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KEN BARTON: The Intolerance of Judicial Activism

SAN ANGELO, Texas — “They would suffer irreparable harm.” That is what federal Judge Fred Biery said would happen to members of the Schultz family if they attended their son’s graduation ceremony at Medina Valley ISD.

What was going to happen that would cause this harm? Were they threatened with violence? Were they going to be verbally accosted? Were there insufficient handicapped accommodations to allow them to view their son walking across the stage to receive his diploma? No, nothing like any of that.

Biery ruled that hearing other people pray would harm the Schultzes. Words not directed at them, but rather words directed to a supernatural being they do not believe exists would cause them harm.

It requires a degree of judicial imagination that exceeds the realm of reasonability to convince oneself that harm will occur in a situation where the potential for it does not exist. Of course, they wouldn’t be harmed. You know it, I know it, the Schultz family knows it and Judge Fred Biery knows it.

When his ruling is reviewed, it is plain that he ignored a concept that an eighth-grade civics student is expected to comprehend; there is nothing in the Constitution, written or implied, that protects a person from being in the presence of others who are exercising their rights under the First Amendment.

In essence, Biery circumvented Article V of the Constitution and amended it to include this right. Just in case you don’t know, that isn’t how it is supposed to work.

This is nothing more than world-class judicial activism. And for those who are unaware of what that means, a single human being has come to the conclusion that his personal views are more important than the law of the land.

And, contrary to what those who agree with Biery believe, he was not appointed to impose his personal views on the people under his jurisdiction. He was appointed to interpret the law as it exists.

We all see what is going on around us, in our state, in our nation and around the world. We are coming to recognize myriad threats to our sovereignty, our future and the future of freedom in general. It is, however, my humble opinion that the American people must come to recognize, and place the highest priority upon, the illegitimacy of judicial activism and its potential for detriment to our way of life.

Now, it certainly bears mentioning that on Friday, just in time for the graduation ceremony, a three-judge panel from the U.S. 5th Circuit Court of Appeals overturned Biery’s ruling. As a basis for their decision they declared the plaintiffs had not shown that the prayers were school-sponsored.

The prayers one hears at a public school commencement are part of the speech given by students who have earned the right to speak at the ceremony based on their academic performance. To tell them that they cannot offer a prayer as part of that speech violates not just the First Amendment itself, but also no less than two separate and individual rights protected by it — the right to the free exercise of religion and the right to free speech.

Many will say all’s well that ends well, and I, too, am glad that constitutional righteousness prevailed. But I, unlike so many others, am not willing to let it end there. This trend of judicial activism in defense of intolerance must be brought to an end.

The time has come for us to demand the U.S. Congress fulfill its obligation to us and review the “during good behavior” clause as it applies to federal judges. They must measure it against those who exploit their position and rule based on unsubstantiatable legal precedent as a means of imposing their personal views in place of an educated interpretation of the Constitution and previous legitimate rulings. Does, after all, ignoring the law, and the oath you swore, constitute good behavior?

In addition to the failure of those who have sworn to serve by upholding the Constitution above all else, there is another saddening trend marked by this incident. That is the ever-increasing level of retribution-inspired intolerance in this country.

We, as a nation, have a choice. We must look at ourselves in the mirror and ask if we, and more importantly our posterity, will be better served by vindictiveness and retribution. Or will giving as much tolerance as we expect, even when it strains our personal values, better enable our country to move forward productively, strengthening our sovereignty and ensuring the bright and prosperous future we all know we are capable of?

© by Ken Barton.  Published on IPR with the permission of the original author.

Ken Barton is a co-founder of the San Angelo Tea Party and vice chairman of the Libertarian Party of Tom Green County.  Contact him at


  1. AroundtheblockAFT AroundtheblockAFT June 14, 2011

    Very sensible sentiments. It would be one thing if the president of the School Board, or the principal, led a prayer as part of the agenda.
    Entirely different if the valedictorian wants to thank god for her good grades or opine that, as an atheist, she thanks only her teachers, her parents, and her own hard work.

  2. what a @#$%^ing mess! what a @#$%^ing mess! June 16, 2011

    If Barton is chair of the TGCLP, then they need a chair who actually is a libertarian and understands the First Amendment. To wit:

    To tell them that they cannot offer a prayer as part of that speech violates not just the First Amendment itself, but also no less than two separate and individual rights protected by it — the right to the free exercise of religion and the right to free speech.


    The problem with Barton’s argument is that it is well-established in law that a prayer offered at a public school graduation is considered to be sanctioned by the school and is therefore unconstitutional as a violation of the Establishment Clause. Judge Briery’s ruling was correct, and the 5th Appeals Court got it completely wrong.

    What Barton calls “judicial activism” was actually the correct application of the law, and the real judicial activism was at the 5th, who apparently have never bothered to read the binding rulings of Lee v. Weisman, Engel v. Vitale, Abington v. Schempp et al. which have said the opposite, that such prayers are unconstitutional.

    Barton’s “eighth-grade common sense” appears to be lacking, because as any eighth-grader knows, a student at a school function is in a coercive and captive audience situation, with loads of peer pressure, and that’s what the precedents are based on. He would have done good to actually have read them before he wrote this malarkey.

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