I’m glad to see that we can agree that Chief Justice Roberts and Justice Alito upheld First Amendment rights against overzealous regulation of political speech. In my view, however, the IRS restrictions on candidate endorsement are another example of “over-regulation of political ideas in the name of ‘good government.'” As Barry knows, the “election sermon” was quite common throughout the country from colonial times until 1954 when then-Senator Lyndon Johnson introduced an amendment that became law that barred tax-exempt groups, including churches, from participating in political activity. A legislative repeal of these provisions is needed to restore unbridled free speech to religious leaders of all faiths.

Regarding abortion, millions of Americans believe in the personhood of the unborn for a variety of moral, legal, religious, and scientific reasons. Since Barry raised the issue of the Bible’s discussion of the unborn, it should be noted that there are numerous Biblical passages that state that God creates and forms each person in their mother’s womb and that unborn children can sense and react to God’s presence. Regardless of one’s theological views, however, the key question remains whether the Ninth and Fourteenth Amendments provide a constitutional right to abortion that trumps legislative efforts to protect human dignity.

On a different note, ds0490 made the following comment in response to an earlier post: “I’m curious to know if Mr. Sekulow disagrees with the Court’s decision in Loving v. Virginia, Brown v. Board of Education, or Dred Scott v. Sanford. In the first two the Court ‘created’ rights and in the second it ‘honored’ the intent of Congress.” Here is my response:

Brown v. Board of Education and Loving v. Virginia were correctly decided. The Court did not create any new rights but simply upheld the right to be free from invidious racial discrimination expressly provided by the Constitution.

The Fourteenth Amendment, enacted shortly after the Civil War, states in relevant part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This provision was designed to ensure that state and local governments would not treat African-Americans less favorably than whites, thus denying them the “equal protection of the laws.”

In Brown v. Board of Education, 347 U.S. 483 (1954), the Court held that racially segregated public school systems “are inherently unequal” and violate the Equal Protection Clause. Id. at 495. The Court held that “the opportunity of an education . . . where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Id. at 493.

In Loving v. Virginia, 388 U.S. 1 (1967), the Court invalidated a law prohibiting inter-racial marriage, noting that such provisions “arose as an incident to slavery.” Id. at 6. The Court correctly noted that “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” Id. at 10. The Court applied the longstanding principle that “the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny.'” Id. at 11.

The Brown and Loving decisions recognized and applied the compelling interest in eradicating racial discrimination expressly stated in the Fourteenth Amendment.