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Conservapedia:Legal Errors on Conservapedia

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Legal Errors on Conservapedia[edit]

This commentary is a dissertation on legal errors on Conservapedia. Andrew Schlafly (a Harvard Law School Graduate) is responsible for many of these misrepresentations. Users with expertise on the law should feel free to contribute.

Legal Errors on Conservapedia

The following are some interpretations of law found in Conservapedia:

Law in the Real World

What follow are carefully cited statements on the actual American law:

1[edit]

Court documents - such as the holdings of the Supreme Court - are not binding law. Rather, they are "opinion," or, unsourced, untrustworthy, and inexpert statements on the state of the world. They are not to be trusted, and their findings of fact are not to be stated. See here and here.

1[edit]

Courts obviously sit in judgment of the law. However, they also sit in judgment of facts. Every day, judges and juries hear testimony and expert witnesses in cases, and decide which factset is most accurate. The landmark case Brown v. Board of Education rested largely on a determination of psychological facts of the harm of segregation: without a judgment on these facts, the holding of Brown falls apart. Certainly, courts can improperly make determinations of fact. However... so can anyone. The rigorous testimony and close scrutiny to which facts are subjected at trial actually make judges superb factfinders.

This may alarm creationists, whose pet projects have all been ruled as "fake science" by courts of the United States (most recently in Kitzmiller). But, closing your eyes and saying "no" doesn't make the validity of the ruling disappear.

Further to the point, court decisions represent binding law. Their findings of fact, whether or not accurate, represent the status of American law until reconsidered, which occurs precious few times (see Casey v. Planned Parenthood). Court decisions are often titled as the "Opinion of the Court": this is not a statement as to the merit of the decision, as mere "opinion." Rather, it is a legal nicety with no further implication.

Court decisions are law. Period. They are also, more often than not, factual decisions arrived at through strict and careful scrutiny. To dispense with them as "opinion" is to fail to understand the way the law actually works. But, that's what we've come to expect from Andy.

2[edit]

Andrew Schlafly asserts that stereotyping women, and forbidding them from joining a military academy on the basis of such stereotype, is constitutionally permissible and in line with American values, and considers Supreme Court precedent to the contrary to be the musings of an activist judge.

2[edit]

Courts of this country have long held that the 14th Amendment protects women from being pigeonholed into roles assigned to them by stereotype, or by society (see e.g. Reed v. Reed). Often, women will have a real difference that makes gender cognizable at law (see generally Michael M. v. Superior Court), but a societal determination of the worth or aptitude of the entire gender is an invalid basis for lawmaking. U.S. v. Virginia stated this clearly, analogizing from Brown v. Board of Education that, just as blacks must be entitled to equal education as whites, so must women be entitled to the same education as men. Separate, in most cases, will not be equal for women, as a matter of law.

Unlike many questions of constitutional law, this is a settled issue. Aside from being a settled judicial issue, it is also a settled legislative issue: Congress expressed its concordance with the Court by passing Title VII in the 1970s. Suggesting stereotyping women's abilities is legal is so legally wrong as to constitute wishful thinking at the very least.

3[edit]

Andrew Schlafly suggests here that the Fourteenth Amendment's passage, controversial at the time of its passage, is still controversial. He also suggests that the Amendment (remember, we're talking about the Fourteenth Amendment) has been used to "invent" new rights, such as the "separation of church and state."

3[edit]

Although the article on the Fourteenth Amendment should clear most of this up, while the Fourteenth Amendment may have been controversial at its passage, the debate on this subject is wholly academic, and not practical. Although many conservatives may wish that the Fourteenth Amendment had not been written, its due process guarantees have been effectively used to preserve many essential elements of daily life from state intrusion, something that classical, Reagan conservatives actually favor. In addition, it guarantees racial equality in many ways, but certainly has its limits: the amendment is far from "runaway" (see, e.g., Grutter v. Bollinger). The removal of the Fourteenth Amendment, in a very real way, would no longer be possible.

Finally, it should go without saying that the separation of church & state is secured by the First Amendment... not the Fourteenth Amendment. The Fourteenth Amendment only made the First Amendment (and most of the rest of the Bill of Rights) binding on the states via the doctrine of incorporation. The vitality of the First Amendment is secured most recently (in the creation science arena) in Kitzmiller v. Dover, which enunciates strongly the idea of separation of church & state, also affirmed in Lemon v. Kurtzman.