Monday, November 03, 2003

Ignorant of the Law

Ms. Turoff treats many people who appear before the Arizona Commission on Appellate Court Appointments with much less kindness and courtesy than I allow in the following column. The editor chose the headline; I wouldn't have called her a zealot but rather would have used the more technically-correct term, Wacko. As-appeared-in-newspaper version here.

Church and State

East Valley Tribune, Nov. 2, 2003

You’ve heard how “ignorance of the law is no excuse?” It means people can’t avoid the consequences of their actions by claiming that they didn’t understand the law.

You probably think legal ignorance might disqualify somebody from sitting on the state commission that nominates potential judges. But this being Arizona, you’d be wrong.

In her letter last month to the Jewish News of Greater Phoenix, Carol Nichols Turoff, a member of the Arizona Commission on Appellate Court Appointments, displayed her inexcusable legal ignorance. Turoff joined the debate over the Alabama judge who installed a large Ten Commandments monument in the Alabama Supreme Court building:

“The so-called separation of church and state does not exist in our Constitution. However, it is alive and well within the ACLU and among tolerance advocates. Today, we tolerate everything. Everything that is, except Bible-based religion, which Judaism certainly is, and upon which this country was founded.

The prohibition in the establishment clause of the First Amendment is against a state-endorsed religion, not religion itself. Hence, presidents take their oaths of office with a hand upon the Bible, and Congress opens daily sessions with a prayer.”

There’s so much wrong in those two paragraphs that it’s hard to figure where to start. First, while the words “separation of church and state” aren’t found in the Constitution, neither (as I’ve noted before) is the phrase “presumption of innocence.” Nonetheless, Congress or a state legislature couldn’t constitutionally decide to fight more efficiently by making defendants have to establish innocence rather than the prosecution having to prove guilt.

The concept of judicial review isn’t in the Constitution, either. This mindlessly literal reading of the document went out of style with Marbury v. Madison, and since 1803 has been used only by charlatans preying on the ignorant.

Second, the legality of the Ten Commandments monument in Alabama is settled, over, and final. Federal District Judge Myron Thompson found this taxpayer-funded religious display illegal, which decision was upheld by the U.S. Court of Appeals, which decision the U.S. Supreme Court declined to review. It’s a final judgment of a competent court (and, as Rick and Sharon Cohen noted, not of the ACLU or “tolerance advocates”).

Turoff may think that decision was wrong, but it’s the law, and she needs to accept it. But if she gets to pick which judicial decisions she can decide to reject, then I have a teensy problem with Bush v. Gore. Tell me when it’s my turn.

Third, the oath of office and congressional prayer examples aren’t particularly good for Turoff’s argument. Courts have upheld such customs because they are secular in practice, as essentially social or historical artifacts. In other words, those ceremonies are acceptable because nobody treats them seriously as prayer. But Turoff wants the Ten Commandments monument as a religious symbol. By using these historical customs to justify religious ceremonies, Turoff’s given the game away.

Finally, what does “Bible-based religion” really mean? I guess Hindus, Buddhists, and Moslems don’t count now. How long until Jews aren’t useful to these zealots, too?

If Turoff wants to run for elective office, or propose Constitutional amendments to authorize taxpayer-subsidized religious displays that suit her taste, she’s free to do so. But her opinions about the law aren’t merely vigorous, they’re flat-out wrong. Somebody that determinedly mistaken in her views shouldn’t be deciding who gets to be a judge.

When Turoff became a member of the commission, she took an oath to uphold the U.S. Constitution and the Arizona Constitution -- which contains an even broader establishment clause. She’s violating that oath, and has no business on the commission. If she doesn’t resign, she should be impeached.

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