Legal Briefs newsletter


Fighting Lawsuit Abuse and Exposing Frivolous Lawsuits


Issue 32 - October 15, 2003

In this Edition:
Legal Reform: Is a Basic American Freedom Being Violated?
Tort Du Jour: Perhaps the Court Should Have Ordered the Team to Win
Testimony: Why Not Protect Commercial Speech?

Is a Basic American Freedom Being Violated?


Not many people can boast resumes like Alabama Attorney General William H. Pryor's. Unfortunately, discrimination plagues him in the U.S. Senate and may block his appointment to the 11th Circuit Court of Appeals.

Pryor graduated magna cum laude and was first in his class at Tulane University Law School. After clerking for Appeals Court Judge John Minor Wisdom, a renowned civil rights advocate, Pryor spent seven years practicing law and teaching at the Cumberland School of Law. In 1995, he became Alabama's Deputy Attorney General, and was elected Attorney General two years later.

As Alabama's chief law enforcement official, Pryor has vehemently fought discrimination. He was the driving force behind the successful campaign to remove a racist clause from the state constitution that banned interracial marriages. He was also instrumental in bringing to justice two members of the Ku Klux Klan guilty in the 16th Street Baptist Church bombing in Birmingham that killed four black girls in 1963.

Ironically, Pryor himself is now a victim of discrimination. Instead of bias against his skin color or ethnicity, liberal U.S. senators are trying to deny Pryor a federal appeals court appointment largely due to his strong Catholic beliefs.

Anti-Catholic discrimination has a long history in the United States. Al Smith's 1928 presidential campaign is a prime example. A prominent New Yorker, Smith was the first Catholic nominated to run for President by a major political party. He faced ardent opposition primarily amongst vocal minorities in the South and led by the Ku Klux Klan. Thomas J. Heflin, former U.S. Senator from Alabama, summarized this sentiment during a 1928 Senate speech by asserting that Smith's impetus to run was that "the Pope wants to control this country." Some prominent political analysts of the time even argued that adherence to the Roman Catholic Church prevented loyalty to America. Many claim Smith lost because of his religious beliefs.

After Smith's defeat, it took another 32 years for the nation's first Catholic President - John F. Kennedy - to be elected.

Since then, anti-Catholic sentiment has largely evaporated. Even the South, which had once been the home of anti-Catholicism, has changed its perspective. Pryor's election in Alabama is evidence enough. But the idea that devout Catholics cannot fully participate in our free society still seems prevalent in the minds of some U.S. senators.

Many liberals in the Senate are opposing Pryor and other devout Catholics for little more than their beliefs.

Despite accusations to the contrary, Pryor's Catholicism has never stopped him from being an impartial arbiter of the law. Pryor, for example, previously opted to support a limited partial birth abortion ban instead of more stringent guidelines proposed by his party and supported by his religious beliefs because he believed it was more consistent with Supreme Court precedent.

An ironic aspect of this situation is that many of the liberals fighting Pryor's nomination because of his beliefs are Catholic themselves. These Catholics, however, appear to leave their professed beliefs at the door.

Regardless, strong religious beliefs don't necessarily hinder an official's performance in government. We need look no further than the Founding Fathers to find a group of dedicated ministers and statesmen who produced one of the least sectarian documents in history, or the explicitly religious underpinnings of the anti-slavery movement in the 19th century or Dr. Martin Luther King Jr., whose faith-based ideals furthered the modern era of civil rights.

According to Senate Judiciary Chairman Orrin Hatch, Catholics are not the only ones being discriminated against. Baptist nominees are also beginning to face similar prejudices.

America's original settlers fled their homelands for an uncharted continent to escape religious persecution. The U.S. Constitution explicitly states, "no religious test shall ever be required as a qualification to any office or public trust under the United States." Is this basic American freedom being violated? You be the judge.

-by Matthew Craig

Matthew Craig is a research assistant at the National Center for Public Policy Research


Tort Du Jour: Perhaps the Court Should Have Ordered the Team to Win

A Cincinnati-area politician has just lost a lawsuit in which he contended that the Cincinnati Bengals should pay $200 million because the football team has a lousy record.

Hamilton County Commissioner Todd Portune said the team received taxpayer support for a new stadium some years back, saying the funding was needed to make the team competitive.

The team has a lousy record, he argues, so the money should be forfeited.

Hamilton County Common Pleas Judge Charles J. Kubicki threw the case out.

-"Judge Tosses Out Frivolous Suit," Sports Business News, September 15, 2003, at http://www.sportsbusinessnews.com/index.asp?story_id=29472


Testimony

"In adopting the First Amendment to the U.S. Constitution, the first Congress placed the natural right to free speech and press beyond the reach of the state.... it is clear that commercial speech, as a subset of speech generally, holds no disfavored place in either the pre-political world of Lockean philosophy or the constitutional world of the Framers. No principled basis exists for excluding such speech from protection. The mere utterance of a commercial message does not cause one to deprive another of rights. Indeed, the rights to choose the content of speech, whether commercial or noncommercial, and to engage in exchange of ideas and information at will are defining characteristics of free speech in this schema. It is only when such speech is used to defraud another that
a problem arises."

-Jonathan W. Emord, "Contrived Distinctions: The Doctrine of Commercial Speech in First Amendment Jurisprudence," Cato Institute Policy Analysis No. 161, September 23, 1991


 Original articles in this edition of Legal Briefs may be reprinted provided source is credited.




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