When Wisconsin has an election for a state Supreme Court post, there is invariably one topic of direct concern to the Jewish community — Article I (“Declaration of Rights”) Section 18 of the Wisconsin Constitution:
“The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.”
The Wisconsin State Supreme Court performs the same function relative to the state constitution that the U.S. Supreme Court performs for the federal constitution. Both courts determine whether or not laws conform to the principles and provisions set out in those documents.
In this instance, the state constitution clearly contains language more explicitly protective of religious liberty than the religious freedom provisions in the U.S. Constitution’s First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
So when The Chronicle last week interviewed the two candidates running in the coming election, to be held April 1 — incumbent Justice Louis Butler and challenger Burnett County Circuit Court Judge Michael Gableman — we asked them about their approach to this part of the state constitution.
Butler offered an analytical answer in an interview in his campaign office in downtown Milwaukee.
“In many areas where the language is comparable, the Wisconsin Constitution ordinarily follows the U.S. Constitution, though not always,” he said.
Butler described how he would approach a case that tried to apply Article I Section 18. “We start with the U.S. Constitution” and the pertinent First Amendment law, “and then look at the Wisconsin Constitution as see if there are any violations … and how the law applies to that fact situation.”
And after describing how the court would consult the state statutes, the common law, and the court’s previous decisions that set precedents, Butler said the process is “very complex. It’s not as easy as people think.”
Gableman, for his part, offered a more generalized and descriptive answer in an interview at The Chronicle’s offices.
“I don’t believe there is any more fundamental hallmark of either our nation or any democracy worthy of its name which does not promote the freedom of religious worship, of whatever religion each participant chooses,” he said.
“That seems to me a fundamental human right,” he continued, adding, “In my own life, faith has played a very important role in every aspect.”
In applying Article I Section 18, Gableman said, “As a judicial conservative, I believe in giving a fair application to the plain language of the law. And I think it is very apparent that state constitutions may in certain areas grant more specific rights than those enumerated in the federal constitution.”
Role of ideology?
Gableman’s use of the phrase “judicial conservative” calls attention to one of the most hotly contentious aspects of this controversial race.
Though technically a non-partisan contest, commentators local and even national (see The Wall Street Journal’s March 24 editorial) have typed Butler as liberal and Gableman as conservative.
But Butler contested the description. “It’s inappropriate for a judge to characterize himself or herself as conservative or liberal, Democrat or Republican, pro- or anti-law enforcement, or anything else,” he said.
Such characterization means “I’m signaling you in advance, you can trust I’ll vote that way. I’m signaling my decision before I’ve ever heard the case,” Butler said. “And that’s inappropriate. That’s not what judges do.”
Gableman, for his part, said he is being careful to characterize himself as a “judicial conservative,” but not as a “political conservative.”
“The judicial conservative performs their work in a politically content-neutral manner,” he said. “If a fair application of the plain language of the law would call for what most people would view as a politically liberal result, then that is the outcome that you would get from a judicial conservative.”
But if the race is not about differing political ideologies, then what is it about?
To Butler, this contest is about “the integrity of the justice system for the people of Wisconsin.” He charged that his opponent’s campaign has “from its inception” tried to mislead Wisconsin voters about the court’s record, about Butler’s record, and even about the basic functions of the court, emphasizing criminal law issues, when in fact the court devotes very little time to such matters and does no criminal sentencing at all.
Butler also said that “outside interest groups” have been “willing to spend millions” of dollars to unseat him in an attempt “to buy the court.”
“Every citizen has got to have confidence in their justice system, that when they go to court, they will be heard, and that decisions, whether for or against, will be based on the law and justice,” said Butler.
To Gableman, “The race is about the clear distinction between two candidates with fundamentally different backgrounds and judicial philosophies.
He emphasized that he had been a prosecutor in several Wisconsin counties before becoming a judge, while his opponent had been a defense attorney.
Gableman also reiterated that he is “a judicial conservative” while claiming his opponent “has carved out a clear and consistent record of judicial activism.”
For more information, consult the candidates’ Web sites: www.louisbutler.com and www.gablemanforsupremecourt.com.
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