When Will U.S. See that ISIS Is Fighting Total War?

America -- and the rest of the world -- has a problem. It has many faces: radical Islam, Islamic terrorism, Hamas, al-Qaida, the Islamic State of Syria and Iraq (ISIS), etc.

Israel is presently trying to deal with Hamas -- one face of that problem.

Too many Americans seem oblivious.

The real question is how does a civilized people fight an enemy that hides and makes war, fires rockets and stores weapons among the civilians population -- an enemy that sends suicide bombers to indiscriminately kill men, women and children at weddings, funerals and in churches? And in the case of ISIS, how do we deal with an enemy that beheads Christians who refuse to convert to Islam, while seizing cities and towns, wealth and war materiel throughout Iraq and Syria? How do we counterattack a mortal enemy who brags "they are coming for us," without killing innocent men, women and children in the areas that they have captured and in which they are building their strength?

In the Old Testament book of 1 Samuel, we find a description of how wars were fought in the Middle East in the time of the prophet Samuel and King Saul, 3,000 years ago.

"Samuel said to Saul, ... Go, now, attack Amalek, and put under the ban everything he has. Do not spare him; kill men and women, children and infants, oxen and sheep, camels and donkeys."

Three thousand years have now passed, and that is the way wars are still fought in the region. Except for the case of Israel, war in the Middle East, is total war. But if Hamas rockets begin inflicting massive casualties on the Israeli civilian population, Israel will have a choice: respond with total war using overwhelming force to win (regardless of civilian casualties), or lose.

If you doubt that Mid-East war is total war, just look at the slaughter in Syria. No distinction is made between combatants and civilians. All are killed indiscriminately. Here are a few excerpts from a timeline for the Syrian Civil War to illustrate:  http://www.aucegypt.edu/gapp/cairoreview/pages/articledetails.aspx?aid=579



"June 13, 2013: White House announces ... that the Syrian regime used chemical weapons multiple times over the past year....

"July 25, 2013: UN Secretary-General ... says that more than 100,000 people have died in the Syrian conflict.

"August 21, 2013: (T)housands of social media messages report a chemical attack on Damascus suburbs; Western media publish images of bodies of purported victims; opposition accuses Al-Assad regime of toxic gas attack ....

"August 23, 2013: Two car bombings in Tripoli kill at least 42 people.

"January 21, 2014: Guardian and CNN cite a report by former international war crimes prosecutors accusing the regime of the 'systematic killing' of 11,000 detainees ....

"February 1-5, 2014: Barrel bombs reportedly dropped by security forces kill at least 246 civilians in Aleppo."


And if you still have doubts, look at the utter barbarism occurring in what is euphemistically called the Islamic State of Iraq and Syria (ISIS). Here is an Aug. 11 excerpt from CBN News World  http://www.cbn.com/cbnnews/world/2014/August/ISIS-Swallowing-Iraq-Theyre-Beheading-Children-/


"ERBIL, Kurdistan -- Islamic terrorists in Iraq are beheading children and burying people alive, and it won't stop there. They have a message for America: We're coming for you. ... "They say if anyone (doesn't) become like Muslim, 'we're going to kill them, each one, from baby to women to old man.' ...

"ISIS was shooting the kids and people, and they were laying them on the ground and they bring tractors that they drive over them in front of their families ... They take women out of their houses so if a family had three daughters, they would take one. They are using the sword to cut off hand(s) and also beheading other(s) so I don't think this is the behavior of human beings, but wild animals do that."


President Obama has now ordered surgical air strikes to slow the ISIS advance, and to support America's Kurdish allies in northern Iraq. Retired Army Lt. Col. Tony Schaffer appearing on Fox News has called the president's present strategy "a joke." Schaffer has stated his own view: "You've got to make it clear that we are in it to win. ... it has to be very overwhelming. If it were up to me, I would be using B-52s in addition to F-18s."

But it is one thing to use B-52s to attack ISIS fighters in open country; at present it would horrify most Americans to use them to obliterate innocent men, women and children in order to exterminate ISIS forces operating among them.

But now CNN has reported that Iraq's ambassador to the UN has reported to the UN sources that "90 pounds of nuclear materials" have now fallen into ISIS hands. If true, this threatens America directly. This is the stuff from which dirty bombs are made. http://www.cnn.com/2014/07/10/world/meast/iraq-crisis/

At the minute, American public opinion will not allow President Obama to obliterate cities and towns occupied/controlled by ISIS to defeat ISIS. The American public has not been shown the justification for B-52 carpet-bombings likely to kill innocent men, women and children. But if a dirty bomb is detonated in an American city, the justification will be apparent. If that happens, like Israel, we will have a choice: (1) Use overwhelming force to win quickly and minimize long-term casualties, or (2) Fight a limited war against an enemy who is fighting total war against us.

President Obama, quite understandably, doesn't want to use overwhelming force against population centers while he has any other choice. Nevertheless, our president faces the most difficult of challenges: he needs to discern and do what must be done now, must be to avoid a worse war latter.
The hard question is this: Is there any effective way to extirpate terrorists fighting a total from among a civilian population for a president viscerally opposed to deploying ground troops?

Posted Online:  Aug. 22, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Immigration Policy Unconstitutional, Incoherent

Politics aside, I can think of only three possible reasons we are accepting 90,000 illegal immigrant children from Central America:

-- The Constitution requires it;

-- We need more children in the U.S;

-- Christian charity.

The purposes for which our federal government was established are set out in the Preamble to the U.S. Constitution.

"... to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."

Is there anything in the Preamble about "securing the blessings of liberty to children of Central America?" Iraq? North Korea? In the Constitutions' enumerated powers, Congress was granted no power to provide for the welfare of children of foreign nations. The only power granted to Congress related to immigration is the power "To establish an uniform rule of naturalization."

The president is granted no power whatsoever relative to immigration. His duty is limited to faithfully enforcing the laws made by Congress.

If the U.S. has a duty to the children of Central America, it must be as an incident of the congressional power to "provide for the common defence and general welfare of the United States." But Article I, specifically states Congress has power "provide for the common defence and general welfare of the United States" -- not of Central America.

If the administration's open border policy is premised on the argument that we need 90,000 more children in this country each year, then why in the name of God have we aborted -- killed -- more than 50 million of our own children? And why are liberals demanding that the government, insurance companies and employers provide abortifacients under Obamacare so that we might kill more of our own fetuses and have fewer live births? If America needs more children, why are we killing our own?

If we admit Central American children as a matter of Christian charity our priorities are out of whack.
The liberal left in this country is apoplectic over the Supreme Court's Hobby Lobby decision. They rant that it is impossible for a family-owned corporation -- or any other corporation -- to have religious rights and/or religious beliefs. They shriek that it is utterly inappropriate for such corporations to deny abortifacients to their employees on account of the religious beliefs of owners. But how can the same people who contend that it is wrong for owners of a corporation to use the corporation to carry out their religious beliefs insist that it is right for them to use the government -- a enormous corporation -- to act upon their religious notions of "Christian charity?" How is the latter logically consistent with opposition to the Hobby Lobby decision?

Do not misunderstand. I am in favor of individuals practicing Christian charity. I believe it is meritorious for a person to use his own goods to help those in need.

I also am in favor of Congress using tax dollars to provide for the "general welfare of the people of the United States;" e.g., Social Security.

But there is an egregious double standard at work here. As an act of love -- of Christian charity -- we are told that we must accept and care for thousands of children illegally crossing our borders, while at the same time we are killing millions of American babies who are doing nothing at all illegally, and seek only to pass through their mothers' "border" to life. Where is the love for these fetuses? Where is the "Christian charity" toward them? Is it an act of love -- of Christian charity -- to kill them?

There is a grotesque intellectual inconsistency in nurturing thousands of illegal immigrant children while at the same time killing native unborn children by the millions.

Every morning on TV we hear pleas from the Wounded Warriors Project for "$19 per month" to provide funds for our soldiers who incurred horrible wounds defending our liberties and our country. If Christians insist that the government should go into the business of Christian charity, why aren't they insisting that the government do more for our horribly wounded soldiers? Why do illegal alien children have a greater claim to our nation's resources than our disabled soldiers?

We have a VA crisis. Could the dollars being spent on illegal immigrant children be better used to fix the VA? To provide timely and adequate treatment for our veterans?

And how are things going in Chicago, New Orleans and Detroit? Are the kids from Central America in any greater danger of drug violence, gang violence or being shot than the kids on the south side of Chicago? Are there more one-parent families in Central America than in Chicago, Washington or Detroit? Why do the children from Central America have a greater claim to our tax dollars (our Christian charity) than kids living in our inner-cities? Is there any truth to the maxim that "charity begins at home?"

And what about our citizens with mental and physical disabilities? Every dollar spent on an illegal immigrant is a dollar that can't be spend on an American child. The $3.7 billion that President Obama wants to take care of children illegally coming across our border, is $3.7 billion that won't go to organizations that care for Americans with special needs.

Space precludes me from mentioning the needs of our elderly.

There are 7.25 billion people in this world. If America, as a matter of Christian charity, has a duty to provide for 90,000 children who will be shipped/smuggled across our southern border this year, where does that duty stop? There are 1.35 billion people in China. If the government of China decides that it is in their national interest to ship a billion of their citizens here, do we as a matter of Christian charity have a duty to receive them, provide them with housing, schooling, medical care, cellphones and food stamps?

I suggest Congress was given power "to establish an uniform rule of naturalization" to "provide for the common defense, and the general welfare" of our nation; not to practice Christian charity to the world. The resources of our nation are finite.

Posted Online:  Aug. 15, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Israeli Response Purely a Matter of Self-Defense

How should Israel respond when Hamas fires 2,100 rockets into Israel from Gaza? How should Israel react when Hamas refuses cease-fire offers? Is Israel justified in bombing or shelling the rocket launchers? Rocket launching sites?

Buildings where the rockets are stored?

According to the Israeli Defense Force Blog, "Over 5 million Israelis are currently living under threat of rocket attacks. Even worse, "More than half a million Israelis have less than 60 seconds to find shelter after a rocket is launched from Gaza into Israel. Most rockets launched from Gaza into Israel are capable of reaching Israel's biggest cities, including Tel Aviv and Jerusalem."

But what if Hamas sets up its rocket launchers next to hospitals? Stores its rocket inventories in schools? What if it places and fires its rockets from densely populated civilian areas? From among women and children? Is Israel barred from retaliating because women and children are likely to be killed?

Two recent reports from the U.N. Relief and Works Agency (UNRWA) -- hardly a pro-Israeli organization -- should make clear to every American the Hamas propaganda tactic of using Palestinian women and children as human shields.

On July 17, its site reported under the heading "Agency demands full respect for the sanctity of its premises in Gaza":

"Yesterday, in the course of the regular inspection of its premises, UNRWA discovered approximately 20 rockets hidden in a vacant school in the Gaza Strip. UNRWA strongly condemns the group or groups responsible for placing the weapons in one of its installations. This is a flagrant violation of the inviolability of its premises under international law. This incident, which is the first (U.N. documented) of its kind in Gaza, endangered civilians including staff and put at risk UNRWA's vital mission to assist and protect Palestine refugees in Gaza. ...

"Palestinian civilians in Gaza rely on UNRWA to provide humanitarian assistance and shelter. At all times, and especially during escalations of violence, the sanctity and integrity of UN installations must be respected."

Then, on July 22, 2 UNRWA reported in "UNRWA condemns placement of rockets, for a second time, in one of its schools. Agency demands full respect for the sanctity of its premises in Gaza":

"Today, in the course of the regular inspection of its premises, UNRWA discovered rockets hidden in a vacant school in the Gaza Strip. As soon as the rockets were discovered, UNRWA staff were withdrawn from the premises, and so we are unable to confirm the precise number of rockets.

The school is situated between two other UNRWA schools that currently each accommodate 1,500 internally displaced persons."

In a July 24 op-ed in the Wall Street Journal, retired U.S. Marine Corps Commandant, Gen. James T. Conway wrote, "Earlier this month Hamas spokesman Sami Abu Zuhri appeared on Al-Aqsa TV and encouraged Gaza residents to act as human shields. They appear to have heeded the call: Israeli Defense Forces combat video has shown Palestinians rushing to rooftops after receiving warnings from Israel -- via phone calls, text messages and unarmed 'knock-knock' projectiles striking a target building -- that a missile attack is imminent.

"Since the beginning of ground operations into Gaza, the IDF has uncovered approximately 30 ... tunnels leading into Israel, in addition to the more than two dozen discovered prior to Operation Protective Edge. Hamas operatives have been intercepted emerging from such tunnels in Israel carrying tranquilizers and handcuffs, apparently hoping to replicate the successful 2006 kidnapping of IDF soldier ... for whom Israel exchanged 1,000 Palestinian prisoners in 2011."

To me, this isn't complicated. Israel has a right to act in self defense. As long as Hamas opts to make war from behind women and children, Israel has a right to do what is reasonable and necessary to protect its people from the Hamas' rocket and tunnel attacks -- even if Palestinian women and children are killed in the process of Israeli self-defense.

Hamas can stop this "collateral damage" very easily and quickly. It can end the rocket attacks, or it can move the rockets away from civilian areas -- away from schools and hospitals. And it can stop building tunnels into Israel. As long as Hamas tries to kill Israelis using women and children a "human shields," it bears 100 percent of the blame.

American news organizations which blame Israel every time a Palestinian child is killed, are intentionally portraying Israel in a pejorative light. Writing simply that "1,000 Palestinians have been killed" suggests that Israel is responsible for indiscriminately killing women and children. But if Israel was being "indiscriminate" instead of "surgical" the deaths should by now number in the tens of thousands. Gaza is small (141 square miles) and densely populated (1.8 million). If the Israelis are really trying to kill women and children, they are not very good at it.

Perhaps they need lessons from Russia's president. Comrade Putin and his henchman in the Ukraine were able to kill 298 civilian passengers aboard a Malaysian airliner in less than two minutes!

Posted Online:  Aug. 08, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

When Citizens Lose Respect for Courts, Revolutions Follow

A sizable majority of the American people have lost virtually all respect for Congress. Every day more and more Americans are losing faith with a president whose administration seemingly lies about everything from Benghazi, to the IRS scandal, to unemployment statistics.

Only one branch of the federal government retains the respect of the American people: the judiciary. And now the president and his supporters are doing their best to undermine that support by misstating the U.S. Supreme Court's holding for crass partisan advantage.

Whether you agree with the court's holding or not, it is dangerous, either intentionally or through carelessness, to misstate what the court has said. When its holdings are misstated, the court is most often portrayed in a pejorative light. That is why I have written a number of op eds quoting the court at length, to show readers what the court has actually said, and to show the care with which their opinions are crafted.

In this op ed, I discuss the Hobby Lobby decision allowing two closely held corporations to refuse to pay for four out of 20 forms of contraception that they consider to be abortifacients --— drugs that terminate conception after conception (not before). I do so because I believe you need to see exactly what the court said, and how carefully they said it. I do so because too many people who should know better are undermining respect for the court by misstating what the court said.

"Fifty years ago, Norman Hahn started a wood-working business in his garage ... This company, Conestoga Wood Specialties, .... now has 950 employees ... the Hahns believe that 'human life begins at conception.' It is therefore 'against (their) moral conviction to be involved in the termination of human life' after conception, which they believe is a 'sin against God to which they are held accountable.' The Hahns have accordingly excluded from the group health-insurance plan they offer to their employees certain contraceptive methods [four out of 20] that they consider to be abortifacients.

"The Hahns and Conestoga sued the United States Department of Health and Human Services (HHS) ... under Religious Freedom Restoration Act (RFRA) ... seeking to enjoin application of ACA's contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA approved contraceptives that may operate after the fertilization of an egg. These include two forms of emergency contraception commonly called "morning after" pills and two types of intrauterine devices.

"Forty-five years ago, David Green started an arts-and-crafts store that has grown into a nationwide chain called Hobby Lobby. ... the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. ... They specifically object to the same four contraceptive methods as the Hahns .... They have no objection to the other 16 FDA-approved methods of birth control. ...

"We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA) ... permits HHS to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies' owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.

"In holding that the HHS mandate is unlawful, we reject HHS's argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.

"Since RFRA applies in these cases, we must decide whether the challenged HHS regulations (1) substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price -- as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.

"Under RFRA, a Government action that imposes a substantial burden on religious exercise must (2) serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute (3) the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.

"In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
"HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.

"The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all (20) FDA-approved contraceptives without cost sharing."

Not withstanding the loss of respect for the president and Congress, our system bumbles on. When citizens, however, lose respect for their judicial system, revolutions follow.

Posted Online:  July 18, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Who Should Decide Delicate Public Policy Issues?

The 2014 U.S. Supreme Court holding in Schuette v BAMN was an affirmative action case. It was not a same-sex marriage case. But as you read the excerpts below, ask yourself why what the court said in the context of affirmative action, would not be equally applicable in a same-sex marriage case?

The issue to be resolved in Schuette was "whether an amendment to the Constitution of the State of Michigan, approved and enacted by its voters, was invalid under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution?" The first section of that Michigan amendment provided:

"The University of Michigan, Michigan State University, ... and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

In further framing the issue, the court said, "The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions."

In sustaining the Michigan Constitutional provision, here's what the Supreme Court said:

"By approving Proposal 2 and thereby adding [it] to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power.

"The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.

"Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.

"Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice.

"Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate's power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.

"The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity -- and the duty -- to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.

"These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

"This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court's precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters."

But the court did warn that the right of the voters do deal with delicate racial issues was not absolute.

"These precepts are not inconsistent with the well established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts."

So, unless traditional marriage laws and constitutional provisions are found to "encourage or command" that hurt or injury be inflicted on those who would opt for same sex marriage, it is my guess that when the question reaches the U. S. Supreme Court, that that court will find that no federal question is involved, and that the matter is to be left to the judgment of the people of the several states.

This case also indicates to me that at least five justices have learned the folly of the judicial hubris, involved (40 years of unending division) in placing delicate issues of public policy, such as abortion, beyond the power of adjustment by the people and the state legislatures.

Posted Online:  July 10, 2014 at 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

How Town Meeting Prayers, and Marriage Are Related

On June 22, I concluded my summary of the U.S. Supreme Court's holding in Town of Greece v. Galloway by saying, "I think the reasoning in this case could be of great importance in other areas of constitutional law. My thoughts on the importance of the case will follow."

So, here they are.

The right of a man to marry a woman, and vice versa, nowhere appears in the U.S. Constitution. Nevertheless, it has been an undoubted right of all adult men and women living in America -- both before and since the adoption of the U. S. Constitution.

And it wasn't a right of just one group of colonists. All male and female colonists, whether English, French, Spanish, Dutch, Swedish, etc., enjoyed the right whether they resided in English, French or Spanish colonies. Indeed, even the native peoples, Iroquois, Huron, Sioux, etc., enjoyed the right. For that reason, the right to marry seems to be one of those rights retained by the people and reserved to the people or states by the Ninth and 10th amendments.

-- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -- Amendment IX

-- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" -- Amendment X

And while the right to marry is nowhere mentioned in the U.S. Constitution, neither does the Constitution give Congress or the federal government any power to regulate marriage. In the powers of Congress enumerated in Article I, Section 8, there is nothing whatsoever about "marriage."

Historically, marriage in America has been between one man and one woman. The U. S. Supreme court holding Reynolds v. U. S. (1878) makes that patently clear:

"Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. ...

" ... from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I., it was punished through the instrumentality of those tribunals ...

"By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies.

"In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the "act establishing religious freedom," and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included."

The argument can be made that a 14th Amendment (1868) "equal protection" argument was not advanced in Reynolds v. U.S. But it can also be argued that it wasn't made because nobody seriously believed that the 14th Amendment was enacted to guarantee polygamous marriages equal rights with marriages between one man and one woman.

Town of Greece v. Galloway (2014) was not a case about marriage. Rather, it concerned the constitutionality of opening a town meeting with a prayer. But look at what the court said:

"The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. ...

"When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. ...

"In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society."

Now, change a few words and you can see what the court could easily say if it opts to hold that non-traditional marriages do not get the same constitutional protection as traditional marriages:

"In light of the unambiguous and unbroken American history of more than 500 years, there can be no doubt that marriage is between one man and one woman, and that that practice has become part of the fabric of our society."

The point is simply this: For 500 years, nobody who came to America believed as a matter of law that marriage was anything other than a union between one man and one woman, except perhaps the Mormons.

But if marriage is reserved to the people and the states, then the decision to expand or not to expand the meaning of marriage resides with states and not with the federal government.

And that leads me to consider another new U.S. Supreme Court holding, Schuette v. BAMN, which may also have significant bearing on the non-traditional marriage question. So get ready for one more op-ed.

Posted Online:  June 30, 2014 at 2:20 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Congress Heard Prayer before Backing "Establishment Clause"

On May 5, the U. S. Supreme Court decided Town of Greece v. Galloway.
In the case, Galloway sued Greece, claiming that the town, by opening its monthly meeting with a prayer, created an unconstitutional "establishment of religion."

The town did not prescribe or approve the prayers to be said. A town employee simply called ministers listed in a directory, until one volunteered (without pay) to say the opening prayer.

Justice Anthony Kennedy, writing for the majority, held that the town's practice was permissible and did not constitute an unconstitutional First Amendment violation. The court relied on its 1983 precedent in Marsh v. Chambers.

"In Marsh ... the Court found no First Amendment violation in the Nebraska Legislature's practice of opening its sessions with a prayer delivered by a chaplain paid from state funds."
The court then explained its holding in Marsh.

"Marsh is sometimes described as 'carving out an exception' to the Court's Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to any of the formal 'tests' that have traditionally structured' this inquiry. ... The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. ...

"When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. ... Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent ... 'In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.'"

In short, the legislative opening prayer was sustained because the very Congress that had just passed the First Amendment during that same session began the practice of opening its sessions with an opening prayer said by a paid chaplain.

Obviously, if they felt that the practice amounted to an improper "establishment of religion," they wouldn't have done it.

"That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society."

But while the Greece court sustained the legislative prayer practice, it did add a caveat:

"Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted "by reference to historical practices and understandings."

On the other hand, the court instructed that the "content of the prayer (opening legislative sessions) is not of concern to judges," provided "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief."

The court further explained, and rejected the plaintiff's argument that public prayers must be "non-sectarian."

"Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior (Engel v. Vitale). It would be but a few steps removed from that prohibition for legislatures to require chaplain to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.... 'The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.'

"The government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer-giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian."

The court then gave guidance as to what has been historically typical legislative prayer.

"It is thus possible to discern in the prayers offered to Congress a commonality of theme and tone. While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws."

Rejecting the notion that some citizens might find such prayer offensive, or compulsive, the court said, "Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith."

Finally, the court indicated it would look to see that the entire body of the prayers offered -- rather than a single prayer -- was consistent with how legislative prayers have been done traditionally.

"Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer."

Space limitations prevent me from doing more than summarizing the opinion. But I think the reasoning in this case could be of great importance in other areas of constitutional law.My thoughts on the importance of the case will follow.

Posted Online:  June 21, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea