Deadlock

On the other side, Ray Byrne looked as he always did in years past when religion cases came along. He would be on the losing side, and set to write another of his lengthy dissents. His face was set in anticipation, his pugnacious jaw thrust out.

For a moment that hung heavy and silent, Millie did not speak. She felt nerves exploding up and down her arms. She took a lingering sip of water.

Finally, she spoke. “The Establishment Clause says ‘Congress shall make no law respecting an establishment of religion.’ It seems to me we have to understand what that meant to the framers of the Constitution.”

She paused, flicking her eyes around the room. Already she could feel the thin tendrils of disquiet undulating from the moderates. She could understand the reason. No one had ever heard her say anything like this before. Going back to the framers’ intent was what a conservative judge would do. Indeed, Ray Byrne was leaning so far forward that his fighter’s chin almost touched the table. In keeping with tradition, however, no one interrupted her.

“I went back to some historical cases and materials,” Millie said. “I began with James Madison and Thomas Jefferson, worked up to our decision in Town of Pawlet v. Clark, from 1815, written by Chief Justice Marshall, and all the way to Zorach v. Clauson in 1952. You remember that Justice Douglas said there, ‘We are a religious people whose institutions presuppose a Supreme Being.’ ”

Justice Riley’s face was begi

Millie felt lightheaded. Was it hot in the room? No, the air was cool, the circulation perfect. But the future of the Court hung in the balance, and Millie held the deciding vote.

“What is clear to me now,” Millie said firmly, “is that the original intent of the Establishment Clause was to prevent the institution of a national church. It was to prevent coercion. James Madison so understood it. But the clause was never intended to take out the expression of religious sentiment from the public square. Therefore I must conclude that the state motto ‘With God All Things Are Possible’ does not violate the United States Constitution.”

Thomas Riley slapped the table with his open palm. A resounding whap bounced off the burnished walnut walls of the conference room. It was like a shot, the bullet ripping into Millie’s chest.

Byrne, on the other hand, had a smile as broad as his chest. If eyes could dance, his were doing a jig with full orchestra.

“I must say,” said Riley, his tone civil but cool, and undergirded by a smoldering intensity, “that this is a rather drastic departure from your previous Establishment Clause position.”

Millie nodded.

“Might I remind you,” Riley said, “that for you to take this stance you must renounce all your previous opinions on the subject?”

“Of course I understand that,” Millie said.

“May I ask for your reasons then?” Riley snapped.

“Certainly,” Millie said. “This is not a question that can be decided without looking at the original intent of the Establishment Clause. In 1798 John Adams said, ‘The Constitution is made only for a moral and religious people. It is wholly inadequate to the government of any other.’ Justice Douglas echoed that sentiment in 1952.”

“Yes, yes,” Riley said, “but Justice Black wrote about the wall of separation in 1947.”

“In Everson,” Millie countered, “relying on a phrase in an obscure letter from Jefferson. Erecting a view of establishment based on such minor dicta was not good Constitutional law. It does not even reflect what Jefferson really meant. That can only be discerned by what he actually did. As president, for example, he used federal money to build churches and sponsor Christian missionaries. He established religious requirements for the University of Virginia. He was not a strict separationist by any means.”

“It’s a policy that works,” Riley said.

“Tom, our Establishment Clause jurisprudence has been pretty messy. We all know that. Maybe the founders had it right. In any event, can you honestly say any of them would have objected to a state having the motto ‘With God All Things Are Possible’?”

Millie paused, and Riley smoldered. She had not seen him this way in years. It troubled her. But she had to continue. “I must hold that it is time to move back to the original understanding of the Establishment Clause.”

Justice Byrne, who had been hanging on every word, shook his head. “I never thought I’d say this in a religion case, but Chief Justice Hollander, I agree with you.”

For a protracted moment silence was heavy in the conference room. The other justices seemed too stu

“I want a break,” Riley said, standing. Before Millie could say anything he was heading for the door. He slammed it behind him.

All of the justices looked at each other. In ten years Millie had never seen a justice storm out of conference. Ever.

“Well,” Justice Byrne said, “this has been an interesting afternoon.”

2

Will God kick thinkin’ in the pants? Charlene Moore thought.

He would have to if she was going to win this argument. But she had truly left it to him. She no longer cared about wi

The judges – two men, one woman – sat like statues waiting for Charlene, as petitioner, to make her case.

“May it please the court,” she began, “I am Charlene Moore on behalf of the petitioner, Sarah Mae Sherman. We are here to ask for a reversal of the district court’s decision to – ”

“Counsel,” a judge interrupted. It was Foster Lucas, a Clinton appointee. “Isn’t the issue here one of changing the law? The district court judge, as I read the record, interpreted the statute. Are you here to tell us he was wrong?”

Bam. Right to the point. Charlene looked up from her carefully organized notes.

“We are saying he was wrong,” she said. “In interpreting the statute too strictly, the very intent of the law was frustrated.”

“And you can tell us the intent of the law?” Lucas said.

“Yes, Your Honor.”

“How, pray tell?”

Pray and tell, Charlene thought. “It is clear from the text itself what the intent is. The law means to protect pregnant women. That protection means nothing without full disclosure of all medical and psychological effects of a – ”

“Let me stop you there, Counsel,” said the woman. She was a Reagan judge, Deena Ly

“Your Honor, when a woman terminates a pregnancy, she is taking a life. She is – ”

“That is a religious statement,” Foster said. “It has no bearing on this issue.”

“I disagree, Your Honor. It is not a religious statement. It is a medical one. Despite how the fetus is characterized, all sides must agree we are dealing with a living thing.”

“But the question of humanity,” Foster said, “is one for philosophers or theologians. Not judges.”

“But the state of mind of Sarah Mae Sherman is the issue,” Charlene said. “She believes her baby existed at one point in time. Now, the baby does not exist. That has had a devastating impact on her because the respondents did not disclose all of the relevant information about fetal development. They should have, because it impacted her mental state. Thus, they violated the intent of the informed consent statute. That is why I am asking this court to remand this case for trial.”

And so it went for twenty more minutes. Charlene clearly read Foster. He was opposed to her position. Judge Caplin seemed conflicted. She was most troubled by the silence of the statute on the subject of psychological harm.