resolution when addressing the state’s attacks against institutions related to faith, however, it is approaching the issue from a more indirect view. While Catholic schools are institutions that exist to allow for an atmosphere of faith to be incorporated into a broader educational curriculum, the actions of the government are not directly stopping them from articulating their mission, rather the government is failing to tender a public benefit based upon a misconstrued view of church and state relations. It is not providing a public resource from which they should be entitled to, but it is not preventing them from having the right to provide an educational experience for students. This dispute would be best adjudicated under the previously discussed Establishment Clause doctrine. A clearer Free Exercise analysis should be applied to the small business and bakery matters where the state is threatening the existence of the business and saddling it with fines and lawsuits based on its faith beliefs. This is not at issue here, but the expansion of the Free Exercise Clause by Chief Justice Roberts may in fact further gain traction in this opinion because it would not upend decades of failed Establishment Clause jurisprudence and gain more support from the moderate and liberal justices on the Court. 

While it is unlikely to be addressed here, the Establishment Clause analysis provides a more comprehensive foundation and clarifies that public financial aid to be allotted towards educational advancement in private religious schools should not be construed as a state endorsement of a religion or creed.  It is, however, supporting parents and students in the holistic sense with supporting general educational initiatives that include a religious component. Returning to this basic principle would in fact begin to positively reform our Establishment Clause jurisprudence and return it to its original intent while making strides to remove religion as a target of discrimination in the public forum. 

  

A Problem That Could Have Been Avoided- The Supreme Court and Abortion

The Supreme Court is taking on a loaded term this year with addressing blockbuster abortion challenges. Two challenges of note include adjudicating the Texas abortion law to assess if it was valid for the state to confer a private form of action (non-governmental) to challenge the practice of abortion after 6 weeks of pregnancy. The second matter will address a Mississippi law that bans abortion after 15 weeks. These are major cases and the most compelling opportunities to significantly address abortion jurisprudence since Planned Parenthood v. Casey and prior to that, the landmark case, Roe v. Wade

In this piece, we consider the foundation of abortion jurisprudence and how the controversy it presents today could have been avoided if the Supreme Court had not moved outside its boundaries. This coupled with media sensationalism and dishonest statements from politicians have led to a population misled on this issue.

We begin with the state laws in existence prior to Roe v. Wade. Today, a common argument of abortion rights advocates is centered around “the health of the mother” and “cases of rape” as validating their position. Prior to Roe, much of the states enacted state law provisions that carried such language when addressing the extent of permissive abortion. When Roe v. Wade was decided it invalidated all those state laws. The issue of abortion was traditionally handled by states. In looking at the nation’s heterogeneous culture filled with various beliefs and creeds this was not an unreasonable position. Most importantly, the issue of abortion was not addressed in the Constitution nor did it address the position as to what point life begins.  

When the Supreme Court agreed to hear Roe, it took up a question that was beyond the scope of legitimate U.S. Constitutional parameters. The method to address the issue of abortion at a federal level would have been through the amendment process rather than the “reading in” of seven justices at the Supreme Court of this Constitutional “right”.  In essence, these justices assumed positions outside of their expertise by creating the initial framework, not only formally validating it as a matter of U.S. Constitutional law but then dictating when states can exercise an “interest” at specified stages during the pregnancy to regulate the practice of abortion.

From a structural standpoint, one could legitimately question why the amendment process was not pursued to address the issue of abortion. In basic terms, Article V of the Constitution states the process required which includes several rigorous provisions by design. It requires 2/3 of both Houses of Congress or 2/3 of state legislatures to enact a Convention addressing the potential amendments. After proposal, it would take 3/4 of the states to ratify before it is added to the Constitution. The Constitution is the paramount source of power upon which our government is organized and structured to govern the nation. There was good reason why the framers by design made the Constitution very difficult to amend. When it was to be amended in due course at various moments in our nation’s history, the measure prior to enactment reflected a comfortable majority of state interests in the nation. The abortion “right” as presently interpreted by the Supreme Court does not carry a comfortable majority of states.  An amendment would likely not have passed that would in fact recognize this “right” under the U.S. Constitution in the way the Supreme Court has mandated at present. 

There is meaning in the understanding that recognizing the “right” that was not initially addressed in the Constitution was unable to reach the 2/3 and 3/4 thresholds required of the Article V amendment process. If a “right” of this nature was not to gather this super-majority of support in the nation, it was best left to local and regional democratic processes. 

The Supreme Court may have ascertained that it would be “settling” the issue once and for all, but it has not. The issue remains as divisive as ever, from consuming countless sources of media coverage to being a “litmus test” at Supreme Court confirmation hearings thanks to the sensationalist introduction and disorder brought about by the late Senator Ted Kennedy during the Robert Bork hearings. The hearings since then have placed this issue at the forefront of deliberations. Instead of weighing if someone is qualified to be a jurist on the Supreme Court by weighing their legal philosophy and nuanced understanding of interpreting law at the hearings, the media has recklessly portrayed the hearings in many cases to be an up or down vote on abortion that is funded by many special interest groups promoting expensive ads and often misleading the public. It has become a cultural obsession that did not need to be and it has wasted countless resources and opportunities for civic growth and understanding of what the Constitution means and the role of judges.  

Building off Roe, the last major blockbuster case dealing with the substance of the abortion “right” was Planned Parenthood v. Casey, that dealt with a Pennsylvania law seeking to place restrictions on abortion. Some highlights of the law included informed consent prior to abortion procedure, spousal notice and parental consent.  Spousal notice was invalidated but the other two provisions were upheld. The Supreme Court most significantly also revised the Roe trimester standard that had addressed a state’s level of interest throughout the pregnancy and created the undue burden standard that is the governing law today. The undue burden standard focuses on deeming a state regulation unconstitutional when it places an undue burden on the path of a woman seeking an abortion of a nonviable fetus. It also further elaborated that a law would be invalidated if the state purportedly is furthering the interest of the “potential life” and as a result places a substantial obstacle in the path of a woman’s access to the “fundamental right” to make her own decision. With modern technology advancing, the viability and undue burden framework posed in Casey is the target of the Mississippi and Texas laws. As these cases are decided, we will be providing insight on their outcome and resulting impact on abortion jurisprudence. 

In sum, the Supreme Court cultivated the battlefield for divisive societal division on the issue of abortion when it decided the Roe and Casey cases. A forceful declaration as a matter of U.S. Constitutional law on the “right” and ensuing determinative way to interpret when life begins has consumed our society with unhealthy controversy and discourse. The Supreme Court has an opportunity to correct some of the wrongs of its past with the Texas and Mississippi cases by beginning to rightfully decentralize its authority on this issue and leaving it to state and local communities to provide guidance. 

American Heroes in Spotlight: Andrew McClary and Bunker Hill

Andrew McClary was one of the early great leaders in the American Revolution and his patriotic sacrifice should be taught and appreciated today.

By way of background, he grew up in an immigrant Irish family in New Hampshire and eventually worked his way up the rungs of the New Hampshire colonial society and became a town clerk and local leader. He operated a tavern on family farming property with his father that was the hub of social activity in Epsom, New Hampshire and had an acute understanding of business.

As neighboring Indian tribes threatened the colonial settlement and local towns, he eventually ventured into leading missions to track and find the Indians in the surrounding areas. The people looked up to him and trusted him as he sought to keep them safe by engaging in militia activity for the New Hampshire Rangers. During the French and Indian War he developed his tracking skills to help the locals defend their towns and families. He aggressively pursued the threatening Indian tribes with the skills he cultivated.

As a business operator in the social hub in the town, McClary also openly provided a forum for dialogue and commentary regarding the upcoming Revolution among the locals. In October 1774, King George III had issued an order restricting the export of arms and powder to the colonies. The colonists had begun to take action in response and in December 1774, six months prior to the Battle of Bunker Hill, McClary helped lead a raid at Fort William & Mary (also known as “The Castle”) in New Castle, New Hampshire that was near the Portsmouth Harbor. The patriots had ascertained that an upcoming major conflict with Great Britain was on the horizon and during the raid had captured gunpowder and cannons for their communities.

In April 1775, McClary was tending to his farmland when he was notified that the burgeoning conflict with the British forces was growing closer to New Hampshire after the Battles of Lexington and Concord in neighboring Massachusetts. He organized his local militia to join with other colonial pockets and they embarked on their mission to join forces at the looming Battle of Bunker Hill, in what would come to be one of the early major battles in the American Revolution.

During the Battle of Bunker Hill, McClary served as a major. There are accounts that during the Battle of Bunker Hill, McClary emerged as a fiery and strong leader of his men while galvanizing them to fight with courage. He emphasized to his men to target the British officers in battle so as to force the Redcoats into confusion and endure unexpected losses at the hands of an impassioned American force. This would be a battle in which the Redcoats would in fact suffer heavy losses to their officers despite winning from a strategic view. It would help usher in a new method of warfare that would become prevalent during the American Revolution. There was a drift away from the organized and formal militaristic battle sequences that the British were most familiar with at times of war. The targeting of officers and crafty fighting style of the Americans would become a major part of the American military tradition.

Following the battle, McClary began to tend to the wounded American soldiers during the retreat. After helping for some time, he returned to the area near where the Battle of Bunker Hill was fought to continue with reconnaissance and track the British. He made observations and was on his way to other officers to discuss his findings with them when a stray canon ball from a nearby frigate mortally wounded him. He was given the proper respects and was remembered as a hero and the highest officer to sacrifice his life at the Battle of Bunker Hill.

Fort McClary in Maine is named after Andrew McClary and a memorial is present in Epsom, New Hampshire that commemorates his patriotic and heroic legacy. We reflect on his sacrifice for our country and will continue to spotlight heroes in American history.

Works Cited:

https://www.wikitree.com/wiki/McClary-279

https://sites.rootsweb.com/~epsom/biography/amcclary.htm

http://www.epsomhistory.com/epsom/soldiers/andrewmcclary.htm

Expansive Government in Commerce Clause History

By: Chris Gomez

The Commerce Clause was the product of ingenious foresight by our Founding Fathers to create an ability for the federal government to be the arbiter of interstate and foreign trade. As an enumerated power in Article 1, Congress was granted these powers. As our nation has developed, however, the judiciary has upheld varying interpretations of it. In this piece, we touch on some historical background of the Commerce Clause. In some matters, the judiciary has erred in its interpretations and as a result created an infringement on the rights of citizens.

To begin, we reflect on the seminal case of Gibbons v. Ogden (1824), where the Supreme Court ruled that a New York monopoly over permits for a ferry business between states was unconstitutional. An individual obtained a federal permit to run his ferries between the ports of New Jersey and New York which ran against a New York law granting a monopoly over these routes to a select group of businessmen. The Supreme Court interpreted this as a violation of the powers granted to Congress under the Commerce Clause and ruled New York was not entitled to a monopoly in this area. The power to regulate navigation within interstate commerce was in the domain of Congress as enumerated by the Commerce Clause. This interpretation of the Commerce Clause was harmonious with Constitutional principles. It correctly reflected a proper use of the federal government’s power to regulate in this area.

Moving forward to the 1930s and 1940s we reflect on two major cases during President Franklin D. Roosevelt’s New Deal era. First, is the case of NLRB v. Jones and Laughlin Steel Corp (1937), Roosevelt’s newly established National Labor Relations Board (NLRB) filed suit against the Jones and Laughlin Steel Corporation for its firing of striking workers. The government’s position was inspired by pro-worker sentiment. With the advent of the New Deal, FDR’s administration had supported union workers and sought to return the economy to full employment. The Court decided that the government agency, the National Labor Relations Board, had a valid duty to punish businesses that violated the rights of unions to organize. In the majority opinion, Chief Justice Charles Evans Hughes wrote that the dispute between management and labor would have reverberating effects on the national economy, thus permitting it to be regulated under the power of the Commerce Clause.

Hughes further wrote and did acknowledge, however, that situations that have a limited effect on interstate commerce and are so remote and local in nature may have difficulty being subject to Congressional regulation in this area. This standard, however, without strict boundaries raised the possibility of being abused with the potential ability of the government actor to call the proverbial “balls and strikes” on companies’ policies that it deems has influence on interstate commerce. This decision helped construct the framework of excessive government regulation into the sector of private business.

Let us compare this expansive reading of the Commerce Clause to Gibbons v. Ogden. In Gibbons, a state sought to usurp an enumerated power and this was negated by the Supreme Court within the principles of Constitutionalism. NLRB was a dramatic step away from the Gibbons interpretation, whereas the Court was now ruling on a hypothetical effect on the national economy to expand the powers of the federal government. The outcome of NLRB, appeared to pacify political aims and validate rights of unionization through court order rather than legislative channels.

In 1942, the Supreme Court further assessed the flexibility of the Commerce Clause in the case, Wickard v. Fillburn. In this case, the Court followed its earlier interpretation in NLRB to stop Mr. Fillburn, a local farmer, from producing more wheat than was allowed under government production limits to feed his own family. The government had attempted to raise crop prices by instituting production limits per acre of land through the Agricultural Adjustment Act of 1938 hoping that reduced supply would raise prices and solve the plight of farmers. Fillburn had gathered about 12 extra acres worth of wheat above the limit set by the AAA. His argument was that since the wheat was meant entirely for his own use and never hit market there was no problem relating to interstate commerce.

Per the standard articulated by Hughes in NLRB, this would fall firmly into the category of local matters which have no need to be regulated. The Court, however, expanded from Hughes’s interpretation to a more invasive interpretation arguing that the effect on commerce is substantial because without this extra wheat Fillburn would have purchased on the market and thus effected price. The Court cited a “substantial economic effect” (the proposed movement of wheat prices upon Fillburn’s purchase) as sufficient grounds to rule against this farmer and allow for regulation under the Commerce Clause of all activities “substantive and economic”.

In sum, besides the flawed economic theory that is attributed as a justification for this opinion it is invasive for the government to infringe on the personal rights of its citizens in such a way. It was a soft form of the failed central planning model that has been prevalent in Communist nations. Wickard is often considered a controversial decision and diverged from the Court’s interpretation of the Commerce Clause in Gibbons and NLRB.

The powers of the federal government have been expanded through Supreme Court interpretation of the Constitution since the beginning of the Republic, but the New Deal cases concerning the Commerce Clause were among the most aggressive actions undertaken by the Supreme Court to exceed its regulatory boundaries. Instead of standing as a barrier between excessive state regulation as seen in Gibbons, the New Deal cases relied on government to excessively interfere with the economic affairs of its people. These interpretations were inherently overzealous and did not lend themselves to the ideals of a market economy within the boundaries of the Constitution. These cases should stand as a bellwether to warn the populace of the dangers of an overzealous government in our everyday lives especially in the present lingering COVID-19 economic cloud. An interpretation of the Constitution that respects the principles of federalism and the limits of the branches of government is essential to retaining the civil liberties we enjoy in this nation, and as a safeguard against tyrannical government action.

Works Cited

https://constitutioncenter.org/blog/gibbons-v-ogden-defining-congress-power-under-the-commerce-clause

https://www.oyez.org/cases/1900-1940/301us1

https://www.oyez.org/cases/1940-1955/317us111

https://supreme.justia.com/cases/federal/us/317/111/

“Anti-Trust” of the Constitution

“Breyer retire!” The monopoly of the progressive movement in the mainstream media has greatly harmed the understanding of Constitutional principles in our society. The “Breyer retire” craze is fueled by an unhealthy alliance of politics and an ignorance towards one of the essential fabrics of our Constitutional system.

While Justice Stephen Breyer, a President Bill Clinton appointee, and noted progressive jurist should not be confused for a conservative jurist on the bench, he has had a judicial career worthy of respect and distinction. The talking heads in the media and legal circles now are pressing for his retirement and fear a redux of the “Ginsburg Mistake”. The mistake commonly referred to is the fact that Justice Ruth Bader Ginsburg chose not to retire under former President Barack Obama and instead battled many health issues throughout the administration of President Trump which led to Trump’s appointment of Amy Comey Barrett upon her death shortly before the November 2020 election.

Supreme Court justices have life tenure and while some may disagree, there is a compelling argument that this is one of the most essential components within our system of government. Supreme Court justices, therefore, have the power whenever they deem fit to retire or may opt to serve their lifetime in office. The Constitution simply places the requirement of “good behavior” as attached to their tenure. This is a necessary defense mechanism to preserve our governmental system despite the many ideas and movements that permeate society and threaten its intrinsic operation. It puts forth an effective system of gradualism and counter-weight to those tides in order to preserve Constitutional principles in our nation.

The recent movement to entice Justice Breyer to step down is rooted in the deep push for a monopoly of social egalitarianism that has dangerously come to pass in our nation, but has no basis in authentic Constitutional principles. Those in the progressive legal academy in collaboration with the media prioritize preserving abortion rights and the recognition of same-sex marriage and its related LGBT issues at all costs. The mere suggestion of a conservative president raises alarms that these rights will be threatened with the appointment of more justices that adhere to a constitutionalist philosophy.

In fairness, we present a defense here of the Supreme Court as an institution while acknowledging that it has played a role contributing to this politicization moment by having chosen to adjudicate the abortion, marriage and lifestyle issues that are best left to local governance. Substantive commentary on these individual issues can be found in prior articles as here we are simply focusing on the concept of how society should view the Supreme Court.

Next term the Supreme Court will be deciding a potential new blockbuster case on abortion rights. This case has already begun to make waves on both sides of the aisle and it is sadly such a divisive topic in our nation today. At present, the Supreme Court stands at a 6-3 majority of justices appointed by Republican presidents. While it is fair to say that the Supreme Court has grown gradually more conservative on several issues including religious freedom and Second Amendment, it has also shown the effective mechanism of our Constitutional system in the process.

For example, the constitutionalist vision that the late President George H.W. Bush had when he made the appointment of Justice Thomas nearly three decades ago has carried over to today with every opinion Justice Thomas pens that stems from his comprehensive understanding of Constitutionalist principles. On the progressive side, President Clinton’s view of Constitutional interpretation has continued to advance to the modern day in Justice Breyer’s opinions on issues such as administrative law and the role of government agencies among other progressive interests. While it is not fair to say that the President should be ordering opinions on certain issues, it is perfectly reasonable that the President would have the respect for the jurist to contemplate independently while appreciating the jurist holds certain philosophies over others. It is the beauty of our system that an administration may be out of power, but their philosophy on constitutional interpretation will live on even if an administration of another prioritized philosophy is governing. It strikes a balance in the structure of our nation’s system of government.

When we as a society infringe on the Constitutional framework and in the process challenge the independence of the institution of the Supreme Court based on an ignorant “anti-trust” principle of our Constitutional structure, it will only lead to unrest.

The actions to forcibly suggest Justice Breyer retires are unfair to him and to the structure of the Supreme Court. It sets a precedent to cave to the masses and demeans the Supreme Court to nothing more than a political theater, bowing to the whims of a society that gleefully ignores the fabric and intent of our Constitutional system. It is safe assumption that Justice Breyer would come out on the side of any replacement President Joe Biden would put forth on the issue of abortion. This does not mean, however, that his discretion as dictated to him by right under the Constitution to make a decision as to the length of his tenure on the Supreme Court should be forcibly abdicated.

The common politics counter-argument of the media and activist talking heads considers the actions Senator Mitch McConnell took to not take up the confirmation process of a jurist to replace Justice Antonin Scalia during the end of President Obama’s term. They willfully ignore the provision of the Constitution that provides the senate with “advice and consent” power over addressing Supreme Court vacancies. Senator McConnell made clear to President Obama to not make an appointment as the election neared, while that decision may be the subject of debate, it does not change the fact that the Constitutional right existed to make that decision. President Obama then in fact made his decision to name now Attorney General Merrick Garland as the appointment. Both branches exerted their rights- the President appointing and the senate expressing its dissatisfaction and not taking action. The confirmation was not processed as it did not gain consent from the senate as the President was duly advised.

Our society must learn to appreciate the structure of the Constitution and the purpose it serves. We need to hold ourselves to a higher standard than ignorance derived from a disordered drive to codify social egalitarian principles and thus contribute to the political unrest of our nation. The Justice Breyer saga is but one example of the willingness to disregard our structure and reduce the judiciary to nothing more than an extension of societal “anti-trust” and destructive societal sentiment. It is about time we demanded better.

Fulton: A Uniform “Fostering” of Religious Liberty?

The U.S. Supreme Court recently issued a unanimous opinion in the matter, Fulton v. Philadelphia that pitted the city of Philadelphia against a Catholic foster care agency over the agency’s position to not certify unmarried and same-sex couples for foster care services as it would not have been in accordance with the teachings of the Catholic Church. The city of Philadelphia then proceeded to discontinue referrals to the agency and demanded that a new foster care contract with the city, include certification of these couples. In a 9-0 decision, the Supreme Court sided with the Catholic foster care agency and ruled that the basis in which the city asserted its position stemmed from a contractual non-discrimination requirement of the Fair Practices Ordinance. The construct of the ordinance as applied to the Catholic adoption agency violated the Free Exercise Clause of the First Amendment.

Roberts Majority Opinion

In his majority opinion as we predicted in December, Chief Justice Roberts declined to contemplate overturning a hotly debated precedent case, Employment Division v. Smith that held neutral laws of general applicability do not violate the Free Exercise Clause. Here, Chief Justice Roberts did not find it necessary to revisit Smith because the ordinance was not a neutral law of general applicability as it contained in the ordinance a clause stating that it was the discretion of the commissioner to allow for exemptions. By allowing for that mechanism, the very nature of the ordinance was then deemed to not be generally applicable because it considered the existence of potential undefined exemptions. The commissioner had declined to incorporate religious interests under the exemption. Roberts found that where such a system of individual exemptions exist, the government may not refuse to extend that system to cases of religious hardship without a compelling reason. Roberts than elaborates that no compelling reason existed and was careful to point out that as applied to the Catholic agency, the city’s actions were unconstitutional. He also highlighted that the Catholic agency never sought to compel its beliefs on other agencies, but rather simply sought to practice the tenants of its own faith while servicing the children of Philadelphia.

While Chief Justice Roberts took a narrow approach to the issue, one could appreciate his contesting of the Philadelphia ordinance on its face and making clear that it was not bound in any form of neutrality or general application. One could argue that the steps the city took by not granting the exemption despite it having the discretion to could have been approached from a place of animus. It challenges the very premise of the facade in some anti-discrimination laws that they are meant to consider the interests of traditional protective classes.

The Catholic church’s position on several hot button issues in society today is not clouded in mystery it is very much understood and sadly often attacked by various factions. Philadelphia was well aware of this yet still chose to burden the free exercise of the agency’s faith centered mission. Furthermore, the facts of this matter did not present any situation where in fact a same-sex couple had sought certification from the Catholic agency. There are many agencies with similar services offered in Philadelphia that these couples have likely approached for foster care services. This matter could be considered as a targeted attack on faith interests and it was reassuring that the decision in favor of the Catholic agency was unanimous.

Alito Concurrence

It should also be noted that with regards to the highly debated topic of the status of the Smith matter, Justice Alito penned a heated and lengthily concurrence that disagreed with the Court’s decision to not take up addressing its status as active precedent. He discussed the history and tradition of the Catholic church in servicing adoption and foster care entities. He then addressed the majority opinion’s reasoning and warns that a broader ruling was required because the city has room to evade the narrow ruling if it revokes the exemption power clause from its ordinance. He focuses on the Smith precedent as incompatible with the Free Exercise Clause and spends a significant amount of time discussing the original understanding of the Free Exercise Clause during the early days of the nation with further examples of Supreme Court case law that call into question the premise of Smith.

Justice Alito would likely vote to overturn Smith and replace the core of that opinion with a form of the prior standard that was present in Sherbert v. Verner that stated when adjudicating the Free Exercise cases the Court must assess whether a law that imposes a substantial burden on the exercise of religion was narrowly tailored to serve a compelling government interest. It can be argued that this provides a higher standard than Smith’s neutral law of general applicability framework when assessing whether a government’s actions burden the free exercise of religion.

He also discussed Wisconsin v. Yoder in which the Court in 1972, pre-dating Smith, found that a state law compelling education to age 16 violated the free exercise rights of Amish parents. The state, while having a strong interest in compulsory education did not show with particularity how it would be adversely affected with granting the Amish parents an exemption for them to follow their teachings and have their children leave school following 8th grade. In the present facts, this reasoning could have been applied if it considered that there is a strong interest in anti-discrimination and placing children in foster homes. Here, however, the religious entity did not compromise this mission and take steps to restrict the care of the foster children in the community. It did not offer a form of certification based on its faith beliefs, but at no point did it discourage certification from other foster home services in the local community that allowed for unwed couples or same-sex couples to proceed in the foster care process. The greater government interest would not have been compromised with a religious exemption. The anti-discrimination principle as related to foster care was sustained and the city would have been unable to show a particularized harm based on a basic exemption to a religious provider.

A Free Exercise of Tension

With the community having access to this care, the religious entity would not have to be concerned with a law burdening its Free Exercise when relying on the Sherbert standard. While this standard would seemingly work under these facts, it does not however, put to rest counter-arguments. If there was a situation where there were no secular foster care agencies in the community and only a Catholic agency, this could prove to be worrisome under the Sherbert standard. Would then the government’s greater interest for foster care prevail over the faith interest? It raises complications.

Smith could then be seen as perhaps a workable remedy. It could be argued that in this situation the community law could not in fact be considered a neutral law of general applicability. If there is a Catholic adoption agency acting as the sole foster care agent in the community, an anti-discrimination law passed which included sexual orientation as a protected class would then in fact clearly indicate animus towards a religious entity and any decision to not grant an exemption would further this understanding. A tension, therefore, does exist within the demonstrated methods of Free Exercise interpretation.

Conclusion

The Supreme Court unanimously ruled in favor of the Catholic foster care agency without overturning Smith in the Fulton matter. Chief Justice Roberts made some strong points in the majority opinion focusing on the narrow application of the facts as presented and core of Philadelphia’s actions. Justice Alito also made strong points with assessing other paths to reform the present Free Exercise jurisprudence when looking on a larger scale in his concurrence. One also appreciates his heavy focus on historical context to inform his perspective. Overall, under these facts, the Chief had good arguments that worked in principle here, but Justice Alito’s willingness to return to Sherbert should not be discredited and may prove a stronger basis with ever increasing litigation against faith entities moving forward in society. The Smith framework may prove outdated with the nature of the Constitutional conflicts on the basis of faith that our nation currently faces today, but time will tell as further Free Exercise lines of cases continue to develop.

The Supreme Court’s Take on Life

The United States Supreme Court recently granted certiorari on the case, Dobbs v. Jackson Women’s Health Organization. It will address a Mississippi law that was passed that banned abortions after the 15th week of pregnancy except in cases of health emergencies or fetal abnormalities. The federal district court invalidated the law shortly after enactment and the Fifth Circuit Court of Appeals upheld the district court’s decision. It maintained that the state had an interest in regulating abortion prior to viability in adherence to the undue burden standard, but a full ban on abortions was not permitted. The Supreme Court will address if the ruling remains intact or if there will be a new standard that will be applied to state abortion regulations moving forward. For any meaningful reform, the Supreme Court will need to address the prevailing undue burden standard articulated in Planned Parenthood v. Casey that assesses the timing of the state’s interests in regulating abortion.

In Roe v. Wade, the Supreme Court ruled a woman has a right to an abortion, thus overturning state laws that prohibited the practice entirely and state laws that had prohibited the practice with exceptions for cases of rape and the life of the woman. The Supreme Court relied on the Due Process Clause of the Fourteenth Amendment as the basis for its reasoning with an emphasis on maintaining the broader right to privacy that was generated in Griswold v. Connecticut. Per the Roe court, a woman had bodily autonomy to decide whether or not to undergo an abortion. The Court also instituted a framework of when the state would have a valid interest in regulating the fetus. The framework was as follows: in the first trimester, the state could not regulate abortions; in the second trimester, the state could reasonably regulate with regards to maternal health and in the third trimester, abortions could be banned by the state except in cases that consider the life and health of the mother.

The last major case that presented a strong challenge to the right to abortion was Planned Parenthood v. Casey. This matter was decided in 1992. This case upheld Roe v. Wade and the constitutional right to abortion. It is well-known for altering the Roe standard by providing that the state can regulate abortions from the point of fetal viability and subsequent as long as an undue burden is not imposed on the woman. The trimester framework from Roe would no longer apply moving forward.

With Justice Amy Barrett on the U.S. Supreme Court, there is now an opportunity to revisit the extent of abortion rights. Justice Clarence Thomas has written in prior opinions about his intent that the Court should re-examine the Roe precedent. As medical science has progressed, even those not holding a persuasive faith tradition should consider the activity of the fetus in the womb. If the Supreme Court decided to allow further opportunities for the state to regulate abortion, it could begin the process of making productive reforms and move towards restoring it to its pre-Roe status as a primarily state regulated practice.

It is plausible to consider that the question of abortion itself should never have been a matter considered by the U.S. Supreme Court. Much of the issues that are common concerns for the pro-choice movement such as in cases of rape and the health of the mother were addressed in state laws prior to Roe. While one could argue that abortion itself should not be recognized in any form per the laws of this nation as it denies personhood and the existence of a separate biological life distinct in DNA, several states did take the middle ground with carving exceptions. In either path, democracy was permitted to resolve the issue and the degree of divisiveness, willful ignorance and misinformation was not as dominating as today. This issue defines Supreme Court nomination hearings, fundraising efforts of politicians and it has also become very corporatized when campaign donations and profits generated from samples for scientific testing are also considered. It has forever tarnished our institutions and has permitted the government to draw itself into conflict with religious conscience rights.

With the current trajectory of the Supreme Court, however, it is doubtful that the Dobbs v. Jackson Women’s Health Organization opinion will be wide-ranging and broad. The Roberts court, while having a few landmark decisions, has tended to approach controversial issues with an incremental approach. There are also difficulties posed in the present political climate as court packing demands by the radical left have resounded.

Overall, it is possible that the Supreme Court will uphold the Mississippi law, but carefully narrow it so as to not generate further controversy with a broader approach. A decision reforming the timeframe and degree of the state interest in life based on the new developments in science, however, would be welcome progress with the potential to further expand into the future as heartbeat bill litigation starts to appear in courts. We will continue to monitor this litigation in the coming year with oral arguments in Dobbs set to begin in October and likely a full decision rendered by the Supreme Court in June 2022.

Freedom on Campus in the Red: St. John’s University Edition

Today, our society faces challenges. Many divisive issues have taken the forefront of the national debate including economic policy, the role of government and culture war issues. In the twenty-first century, the American people have increasingly relied upon social media as their news source. It has its positives and negatives. It is much easier to access information, however, it takes away from the initiative to seek out further information and challenge one’s self with substantive truths. The role of the education system must bridge this gap, but sadly it continues to fall short. The rhetoric of informed debate, no matter if you are on the right or left helps grow the intellect of the nation in a manner to prioritize matters of reason over emotional “cancel” initiatives that ignore comprehensive dialogue. The conclusion and outcome driven agenda conveniently skip over the reasoning process that is critical to the development of sound intellect and exchange of knowledge. As a result, we have a divided society filled with misinformation guiding masses behind hollow false premises rich in click bait but light on informed truth.

           Institutions of higher learning have largely abdicated their responsibility to adequately educate the young minds that will serve as the future. It begs one to wonder- will the future be served with reasonable interests and comprehensive dialogue to bridge differences or continue on this emotional path that leaves a fiery path of ruin, an intellectual crisis? This issue has gripped the entire nation. In recent years, speakers have been cancelled at university campuses for perceived societal injustices that are politically incorrect and facilitate dialogue on major issues. Professors have been removed from their positions for holding views that critically assess historical interpretations of the pre-origin and origin of this nation. There is not a sustained appetite for academic freedom and a true marketplace of ideas.

            A recent example has recently occurred in New York at St. John’s University. Students had sought to organize a Turning Point USA Chapter on campus, but have been obstructed in the recognition process by the campus student government. The decision against enactment was based in part on debatable media rhetoric that mercilessly attacked major national Turning Point USA figure Charlie Kirk and inaccurate allegations that members of Turning Point were part of the January 6 riot at the capitol. Sentiment seeking to justify the decision was based on alleged opportunities for division on campus on heated issues that Turning Point allegedly promotes. Per the Turning Point mission statement, its goal is to “educate students about the importance of fiscal responsibility, free markets and limited government.”[1] This is not a militant organization nor should be classified as one. Relying on resources from bias left-wing articles as support for a misguided student government decision, while at the same time incorporating defamatory and inaccurate language about one of Turning Point’s major national leaders is wholly unacceptable.

            The students at St. John’s are just seeking for their voice to be recognized on campus and for an opportunity to promote their message in a respectful way. Currently, on campus St. John’s recognizes the Roosevelt Institute, an organization that promotes left leaning values and principles. While it would not be acceptable if right leaning student government leaders sought to “cancel” or obstruct recognition of this student group based on its perceived disagreeable and controversial views, the same courtesy should be shown in the present situation by left leaning student government leaders and their approach to the recognition process of Turning Point USA at St. John’s University.

           The university setting should be a place of a respectful debate and dialogue on major issues that will help shape the compass of students as they approach their professional lives. In the professional landscape, no matter what career one pursues they are bound to encounter those of different philosophies. Respect for differing viewpoints in the university setting is preparation for this critical step in professional and personal growth.

          President Ronald Reagan visited St. John’s University on March 25, 1985 and gave an address to the students. One quote really stood out and we would be wise to consider it today. President Reagan gracefully articulated that “we’re a people who’ve discovered anew what a deep foundation freedom is and how we cannot live without drinking deep from it.”[2]

Let us not leave our students and our future leaders thirsty.


[1] https://www.tpusa.com/ourmission

[2] https://www.reaganlibrary.gov/archives/speech/remarks-students-and-faculty-st-johns-university-new-york-new-york

Is the New Jersey Reproductive Freedom Act Really Freedom?

The New Jersey Reproductive Freedom Act is a proposed law that would strengthen the right to abortion in New Jersey and improve access to the practice by codifying the elimination of various bureaucratic procedural hurdles. It would, however, have a detrimental impact to religious entities and interests with compromising conscience protections. This piece will cover some aspects of the bill that standout and should be cause for further critical reflection.

We begin with New Jersey state and federal case law that has served as a precursor for this proposed legislation.

Case Law

State

In Right to Choose v. Byrne, 91 N.J. 287 (1982) the New Jersey Supreme Court considered the question of the validity under the New Jersey Constitution of a statute that prohibits Medicaid funding for abortions “except where it is medically indicated to be necessary to preserve the woman’s life.” N.J.S.A. 30:4D-6.1 (1981). Medicaid paid for the costs of all childbirths and abortions to save the life of the mother but, because of the statutory prohibition, it did not pay for those therapeutic abortions needed to protect the health of the mother or for elective, nontherapeutic abortions. The court would, however, eliminate this barrier and ruled: “N.J.S.A. 30:4D-6.1 violates equal protection of the laws under the New Jersey Constitution by limiting funds to abortions medically necessary to preserve the mother’s life. We construe that statute to require Medicaid funding of all abortions that are medically necessary to preserve the mother’s life or health.”

In Planned Parenthood of Central New Jersey v. Farmer, 165 N.J. 609 (2000), the plaintiffs challenged a state statute that conditioned a minor’s right to obtain an abortion on parental notification unless a judicial waiver is obtained, but had imposed no corresponding limitation on a minor who sought other medical and surgical care related to pregnancy and her child. N.J.S.A. 9:17A-1;  §§ 1.2 et seq.  The New Jersey Supreme Court ruled that the classification created by the Legislature burdens the “fundamental right of a woman to control her body and destiny,” Right to Choose v. Byrne, 91 N.J. 287, 306, 450 A.2d 925 (1982), without adequate justification and cannot be sustained against plaintiffs’ equal protection challenge.

An unmarried, pregnant minor was now able to give consent to hospital, medical, and surgical care related to her pregnancy or child, without the need to notify her parents.

Federal

In Planned Parenthood of Central New Jersey v.  Farmer, 220 F.3d 127 (3rd Cir. 2000), the Third Circuit reaffirmed the ruling of the lower New Jersey federal district court in Planned Parenthood of Cent. N.J. v. Verniero, 41 F.Supp.2d 478, 504 (D.N.J.1998) which invalidated the New Jersey Partial-Birth Abortion Ban Act of 1997.

New Jersey’s partial-birth abortion statute prohibited “an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery.”  N.J.S.A. § 2A:65A-6(e).   The Act purported to define the phrase “vaginally delivers a living human fetus before killing the fetus” to mean “deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician or other health care professional knows will kill the fetus, and the subsequent killing of the human fetus.”  N.J .S.A. § 2A:65A-6(f). The Act provided a single exception whereby this otherwise banned procedure may be used:  namely, when the procedure “is necessary to save the life of the mother whose life is endangered by a physical disorder, illness or injury.”  N.J.S.A. § 2A:65A-6(b). The Third Circuit deemed it unconstitutional due to it being (1) void for vagueness; and (2) placing an undue burden on a woman’s constitutional right to obtain an abortion.

These cases are very important as it now relates to the proposed New Jersey Reproductive Freedom Act. The court decisions to invalidate the Partial-Birth Abortion Ban Act of 1997 specifically with regards to parental consent and the vaginal time frame of banning an abortion would now be codified. This would provide a bulwark in the statutory law governing abortion in this state despite the outcome of a potential future U.S. Supreme Court decision that could return the issue of abortion to the states as was the practice pre-Roe and that could encourage further fetal protections.

Some New Jersey Reproductive Freedom Act Points

Some other major points under the New Jersey Reproductive Freedom Act are provided as follows:

“The State: 

(1)   explicitly guarantee, to every individual, the fundamental right to reproductive autonomy, which includes the right to contraception, the right to abortion, and the right to carry a pregnancy to term;

(2)   enable all qualified health care professionals to provide abortion services in the State;

(3)   require all insurance carriers to provide coverage both for abortion care and for a long-term supply of contraceptives”

…..

The bill also makes clear that a fertilized egg, embryo, or fetus shall not have independent rights under the laws of the state of New Jersey. The bill would also amend the existing law pertaining to autopsies and medicolegal death investigations to eliminate the requirement that a medicolegal death investigation be conducted in a case where a fetal death occurs without medical attendance. A final major component of the bill, is potentially broadening the nature of the medical provider that would be legally permitted to perform abortions which raises similarities with the New York abortion law passed a couple years ago.

NJ Reproductive Freedom Act Imposes Burden on Religious Interests

The NJ Reproductive Freedom Act imposed a significant burden on faith interests.

Per the text of the NJ Reproductive Freedom Act with clarifications:

A religious employer may request, and a hospital service corporation, pre-paid prescription service organization, individual health insurer, carrier, group health insured, health maintenance organization (*we will call X) shall grant, an exclusion under the contract for the coverage required by this section if the required coverage conflicts with the religious employer’s bona fide religious beliefs and practices.  A religious employer that obtains such an exclusion shall provide written notice thereof to subscribers and prospective subscribers, and “X” shall provide notice to the Commissioner of Banking and Insurance in such form and manner as may be determined by the commissioner.  The provisions of this subsection shall not be construed as authorizing “X” to exclude coverage for care that is necessary to preserve the life or health of a subscriber.  

In sum, a religious employer may request an exclusion, BUT, in requesting exclusion it is facilitating coverage with notice to the subscriber, potential subscriber and Commissioner of Banking and Insurance. This notice would then allow for some form of the contraceptive/abortifacient service requested by the subscriber to be provided even if not directly from the religious employer. The concepts of notice and facilitation themselves arguably can compromise religious conscience decisions as presented here.

Furthermore, the clause regarding “preserving the life or health of the subscriber” also raises issues. The “life or health of the subscriber” is not adequately defined. One must consider who will in fact be determining that “preservation of life” concept and how many medical professionals must agree that these steps are “necessary”.  This clause may be ripe for abuse. One must also consider that some faiths do not hold in their tenants any exception for an abortive procedure. The conscience and religious interests conflict with the law and are never fully resolved. In sum, there are not adequate facilitation protection interests in this bill. Faith entities would still be involved through notice with the coverage of a contraceptive/abortive procedure with or without an interest concerning the life of the mother.

How the U.S. Supreme Court has Considered Contraceptive and Abortifacient Challenges

The U.S. Supreme Court has dealt with related issues in the Burwell vs. Hobby Lobby matter and the Litter Sisters of the Poor litigation, in both of those situations stemming from the conflicts caused by the Affordable Care Act (ACA).

In sum, Hobby Lobby concerned a challenge by closely-held corporations that objected to providing some forms of abortifacient and contraceptive coverage to employees on the basis of religious beliefs. The court found that there was a least restrictive means of implementing the government’s interest in offering the coverage that would not substantially burden religion. The court applied its reasoning under the Religious Freedom and Restoration Act (RFRA) and the mandate to provide the contraceptive coverage as provided under the ACA was invalidated as to closely held businesses expressing their religious objections.

In sum, the Little Sisters of the Poor litigation has also dealt with fallout from the ACA. In this matter, the seminal issue was the requirement under the ACA of religious non-profits to complete a form, thus offering notice to the federal government of their intention to not provide contraceptive coverage and requesting an exemption. The federal government’s grant of the exemption, however, would enable it to find another provider for coverage even if not specifically the Little Sisters of the Poor. The Little Sisters of the Poor believed that they, therefore were part of the facilitation process that would be against their beliefs.

The Supreme Court has addressed this matter in a procedural context by focusing on legal flexibility of agencies in issuing regulations on the substance of wider or more narrow exemptions. Factually, the case is most similar to the issues potentially stemming from the New Jersey Reproductive Freedom Act, however, the Supreme Court has largely to this point not offered a definitive ruling on the core of the issue this matter presents. If the New Jersey Reproductive Freedom Act becomes law, it would be a good opportunity for suit to be brought in the hopes the Supreme Court would then issue more clarity. Defining the nature of facilitation and how bound up in substance it is to burden enumerated First Amendment Free Exercise protections would go a long way towards settling an understanding of this conflict.

Conclusion

The New Jersey Reproductive Freedom Act would codify the trend of controversial court decisions involving the state of New Jersey both at the state and federal level. One could argue that the substance of these decisions was not the soundest legal framework especially as we have come to understand more about the science of fetal life in the womb. This bill should invite debate and our leaders would be wise to listen to the arguments because on the surface it appears as a hasty response to the potential of the U.S. Supreme Court returning more of the issue of abortion to states (pre-Roe) or at the very least issuing a ruling on greater fetal protections. The New Jersey Reproductive Freedom Act does not address comprehensive scientific advancements that have surfaced since the time Roe v. Wade was decided. In addition, it presents the opportunity for further conflicts with faith entities as they wish to exercise their enumerated right to Free Exercise.

Legacies Reconsidered: Joseph McCarthy

The stories of the late U.S. Senator Joseph McCarthy and the Red Scare have been widely discussed and often panned by several in historical commentary. They center around the growing communist influence within the confines of the U.S. government and several pillars of American life in the late 1930s through the 1940s and culminating with the senate hearings of the early 1950s that mainstreamed this concern. Often McCarthy is described as fanatical and way out of line for his accusations and allegations of suspected perpetrators. Some of his frequent targets included those in various agencies in government; the military and American social life. After the strain from the hearings Senator McCarthy succumbed at the young age of 48 in 1957. He battled a variety of medical problems, some that were aggravated by the stress and anxiety of the hearings.

In this piece, however, we offer a brief reconsideration of McCarthy and the anti-communist crusade that he stood for based on providing some empirical facts researched from first-hand accounts such as the work McCarthy[1] by Roy Cohn (who served as chief counsel to McCarthy during the hearings) and The Autobiography of Roy Cohn[2] by Sidney Zion. This reflection will add to the commentary and debate on the McCarthy legacy and hopefully will encourage the reader to reflect on contextual issues that are often ignored in modern discussion. We will largely focus here on a few elements of the Army-McCarthy hearings, a major episode that contributed to the present understanding of his legacy.

A main criticism of McCarthy has been his combative and bombastic style during the Army-McCarthy hearings in which he communicated his accusations. It unsettled several members of Congress and the media were eager to assist in clouding his image by presenting him in the light of a relentless zealot that sought to take no prisoners. In the modern day, we have seen similar criticisms appear when considering the legacy of former President Donald Trump. The substance is often ignored or diluted by a harsh reaction to communicative style. McCarthyism has now become a punchline word in the dictionary and today just uttering the name Trump has frequently become synonymous with the rising “cancel culture”.

In regards to McCarthy, however, one must first ask the question- how did this begin? A rising popular senator from Wisconsin who was very close with the Kennedy clan had defeated a popular incumbent and later decided to stake his career on this risky and controversial initiative. In McCarthy, his chief counsel to the hearings, Roy Cohn who ironically would later advise a young Donald Trump, stated it all began with an FBI contingent concerned about the national security of the nation met with Senator McCarthy and provided him with information on communist operatives working in the U.S. that had been vetted and investigated by the FBI in the 1940s. J. Edgar Hoover, longtime head of the FBI had begun this initiative at the direction of President Franklin D. Roosevelt. This FBI contingent, however, was unsatisfied at the persistent stalling and often minimizing the importance of addressing the issue, and sought to find a leader in Washington willing to mainstream and shed light on the problems. Prior to McCarthy, other senators had chosen to not seriously address the situation out of fear for their political careers. It took some convincing as McCarthy did not begin his senate career focusing on the issue. Once he thoroughly found himself studying and immersing himself into the intelligence, however, he decided to proceed. As chair of the Senate Permanent Subcommittee on Investigations, he was in a position to use resources and thoroughly conduct an investigation into this issue. Little did he know the firestorm that would be set off that would draw him into conflict with both sides of the aisle and a Republican administration headed by President Dwight D. Eisenhower.

A Few Points to Consider

In McCarthy’s crusade against communist infiltration, several substantive issues were brought to light. This episode also showcased the efforts of the Eisenhower administration, its allies and the media to release relentless attacks on McCarthy and present him as so far outside the mainstream with his goals that he should not be respected. The following are just a few of the many major areas in which McCarthy was drawn into conflict for seeking transparency for situations in which he believed the United States was at risk.

G. David Schine

G. David Schine was a member of McCarthy team along with Roy Cohn that worked to tackle the growing communist threat. One of his major missions was accompanying Roy Cohn overseas to Europe to investigate U.S state-sponsored libraries and education resources that had promoted communism. This was clearly an interest contrary to the U.S.’s formal anti-communism foreign policy. The media had dogged and sensationalized the work of Cohn and Schine throughout this trip in which they found a large degree of evidence. Cohn provides a comprehensive first-hand account in McCarthy.

Schine proved to be a strong asset to the team and also became a good friend of Cohn, but unfortunately was caught in the middle of the heated conflict between the McCarthy team and the Army during the Army-McCarthy hearings. As Cohn categorized it in his autobiography, Schine would essentially become a “hostage” of the forces acting against McCarthy. For his great work on the McCarthy team, Cohn as Chief Counsel to McCarthy recommended him for a commission in the Army after he was drafted in 1953. It was typical practice that politicians would recommend individuals for this designation from time to time in gratitude for the work they have performed in governmental capacities. As McCarthy and Cohn were putting pressure on the Army to challenge it into providing some insight into intelligence failures and infiltrations in their ranks most notably through the Irving Peress affair which will be discussed later, the Army with the support of the Eisenhower administration and the media detracted with essentially manufacturing the Schine scandal. The Army had sought to pressure McCarthy through Cohn based on allegations of improper pressure exerted for Schine’s commission by Cohn. The relentless attacks during the Schine affair on McCarthy and Cohn were truly a dark point in American history.  Allegations of corruption for seemingly a routine act by a politician were baseless, but detracted the attention from the major issue of the Army’s failure for effective oversight to minimize the communist threat.

Army Failure- The Irving Peress Affair

The Irving Peress affair was one of the major areas of McCarthy’s focus when investigating the alleged communist infiltration in the Army. It centered around Irving Peress, a dentist believed to be a member of the communist movement and who helped facilitate its cause as verified by members of the U.S. intelligence community. Pursuant to policy, Peress was eligible for automatic promotion as a medical professional but was under investigation based on his application responses in which he plead the 5th Amendment in regards to inquires related to communist and subversion activities. Nevertheless, he was still granted the promotion, thus creating a quandary and further reports and complaints were submitted about his potential communist activities. The Army then resolved to grant him an honorable discharge as a means to remedy the situation, however, McCarthy demanded accountability at the hearings on this bureaucratic failure and sought to assess if this was a systematic issue that required the Army to conduct serious reforms. It came to light later that the thorough investigation conducted by McCarthy and verified by intelligence on Peress was not a red herring, but in fact proved he was connected with communist activity. The Army had very strong allies in the White House and media and had pushed back on McCarthy’s crusade. The Schine affair was part of a wider counter-initiative to discredit McCarthy and Cohn. McCarthy would continue to raise the issue of other security breaches within the Army, but would find himself facing powerful establishment forces that sought to shield these issues from the public.

Ironically, General Ralph W. Zwicker had notified McCarthy of the Peress problem which spurred the investigation that revealed errors on the part of the Army. When pressed on these issues later during the hearings, Zwicker succumbed to outside pressure and refused to commit to this initial position. McCarthy was forced into a difficult position and could not burn his source out of fear that other sources would soon follow, thus compromising further intelligence gathering. More examples of blatant corruption are discussed in Roy Cohn’s works.

Annie Lee Moss

Annie Lee Moss held a position in the government working with Pentagon coding and suspiciously had been promoted from an unrelated cafeteria position. An undercover FBI agent testified to Moss’ communist membership in the 1940s and involvement with communist initiatives before Congress in 1954. Moss had denied these claims. The FBI testimony was corroborated by another witness and there was also a Department of Justice file on her. Politicians and the media painted Roy Cohn as a bully for pressing forward on behalf of McCarthy regarding this investigation during the Congressional testimony.

There were also claims that the FBI agent had perjured herself when testifying as to Moss’ activities. Some politicians even offered employment to Moss if she was to be reassigned or removed from her present position based on her alleged “mistreatment” during the hearings. In 1958, the Subversive Activities Control Board, a committee tasked with investigating communist infiltration and compelling the American Communist Party to register with the government, formally cleared the FBI agent of any perjury allegation as relating to the Moss matter. The board had in its possession considerable documentation supporting the testimony. McCarthy died in 1957 and would not live to see the vindication bear fruit.

Final Thoughts-A Legacy Reconsidered

McCarthy was ultimately censured by the Senate as a result of the fallout from his anti-communist crusade and hearings. His legacy has been sadly remembered in the history books as a sensationalist that fanatically alleged communist infiltration in the U.S. government and other areas of American life. This is an unfair verdict that has persisted for decades. As evidence has developed over time, however, we owe it to ourselves as Americans to revisit his legacy and respect his initiative to bring greater transparency to government. There was evidence of communist infiltration that he chose to bring to light and as provided in first-hand accounts, he was supported by the intelligence community. This prompted him to first tackle the issue.

While he may have exaggerated in some contexts and was a brash communicator, there were indeed several problems with infiltration in the U.S. government during WWII and the post-WWII era. If able, it is highly recommended to pick up copies of McCarthy by Roy Cohn and The Autobiography of Roy Cohn to inform from a first-hand perspective on the backstory of this often misunderstood issue in modern American history.


[1] Cohn, Roy. McCarthy. New American Library, Inc., 1968.

[2] Zion, Sidney. The Autobiography of Roy Cohn. Lyle Stuart, Inc. 1988.