Lex Cordis Caritas - The law of the heart is Love

by Bishop Thomas John Paprocki

My dear brothers and sisters in Christ,

Having just celebrated our country’s Independence Day, it is tragic that our nation has strayed so far from the principles enshrined by the founders of our country in the Constitution of the United States of America. One year ago, five lawyers sitting as justices of the United States Supreme Court disregarded not only the continuous constitutional and legal meaning of marriage as understood since the United States of America declared its independence 240 years ago, but indeed discarded the understanding of marriage as the union of male and female, as had been universally held as the natural order of creation since the dawn of civilization.

In Obergefell v. Hodges, decided June 26, 2015 by a vote of 5-4, the Court created out of thin air a new right for same-sex “marriage.” The harshest criticisms of this decision came from the four justices of the Supreme Court who dissented from the other five justices’ majority opinion. In his dissent, the Chief Justice of the United States, John Roberts, wrote, “[F]or those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. … The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”

The Chief Justice went on to explain how this decision will harm public respect for the legitimacy of the Court, saying, “The legitimacy of this Court ultimately rests upon the respect accorded to its judgments. … That respect flows from the perception — and reality — that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained.”

One year and a day later, on June 27, 2016, the five maverick justices of the United States Supreme Court struck again, this time in the case of Whole Women’s Health v. Hellerstedt, invalidating laws specifically in Texas and generally throughout the United States that sought to protect the health of women seeking abortions. In 2013, the Texas Legislature enacted House Bill 2, which contained two key provisions. First, any physician performing or inducing an abortion must, on the date of performing the abortion, have had active admitting privileges at a hospital located not further than 30 miles from the abortion facility. Second, any abortion facility was required to meet the minimum standards for ambulatory surgical centers under Texas law.

The Court held that both the admitting-privileges and the surgical-center requirements placed “a substantial obstacle in the path of women seeking a pre-viability abortion, constitute an undue burden on abortion access, and thus violate the Constitution,” despite the fact that a right to abortion is found nowhere in the Constitution.

Again, the Court’s harshest critics are from within its four dissenting justices. Justice Clarence Thomas wrote in his dissenting opinion, “Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors.” Quoting the late Justice Antonin Scalia in the 2000 case of Stenberg v. Carhart, in which the Court struck down a Nebraska law outlawing partial-birth abortion, Justice Thomas continued, “That decision exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.’”

In his dissent, Justice Alito, joined by Justice Thomas and Chief Justice Roberts, wrote, “If anything, when a case involves a controversial issue, we should be especially careful to be scrupulously neutral in applying such rules. The Court has not done so here. On the contrary, determined to strike down two provisions of a new Texas abortion statute in all of their applications, the Court simply disregards basic rules that apply in all other cases.”

So what do we citizens do when renegade judges usurp their authority and hijack the judicial branch of government for illegitimate ends? Some have suggested that Texas and other states simply disobey the Supreme Court. I will leave that determination to state authorities, but do note that Thomas Jefferson criticized the notion of judicial supremacy, writing, “You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

When U.S. Supreme Court Chief Justice Roger Taney, sitting as a federal circuit court judge, ruled in 1861 that the authority to suspend habeas corpus lay exclusively with Congress, President Abraham Lincoln disagreed and defied Taney’s ruling, as did the United States Army under Lincoln’s orders as Commander-in-Chief, saying that Taney’s decision was unconstitutional.

Twenty years ago, when the Ninth Circuit Court of Appeals in 1996 fabricated a legal right to doctor-assisted suicide, Father Richard Neuhaus, Editor of the journal First Things, wrote an editorial entitled, “The End of Democracy,” in which he wondered “whether we have reached or are reaching a point where conscientious citizens can no longer give moral assent to the existing regime.” If we had not yet reached it twenty years ago, we certainly have now reached the point where we must withdraw our moral assent from the immoral laws, illicit executive orders, objectionable administrative regulations and illegitimate judicial decisions being foisted upon the citizens of this country. At the same time, we must pray and work to elect government officials who will act, in the words of our Declaration of Independence, in accord with the “Laws of Nature and of Nature’s God.”

May God give us this grace. Amen.