Abortion funding, not religious liberty, is a fundamental right?

The courts of Sodom and Gomorrah have struck again. On Friday, just as I was finishing my article concerning the distortion of religious liberty and property rights in America, the federal judiciary illustrated my point once again. In two separate decisions in different parts of the country — when juxtaposed to one another — the federal judiciary demonstrated that, in their estimation, the Constitution is unconstitutional.

On Friday, Judge Michael R. Barrett, a federal judge for the Western Division of the Southern District of Ohio, blocked the state’s new law cutting off state funding to Planned Parenthood. This Bush appointee, who once served as chair of the Hamilton County Republican Party, said that the injunction was necessary because otherwise the abortion-provider "will suffer a continuing irreparable injury for which there is no adequate remedy at law.”

To begin with, this statement is an exercise in self-parody and a demonstration of how far we’ve strayed from our founding values. Since when does any private entity have an entitlement to $1.4 million in state funding? The fact that a group cannot likely survive without the government further illustrates the absurdity of such an entitlement. But to begin with, the notion that a state must fund a private entity under investigation for trafficking baby parts and whose goals violate the conscience of at least half of the population is downright appalling.

Hold that thought for a moment.

Now let’s travel south to Mississippi where, on the same day, the Fifth Circuit Court of Appeals denied the state the right to enforce HB 1523, a law protecting private organizations from being forced to service the homosexual or transgender agenda when it interferes with their “sincerely held religious beliefs or moral convictions”. This came one month after a federal district judge inexplicitly granted standing to third party groups (with ‘aggrieved’ parties for props) to shoot down the state’s religious liberty law. Six weeks ago, an Obama judge invalidated parts of HB 1523 (to the extent one believes a federal court has such power). Instead of using any jurisprudence, the judge spewed a political argument and asserted that the state wanted to “put LGBT citizens back in their place.” I guess there is now a legal distinction of LGBT. No word yet on whether the “Q” or other sexual identities have been codified into the alphabet soup of super rights that can now infringe upon the inalienable rights of private property and conscience.   

The juxtaposition of these two cases — the Ohio ruling on Planned Parenthood and the Mississippi ruling on religious liberty — is poignant. Viewed together, according to the federal judiciary, a private organization has the right to taxpayer funding, even if it is violating the conscience of half the taxpayers funding it, yet a private organization does not have the right to merely mind its own business and run its organization according to its conscience. Put another way, a person can be granted standing in a court to sue for the right to demand services from a private entity and force the business to violate the conscience of its owners, yet a taxpayer lacks standing to sue against funding for anti-conscience and criminal activities being funded with public funds.

The three-judge panel of the Fifth Circuit noted that they were not pre-judging the case based on the merits; they were merely upholding the status quo by not granting a stay on the lower court’s decision. However, this is absurd because the true status quo since the founding of our country is respect for property rights and conscience. Mississippi shouldn’t have even needed a law to protect those founding values if not for the courts granting standing to anyone who identifies with the sexual identity national religion to encroach upon the property rights of religious institutions or businesses. The lower court’s decision was radical and alters the status quo in the state. As such, the Fifth Circuit’s decision to uphold that activist injunction was very revealing.

It’s also important to note that one of the judges, Catharina Haynes, was a GOP appointee, as was the judge in Ohio who mandated that the state government continue funding Planned Parenthood. Friday’s judicial massacre is yet another demonstration why I believe the federal judiciary is irremediably broken and why I have called for wholesale reform in my book [order online here]. Appointing Republican judges will not fundamentally alter the trajectory because most of them, even when they disagree with the politics of the legal profession, feel obligated to adhere to the one-sided precedent and rules for standing long held by the courts.

Thus, when people say “the courts hang in the balance of this election,” they really mean they hang between tranche 20 and tranche 21 of post-constitutional Gomorrah, whereby Democrat judges are willing to jump to the next level and Republican appointees won’t. But either way, when property and conscience rights have been flipped inside-out and upside-down, it is clear that we have already lost the courts.  

As I said in a recent radio interview, if Congress or the next president fails to protect the states from a tyrannical federal judiciary, states should just tell them to go to hell. In Federalist #33, Alexander Hamilton asserted that when the elected branch of the federal government steps outside of its enumerated powers to crush the states, they are “merely acts of usurpation and will deserve to be treated as such.” How much more so for the unelected branch of the federal government seeking to overturn the preamble of the Declaration of Independence and force states to violate the most foundational of fundamental rights!  

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