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The political and legal campaign for marriage equality rests on the proposition that the Constitution of the United States requires communal recognition of committed, same-sex relationships. The text, structure, and history of the amended Constitution, however, support precisely the opposite conclusion: i.e., that neither the United States nor any state may compel any community, association, or individual to affirm (by word, deed, or policy) the hotly disputed propositions about human sexuality that lie at the core of the debate. Nor can it plausibly be argued that any part of the Constitution requires any person, association, or polity to remain discreetly silent while progressive and LGBT positions on human sexuality become the new orthodoxy in public policy, lest dissent-openly expressed by word or deed-be taken as conclusive evidence of intolerance, lack of social sophistication, "homophobia," or actionable hostility.

The burden of this Essay is to argue that the conventional wisdom about the Court's resolution of the crisis of 1937 both begs the question of the Court's jurisdiction to prescribe substantive rules governing our rights,' and misses the point that history proves the Court unfit to be the sole repository of such a sweeping power. Part I will argue that the Founders' vision of a "compound" American republic was lost when the Supreme Court of the United States used the New Deal controversy over the limits of judicial review to accomplish one of the most far-reaching power grabs in the history of the Republic. Part II will discuss how erroneous assumptions about the prescriptive jurisdiction of the Court lead lawyers, judges, academics, and politicians to forget that the "crisis of 1937" was about neither "values" nor "political participation." It was about power. They therefore miss Madison's point: No branch of government can be trusted with preemptive power to define our rights and duties. Parts III and IV argue that the Supreme Court's post-New Deal vision of the role of the political branches in the struggle for human dignity and equal rights is too weak, and that it has done great harm to the body politic each time it has attempted to settle a difficult political and moral issue by striking what appears, at the time, to be a "balance" between otherwise irreconcilable world-views. From this perspective, the Rehnquist Court serves the cause of civil rights each time it reaffirms the "compound" nature of our republic by forcing a political solution. The Essay concludes by making three points about the Realpolitik of footnote four. The first is that it should come as no surprise that politicians are sometimes either unable or unwilling to protect the liberty, security, and equal rights of each person. The Court does not do so either. Footnote four and the text it accompanies hold that the type and degree of protection owed by the Justices themselves to the litigants who appear before them varies in inverse proportion to the Court's perception of their social status or need. The second is that when politicians and judges take the oath of office prescribed by Article VI, each of them undertakes the same sacred duty to the "whole person" embodied in each individual subject to their political jurisdiction. The oath-like the Constitution they are sworn to "support and defend"-is neither selective nor abstract. Its stated goal is the equal protection of the whole person and citizen, not disembodied "values," abstract liberties, or factional interests. The third point follows from the first two. Like the framers of the Fourteenth Amendment, FDR attacked the Court because he believed that it had taken sides in what he called the "unending struggle between those who would preserve this original broad understanding of the Constitution as a layman's instrument of government and those who would shrivel the Constitution into a lawyer's contract." Until the Court accepts the proposition that a judiciary perceived for any reason to be biased or otherwise "activist" contributes to the destruction of the fabric of republican self-government envisioned in Federalist 51, it is pointless to decry the increasingly vitriolic tenor of the rhetoric surrounding judicial decisions and nominations. "In the compound republic of America," it is the threat that "different governments will control each other" that provides the guarantee that "at the same time. each will be controlled by itself."

Given the importance of Loving in American constitutional law, we were somewhat surprised to learn that no commemorative conferences or symposia had been planned to mark the thirtieth anniversary of the decision. We designed our conference, "Law and the Politics of Marriage: Loving v. Virginia After 30 Years," to fill that gap. The conference was held at The Catholic University of America's Columbus School of Law, 19-21 November 1997, and was co-sponsored by three institutions, each having a unique and abiding interest in the subject matter: The Catholic University of America, the Howard University School of Law, and the J. Reuben Clark School of Law at Brigham Young University. The goal of the conference, and of the papers it encouraged, was to explore the implications of the Loving decision for Mr. and Mrs. Loving, for the United States in the late 1960s, and for American family and constitutional law today and in the future. This issue of the Catholic University Law Review contains some of the papers presented at that conference. Others are printed in Volume 12 of the Brigham Young University Journal of Public Law, and Volume 41 of the Howard University Law Journal. Read together, they shed considerable light on the history, significance, and contemporary understanding of the Court's decision in Loving.

Taken as a whole, the Roman Catholic Bishops' 1983 pastoral letter on war and peace, "The Challenge of Peace, God's Promise, and Our Response"' has two purposes: first, to assist Catholics in the formation of their consciences; and, second, to contribute to the ongoing public policy debate concerning the morality of war in general, and of nuclear war in particular. This article will address the stated purposes of and the suggestions made in the pastoral letter from the vantage point of American statutory and constitutional law. It will make no attempt to provide definitive legal answers to the many questions raised by and in the letter, for there are none in this complex and challenging area of law. Its purpose is to raise some of the practical legal and moral questions which are critical to the conscientious choices of the individuals to whom the letter is addressed: government officials, citizens, members of the armed services, workers in defense industries, clergy and religious and others.

Part One : Think like the founders. Religious liberty --Rolling back rule by judges, or just how supreme is the Supreme Court? --Judges are human too, or bigotry from the bench --A note about tolerance, or the stick with which they beat us --The intolerance of those advocating tolerance, or religious freedom slipping away --Part two : The playbook : terms, strategy, and tactics. Strategy and tactics for legislators, or how to protect ourselves through the power of the purse --Legislation and the art of the possible, or a to-do list for legislators --Special tactics for legislators in the individual states --Tactics for citizens --You must understand how things work in order to work effectively for change, or Civics 101 --Stick to your principles and get involved, or Reagan proved that conservatives can win --Let's vote --The building block of American politics : the precinct, or all politics is local.

The issue of religion in contemporary life is marked by three major related problems, one is the perennial struggle to choose between God and Mammon, another is the struggle to broaden the horizons of one's concerns beyond self to God, a third is the manner of relating one's own religious commitment to that of others. As foundational decisions for life, they must be faced in every effort at modernization and indeed in all deeply human accomplishments. ; https://scholarship.law.edu/fac_books/1026/thumbnail.jpg

A panel, at the National Lawyers Convention, discussed procedure as it relates to First Amendment rights. The panel set forth how First Amendment procedures have historically protected First Amendment substance and discussed modern applications of the issue. For example, the prior restraint doctrine, overbreadth doctrine, the allocation of the burden of proof and relaxation of ripeness rules have important implications for challenging restrictions on speech and defending against libel and defamation. The interaction of free speech and due process is often seen in litigation involving civil harassment orders, or civil protection orders. In many jurisidictions the definition of harassment permits the finding that harassment can be based solely on speech, meaning speech itself can provide a basis for liabilty. In addition, speech may be restricted as a remedy in litigation addressing harassment. Investigations of wrongdoing in the realm of campaign finance law and political speech cases can also have serious implications for speech, both reputational and legal. Further cases involving political speech and campaign finance once exclusively litigated in the civil arena, are now the subject of criminal investigations and prosecutions. This is particularly problematic where many issues in this area remain unsettled. Good lawyering is particularly important in First Amendment cases. Ineffective assistance of counsel can be considered as great an evil in First Amendment cases as in criminal cases. Unfortunately, practicing lawyers often do not understand the process by which constitutional facts are pleaded and proved in First Amendment cases and this problem begins with the way Constitutional Law 101 is taught in law schools. In proving facts in First Amendment litigation the question becomes how does the government prove its justification of a restriction on speech or how does one opposing the government's restriction on speech respond when the government asserts certain interests as being their justification. In First Amendment litigation the government often relies on legislative facts – newspaper reports, television stories, and criminal cases discussed in the media, arguably the government should be obligated to present more than rumors and speculation.