Date: Fri Nov 14 18:22:48 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: Legal Opinions
At 02:15 PM 11/14/97 0600, you wrote:
I hope you are having a good day. If you are, I hope I don't ruin it.
Thanks. Took a three hour nap yesterday. Much refreshed today. Ruin today? Nope, just got to switch gears again.
First, you did an incomplete job. You only used supporting example cases back to 1962 (Engle v. Vitale). Using these, you certainly did a good job of proving (the point that you apparently set out to prove) that prayer had no Constitutional place in schools. Your research and application of these cases was very good. However, the problem I had with your work was that you (apparently intentionally) omitted any case reference prior to 1962. You certainly know, if you listened to the David Barton tape, that court cases up through about 1947 were decidedly in favor of religious freedom and religious expression (regardless of ones official capacity).
The job wasn't incomplete. I began with the precedent applicable to the issue at hand. The law has been quite settled since 1962.
I've not listened to Barton's tape, but I presume from what you say that it's similar to Gov. James 36 page missive to Judge DeMent that the establishment clause doesn't apply to the states through the 14th amendment, which I *have* read. Now what that argument does, which by itself is perfectly acceptable, is seek to have the court revisit the underpinnings of 30 years of precedent, to show that the underlying rationale for the cases decided since 1962, was misguided. If you want to see 30 yrs. of precedent overturned, that's fine, and you're welcome to invite the Supreme Court to revisit its thinking.
But going back before 1962 was irrelevant for purposes of the memo, because I was asked to discuss what the law was, not second guess the doctrinal basis of 30 years of law. For example, in discussing the equal protection clause, why should I discuss Plessy v. Ferguson, where the Supreme Court said separate but equal is OK, when the starting point for modern precedent is Brown v. Board of Education?
Second, as the Assistant Attorney General responding to questions from the Attorney General, you were unprofessional. If I understand that position, you should answer questions honestly, thoroughly, and without personal bias. You didn't. You really only gave a part answer, the part with which you agreed. If I'd been the AG, you'd have been fired.
And if you'd done that, you'd be in for even more trouble than you know (and not from me), for your ass would be in court from the ACLU in a heartbeat and you'd be paying their attorneys fees out the wazzoo, if you didn't follow my advice. My job is to give my client the best advice about the state of law and the best arguments in favor of change should they seek to change it. I would be a bad lawyer indeed if I allowed by own personal or political agenda to influence the objective legal advice I give. I was not asked what arguments could be made to change 30 years of precedent. I was asked whether a change in the fact scenario was a valid distinction. It was not. If I was asked to tender a suggestion for modifying precedent, I'd not have offered a suggestion on the basis that has been suggested recently -- that we revisit the doctrine of selective incorporation and whether the 14th amendment actually applies the 1st amendment to the states. We'd be laughed out of court. I suspect it's the basis of Barton's tape. It's not an argument that will fly, and you'll find that the present attorney general agrees with my assessment of that as well. That's why he wrote Judge DeMent a letter saying the Gov. does not speak for the AG's office on that issue.
Third, your Opinions reflected your personal bias, prejudice, and agenda. I found them consistent with the dialog we've had on the topic. You didn't include a disclaimer stating that these were your personal opinions. I understand that you agree with the contemporary renderings by the courts, but as the front page should be free of the bias and opinion of the reporter, so should such important documents be free personal opinion and bias. I guess I understand how such an opportunity (to advance your agenda) would be hard to pass up. This encroaches on the standard of ethics.
They were not merely my personal opinions, and no disclaimer was required. They were and are the law of the land as interpreted for the last 30 years. After submitting those documents, then AG Don Siegelman dissatisfied with my analysis went to another lawyer, a Yale graduate and Rhodes Scholar. Her opinion was that I'd said it all, and she had nothing to add. She's a US Magistrate now, BTW. My legal opinions *should* be consistent with the dialog we've had so far, but not because of "my agenda." I've already acknowledged recently that my personal opinions happen to agree with legal precedent, and for that reason it's often difficult to discuss the former without sounding "legal."
You're confusing the idea that you *want* the law to be different with what it actually is, you *want* it to be different than I've described in the memos, based on the suggestions of people like Barton. But their ideas are not precedent, they do not reflect the law, and they will not reflect the law at any time in the near future absent a constitutional amendment.
I will let pass your suggestion that my ethics are due to be questioned. It is precisely what I was referring to some emails back that when people agree with my legal analysis they say I'm brilliant, and when they disagree with the result I've reached, they suggest I have a conflict of interest and question by ethics, integrity and professional objectivity. You can't make a personal thing out of this and impugn my professional integrity simply because you disagree with my legal conclusions. Dispute my analysis if you want. Show how I'm leaving out cases that are relevant (i.e., binding today) or misquoting precedent if you can. You haven't done that, neither have Judge Moore's lawyers.
I'll admit though that I couldn't pass up the opportunity though to write those memos. There are enough lawyers out there that tell their clients what they want to hear, as opposed to what the law is. I'm not in that category, never will be. There you had the chief law officer of the state looking for an opportunity to do a little political grandstanding and court the "conservative" vote. Take it from me, I was there, and I know the players. You think Siegelman cares about prayer? All he cared about was telling the voters what they wanted to hear so they'd run him for governor. What I was after was keeping the state out of a lawsuit we were doomed to lose. You may disagree, but I think that's what good lawyers who are "ethical" are supposed to do. In fact, it's one of the biggest reasons my profession is in such disrepute today, because they don't. And I'm unethical for not encouraging a legal position that is doomed to failure?
Fourth, the Opinions sounded like they had been written by a prosecuting ACLU attorney. (For me, I found nothing really new in them, except about the Folmer incident.) ACLU literature says the same thing. (Surely, your are not a covert ACLU plant!)
The ACLU doesn't really know who I am, although some of the "left" lawyers who represent them do. A plant? Naaahh... I'm just doing my bid for justice by being a part of the system as opposed to an adversary to it. Sure the ACLU and I say a lot of the same thing. Because the arguments that have been offered in counterpoint to it are disingenuous, legally so. They mis-cite binding precedent, they are historically revisionist, the list goes on. It may be hard for you to separate the personality of the ACLU with their legal arguments, but it's not for me. When they're wrong, I say so, and have said so. When they're ever right, will you say so?
You asked what I thought of them. The above is the naked honesty of myopinion, without the emotions that go with them. My great concern, after reading them, is that perhaps too many people with anti-Christian bias are in positions of public trust, and using their positions to advance their agenda.
It's just not as simple as saying I'm anti-Christian. You don't even speak for most Christians, but a small recently vocal minority of them. Did you see what the Baptists said in their publication this week? Do you consider them anti-Christian now? Is anybody and everybody that disagrees with you on the subject of religion in government anti-Christian? What about all the other religions that believe in Christ but disagree with Judge Moore? You want to play martyr, that's your business, but I'm not buying it amigo.
The dichotomy for me is that I have grown to admire and respect (personally and professionally) the guy who wrote those opinions. I admire and value his intellect, his skills, his savvy, ideas, his insights, and his friendship. How do I resolve the conflict??
You "resolve" the conflict by accepting the duality. If there is so much to respect and admire, how can you forego all that based on politics? Can you not agree to disagree on the question of religion in government and still admire and respect me? Or must you reject everything else I have to offer simply because we do not share the same God? I think that is what you are telling me, and I won't accept that. I'd have written you off a long time ago.
I tell myself that in 1989, he really didn't know what the whole story was; therefore, he was doing the best, most professional job he could, at that time. Not only do I think he has learned (more of the real story) since, but he is still learning (and open to learning). It is because I (want to) believe the latter statement to be true, that I invest so much time in trying to help you learn and understand, to see the issue from another perspective. You have political potential. No telling where you'll serve in elective office, if you so choose. Our friendship notwithstanding, I couldn't vote for you (as much as I'd like to otherwise), as long as you held to your hard line anti-Christian attitudes, especially after seeing how they colored your professional work. We talked about knowing one's prejudices and not allowing them to affect how we did our jobs. Your Opinions are perfect examples of what should not be allowed to happen. One might conclude that although writing in your "official capacity," it was reflective of your "individual capacity." And I think my tax money is being used, not to promote religion, but to work counter to the religious freedoms that I hold dear. I resent that.
I dunno. I've addressed most of what you've said earlier. I do not think the role of government is to invite divisiveness among the governed. The role of government is to engender respect for the rule of law, to reinforce the belief that we are a nation of laws and not of men. That I say government has no role in religion does not mean I'm anti-Christian, and that is what you must learn to reconcile and resolve. Or do you really believe the world would be a better place without me?
BTW, did you hear that our tax money is being used to send government personnel to gatherings of homosexuals, that some of them speak at these functions? Regardless of what we individually think of homosexuals and their lifestyles, this should raise your legal and personal (taxpayer) ire. Please don't give me the "you're intolerant" response.
I don't know how you can say "Regardless of what we individually think..." and then tell me what you individually think. I don't have the facts on whatever issue you're referring to. I know though you'd not like what I individually think on the topics of homosexuality and homophobia. We can go there if you want to, but it's your call.
When one looks at all the things that the government (with our tax money is promoting without protest from the left, such as pornography through the National Endowment for the Arts), the real intent and agenda of those using the "with my tax money" tack becomes quite evident. That argument is not well received by Christians when opponents of (Christian) religious expression use it. Try to refrain from that argument. There are lots of things that I don't agree with that the government is using my tax money to promote. They cover the spectrum from support of the UN to the operation and tactics of internal bureaucracies such as the EPA and BATF, just to name a few. The point is, the government is using my tax money in ways of which I do not approve.
Yes, but you can't intermingle things that the Supreme Court has held for 30 years are protected by the Constitution with things that are clearly political in nature, like the expenditure of funds for military purposes or sending public officials to gay pride parades (I'm making that up). The persistent error in your reasoning is that the first amendment is not a matter of politics and majority wins. You'll never "win" a legal discussion or convince the left wing on the religion issue so long as you make appeals to "majority rules." Because the basis of its protections for people like me is to be protected from the strong arm of the majority. I've explained it many times. That you don't accept it or agree with it doesn't mean I'm anti-Christian; it means that you need to find a different approach, because you're mixing apples and oranges. Why is it necessary to demonize me?
Aside from the ballot box and the written word, I have little recourse. (I forgot to mention those ridiculous kilometer marker signs that have magically sprung up along our roadways (thanks to the Alabama Highway Department) at the cost to us taxpayers of $85 each.)
The ballot box *is* your recourse. That's the way our government was set up. The federal judicial branch was designed to be independent of the political forces that influence the executive and legislative branches. Don't like the appointed judges in the federal courts? Elect presidents who'll nominate and senators who'll confirm judges that share your legal philosophy. If the judges persist on taking views contrary to what you predicted they'd do when they were appointed (based on their political background as in the case of DeMent), then seek to have the law changed, at the ballot box, when they don't rule your way on statutes. Don't like the judge's interpretation of the constitution? Amend it, at the ballot box. Welcome to America.
Once again, I hope my comments didn't upset you. I didn't mean to personally offend you. The overarching objective in giving you my opinion of your work was one of constructive criticism.
Not offended. Bear in mind that the memos were sent to give you a discourse on the state of the law at the time they were written. Some background on the legal arguments. Try not personalize my legal opinions if you can. It gets in the way of actually grappling with the legal hurdles that are in front of you on the issues. The best thing about the www.Christiananswers.net site you sent me is their "unconfirmed quotes" page, because it's honest and acknowledges that the rhetoric that's been thrown around about founding fathers' original intent is subject to academic challenge. Work on being more like that.
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