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The Honolulu Advertiser
Posted on: Sunday, March 27, 2005

It's Starr vs. ACLU in Waikiki

By Will Hoover
Advertiser Staff Writer

The Terri Schiavo legal saga in Florida was the first topic of a debate yesterday as former Whitewater special prosecutor Kenneth Starr and ACLU national president Nadine Strossen traded views and lighthearted barbs at the fourth Davis Levin First Amendment Conference at the Hilton Hawaiian Village in Waikiki.

The purpose of the conference, hosted by the American Civil Liberties Union of Hawaii, was to raise awareness about freedoms guaranteed by the Bill of Rights.

In introducing the guests, conference sponsor Robert Rees thanked the more than 600 in attendance for their "support of the unusual proposition these days that the First Amendment is worth talking about."

The debate had a casual talk-show style format, with Starr and Strossen seated on each side of moderator and ACLU attorney Roger Fonseca.

Fonseca started things off by asking if Congress exceeded its authority in passing an 11th-hour bill to help Schiavo's parents in their legal battle to have their daughter's feeding tube reinserted.

"It's a very close question," said Starr. "I understand the sentiment. There was a broad sense of anguish throughout the country. The family was deeply divided; the spouse versus the parents, a profound tragedy. My own sense is that it's unwise for Congress to be involved."

Strossen said the emergency bill was beyond unwise — it was illegal.

"The ACLU of Florida has been co-counsel with the husband since 2003," she said. "And we have argued, and I believe correctly, that this law was unconstitutional for a number of reasons."

Among the violations, Strossen said, the legislation removed Terri Schiavo's individual right to choose not to be kept alive by unusual means, which has been the unanimous conclusion of the numerous judges who have heard the case.

The two debated a myriad of controversial topics — from whether Senate Republicans have the right to make it easier to get their judicial nominees seated by getting rid of the filibuster rule, to Colorado educator Ward Churchill's right to express offensive and unpopular opinions.

Some in the crowd appeared startled by a few of the comments, such as when the conservative Starr said that — disgusting as the act might be to him personally — Americans have a right to burn the flag as a matter of protest.

"One of the things the flag stands for is freedom," he said.

Another time, when some in the audience appeared to take exception at Strossen's contention that the ACLU is completely nonpartisan, Starr interrupted to say he agreed with his opponent on that point.

Considering the divergent views of Starr and Strossen, the debate was surprisingly civil. In fact, the two were often in basic agreement on a number of issues.

For example, they generally agreed in response to an audience member's written question asking if children have the same rights to protest as their parents. Both cited the U.S. Supreme Court's 1969 Tinker v. Des Moines case in which the high court concluded that "the rights of students do not end at the schoolhouse gates."

At one point Fonseca was moved to say, "I'm anxious to get to something you disagree with."

And, there was plenty of disagreement — particularly on politically hot topics such as sexual expression and a woman's right to choose. And, the two disagreed on the subject of same-sex marriage.

Starr received applause from some in the audience after his long and legally detailed conclusion that traditional heterosexual marriage is a fundamental dimension of who Americans are as a people.

"This is not some latter-day inspiration coming out of a strictly conservative part of the country. This is anchored in the finest traditions of American constitutional law," he concluded.

To which Strossen replied: "That was a very eloquent and learned exposition of a series of positions with which I completely disagree. And it's interesting because I disagree on every single point."

Strossen garnered even more applause when she said she could see no difference between arguments against same-sex marriage and those given in the past against interracial marriage — arguments backed by laws in 17 states as recently as 1967.

Although the subject matter was weighty, the overall mood of the conference was amicable and, at times, even jovial.

The biggest laugh of the day came after Starr jokingly commented that Strossen must defend his right to speak his mind. To which she smiled and agreed, and then added: "But don't forget that I also defend your right to remain silent."