By Tom Strode
WASHINGTON (BP)--The U.S. Supreme Court should reverse lower-court decisions that struck down a ban on partial-birth abortion and rejected the Boy Scouts of America's prohibition against homosexual leaders, according to friend-of-the-court briefs signed onto by the Southern Baptist Ethics & Religious Liberty Commission.
The briefs were filed in cases that will be argued before the high court on successive days in late April.
In Stenberg v. Carhart, a brief written by the U.S. Catholic Conference and joined in by the ERLC contends the Eighth Circuit Court of Appeals erred in striking down Nebraska's ban on partial-birth abortion, a gruesome procedure performed on a nearly totally delivered baby. The oral arguments in the case will be April 25.
In Boy Scouts of America v. Dale, a brief authored by the American Center for Law and Justice and signed onto by the ERLC argues the New Jersey Supreme Court violated the First Amendment rights of the Boy Scouts by ruling the organization could not restrict a homosexual from being a troop leader. The case will be argued April 26.
"We are delighted to have the opportunity to express before the highest court in the land the grave concerns of the vast majority of Southern Baptists about both of these critically important issues to the future of our nation," said ERLC President Richard Land.
"In the case of partial-birth abortion, if our court system will not allow American citizens to restrict this particularly heinous form of infanticide, then we must either demand a change in those judges administering our judicial system or face the judgment of a righteous God on our society."
A crucial issue at stake in the Boy Scouts case "is whether or not private organizations will continue to be able to set the moral standards for those they would entrust with leadership positions," Land said. "Most Southern Baptists understand that what we allow a government entity, in this case the New Jersey Supreme Court, to do to the Boy Scouts today, they may very well try with religious organizations and even churches tomorrow.
"I know that the overwhelming majority of Southern Baptists join me in praying that God will convict our Supreme Court justices and guide them to the right decisions in these two cases -- the decisions that are argued for in these two superb briefs."
In the Boy Scouts case, James Dale challenged the organization's rule preventing him, as a homosexual, from becoming an assistant scoutmaster. The New Jersey high court ruled the prohibition violated the state's anti-discrimination law and ordered the Boy Scouts to accept Dale.
The brief contends the First Amendment protects the BSA's rights both to express its ideas and to "associate with others to advance shared values."
"The right to associate belongs to all expressive organizations, including the Boy Scouts, whose indisputable purpose is to produce character in young boys through the inculcation of traditional morals," the brief says. "Long before gay rights became a politically controversial issue, the Boy Scouts determined that a Scout leader should adhere to traditional sexual mores, i.e., that sexual expression is properly reserved to the marital relationship between a man and a woman."
The New Jersey court erred in failing to apply appropriately a 1995 opinion by the U.S. Supreme Court, the brief argues. In that decision, Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, the high court ruled Massachusetts could not use its anti-discrimination law to force the organizers of a St. Patrick's Day parade to permit a homosexual/bisexual group to march, even though the organizers had not articulated a clear message opposing homosexuality.
"Because Scouting's message is much more articulate than the parade's message in Hurley ... it is much more likely to be understood and therefore much more entitled to protection," the brief says.
It also argues eliminating discrimination against homosexuals is not a "compelling state interest" that surpasses the First Amendment rights of the Boy Scouts.
In the 1986 Bowers v. Hardwick opinion, the high court upheld a state's right to criminalize sodomy. "If, as Bowers establishes, states are free to criminalize homosexual conduct, then protecting homosexuals from discrimination cannot be a compelling state interest," the brief says. "[N]o federal court has ever held that homosexuals share the same protected status as women or ethnic and racial minorities.
"While New Jersey may choose to protect homosexuals from discrimination, nothing in federal constitutional law licenses the state to exalt that interest above every other value, including core First Amendment freedoms."
Also joining the ERLC on the brief by the ACLJ was Focus on the Family. The ERLC previously had signed onto an ACLJ brief asking the Supreme Court to review the New Jersey decision.
In the partial-birth abortion case, the Eighth Circuit struck down bans in not only Nebraska but Arkansas and Iowa as well in September. A month later, the Seventh Circuit upheld similar bans in Illinois and Wisconsin.
The procedure prohibited by the bans reached public awareness in the early 1990s and is typically performed in the fifth or sixth month of pregnancy. As practiced by some abortion doctors, it involves the delivery of an intact baby feet first until only the head is left in the birth canal. The doctor pierces the base of the baby's skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain. The collapse of the skull enables easier removal of the dead child.
The Catholic Conference brief endorsed by the ERLC argues the Nebraska ban does not conflict with Roe v. Wade, the 1973 ruling legalizing abortion, or any other Supreme Court decision affirming a right to abortion.
"Those decisions have involved the taking of a child's life in utero," the brief says. "Abortion that this court has held to be constitutionally protected has never been understood by the court or the public to include taking the life of a partly born child. The [partial-birth] procedure is more like infanticide than abortion.
"No member of this court -- in Roe, [Planned Parenthood v. Casey] or any other case -- has ever expressed an intent to apply Roe to partly born children."
The Constitution "does not require states to treat partly born children as non-persons," the brief contends. "At that stage when the child is neither fully in the womb nor fully delivered, there is nothing in the Constitution or in this court's decisions that would rob states of the discretion to vindicate their strong interest in protecting vulnerable human life."
The ban also furthers a state's interests in protecting human life and regulating and preserving the integrity of the medical profession, according to the brief.
The state "may reasonably conclude that killing a partly born child is a significant step toward, if it does not constitute, a form of infanticide and constitutionally may act to prevent such conduct as a bulwark against outright infanticide," the brief says.
"Surely this court would not conclude, for example, that a child fully born save for a foot or hand is beyond the legitimate power of the legislature to protect."
Others signing onto the U.S. Catholic Conference brief beside the ERLC were the National Association of Evangelicals, Lutheran Church-Missouri Synod, Greek Orthodox Archdiocese of America, Church of Jesus Christ of Latter-day Saints and the Nebraska Catholic Conference.
Used with permission.