Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (First Amendment, United States Constitution)

On its face a literalist would say that symbolic speech is not protected by the First Amendment because it is not spoken speech. The First Amendment says that “Congress shall make no law… abridging the freedom of speech” yet today any reasonable person would believe and argue that speech is so much more than just verbal communication. This is the reason that symbolic speech is so difficult to define and narrow; because speech in today’s context it is so much more than it was fifty years ago let alone two hundred years ago. Another thing that makes symbolic speech such a difficult topic for the Court to define and rule on is because symbolic speech encompasses more than just the constitutional issue of “speech”. Often times symbolic speech comes tandem to topics like free association, assembly, religion, and press. The breadth of complexity that the topic of symbolic speech brings to the table is overwhelming. Yet we rely on a Court of nine jurists to define, restrain, and set precedent for what speech and symbolic speech encompass. Speech is more than just spoken words, speech is something that, the Court, has defined as something that you posses that makes an expression without Government restraint. Over time the Court has had to define, restrict, prohibit, recorrect, and expand what the meaning and definition and scope of symbolic speech. The Court has come to make a distinction between verbal speech and symbolic speech but also has ruled that symbolic speech is protected under the First Amendment and is considered to be speech. Because of this complexity and the breadth of this topic, this essay will critically analyze the Courts interpretation of the First Amendment in the area of symbolic speech and I will clearly demonstrate how the Court has changed its interpretation of what is protected and unprotected public speech in regards to time and political factors by analyzing the majority and dissenting opinions of the Court

According to the Cornel Law School Legal Information Institute, the first case Thornhill v. Alabama which was decided in 1940 was about the case of local union leader who was arrested and subsequently convicted under Alabama law even though he was peacefully protesting and under an authorized strike due to the prosecutor’s charge of loitering. The Trial Courts allowed him to be convicted by the Alabama statute and then appealed to the Supreme Court believing that his right to peacefully assemble, his right to free speech, and his right for a redress of grievance had not been properly afforded to him. The case was argued February 29, 1940 and was decided with Justice Murphy delivering the majority opinion of the Court on April 22, 1940. Murphy writes about the case

The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern, without previous restraint or fear of subsequent punishment (Thornhill v. Alabama, Majority Opinion, Cornell University Legal Information Institute)

What Murphy and the Court had decided here was the fact that protesting, assembling, and striking are a form of speech and thus given the same protection under the First Amendment. The Court ruled that speech is more than just a verbal expression; speech can also be an action.  The Court found that the Alabama Law was invalid on its face (Majority Opinion) and was subject to be repealed by the High Court. What Thornhill v. Alabama did was it created a precedent that speech was an integral part of the rest of the First Amendment.

The second case that involved symbolic speech is that of the United States v. O’Brien. O’Brien, which is a much more controversial case than that of Thornhill, involves a young man who burned his draft card a symbol of his dissent from the War in Vietnam. David O’Brien burned his selective service card in protest of the Vietnam War in front of a Courthouse in Boston where he was arrested by the an F.B.I. agent.  O’Brien argued that it was his right to burn his draft card and appealed his conviction the Supreme Court. Chief Justice Earl Warren and the majority opinion ruled that this time O’Brien’s burning of the draft card was not covered by the First Amendment. Writing in his majority opinion Warren says “[on O’Brien’s arugement] We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea” (United States v. O’Brien, Majority Opinion, Cornell Law School Legal Information Institute), meaning that the Warren Court believes that not all unlimited forms of “speech” can be protected under the law. Furthermore Warren writes:

This Court has held that, when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.. (United States v. O’Brien, Majority Opinion, Cornell University Law School Legal Information Institute)

Warren, not necessarily breaking from precedent, establishes the ruling of “this” court by arguing that when non speech and speech elements are combined there is a threshold in which the government can regulate speech if there is a compelling interest by the government in that regulation.  The opinion continues to define how to determine those interests. The opinion continues:

To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling;  substantial; subordinating; paramount; cogent;  strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O’Brien can be constitutionally convicted for violating it..  (United States v. O’Brien Majority Opinion, Cornell Law School Legal Information Institute)

According to Warren and the Court the government in order to regulate speech must meet certain descriptive words such as “compelling, substantial, subordinating, paramount, cogent, and strong” (United States v. O’Brien, Majority Opinion, Cornell Law School Legal Information Institute) in reference to determining whether or not the Court has an interest. Warren further writes that Government in this case meets those standards and the fact that this case the Government was not purposefully (or as Warren puts it, unrelated to) the abridging of the First Amendment. The Court argues that the government has a clear interest in raising an Army for its national defense and that interest is not, in purpose or related to, abridging a person’s freedom of speech.  The Court believed that O’Brien did not have the right to burn his draft card because the draft card was a part of the legitimate and substantial administrative need for the selective service system. Warren writes “The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system” (United States v. O’Brien, Majority Opinion, Cornell Law School Legal Information Institute). The Court said that in this case the government has a narrow and specific interest in limiting this form of “symbolic speech”. However in this decision there was one who did dissent from the majority and it was Justice William Douglas. In his dissent Douglas believes that the United States Government has a compelling interest to maintain the national defense in a time of war and when congress has declared it to be a time of war. The problem with the O’Brien case in his opinion is that the United States had not declared war on Vietnam. Because they failed to declare war on Vietnam Douglas said that Congress failed to show a narrowly tailored interest. Although I disagree with the Courts decision in United States v. O’Brien, I believe that I would have concurred with the Majority in this case due to the time and the place of O’Brien. When the case was argued before the Supreme Court in 1968 the United States was in the heart of the Vietnam War. At the time the Court was well aware of the immense political pressure of the time and also the Court saw the possibility of mass pandemonium if they ruled in favor of O’Brien. This reflects the same political pressure that the Court experienced when dealing with Thornhill. In 1940 one could only imagine the consequence of what would have happened if the Court would have ruled against a union striking at the onset of World War II and on the heels of the great depression. These are prime examples of how the Court tries to give every appearance of impartiality and reclusiveness to politics but bends, understands, and empathizes with the political atmosphere of the time. The Court in all of its decisions is not only divided on ideology (e.g., Strict Constructionist v. Activist or Liberal v. Conservative) but often times divided by political activism and opinion as well.

            Almost immediately following the O’Brien case was Tinker v. Des Moines Independent Community School District (Tinker v. Des Moines) was another symbolic speech in the time of the Vietnam War. A student John Tinker organized students at the Des Moines public schools to wear a black arm band in protest of the Vietnam War.  The Des Moines Schools Administration suspended Tinker, his sister, and friend Christopher Eckhardt. The students did not sue until the Iowa Civil Liberties Union offered to pay for the law suit and together they sued in Federal Court. One of the interesting points in this case law is during the appellate process the first appeals court was tied in their decision and therefore unable to offer an opinion or ruling, causing the family to appeal directly to the Supreme Court. The Court ruled in favor of Tinker saying that the arm band was a symbolic symbol and therefore was protected by the First Amendment. Justice Abe Fortas brought the majority opinion saying:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
 (Tinker v. Des Moines Independent Community School District, Majority Opinion, Cornell Law School Legal Information Institute).

The Court ruled that students and teachers alike are still afforded the same rights and priviledges that other members of society posses regardless of where they are employed (in this case a public school).  Fortas also made the argument that the protest was peaceful and did not abridge, hinder, or disrupt the daily functioning of the schools. He also mentioned the fact that a small group of students were wearing the arm bands in protest but yet only the Tinkers and Mr. Eckhardt were suspended.  In his dissent Justice Hugo Black, believed that the Court was becoming too powerful and was overstepping its bounds my accepting the case. He wrote in his opening that he believed that the power to “control” students was just transferred to the Supreme Court. He also was skeptical of the Courts protection of political speech of a student in kindergarten.

            The fourth case and a landmark decision in the symbolic speech case law is that of Texas v. Johnson and is, arguably, the most controversial of the symbolic speech case law. The circumstances surrounding the Texas v. Johnson case involves Gregory Lee Johnson who in 1984 outside of the Republican National Convention in protest of the Regan Administration decided in protest to burn the American flag. In Texas, along with 48 other states, had laws that prohibited the desecration of the American flag. Johnson was subsequently arrested and charged under Texas Law and sentenced to one year in prison with a fine. Johnson with the help of the American Civil Liberties Union appealed to the Supreme Court based on their interpretation that burning the American flag is a form of symbolic speech and is therefore protected by the First Amendment. The Court chose to hear the case and decided it June 21^st 1989. William Brennan and the Majority ruled that Johnson was entitled to burn the flag while Chief Justice Rehnquist delivered the dissent. Brennan writes:

Johnson was convicted of flag desecration for burning the flag, rather than for uttering insulting words. This fact somewhat complicates our consideration of his conviction under the First Amendment….The First Amendment literally forbids the abridgment only of “speech,” but we have long recognized that its protection does not end at the spoken or written word (Texas v. Johnson Majority Opinion, Cornell Law School Legal Information Institute.)

This case was one of the most difficult cases that had come before the Court in decades because of the strong emotional and political ties to the case. The question that the Court must answer became “is this considered speech?” The State argued that it had a prevailing interest in “preserving the flag as a symbol of national unity” and “preventing breaches of the peace” Brennan argues that the flag was in no immediate danger of being stripped of its symbolic nature and further more he cited the Texas Criminal Court of Appeals in their interpretation of the law affirm their position as:

[A] government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent. (Texas Court of Appeals Summary, Cornell Legal Information Institute)

Brennan also criticized the States argument that it had an interest in preserving the peace by strongly rebuking the Dallas Police by saying that Johnson alone was arrested and not the group of protesters with Johnson who had been breaking pots and plants and rioting. Rather Johnson was singled out by the Dallas Police for arrest because of his actions. Because of this conclusion Brennan along with the majority found that the Texas law was on its face unconstitutional due to its vagueness and broadness. Brennan further makes the argument that not all activity rendered unto the flag should be considered speech or constitutional however Brennan argues that every case should be looked at individually. In the summation of his opinion Brennan writes “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” (Texas v. Johnson, Majority Opinion, Cornell Law School Legal Information Institute). Chief Justice William Rehnquist brought the dissenting opinion of the Court. Throughout the dissent the Chief Justice argues that “… The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation” (Texas v. Johnson, Dissenting Opinion, Cornell Law School Legal Information Institute) Rehnquist believes that the flag is non political and should be protected by the law. He writes again in his dissent “I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag” (Texas v. Johnson, Dissenting Opinion, Cornell Legal Information Institute). He also argues that in Halter v. Nebraska the Court decided that it was constitutional for the state of Nebraska to use the American Flag in advertisements or marketing campaign, where he makes the argument that the Court has thrown precedence out the window. Furthermore Rehnquist cites Chaplinksy v. New Hampshire where a unanimous Court ruled that anything “[it is unlawful if it is..] offensive, derisive or annoying word to any person who is lawfully in any street or other public place” saying that Johnson violated the Chaplinsky test and his conviction is therefore lawful.

            Symbolic speech has been one of the most controversial issues facing the 20^th and 21^st century Supreme Court. The Supreme Court has changed, reversed, upheld, and put in place new precedents and standards for future Courts, but as we have seen throughout the Courts history the fact that some Supreme Courts choose not to follow precedents rather creating their own. It will be interesting to see how the Court handles symbolic speech now that there so many different medians of communication.

The road to the establishment of the right to privacy in the context of a woman’s right to choose an abortion begins with the establishment of the right to privacy. The Ninth Amendment reminds us that there are certain rights that have not been exhausted in the Constitution yet are retained and reserved to the people.  One of such right, which has never been expressly given but which is assumed, is the right to privacy in one’s life. The right to privacy is the foundation of civil liberties and civil rights; it is the right to be free from government scrutiny in one’s personal life. Although never formally expressed for almost two hundred years, it was not until 1928 with Olmstead v. United States that the issue of privacy became a constitutional issue.

        Olmstead v. United States centers on the Fourth and Fifth Amendments. Olmstead was a petty criminal involved with a small racketeering scam in the early 1920’s. The newly formed Federal Bureau of Investigations (FBI) began to record phone conversations between Olmstead and his racketeering partners, with Olmsted making use of a public phone booth. After collecting all the information and ample evidence of a crime, the FBI arrested Olmstead and he was found guilty at trial. Olmstead and his attorney appealed, saying that the wiretapping was illegal because Olmstead was entitled to privacy in a phone conversation and, secondly, that the wiretapping was without a warrant. The FBI argued that because it was public telephone there was not a “right to privacy” and therefore there was no legal obligation to get a warrant. The appeal went all the way to the Supreme Court where, in a decision written by Chief Justice William Howard Taft, the Court found that, although there certainly is an inferred right to privacy within the constitution in the case of Olmstead, the FBI was within its rights to wiretap a public phone booth. As well, the court found that there is not necessarily a right to privacy in a public place. Taft said although the Fourth and Fifth Amendments have an inherent right to privacy in the context of self-incrimination, the law in this instance did not afford Olmstead the right to privacy because of the public nature of the offense, as it took place at a public phone booth, and the Supreme Court upheld his conviction.  In his vigorous dissent, Justice Brandeis scolded the Mr. Chief Justice, saying that the reason for the Fourth and Fifth Amendments was to protect individuals from a tyrannical government.  He rebuked the FBI for not following the Constitution by not securing a proper warrant against Mr. Olmstead.  Brandeis writes:

“Unjustified search and seizure violates the Fourth Amendment, whatever the character of the paper; whether the paper when taken by the federal officers was in the home, in an office, or elsewhere; whether the taking was effected by force, by fraud, or in the orderly process of a court’s procedure. From these decisions, it follows necessarily that the Amendment is violated by the officer’s reading the paper without a physical seizure, without his even touching it, and that use, in any criminal proceeding, of the contents of the paper so examined — as where they are testified to by a federal officer who thus saw the document, or where, through knowledge so obtained, a copy has been procured elsewhere — any such use constitutes a violation of the Fifth Amendment” (Dissenting Opinion, Justice Brandeis, Olmstead v. United States)

Later in the dissent, Brandeis argues that the protection provided to individuals by the Fourth and Fifth Amendments is even broader than what the Founders intended. Although Olmstead was convicted and sentenced to prison, both the dissent and the majority opinion affirmed the existence of a certain right to privacy. Brandeis’s infamous dissent in Olmstead v. United States became the bedrock foundation for the eventual overturning of warrantless wiretaps in the 1967 case of Katz v. United States. 

            The issue of privacy was an essential part of the Warren Court throughout the 1960’s. Two landmark cases, Mapp v. Ohio and Griswold v. Connecticut, helped shape the foundation, legal reasoning and justification, and the constitutional interpretation that made Roe v. Wade possible.  Mapp v. Ohio concerned a woman from Cleveland, Ohio who was accused of harboring a criminal in her house. The Cleveland Police attempted twice to enter the house unlawfully, in which Ms. Mapp denied them access. However, the Police finally forcibly entered the house with what they called a “warrant”.  The Police when unable to find the alleged fugitive then arrested Ms. Mapp for possessing “obscene” material. At trial, Mapp was convicted and sentenced to prison. Her attorney appealed the decision based on a fundamental issue: that when arresting Mapp the police failed to provide a warrant. Therefore, all the obscene material they had collected, though unlawful, was inadmissible evidence in court because it had been seized unlawfully, thereby violating the Fourth Amendment. In their 6-3 decision, the Court created a legal term called the “Exclusionary Rule”. The Exclusionary Rule is a rule that police must follow when searching someone’s possessions or property. The rule states that any material that is collected without a warrant or seized without just cause is inadmissible in court. Although one of the landmark cases in Constitutional criminal procedure, this ruling and precedent inadvertently also helped shape an inferred right to privacy.  In the majority opinion, Justice Clark writes:

The right to privacy, no less important than any other right carefully and particularly reserved to the people, would stand in marked contrast to all other rights declared as “basic to a free society.” (Majority Opinion, Justice Clark, Mapp v. Ohio)

Justice Clark and the majority of the Supreme Court believed that the right to privacy is a fundamental right to a free society. 

Following Mapp v. Ohio and the creation of the Exclusionary Rule, the Court was once again faced with the issue of warrantless wiretaps. In Katz v. United States, the FBI was caught wiretapping, without a warrant, a public telephone conversation involving a bookkeeper, Charles Katz, who was known for gambling. Katz was arrested and convicted based on the wiretap that the FBI had obtained from a phone conversation Katz had engaged in with one of his gambling partners.  Katz appealed the conviction based on the belief that, because the wiretaps were without warrant, they were inadmissible in court and therefore his conviction should be overturned. In an 8-1 decision, the Supreme Court overturned Olmestead v. United States and affirmed that a citizen has the right to privacy in ordinary circumstances. In his opinion, Justice Stewart said: “the Fourth Amendment is designed to protect people, not places”, but that:

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. (Majority Opinion, Justice Stewart, Katz v. United States)

What Justice Stewart means is that there are things that a citizen may wish to preserve as private and which are, therefore, granted constitutional protection. In the case of Charles Katz, this included his conversation.

Just a few years after Katz v. United States, the United States Supreme Court faced another landmark decision in Griswold v. Connecticut. The State of Connecticut had a law that prevented the selling and possession of birth control. Estelle Griswold, the Chief Executive Director for Planned Parenthood in Connecticut, along with Dr. Lee Braxton, a local physician, sued the State of Connecticut, claiming that the law encroached on their right to privacy as guaranteed by both the Ninth and Fourteenth Amendments. In three separate opinions, Justices Douglas, Goldberg, and Harlan defended the Court’s 7-2 decision, striking down the Connecticut law. In Justice William O. Douglas’ famous opinion, he argued that there are in the Constitution a number of instances where a right to privacy, although not explicit, is implied, guaranteed, and protected. An example is the right to free association, which is guaranteed in the First Amendment.  Douglas also spends the majority of his opinion identifying in each amendment how there is an implied right to privacy, such as the Third Amendment, which guarantees the right of an individual to deny soldiers quarter in his or her home. Together, the Fourth and Fifth Amendments provide a sense of privacy in one’s possessions and due process.  Douglas writes in his opinion:

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Majority Opinion, Justice Douglas, Griswold v. Connecticut)

Douglas believed that the Connecticut law was overly broad and therefore encroached upon (“invaded”) an area of protected freedom. Douglas believed that such a law, which goes as far as forbidding contraceptives, cannot be affirmed by the Court because of its contradiction to a free state.  Douglas’s famous opinion brought the legal term “zone of privacy”, which has been used in many later cases as a strong legal precedence and almost as an official test of the Court.  The Zone of Privacy are certain areas and liberties that are of off limits by the government.

            Justice Goldberg, in his opinion, adds to the affirmation of unconstitutionality by saying

I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted, and that it embraces the right of marital privacy, though that right is not mentioned explicitly in the Constitution, is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment. (Concurring Opinion, Justice Goldberg, Griswold v. Connecticut).

Goldberg believed that a right to privacy existed because of the Ninth Amendment’s existence and interpretation about how there are rights that are not yet enumerated in the Constitution. Goldberg writes,

While the Ninth Amendment — and indeed the entire Bill of Rights — originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. (Concurring Opinion, Justice Goldberg, Griswold v. Connecticut)
 Goldberg also goes onto say that “… the right of privacy is a fundamental personal right”.  Griswold v. Connecticut is particularly important because this is the first case in Supreme Court history where the “right to privacy” was directly and expressly addressed. And not only was the right to privacy directly and explicitly addressed, but the Court upheld and affirmed it.

            With the right to privacy affirmed by the Court through its interpretation of the First, Third, Fourth, Fifth, Sixth and Ninth Amendments, a widespread call arose in judicial politics for strict constructionalist or literalist interpreting of the Constitution. A literalist/ constructionalist believes that one should interpret the constitutional literally without regard to current political or social contexts and certainty without any “reading between the lines”. The verdict in Griswold v. Connecticut caused a lot of stir because of its affirmation of a right that was not expressly given in the Constitution it was labeled, especially by conservatives, as judicial activism or legislating from the bench.  It is my opinion that taking a literalist or strict constructionalist point of view and interpretation of the constitution is a foolish and dangerous position to take. A literalist takes and interprets the constitution on face value without regard to time or circumstances. This is a foolish interpretation to take because the Founding Fathers themselves put safe guards and protection into place to specifically guard against this ideology, for example the Ninth Amendment. There is also no way that the authors and ratifiers of the Constitution could have imagined the great complexities that our government and world now faces. The Strict Constructionalist point of view centers around the intent of the founders. This is a dangerous ideology because it views the Constitution as a holy or divinely inspired document.  It is foolish to believe that one can fully know or understand the true intent of each word of the Constitution and having a Strict Constructionalist point of view only fuels imagination and mysticism. 

            The debate over judicial activism v. strict constructionalism came to a head in the case of Roe v. Wade. The case of Roe v. Wade began in the state of Texas with the unintentional pregnancy of Norma McCorvey. McCorvey first tried to have a legal abortion by falsifying that she was raped. After that failed, Ms. McCorvey tried to seek out an illegal abortion. However, her attorneys convinced her to file a lawsuit. In the suit McCorvey, who used the legal pseudo-name of Jane Roe, claimed that she had the right to privacy when choosing important medical decisions, in this case being abortion. McCorvey said that her Ninth and Fourteenth Amendment rights were violated by Texas la, being as it only allowed abortions to occur in the circumstance of either death to the mother and/or rape.  In a decisive 7-2 decision, the Court upheld that a woman has the right to choose an abortion up until the fetus is found “viable”. The Court upheld that a fetus is viable once it has the potential ability to “live outside the mothers womb”. The Court upheld this time as being twenty-eight weeks (seven months) into pregnancy. The Court also struck down the Texas law that stated life begins at the moment of conception, with Justice Blackmun writing

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception… It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live’ birth.  (Majority Opinion, Justice Blackmun, Roe v. Wade)

Blackmun’s brilliance in legal theory and thought allowed the Texan standard that “personhood begins at the moment of conception” to be struck down in a brilliant legal maneuver that also excused the Court from defining when life did begin (unlike what many pro-lifers believe) by writing           

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. (Majority Opinion, Justice Blackmun, Roe v. Wade)

With this opinion, the Court ruled that the Ninth Amendment does allow an explicit right to privacy even though it might not explicitly say so. In the majority opinion, Justice Blackmun believed that an abortion is innately a medical procedure and not a criminal act, which means that it should not only be protected by the Ninth and Fourteenth Amendments but also by the Hippocratic Oath.  Although Roe v. Wade allowed abortion, there is a greater legal question that occurred before the Court. Had Roe v. Wade been turned down in subsequent litigation / lawmaking, a greater evil would have occurred, that evil being an encroaching government dictating to woman (and men) what they can and cannot do with there own bodies. Such a move would forever ruin doctor patient confidentiality, which is pertinent to proper and informed medical care. The unforeseen consequences of Roe being overturned would be absolute zero doctor-patient confidentiality in a person’s sexual/medical history. 

            Although I agree with Roe v. Wade and I believe in a fundamental right to privacy, many people do not fully understand the legal reasoning behind the Roe decision. The reason that taking a holistic understanding of the constitution is of fundamental importance in cases like Roe v. Wade, is that it shows that privacy exists in every area of our life as citizens. So why not in a woman’s medical choices? It is extremely important to take a holistic view because it shows the consistency and evolution of the Court in terms of understanding how privacy intersects with our individual liberty. In no less than four landmark decision pre Roe, the Supreme Court has upheld both general and specific rights to privacy. To have overturned or reversed (in later litigation), the Roe decision would have gone in the face of nearly a century of legal reasoning and precedent and would have been illogical of the Court. The unintentional consequences of reversing or denying the Roe decision would have eroded our civil liberties and other rights to privacy.

            Roe v. Wade is about more than just a woman’s right to choose an abortion. Roe v. Wade is about the right of individuals to be free from an encroaching and overreaching government, as well as being allowed privacy in all medical decisions–not just an abortion. Roe v. Wade joins other landmark cases in affirming a citizen’s right to both due process and to privacy. The right to privacy is one of the few issues before the Court where it has consistently been affirmed as a right protected by the Constitution.

Skins is about a group of teenagers, led by “Tony” (James Newman) in a pursuit of self pleasure and the American cultural experience. Sex always at the forefront is coupled with drug use and profanity. In the first episode of Skins Tony tries to get his best friend “Stanley” laid. The episode from a cinematic and writers standpoint was flawless – one subplot which will carry to the next episode, the beginnings of  a few minor subplots that will eventually become themes, humor and good writing, and the resolution of the episodes main problem – by the way, Tony fails.

Now, with Skins there has been a lot of controversy which to me, is rightfully so. It’s raw, raunchy, profane, and craven at best. It deserves to be publically debated. It deserves to be evaluated but what it doesn’t deserve is to be cancelled or censored.

The reason that I love Skins and love shows like Skins is simply because its honest (there are more but this is the most important). The show depicts, again embellished, what is the average pursuit of teenagers and young adults: pleasure. We all, in the deepest parts of our soul, want to be like Tony. Tony is confident, sexy, cool, the leader, and the “person with the most fun”. He sleeps with women, does drugs, has guys and girls follow him around like he’s a god (for evangelical Christians, please notice I used the little “g”) and he lives life with no consequences. In our own craven humanity we are all jealous of Tony. Skins brings out what humanity truly is: craven and focused on self.  The show brings a fresh and dynamic look into what is really happening in our culture – for good or for bad.

Skins can serve to be America’s Degrassi if we let it. Degrassi is a Canadian television show for young teenagers, I would argue Middle School thru 9^th Grade. It’s aired in Canada for more than two decades (countless season and I believe, four or five spin offs) and it has been a show marred by controversy and criticism. Degrassi tackled issues like: abortion, homosexuality, interracial dating, drug use, school shootings, handicap issues, death, suicide, and more. Let me just say this: those things are not going away. But we hide them. Skins can serve as the beginning of a dialogue about these issues. It’s so provocative that you can’t help but talk about these issues. From what I’ve read in the media the show plans on tackling a lot of these issues.

While I wouldn’t ever watch this my parents or siblings, I think that watching Skins can serve as a resource for what is going on today in teen and young adult subculture. The more shows that we have to confront these issues and opens the taboo market on them, I believe the better.

To all those who want to protest and cancel this show, I say don’t. I need this show and I love this show. But more importantly, we need a show (and not a Chris Hansen Dateline special) that will begin to talk about these issues. While you’re watching Modern Family, the Office, or Community – these issues are happening all around you and they deserve attention. Besides, for the sake of hedonism: you deserve this guilty pleasure right?

Watch the first episode here:

http://www.mtv.com/shows/skins/video.jhtml?filter=fulleps

Written by: Sam Weisgarber

On Sunday May 31 2009 a man named George Tiller was murdered outside of his Wichita Church.  George Tiller was one of three doctors in the United States that would perform extremely late term abortions (more than likely until you had the baby). He was murdered no doubt because of this practice and no doubt by a strong abortion opponent. Within hours of the killing “Right to Life” and “NARAL” released similar statements condemning the violence and especially “Right to Life” saying that they believe in peaceful protests.

Do we murder someone who we believe is a murderer? Do two wrongs equal a right? Now the abortion debate has been hurled back into the spotlight and taken center stage in a country that voted for a left of center President who just announced his first nominee to the Supreme Court. It will be interesting over the next few weeks to observe how this murder will influence legislation and political debate dealing with abortion.

One of the toughest things for me is the topic of abortion. I must admit on the surface there is no reconciliation between being a man of faith and being a man of progressive ideology when it comes to the specific topic of abortion. With that I have had over the past three years hundreds of conversations and debates that have inspired me to write this brief manifesto about how I have come to reconcile my belief in a woman’s right to choose and my belief that God is the author, creator and sustainer of life. The journey in finding a peaceful biblical harmony has been one of constant prayer and study and that I am completely confident in as a Christian.

I have been attacked, confronted, encouraged, and supported for my beliefs about a women’s right to choose, specifically in regards of how it affects my Christian faith. First and foremost I believe God is the author and creator of life and He alone is responsible for its creation and He alone sustains it by his sovereign grace and will. I also believe that it is a fundamental right of the individual to choose privacy (AKA I believe in a women’s right to choose). For many these are contrary statements and coming from a Baptist Church heritage has led to some pretty intense debates with some individuals (see my facebook page for reference).

This next blog posting will outline how I have reconciled my beliefs and how I am unashamedly a Christian who is Pro-Choice. This will be a longer blog posting but I encourage you to read it and comment on it.  I love debate and commentary and revel in intellectual discussion and disagreement.

Regardless of religious or political affiliation the abortion debate comes down to one central issues: when does human life begin? To me it is important to distinguish the difference between human life and just “life”. If someone says he’s pro –life (in all terms) then why does he eat meat? To me it’s illogical to say that “all life is sacred and should be protected and that by killing life you’re committing murder” and then turn around and order a 21 oz steak from a restaurant. Rather you must distinguish that you are pro-human life and say that “human life is sacred and should be protected”.

Why? Because we as humans are apart of the Animal Kingdom, we as a human race have a Kingdom, Phylum, Order, Genus, Specie ect… that make up our physical traits – its why I never argue against someone who brings up the point about our we’re only 1% different genetically from a chimp. However we are separate from the Animal Kingdom in three unique fashions:

• We have the ability to reason and to think critically
• We have the ability to Choose
• We have a soul and eternal destiny

It is why God made us the rulers over creation and all of its inhabitants.  It is truly what separates us from the rest of the Animal Kingdom.  It’s those three simple things when combined that set us apart from our animal brethren.

So the question is when does Human life begin? Now before you right wing Christians get all hot and bothered and ready to fight – let me preempt this by saying again (in case you didn’t catch it or read it above) – I believe that God alone is the author, creator and sustainer of life (humans, animals, and plants included), however that does not mean I believe that human life begins at the moment of conception. Many people say God say’s life begins at the moment of conception and the truth of the matter is – he doesn’t. In fact there is only one instance of God creating life himself.

You can look all throughout the Bible and if you, like I do, hold to the Authorized 1611 King James Version of the Bible, you can in your infinite wisdom, type in the word “conception” and navigate a dozen or so scripture verses which lays the foundation, in my belief, as this: human life comes from conception. Which we know is scientifically true. Again science is not anti-faith, science proves what the Bible has been teaching all along. The idea of saying “science is a godless study” is a ridiculous notion and something I’ll save for another blog post. However whenever you study these “conception” verses out what it doesn’t say nor does it give reference to is this: human life is at the moment of conception.

This is a very important distinction. It’s like out of bread comes dough. Is the dough bread itself? No. It must be transformed to become bread. You wouldn’t eat dough and say – what wonderful piece of  bread you would say (in all likelihood) “gross”. Much like that when a sperm meets an egg it starts the animalistic traits of life and over time and transformation God forms it to become life. When the cell splits for the first time it begins laying the foundation of life (the dough) and out of that dough through transformation and development it becomes life or a full loaf of bread.

Now if you are a true Bible Scholar you will bring up the “fearfully and wonderfully made” or the “I knew thee in thy mothers womb” or “I knew thee before I formed thee in the belly” verses – I firmly believe this. I do not argue that God forms life. But what these verses do not say is that God creates human life at the moment of conception nor does it even give any regard to the notion of conception at all. In fact, if I dare make the claim, it supports my belief that God is the author, creator, and sustainer of life and that life doesn’t necessarily begin at the moment of conception (you’ll see why below).

Another argument that you’re probably forming in your intelligent mind is the fact that at the moment of conception our eye color, weight, height, sexual orientation, and other physical characteristics are chosen. Again a valid point – but these are our animal characteristics all of these deal our physical or emotional nature nothing to do with our three things that separate us as humans from the rest of the animal population, as I’m sure that you’ve noticed animals have things like eyes, legs, a weight and height and emotions.

Genesis 2 and 3 are the only chapters in the ENTIRE cannon of scripture that tell of God creating human life. When we discover what God does in creating human life – I believe we find the answer to “when life begins?” In Genesis 2 and 3 God creates Adam by forming his BODY first from the dust of the earth. He forms Adams physical features – his eyes, height, weight, his hair ect.. and then after all of that was completed  he gave Adam the breath of life (life being our soul, ability to reason and choose).  By Gods example he forms the body first and then gives life to a dead shell of a body. So when and where does our body form? In the womb and over time! Where God is forming, creating, and authoring our life.

Could it be so audacious that we would be the same 6,000 years later? That our human body (our animal characteristics) could be formed before we’re given our human nature (our ability to reason, to choose, and the fact that we have a soul)? I think we find a very valid answer.  This would give a lot of comfort for those who have miscarried in the notion that they didn’t loose a child they simply lost the shell of a child. Then the question of “is a fetus or womb baby innocent?” can be completely disregarded, because it had yet to take its sinful human nature and therefore not sinful nor eternally destined to heaven or hell. It also answers much of the question of “Why would God do this [let my baby die] to me?”. It would help the struggling husband or boyfriend comfort his helpless wife.

So the question then becomes when in the gestation period does human life truly begin. I believe personally its when our heart and brain fully form – which from what research I’ve done – begins towards the beginning of the second trimester.

My belief about Abortion:

• I firmly believe that every woman’s right to privacy should be protected until the second to last week of the second trimester. During the first trimester and up until the first day of the second to last week of the second trimester a women has a right to terminate the pregnancy with or without reason or notification to the husband.

• Absolutely no tax payer funded abortions – unless like people choose to give money to the national election funds choose to, provide as part of their taxes, money to perform abortions.

• Absolutely no abortions performed after the second to last week of the second trimester unless the doctor or spouse or carrier believes that their life is being threatened.

• All children (18 and below) must have parental consent before having an abortion.

• Doctors have the absolute right to refuse to perform an abortion unless obligated to save the mothers life.

• That the United States Government should provide educational resources and practical resources to reduce the number of unwanted pregnancies by providing free condoms and birth control for people 16 and above and 15 and below with a parents/ guardians permission.

• Parents should take an active role in the formation of their child’s sexual education. Teaching them, whatever they believe about the subject, but most importantly teaching them simply to be responsible.

• That we should do what we can to streamline and accelerate the adoption process and to reform the abuse and red tape in Child Services.

Beyond this some people believe that our country has been built on the Bible and that all of our founding fathers were fundamental bible believing God fearing Christians. Furthermore some people believe that our country should be run as a theocracy.

Most of our founding fathers were indeed Deists, who acknowledged a higher power but didn’t recognize the God of Christianity as the single God. Many of our founding fathers were atheists and agnostics. However one thing is clear: our country was not founded on the Bible rather by European philosophers of centuries before. Those who would propagate the founding fathers as a bunch of evangelical Christians who read their Bibles and led them to approve the Constitution are simply liars.

To those who would believe that our country would be better as a theocracy: do you not remember why the Pilgrims left England? Or the Crusades? Inquisitions? Anytime religion has been given power there has been gross abuse of it. We say how terrible Islamic countries are for having a religion run a state but yet in the next sentence talk about how you only vote for God fearing conservative Christian republicans – can you say Pharisee (aka Hypocrite)? America would be no different. I mean look at what the Republican Party (which is the base of the Christian Right; albeit not all republicans represent this) stands for: their anti equality in marriage rights, civil rights, or working rights.  They’re against the middle and lower class – thinking that they deserve what they get because they’re all lazy, poor and stupid. They’re against giving people the fundamental right of healthcare and education and are the epitome of elitism.

The Call to Social Justice:

How’s this for social justice – instead of protesting or marching in Washington D.C. or on the steps of your state capitol or writing a check to Right to Life or whatever else the pro life people like to do – why don’t you funnel your resources into protecting the human life (that God finds just as precious) that’s already here by taking an active approach against poverty, hunger, child labor abuse, human trafficking, and fighting disease? What if all the money that was used to pay lobbyists and t-shirt designers, and giving to politicians would find its way to the people who desperately need help out of their circumstances and help break the cycle of injustice around the world?

To me it’s a disservice and an embarrassment to God and his Church that Christians will give 10% of their money to organizations like Right to Life and not give a hoot about the homeless man they pass everyday on their way to work. They won’t give a minute of their day to speak or to pray for a person whom they know needs their help. I believe God is embarrassed by Christians who talk so much about the need to protect and defend human life and say that “giving everyone health care is socialist” (and we all know that God is a capitalist and hates communism; and Gods favorite colors are Red, White, and Blue and that God loves America and Americans and no one else) or that by helping people and states out in difficult times is plot to undermine democracy. In a faith that calls us to die to ourselves and our rights – Christians are some of the most obnoxious and greedy peoples on the face of the planet. So many Christians are bent on this notion of capitalism and building their wealth and kingdom because it’s the Christian thing – I disagree. The Christian thing to do would to make your money and give generously to people around you and pledge your allegiance to the Kingdom of God.

Why don’t we, as Christians and as the Church, finally step up and do something about the things we know God is passionate about: truth, justice, and mercy.  Instead of picketing, screaming, and protesting – why don’t we truly become pro human life and fight poverty, hunger, disease, child labor abuse, and human trafficking. Lets make a difference in the world by being Christians who catch the true heart of God the heart that cares about the poor, the hungry, sick, outcast and broken.

If you have read this in its entirety – thank you – please comment.

Also sometime this week, I’ll be publishing my essay “A Pro Choice Manifesto from a Christian Perspective: A Reasonable Response to the Pro Life Christian Right”

i was really asleep

Norm Coleman is a good moderate Senator. He’s a republican and in a year that didn’t go well for the GOP Norm Coleman very well could be a rally point if he indeed overturns the Al Franken victory. Although I support Al Franken and I hope the Supreme Court affirms the election, I’m don’t agree with either one challenging it any further by filing a law suit in Federal Court. 

The people of Minnesota deserve to have their fair representation in Congress and Norm Coleman, if he looses, needs to bow out gracefully and in 2012 or 2014 gear up for another run or  focus perhaps on a more national scale (I would be very pleased in Norm Coleman was a candidate for the presidency in 2012). Norm Coleman owes it to the Minnesota people to take the loss and not to embarrass himself or the GOP any further. 

I hope Al Franken wins. Al Franken is perhaps on of the most dangerous people for the GOP because he’s both extremely intelligent and funny. I would enjoy seeing him debate Lindsay Graham or John McCain on the Senator floor. Al Franken will provide, in my humble opinion, the comic and common sense relief that Washington D.C. needs right now.

But today their Minister of Music stood before the Congregation and introduced a “new song” – A Mighty Fortress is Our God by Martin Luther written in 1529 AD. By new he meant that Northwest Bible Church had never sung it in recent history. Surprised by this I was even more shocked that my friend who attended with me had never even heard the song before!

“A Mighty Fortress is Our God” was the anthem that Martin Luther wrote in absolute defiance of the Roman Catholic Church and in the defense of his reformation and break away from the “Church”. This song was sung my Moravian Missionaries who sold themselves into slavery, by Christian Martyrs, and was dubbed the “Battle Hymn of the Reformation”. The song was a catalyst for those who heard it on both sides of the isle and it was a song that forever changed the course of history and repainted religious history.

Yet in the 21st century a song that was held dear by Brothers and Sisters, a song that has its heritage stained in the blood of the Martyrs has fallen into obscurity. In a day and age where churches throw out the words “contemporary”, “dynamic”, “modern”, or my favorite “relevant” when describing their worship services, we have forgotten songs like “A Mighty Fortress is Our God”. I’m not against contemporary or modern music – and quiet frankly as Perry Noble (A modern Christian Pastor to whom I respect a great deal) said “No one goes out and buys organ music to worship to these days – so why are there still organs in the church” I tend to agree that the Church must grow with culture and the times – but at the same time I believe that we shouldn’t forget songs that have inspired generations to the work and ministry of the Gospel. 

One of the major criticism that I have of modern contemporary worship music is the notion of copyrights and royalties. Albeit Chris Tomlin, Matt Redman, and Hillsong United are fantastic worship leaders/musicians/ writers it doesn’t negate the fact that they make a profit from their music and that in part (however small they might say) inspires them to write more songs – not just because they want to please God but rather they want to make a living. Martin Luther never got a royalty or copyright for his song, yet he wrote it and distributed it – he wrote it out of a passion to see people worship God in a different level – he wrote it to encourage and comfort his persecuted brethren and he wrote to simply honor God.

And isn’t that [ doing things simply to honor God ] the most important thing that we can do? Shouldn’t we be motivated to worship and serve God with all of our hearts, soul, mind and strength? Not to make a quick dollar or because its “relevant” or “fits my needs” because when has God ever conformed to what we want – we’re to conform to what he wants.

For those of you, who like my friend and the many probably today at Northwest Bible Church, who have never heard the song “A Mighty Fortress is our God” here are the lyrics, read the depth and passion behind these words written almost 400 years go and perhaps be inspired and encouraged to continue in the faithful work and ministry of Jesus Christ -

A Mighty Fortress is our God
Martin Luther, Germany 1529

A mighty fortress is our God, a bulwark never failing;
Our helper He, amid the flood of mortal ills prevailing:
For still our ancient foe doth seek to work us woe;
His craft and power are great, and, armed with cruel hate,
On earth is not his equal.

Did we in our own strength confide, our striving would be losing;
Were not the right Man on our side, the Man of God’s own choosing:
Dost ask who that may be? Christ Jesus, it is He;
Lord Sabaoth, His Name, from age to age the same,
And He must win the battle.

And though this world, with devils filled, should threaten to undo us,
We will not fear, for God hath willed His truth to triumph through us:
The Prince of Darkness grim, we tremble not for him;
His rage we can endure, for lo, his doom is sure,
One little word shall fell him.

That word above all earthly powers, no thanks to them, abideth;
The Spirit and the gifts are ours through Him Who with us sideth:
Let goods and kindred go, this mortal life also;
The body they may kill: God’s truth abideth still,
His kingdom is forever.