Daily Archives: February 10, 2009

Perhaps giving a preview of what he will argue before the California Supreme Court next month, Kenneth Starr said Feb. 10 that the constitutionality of Proposition 8 turns less on the issue of “gay marriage” and more on the issue of whether the state’s citizens have the power to overturn even controversial court rulings.

House Republican Leader John Boehner has issued this statement regarding passage of the spending bill.

Colorado Springs Gazette: “An unruly customer reportedly stabbed the bar manager at Baby Dolls Sunday night just before 10 p.m., Colorado Springs police said . . . “

MSNBC.com: “Arlington police said two people were shot outside a strip club early Sunday morning. Investigators said the shooting occurred just before 3:30 a.m. in the 700 block of North Watson Road . . . “

Republican Sens. Susan Collins and Olympia Snowe of Maine and Arlen Specter of Pennsylvania broke ranks to cast their votes to advance the bill . . .

Attorneys with the Alliance Defense Fund have filed suit in federal court on behalf of a New Jersey Christian man told he could not distribute literature on a public sidewalk without a permit.

The AP: Abortion foes have a new tactic: The hope that women can’t look away . . . Lawmakers in 11 states are considering bills that would offer or require ultrasounds before a woman gets an abortion. The most stringent …

Denise Burke writes at the Americans U. for Life Blog: Recently, Senator Barbara Boxer (D-CA) promised to call on Secretary of State Hillary Clinton and the U.S. State Department to complete its review of the U.N. Convention on the Rights …

The Herald-Mail: “A representative of the American Civil Liberties Union plans to attend tonight’s Waynesboro Area School Board meeting in support of a Gay-Straight Alliance forming at the high school . . . “

The Atheism Examiner reports: The Freedom From Religion Foundation, a Madison, Wis.-based national watchdog working to keep church and state separate, has renewed its request that the Wisconsin State Assembly stop opening sessions with prayer . . . . With …

Jacksonville.com: “The American Civil Liberties Union of Florida sued Nassau County Public Schools today to force the district to allow students to form a Gay-Straight Alliance on campus.”

Stars and Stripes: An Air Force colonel is being criticized for improperly referring airmen under her command to a far-right religious Web site. Col. Kimberly K. Toney sent a e-mail Jan. 16 to the 501st Combat Support Wing inviting airmen …

Deb Price writes at the Detroit News: Shortly after voters dealt Republicans another devastating blow in November, Robert Kabel, the openly gay chairman of the D.C. Republican Party, received a call from a longtime friend, Michael Steele . . . …

Gov. Jon Huntsman Jr., a spokeswoman said Monday, backs Equality Utah’s Common Ground Initiative, a legislative effort that would provide some rights to gay and transgender Utahns. Even more, the Republican governor favors civil unions.

How different might things be today had the U.S. Senate honored two centuries of tradition and confirmed the impeccably credentialed nominee who was instead mugged by its Judiciary Committee? The question cannot be addressed without accounting for a silver lining. The Senate’s abysmal performance denied the nation a justice of towering intellect and abiding fidelity to the idea that is, or was, America. Yet it also unleashed Bork to pursue his true calling: He has become an unparalleled legal, moral, and ethical philosopher in a time dominated by a law-culture corrosive to moral and ethical moorings. The occasion for reflection on this legacy is upon us thanks to his latest book, A Time to Speak.[1] It is a rich collection, drawing eclectically on a half century of courtroom jousts, legal briefs, judicial opinions, and popular articles (some of which appeared in The New Criterion).

The Freedom From Religion Foundation is taking its thought-provoking billboard message, “Imagine No Religion,” to 8280 Folsom Blvd., Sacramento.

More than 100 members of the House of Representatives have co-authored a bill that would allow government funds to be used to promote artificial contraceptives — which is now prohibited in the Southeast Asian nation.

Alabama Policy Institute: Sixth-grade girls could have to bring information home from school about vaccines against a cancer-causing, sexually transmitted disease, under a proposal in the Legislature . . . We’re just very guarded about privacy issues and about where …

. . . the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, `You’re part of an enterprise that we have some power over.’ . . .

CNSNews: “Coulter sees Hollywood and the news media contributing to various social problems in the United States by approving–even glamorizing–single motherhood, a theme she develops in her new bestseller: Guilty: Liberal ‘Victims and Their Assault on America. Coulter spoke about …

LifeSiteNews: “Federal MP’s will be looking today at proceeding with curtailing or scrapping Section 13 of the Canadian Human Rights Act and will consider the misuse of the Section by the Canadian Human Rights Commissions.”

The Washington Post has posted this interesting graphic that dissects the House spending bill.

LifeSiteNews: “Obama may choose Gov. Kathleen Sebelius, friend of notorious late-term abortionist George Tiller and one of the most pro-abortion governors in America, to become Secretary of Health and Human Services, according to news reports citing a senior official in …

Religion Clause Blog: “Vermont’s ACLU announced yesterday that it has filed suit against seventh-grade teacher Wally Rogers, the Irasburg (VT) School District, and Irasburg Village School principal Paul Simmons. The complaint (full text) filed in Vermont federal district court alleges …

The Politico: “While her confirmation is widely expected by both sides, Democrats and Republicans consider the fight over Kagan’s nomination to be a dry run for a future Supreme Court nomination battle . . . “

Wisconsin State Journal: “It’s official. The chief justice of the Wisconsin Supreme Court has raised more than $1 million and counting for her election campaign this spring . . . “

AP: “Italian politicians vowed Tuesday to quickly pass legislation clarifying the right to die following the death of a woman in a vegetative state whose case had gripped the country . . . “

Citizen Link: “Oklahoma lawmakers are considering a bill that would allow students and instructors to examine views critical of Darwinism . . . Last year, Louisiana passed an academic-freedom bill. New Mexico has similar legislation pending . . . “

Thomas Sowell writes at Townhall: . . . Even if we assume, for the sake of argument, that students are being indoctrinated with the correct conclusions on current issues, that would still be irrelevant educationally. Hearing only one side does …

Rocky Mountain News: “Stu Allen, of Lakewood, and his high school friend, Hallie Atencio, of Denver, are the proponents of a ballot measure that would change the state constitution to recognize marriage as a union between two consenting adults . …

Progress Illinois: “. . . state Rep. Greg Harris is pushing back—this time a little harder. The Chicago Democrat introduced the Religious Freedom and Marriage Fairness Act last week, which seeks to ‘to provide eligible same-sex and opposite-sex couples with …

The Christian Science: “. . . The move gave Qatar its first church since Islam took root here in the 7th century. It also brought Qatar into line with most of its Gulf neighbors, which have all had at least …

Christian Science Monitor: China will face unprecedented scrutiny of its human rights record Monday in a key test of Beijing’s readiness to answer international criticism over its treatment of political opponents. Beijing has sent a large, high-level delegation to Geneva …

San Francisco Chronicle: “California needs to release tens of thousands of California inmates over the next two to three years to relieve overcrowding that has ravaged prison medical and mental health care, a panel of federal judges said Monday . …

The Wall Street Journal: . . . While Mr. Obama has staked moderate positions on many issues, appointing sub-cabinet officials with more radical views amounts to a kind of back-door activism, out of view of the voters. Shortened timelines for …

Liberty Counsel: “Federal District Judge Ann Montgomery ruled in favor of Liberty Counsel’s lawsuit on behalf of Child Evangelism Fellowship of Minnesota (CEF) against Elk River Area School District #728. The court issued a preliminary injunction finding that the district’s …

SCOTUS Blog is liveblogging the nomination hearing for Elena Kegan, the Solicitor General Nominee and Thomas J. Perrelli, Associate Attorney General Nominee.

Wendy Long writes at the Washington Times: Senate Judiciary Chairman Pat Leahy will try to rush though hearings on two Department of Justice appointees today before the public or the Senate can fully consider their records and positions. That may …

Fidelis has posted this research brief on David Ogden, Nominee for Deputy Attorney General.

Bloomberg: But the bill goes further. One new bureaucracy, the National Coordinator of Health Information Technology, will monitor treatments to make sure your doctor is doing what the federal government deems appropriate and cost effective. The goal is to reduce costs and “guide” your …

But, such examples notwithstanding, is the proposed claim true? That is, is it really the case that American courts are showing such an “increasing unwillingness,” and that they are doing so in accord with any identifiable principle or “approach”? If there is, in the Court’s law-and-religion toolkit, something like a hands-off “rule,” then what are that rule’s scope, content, and justifications? Which feared harms does it protect against, and which goods does it promote? When it comes to “matters that relate to the interpretation of religious practice and belief,”9 why is the Court doing, and should it be doing, what it is doing?

This Essay, forthcoming in the Texas Law Review, examines constitutional workarounds, which arise (a) when there is significant political pressure to accomplish some goal, but (b) some parts of the Constitution’s text seems fairly clear in prohibiting people from reaching that goal directly, yet (c) there appear to be other ways of reaching the goal that fit comfortably with the Constitution. The routes to the goal are workarounds. Finding some constitutional text obstructing our ability to reach a desired goal, we work around that text using other texts – and do so without (obviously) distorting the tools we use.

The remainder of this Essay examines how commercial concerns emerge at the moments of founding, propagating, and practicing a religion. In Part I, the Essay explores the U.S. Supreme Court’s suspicion regarding state efforts to prosecute religious fraud, a suspicion that lacks parallel within the jurisprudence of the ECHR. Part II then turns to the question of the standards by which the Supreme Court and the ECHR determine whether, if ever, proselytizing can be considered commercial, and how this commercial aspect would affect its legal treatment. Finally, Part III asks what understanding of religious valuation emerges when courts view practices that religious adherents claim are central to their religion as commercial.

Taken together, the essays in this Symposium demonstrate wide areas of disagreement among scholars as to both the conceptual underpinnings and the normative and policy justifications for the Supreme Court’s hands-off approach to questions of religious practice and belief. In addition, there appears to be a correlation between scholars’ views toward the hands-off approach and their broader attitudes toward the function of religion and the Religion Clauses in the context of American society. To the extent that the Court likewise premises its hands-off approach upon a more general Religion Clause jurisprudence, it remains to be seen whether, along with changes in other areas of Religion Clause doctrine, the Supreme Court might rethink both the conceptual and substantive components of the hands-off approach

The standard answer to some of these questions is to cite the Establishment Clause, claiming that while the government may provide certain general services for religious schools, it is precluded from engaging in the actual management of parochial school programs. Reliance on such reasoning ensures that the government does not violate the separation of church and state. In all actuality, this easy solution appears to raise further questions. When the government provides funding to parochial schools, no matter how general the intended purpose for this money may be, is it still helping the institution give its students an improved religious education? Under such a theory, the relevant portion of the NCLBA, mandating that public school districts must share their federal appropriations with private schools within their districts, is a violation of the Establishment Clause. By indirectly improving the quality of parochial education, it could be construed that the government is endorsing the religion that is being taught within the schools.

No longer can the cloak of litigation and regulatory exemptions be invoked perfunctorily as a comprehensive subterfuge. Without employing properly educated and experienced business managers, establishing auditing plans of the church’s finances, conducting regular legal situation reviews, and generally becoming more aware of an increasingly regulated and litigious environment, the paucity of safeguards and uniformity in documentation may unnecessarily expose the church to unfavorable public scrutiny, costly litigation and unwarranted governmental intervention.

If the religion-protective argument for disestablishment is to be useful today, however, it cannot be adopted in the form in which it was understood in the 17th and 18th centuries, because in that form it is loaded with assumptions rooted in a particular variety of Protestant Christianity. Nonetheless, suitably revised, it provides a powerful reason for government, as a general matter, to keep its hands off religious doctrine.

Recently, religious groups have sought to become charter school providers. Scholarship and popular commentary dispute the desirability of this prospect. Religious charter schools can address unmet needs of religious groups and keep them invested in the public school system. But the balkanization of school districts, oppression of nonadherents, and entanglement between church and state remain important concerns. This Note argues that there is a place for religious charter schools primarily in districts best able to ameliorate these concerns–those that have sufficient resources and the diversity of religious groups necessary to create a variety of religious and nonreligious school options.

Part I of this Comment provides background on Nicaragua. It examines the socio-cultural and political background in Nicaragua before discussing the circumstances in which the blanket ban was enacted. Next, Part II discusses the blanket abortion ban itself, as instituted by Bill 603 of the Nicaraguan Penal Code, which repealed the provision allowing for therapeutic abortion. The current ban was later codified under Bill 641, which reformed Nicaragua’s penal code.

To generalize, uncertainty about the precise way to resolve one element in a chain of elements necessary to resolve a particular claim may or may not seriously undermine the entire effort. It is at least possible that religion clause law and related legal areas can function reasonably well in treating religion as special, without an authoritative settlement of just how to draw the line between religion and nonreligion.