Date: Sun, 09 Jan 1994 23:50:02 -0500 (EST) From: LIBRARY@UTKVX.UTCC.UTK.EDU Subject: NewsWatch / December 1993 | | || |^^^^ | | | |\ | |^^^^| |^|^| |^^^| |\ | | | | |__| |---| |---| | | \ | | --, | | | | \ | | | | | ____| | | | | \| |____| | |___| | \| | | || |^|^| |^^^^ | | */*/*/*/* | | | |__| | | | -- | *\*\*\*\* | | | | | |____ | | ___________________________________________________________________ Volume 5, Number 2 December 1993 C O U R T I N G D I S A S T E R Do we, the people of the United States and of the several states, make the laws under which we live? Our old-fashioned civics books and our constitutional heritage say we do; but on critical questions that go to the essence of our communal life, decision-making power is once again being taken out of the hands of the electorate and exercised instead by federal judges with life tenure. = Tenured Despotism = The power of judges to override the democratic process has concerned many of America's greatest statesmen. Thomas Jefferson wrote in 1820 that to make judges "the ultimate arbiters of all constitutional questions" would be "a very dangerous doctrine." Abraham Lincoln, in his first inaugural address, challenged the then-widespread notion that the slavery question was to be resolved by the courts, arguing that if "vital questions affecting the whole people" are left to decisions of the Supreme Court, "the people will have ceased to be their own rulers[.]" = Votes and Verdicts = Over the past year --ever since President Clinton announced that he would overturn the military's ban on homosexuals-- this nation has been through a torturous examination of that question, including the alleged analogy between racial discrimination and distinctions based on sexual orientation. The debate has often been messy, and the compromises likewise. That's the way democracy usually works. These compromises, though broadly acceptable to the American electorate, have not given homosexual groups everything they wanted. So they have gone into court, demanding that judges award them what they failed to win in the democratic process. And by and large, the judges are short-circuiting democracy, as requested. = Whose Rationality? = Case in point: This fall the U.S. Congress endorsed a modified version of the President's "Don't Ask, Don't Tell" policy, leaving most of the traditional restriction intact. But on 16 November, an influential federal appeals court decreed that the military is constitutionally barred from implementing any policy whatsoever that reflects a negative view of homosexuality. Such views, deeply and widely held in U.S. society, are simply "prejudice," said the three-judge panel. In Cincinnati, the people voted to block their city from treating homosexual orientation as a source of special rights. But a federal judge barred the implementation of that vote, pending a trial. State courts in Colorado and Tampa have also blocked the implementation of popular referenda. At the State University of New York, a judge has ruled that the military may not recruit on campus, because it practices "discrimination." Without doubt, the courts have a role to play in enforcing explicit constitutional rights against attack by political majorities. But when the courts reverse the decisions of the political majority simply because, according to the judges' personal value system, the majority's views are "prejudiced," what we have is not constitutional reasoning but naked cultural warfare. The Supreme Court has not yet stepped into the latest legal whirlpool surrounding the issue of homosexuality. If and when it does, it would be foolhardy to predict a repeat of its razor-thin refusal in *Bowers v. Hardwick* (1986) to announce a constitutional right to commit sodomy. The author of that decision, Byron White, resigned earlier this year, and was replaced by President Clinton's first nominee to the high court, Ruth Bader Ginsburg, a former ACLU counsel who coyly declined to tell the Senate Judiciary Committee her views on the "gaylegal agenda." = What You Can Do = Write to Sen. Joseph Biden, Chairman, and Sen. Orrin Hatch, ranking minority member, Senate Judiciary Committee, Washington, DC 20510. Tell them you expect them to be more vigilant against the nomination of judicial activists. In your own electoral decisions, look for candidates at every level --federal, state, and for the bench itself-- who take a principled stand against judicial activism. N E W S W A T C H ON THE HILL The Faceless Unborn. Both the U.S. House (18 Nov) and the Senate (16 Nov) have approved versions of the Freedom of Access to Clinic Entrances (FACE) bill. A House-Senate conference committee will work out differences in the two versions, with votes on final passage in 1994. Sen. Orrin Hatch (R-UT) amended the bill to apply its penalties aimed at prolifers to those who disrupt religious activities in churches or elsewhere. Rep. Tom DeLay (R-TX) won another amendment exempting parents from prosecution under the bill. The Hatch and DeLay amendments do not save FACE, but write your representative and senators and urge them to support their retention as the bill is conferenced. "Choice" in China. Rep. Chris Smith (R-NJ) along with two Chinese nationals, filed suit 9 November against the U.S. Agency for International Development (AID) for resuming support of the United Nations Population Fund (UNFPA). The suit charges AID with failure to comply with the Kemp-Inouye law prohibiting U.S. funding of any program that participates in coercive abortion or sterilization. The UNFPA strongly supports China's population control program, which has systematically employed coercion against its citizens. Healthy Competition. Sen. Don Nickles (R-OK) and Rep. Cliff Stearns (R-FL) with cosponsorship by all but two members of the House and Senate Republican leadership, introduced the Consumer Choice and Health Security Act on 20 November. Modeled on the Federal Employee Health Benefits Program (FEHBP), the bill preserves a wide choice of plans, provides for individual tax credits and medical savings accounts, and promotes competition among insurers. There are no new employer mandates, no required abortion coverage, no new taxes, no price controls or premium caps, and no new government boards or bureaucracies. AROUND TOWN Off the Wohl? The Clinton administration recently announced the creation of a new Office of Workplace Initiatives to help make tele-commuting and other flexible scheduling options more widely available to federal employees. Tapped to lead the new office is Faith Wohl, a DuPont Co. human resource specialist whose mixed record on family- friendliness includes championing DuPont's most ghastly innovation: a corporate day care center for sick children called "Sniffles and Sneezes." ("Measles Without Mothers, Fevers Without Fathers" would have been a better name.) Will Wohl promote more of the same in her new post, or what family-oriented workers want most, flexibility and family time? Deadly Perk. It's "open season" until 13 December for federal employees to select their 1994 health plans. Same routine, same options, right? NOT! On 28 October, President Clinton signed into law H.R. 2403 -- which repealed the long-time ban on funding of federal employees' abortion coverage. While not every plan now covers abortion, many will, creating a new abortion "perk." The new law is a major victory for the Clinton administration because it: (1) softens its failure to restore Medicaid funding of abortions; and (2) moves closer to its ultimate goal of mandating universal abortion coverage through a standard health benefits package. ACROSS THE NATION Bang! That giant popping sound you heard on election day was the backfiring of anti-family campaign tactics in Virginia (2 November). Liberals sought to make races there a referendum on the "religious right." Pro-family candidates George Allen and James Gilmore won handily, showing that anti-religious bigotry doesn't pay. Home school defender Michael Farris, outspent 10 to 1 by popular incumbent Don Beyer and snubbed by some in his own party, lost but still captured 46 percent of the vote. Meanwhile, GOP liberals won the New York mayoral and New Jersey gubernatorial races by taking conservative stands on crime and taxes, respectively. Cry of the Poor. Exit polls done by the respected Luntz-Weber firm showed that Prop 174, not school choice generally, was the big loser in 2 November balloting. A majority of voters were willing to support choice if per-pupil funding did not decline and if new schools would be accountable. Married Californians with children were more positive (40 percent) for Prop 174, as were evangelicals and conservatives (49 percent each). Opposition was most intense among liberals (90 percent), Democrats and moderates (81 percent each). Lower-income, less-educated voters and minorities (especially Hispanics) were found most willing to back a future school choice plan. Inhuman Rights. The International Lesbian and Gay Association (ILGA) is taking steps to distance itself from two member organizations that promote pedophilia, the North American Man/Boy Love Association (NAMBLA) and Vereniging Martijn, a Dutch pedophile group. The controversy erupted after reports that the ILGA, with Clinton administration support, was granted consultative status on the United Nations Economic and Social Council. ILGA, which has adopted pro- pedophilia resolutions, asked the two groups to withdraw after widespread protest. It would take an 80 percent vote of ILGA's world conference, which meets next June, to oust them. Previous attempts to do so have failed. Clinton U.N. officials, reversing field, may push for ILGA's immediate ouster. Legislative Watch. A reminder that FRC provides a hotline, updated every Friday afternoon, on legislative developments in Congress. This educational resource can be reached by dialing 202-783-HOME (toll call). C O U R T W A T C H *KNOX:* PUTTING PORNOGRAPHERS FIRST The *Knox* child pornography case continues to galvanize opposition as the Clinton administration hems and haws. As recounted in last month's *CourtWatch*, *Knox* involves a defendant who possessed videos showing teenage and pre-teen girls wearing bathing suits or leotards, with the camera focusing heavily on their chests, buttocks, and genital areas. The nature of this material was pornographic, as the accompanying ad copy made clear. But because the genital areas of the victims were not directly visible, the Clinton administration --breaking with its two predecessors-- argued that this material was not child pornography, and not illegal under the 1984 Child Protection Act. Developments since our last report: The U.S. Senate voted unanimously on 4 November to repudiate the Justice Department's new interpretation. But the Supreme Court seems to have bought it. The Court has the prerogative of deferring to the executive branch's understanding of a statute; why it did so in this case is not clear, since it did not issue a written opinion. Instead, it sent the case back to the Third Circuit Court of Appeals with instructions to decide whether Knox's videos were covered by the 1984 statute as reinterpreted by the Justice Department. While Attorney General Reno has defiantly stood by the new policy, President Clinton has sent her a letter that looks like a rebuke, telling her to enforce our nation's child-porn laws vigorously. But he also called for a new federal statute to ban the sort of material Knox possessed. Why should this be necessary? The old statute did just fine until it was reinterpreted. Even if a new statute was passed, all those being prosecuted for underwear-oriented child porn under the old statute would walk. Furthermore, a "Child Protection Act of 1994" could end up carrying the liberal "children's rights" agenda, with a little toughening up of the child-porn laws thrown in to woo conservatives. Meanwhile, the administration's next chance to redeem itself will come when it files a brief in the Third Circuit. Will it actually argue that those who traffic in skimpy-clothes shots of children for sexually exploitative purposes are not criminals --even after all 100 senators voted to say then did intend to criminalize such material? P O L I C Y U P D A T E WHITHER PARENTAL CHOICE? After California voters drubbed Proposition 174 by 69-31 percent on 2 November, some choice-in-education advocates drew stern lessons. Former Bush speechwriter Dan McGroarty spoke for many in a column arguing that Prop 174 attempted too much, too soon. Better, he said, to try more limited choice plans, focus on inner cities, and limit vouchers to new private school students by imposing as much as a six- year waiting period on grants to students currently enrolled in private schools. Also, say McGroarty, it might be better to appeal to the state legislatures instead of the voters. Certainly the wide appeal of state Rep. Polly Williams' (D) efforts in Milwaukee, and the aid Republican Governor-elect Christine Whitman has promised for Mayor Bret Schundler's (R) New Jersey initiative, commended this approach. But McGroarty's well-intended advice poses risks, too. Limiting school choice plans to inner-city youth risks casting this essential reform as yet another "program" which the majority is willing to try out on others' children, but not on their own. Furthermore, voter anxieties are likely to be exploited by teachers' unions' warning of the creation of "Farrakhan schools," an effective tactic in California that will become ever more effective if community-building religious schools are barred from participation. By restricting assistance to students currently enrolled in public schools, McGroarty's "pragmatic" approach risks losing the necessary support of private and home-school parents who know the benefits of choice firsthand and who provide the enthusiastic volunteers any successful campaign needs. Finally, by turning to the legislatures, McGroarty runs into the teeth of teachers' union strength. Facing union political action committee muscle, few lawmakers --even those in conservative and rural areas-- will tough it out for reform. President Clinton's controversial Goals 2000 bill --which would sidetrack parental choice-- has been put off until February. Grassroots opposition to Goals 2000 by thousands of reform-minded parents is helping to change the debate. This is no time to abandon them. = I N S I D E D C = THE HIDDEN SOCIAL-CONSERVATIVE MAJORITY by Gary L. Bauer Earlier this fall, the Family Research Council designed and conducted a poll to explore popular attitudes on questions of family life, government, and the relationship between them. We wanted to uncover some of the hidden dynamics that may have been at work in the 1992 election, and we hoped to find some surprises for people at all points along the spectrum of family issues. We think we succeeded. Allow me to share with you some of our findings. For openers, the liberal line that "the family is not declining, but merely changing" does not wash. Almost three quarters of Americans (72 percent) say that the changes that have taken place in family life over the past three decades "have been generally for the worse." Among the college-educated, this perception is shared by *91 percent.* There are also lessons here for political professionals, most of whom seem to share the media-generated notion that the reason the Republicans slumped in 1992 was that they were perceived as "intolerant" on family issues. The pros should relax --and re-tool. By a margin of 76 to 19 percent, Americans would rather live in a nation "that strongly upholds traditional family values" than in one "that is very tolerant of non-traditional lifestyles." This preference is even more marked among groups that the Republican party supposedly longs to entice: 86 percent of African- Americans and 81 percent of Hispanics preferred "tradition" over "tolerance" in our poll. Even those who described themselves as atheist or unchurched broke 58 to 31 percent in favor of tradition. Does this mean that libertarianism is dwindling among the American people? Not really. Asked to choose between "a state with lower taxes and fewer government services" and "a state with higher taxes and more government services," 61 percent go with the former. Americans are a savvy lot: They prefer traditional to non- traditional lifestyles, but they have also figured out that freedom, not government action, is the key to protecting traditional ways. Those who believe that institutional substitutes for traditional parenting are the wave of the future had better duck this wave: 89 percent of dual-earner, married couples --those with the biggest incentives to prefer day care-- believe, in fact, that "young children fare better when they are primarily cared for by their own parents." Support for radical education reform is also high, though our poll also shows support for divergent approaches. By percentages in the low sixties, government vouchers for private schools are favored by Catholics, Hispanics, and blacks, while Perot voters, middle-income professionals, and Protestants lean toward home-schooling, by slightly over 50 percent. Fortunately, many Americans --especially those with children at home-- support *both* reforms. The politician who becomes the champion of real educational reform will be one who manages to fuse these two wings of the reform constituency. For you political junkies, here's another interesting finding. Thirty-nine percent of the public --and 52 percent of Bush voters-- would be less likely to vote for a Republican president in 1996 if the GOP candidate favors abortion and homosexual rights. Only 13 percent say a socially liberal GOP candidate would make them "more likely to vote Republican." (Forty-one percent say it would make no difference.) Furthermore, despite Ross Perot's own liberal positions on the social issues, his followers display above-average objections to the idea of the GOP nominating a social liberal. So please put in perspective all those shallow analyses you hear that assume we are a nation of relativists with a tiny minority called "the religious right." The values that you and I stand for are very widely held in our society. Leaders who really grasp those values should be able to draw out and gel our latent social-conservative majority. * O N T H E H O R I Z O N * * New federal bioethics boards may appear soon. Clinton administration, via National Institutes of Health, reportedly planning to establish review board for fetal experimentation regulations. Current law (45 CFR 46) prohibits research on living fetuses, but *does not cover embryos before implantation.* In wake of much-hyped "cloning" at George Washington University, review board could exploit this loophole to fund experiments on living embryos. Review board could also lay groundwork for a National Medical Ethics Board, advocated by Sen. Ted Kennedy (D-MA), *to prescribe ethical standards for entire nation.* * New trend running toward *criminalizing domestic policy differences.* During 1980s, conservatives criticized liberal reliance on special prosecutors in Iran-Contra probe as "criminalizing foreign policy differences" with administration officials. New FACE bill and little-noticed provision of Clinton health proposal *aim now at private citizens and public dissent from liberal policies.* On FACE, pro-life efforts to exempt peaceful protest from harsh civil and criminal penalties were voted down on 18 November. On health care, Clinton plan would criminalize as "bribes" citizens' attempts to avoid waiting lists by using their own money for treatment. * Look for *upsurge in legislative activity against child sexual abuse.* Recent highly publicized abductions and accusations stoking public outrage. Amendment added to Clinton crime bill in Senate on 17 November applies U.S. child porn laws to production and trafficking overseas, * paralleling extension of U.S. anti-drug laws to overseas production* intended for our shores. International travel by U.S. citizens for purposes of having sex with anyone under age 16, *a staple of homosexual-oriented travel industry,* also facing new penalties. Crime bill faces House debate in 1994.