ADF Alliance Alert

Religious Freedom

Drafting Glitches in the Religious Liberty and Charitable Donation Protection Act of 1988: Amend S 548(A)(2) of the Bankruptcy Code
Lawrence A. Reicher, 24 Emory Bankr. Dev. J. 159 (2008)

In response, Congress passed the Religious Liberty and Charitable Donation Protection Act of 1998 (“RLCDPA”). RLCDPA attempted to protect tithes given to religious institutions by individual debtors preceding bankruptcy from attack by trustees attempting to recover them as fraudulent transfers. RLCDPA was to be applied alongside RFRA, if it was still good federal law, or independently if RFRA proved unconstitutional. Congress’s zeal to protect the rights of American tithe-givers in their religious practice led to swift passage of RLCDPA, which passed unanimously in the Senate and overwhelmingly in the House of Representatives. But in their haste to protect these religious donations, Congress made drafting glitches that should be solved simply by legislative amendments, rather than judicial interpretation.

Section I (A-B) of this Comment will illuminate this conflict by exploring the plain meaning of RLCDPA, specifically its amendments to § 548(a)(2) of the Code, using both general canons of statutory construction and the Dictionary Act of the Code. Section I (C) will analyze the Act’s plain meaning under the lens of its legislative intent within RLCDPA that amended § 548(a)(2) of the Code. Section I (D) will address the two leading cases on this issue –In re Zohdi (“Zodhi”) and Universal Church v. Geltzer (“Geltzer”). Finally, the Conclusion of this Comment will offer simple and necessary alternative amendments to § 548(a)(2) to unequivocally state its statutory purpose and meaning.

Marriage & Family

Making Family-Friendly Internet a Reality: The Internet Community Ports Act
Cheryl B. Preston, 2007 B.Y.U. L. Rev. 1471 (2007)

But American parents are waking up. With their insistence, something must and will be done. The only question is what. The time has arrived to work together to find a reasonable balance among the values of the First Amendment, the appeal of an unfettered technological frontier, and the rights of parents to have the aid of the government in protecting children. My ultimate hope, in putting forth this proposal, is to stimulate the discussion and the innovation necessary to arrive at some solution. I invite all forms of further research, testing, and thinking on the subject.

In this Article, I provide an overview of one such suggestion, the Internet Community Ports concept and the Internet Community Ports Act (ICPA). First, I provide a brief and simple overview of the ICPA’s provisions in Part I. Second, I briefly cover a few of the legal issues ICPA is written to address: drawing a definitional line, choosing whether the standard is community or national, defining a minor, identifying and locating offenders, and dealing with unsecured wireless Internet networks.

Disposable Mothers: Paid In-Home Caretaking and the Regulation of Parenthood
Tali Schaefer, 19 Yale J.L. & Feminism 305 (2008)

Recent custody decisions in the United States have treated paid in-home caretakers as substitutes for parents who are either unavailable or unable to care for their children. They have created a legal category of “nanny” that detaches primary caretaking from the caretaker and attributes care provided by in-home caretakers to paying parents. This category fits well with the legal regime of parental exclusivity, which promotes a nuclear family model, and with cultural norms that encourage parents to utilize intensive, development-focused childrearing methods.

This Article argues that this new approach rests on flawed and potentially harmful assumptions about parenting and caretaking. Detaching the care from the caretaker is artificial and contradicts the well-established judicial and legislative view that performing hands-on caretaking tasks over time creates a parent-child bond. Attributing paid caretakers’ labor to hiring parents is unjust: it devalues care work, renders paid caretakers disposable, and places the majority of parents, who cannot afford in-home caretaking, in a disadvantageous position. Furthermore, it endangers the feminist effort to promote policies that allow women to better combine motherhood with workforce participation. This Article urges readers to rethink conventional understandings of parenting and caretaking and to recognize the price that the current legal approach exacts–and who pays it.

Queer Kids: A Comprehensive Annotated Legal Bibliography on Lesbian, Gay, Bisexual, Transgender, and Questioning Youth
Sarah E. Valentine, 19 Yale J.L. & Feminism 449 (2008)

This Bibliography is a comprehensive collection of law review articles, and selected other materials, relevant to lesbian, gay, bisexual, transgendered, and questioning youth. These “queer kids”–minors between the ages of ten and twenty who are perceived as being gender or sexuality nonconforming–are the most endangered and underserved adolescent population in the United States. They face danger in their homes, schools, and the juvenile justice system. Their ability to protect themselves is compromised by discrimination and by their status as minors. Intended as a resource for scholars, policymakers, and practitioners, this bibliography collects, discusses, and organizes legal scholarship, selected reports and studies, and influential personal narratives from queer kids.

International

Child Laundering as Exploitation: Applying Anti-Trafficking Norms to Intercountry Adoption under the Coming Hague Regime
David M. Smolin, 32 Vt. L. Rev. 1 (2007)

Even those who accept the considerable evidence of child laundering within the intercountry adoption system may doubt that such conduct causes substantial harm. Therefore, this Article concentrates on the question of whether abducting, buying, or selling children for purposes of adoption is harmful. The positive perceptions of adoption in the United States, both within and beyond the adoption community, make it difficult for many to accept that adoption could be harmful. The “adoption myth” in which virtuous adoptive parents bond with grateful and loving orphans makes it difficult to imagine that adoption could harm a child. The virtual absence of the voices of birth families, particularly in intercountry adoption, makes it difficult for readers to take seriously harms against the birth family. Therefore, contemplating adoption as potentially harmful requires a re-visioning of adoption, and hence is in part an act of moral imagination. This Article employs narratives to help the reader come to grips with the counter-cultural notion that adoption could harm or exploit children and families. At the same time, the Article also employs more conventional forms of argument on this delicate subject.

Miscellaneous

Finding Rest in Peace and not in Speech: The Government’s Interest in Privacy Protection in and around Funerals
Amanda Asbury, 41 Ind. L. Rev. 383 (2008)

This Note analyzes the role of privacy with respect to funerals and explores its relation to the constitutionality of legislation like that enacted and challenged in Kentucky. Part I briefly examines the background of this issue, describing the church and its demonstrations, the recently enacted state and federal legislation that has resulted from these demonstrations, and the recent decision in McQueary regarding the constitutionality of such legislation. Part I serves as a factual framework from which to view the following legal analysis.

Part II examines the tests for constitutionality of speech regulations that often concern the competing policies of upholding the freedom of speech and serving governmental interests, like the protection of citizens’ privacy. Part III explores cases that have addressed the issue of abrogating the freedom of speech in light of the government’s interest in protecting the privacy of individuals and compares these cases to the situation presented in McQueary and being presented elsewhere in the United States. This Note argues that constitutionally permissible prohibitions in and around the home and around medical clinics are motivated by the same concerns motivating the national and state legislatures to enact funeral protest bans. This Note concludes that the government does have a significant and important interest in protecting the privacy of its citizens who are attending funerals, which justifies the passage of funeral protest ban legislation.

Arbitrary and F @#$*! Capricious: An Analysis of the Second Circuit’s Rejection of the FCC’s Fleeting Expletive Regulation in Fox Television Stations, Inc. v. FCC
Justin Winquist, 57 Am. U. L. Rev. 723 (2008)

Part I of this Note surveys the legal limitations on the FCC’s authority to regulate indecent material. Part II describes the specific broadcasts and Commission rulings leading up to the Fox Television case. Parts III and IV analyze the Fox Television court’s disposition of the case under arbitrary and capricious review, both in light of the analogous 1988 case of Action For Children’s Television v. FCC, and generally applicable bases for judicial reversal of agency action. These Parts argue that the policy change was not arbitrary and capricious because it was adequately reasoned and consistent with the FCC’s authority. Further, Parts III and IV suggest that the Fox Television court’s criticisms were not directed at the reasoning behind the policy change, but at the broadcast indecency regulatory scheme generally.

Part V examines the Fox Television court’s prediction, in dicta, that the FCC’s indecency definition will be found unconstitutional. This Part concludes that the inclusion of fleeting expletives is constitutional under current law, falling squarely within the Supreme Court’s approval of context-based broadcast speech restrictions. Finally, this Note concludes that the Court should not use the Fox Television case to revisit the broader justifications for regulation of broadcast but should instead wait for a case that raises more persuasive and timely arguments against the FCC’s continued regulatory role.

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