Monthly Archives: October 2009

Cain v. Horne: School Choice for Whom?
Shannon E. Trebbe, 51 Ariz. L. Rev. 817 (2009)

“This Case Note considers several questions stemming from Cain. First, what school-choice programs are currently constitutional in Arizona? Second, is there a material difference between the allowed constitutional programs and the school-voucher programs prohibited in Cain? Third, given the differences between the programs, which ones provide the greatest social benefits? The Case Note ultimately concludes that the tax credits are a fairer way of providing school choice, despite some potentially unsavory social consequences.”

Could Modern Faith-Based Prison Programs Have Survived Constitutional Scrutiny During Reconstruction?
Scott L. Tindle, 60 Ala. L. Rev. 1293 (2009)

“This Note will focus on the common understanding of the Establishment Clause during Reconstruction in the time surrounding the formation and ratification of the Fourteenth Amendment to the United States Constitution. Specifically, I will try and discern if the modern version of faith-based prisons, currently being implemented throughout the country, would have been considered acceptable under the Establishment Clause at the time of the framing and ratification of the Fourteenth Amendment.”

Defining the New “Species”: Recommendations for California Homeschool Legislation after Jonathan v. Superior Court
Noah Aleshire, 246 Ed. Law Rep. 607 (2009)

“The unusual legal history of home instruction in California, culminating with Jonathan L., has provided the Legislature with a unique opportunity to develop a homeschooling statute from scratch. Such a statute should fairly balance the religious and parental rights of homeschool providers with the state’s interest in providing children with a quality education.”

When Insiders Become Outsiders: Parental Objections to Public School Sex Education Programs
Emily J. Brown, 59 Duke L.J. 109 (2009)

“This Note argues that parents’ fundamental right to direct their children’s moral and educational upbringing includes the right to exempt their children from objectionable sex education programs in public schools.”

Actual Exploitation, Simulated Exploitation, and a Tin Drum: A Comparative Analysis of Child Pornography Law in the United States and Canada
Maurice “Mac” VerStandig, 16 U. Miami Int’l & Comp. L. Rev. 213 (2009)

“The critical inquiry, borne out of the prolonged saga of Tin Drum as well as numerous other incidents, is twofold: Whether Canada and the United States may abrogate speech rights so as to ban child pornography and, if so, just how each nation may go about defining properly the resultant prohibited realm of material.”

The Patient Wanted the Doctor to Treat Her in the Close, But the Janitor Wouldn’t Open the Door: Healthcare Provider Rights of Refusal Versus LGB Rights to Reproductive and Elder Healthcare
Rachel Reibman, 28 Temp. J. Sci. Tech. & Envtl. L. 65 (2009)

“However, this debate also extends to whether healthcare professionals can refuse to provide medical services when they have religious or moral objections to personal characteristics of the patients. Specifically, a major issue is whether healthcare professionals can legally refuse to provide lesbian, gay, or bisexual (LGB) individuals with medical services, such as artificial reproductive technology, where their religious or moral objections pertain to the sexual orientation of the recipient, as opposed to the nature of the services.”

Jennifer S. Hendricks, Body and Soul: Equality, Pregnancy, and the Unitary Right to Abortion (October 12, 2009). Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 45, No. 2, 2010, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1487723

“This division between the body and the social suggests that women’s liberty can be protected only by breaking it into pieces that have analogs in men’s experiences. When men are the norm, women’s rights become derivative. A woman-centered vision of these rights would stand more firmly on its own footing. The Article proposes a relationship model for theorizing pregnancy as a starting point for developing a liberty framework directly from women’s experiences.”

Financial Times: “The lesson is that, while we can never be certain, the ‘right to health’ may have cost more lives than it saved. The pragmatic approach – directing public resources to where they have the most health benefits for a given cost – historically achieved far more than the moral approach.”

Boston Globe: “A new international convention is needed to prevent trafficking in kidneys and other organs and potentially life-saving tissues and cells, according to a joint study by the United Nations and the Council of Europe released Tuesday.”

Reuters: “Citing ‘serious and irreversible
harm to teens,’ the American Civil Liberties Union asked an Illinois court to
strike down a newly effective law that prevents teens from having an abortion
unless they notify a parent or go to court.”

ACLU press release

Complaint

CNSNews: “Land, appointed in 2001 by President George W. Bush, says he fined Taitz $20,000 ‘as a deterrent to prevent future misconduct and to protect the integrity of the court.’”

New York Times editorial: “[President Obama] promised a vitally important change [to the faith-based initiative]: groups receiving federal money would no longer be allowed to hire employees on the basis of their religion . . . But Mr. Obama has not made good on the promise.”

“The Obama administration’s point man on civil rights said Wednesday he will seek to fight discrimination against gays, an area in which the Justice Department has had only a small role in the past . . . ”

WMFD.com: “Shelby Mayor Bill Freytag issued a release Wednesday saying he is exercising his power to veto an amended ordinance concerning legislative prayer at Shelby City Council meetings.”

Macworld: “The [Internet Watch Foundation] revealed that reports of potentially illegal images had risen by five percent to 270,000 compared to this time last year. However, only one in five or those images was confirmed by the IWF as child sexual abuse.”

WHNT: “The Court of Appeals upheld the dismissal of a challenge to the law, which forbids touching and creates a buffer zone between dancers and customers.”

Pacific Daily News: “Legal benefits for same-sex couples were discussed yesterday by a six-member panel at the University of Guam, as the Guam Legislature considers three different bills that attempt to address the issue.”

OneNewsNow: “A pro-family spokesman in Connecticut sees similarities between his state’s previous battle over same-sex ‘marriage’ and another current legal squabble over physician-assisted suicide . . . ‘They’ve learned that when you can’t get something through the people’s representatives, what you can do in Connecticut is…try to get the courts to just impose it.’”

Christian Post: “‘California Family Council is disappointed that Governor Schwarzenegger has placed the interests of a specific group over the educational needs of students,’ the group expressed in a statement Monday. ‘SB 572 wrongly encourages schools to sacrifice students’ class time in order to appease special-interest groups.’”

LifeSiteNews: “The Allan Guttmacher Institute, a body of the abortion industry giant International Planned Parenthood Federation, has issued a report claiming that ‘unsafe’ abortions are claiming the lives of 70,000 women around the world every year, a number that pro-life advocates have said is flatly false.”

AFP: “Jamaican Prime Minister Bruce Golding said the country’s parliament would not recognize same-sex marriage while he was in power.”

“U.S. District Chief Judge Vaughn Walker also signaled Wednesday that the measure’s sponsors will need to show that allowing gay couples to wed threatens traditional male-female unions.”

Montanasnewsstation.com: “Planned Parenthood of Montana is not only seeing a drop in patients because of the slumping economy, but more patients who aren’t able to pay for health services.”

William L. Saunders writes at The Catholic Thing: “This is the (true and good) story of the civil rights movement in America. Sadly, however, Americans learned the wrong lesson from it. Americans, by and large, appear to have learned that all discrimination is wrong. But that misses the point. What is morally wrong is irrational discrimination, not every instance of discrimination.”

Related:

Catholic law school staff and faculty reaffirm support for “LGBT” cause and offer no defense of marriage

Is it now controversial for a prof at a Catholic law school to defend marriage?

Inside Higher Ed: “Many Christian colleges have statements of faith — which in some cases must be followed by all students and faculty members — that endorse the literal truth of the Bible or of specific parts of the Bible (six literal days of creation, for example, or that Adam and Eve are the parents of all humans). So teaching evolution as scientific fact, which would just be taken for granted at many non-Christian colleges and universities, raises all kinds of delicate issues.”

CNSNews: “Climate change must become our highest priority,” a fact sheet attached to the plan said. “Consequently, we will deploy our resources, creativity and energy in a long-term campaign to reduce greenhouse gas emissions and safeguard fish, wildlife and their habitats.”

Eugene Volokh writes at the Volokh Conspiracy about a recent decision in “Stavig v. Stavig, No. 05-0464 (S.D. Cir. Ct. Aug. 28, 2008), recently affirmed by the South Dakota Supreme Court.”

Volokh concludes: “It seems to me, though, that the First Amendment keeps the government — including courts — from taking a stand on this in deciding people’s parental rights, at least in the absence of actual evidence of imminent harm to the child (as opposed to speculation about whether religiosity is good or bad).”

Eugene Volokh writes at the Volokh Conspiracy about the recent ruling in Campion v. City of Minneapolis, No. 07-3935 (D. Minn. Aug. 11, 2009). He includes lengthy excerpts from the opinion.

The Church Report: “Attorney Brian Raum told state Court of Appeals judges that a law their court upheld three years ago defines marriage as between one man and one woman, based on ‘well established public policies linking marriage in New York to procreation and the welfare of children.’”

CNN: “The justices Tuesday agreed to accept the government’s appeal of a case involving Glenn Marcus, who had been sentenced to nine years in prison for the sexual abuse, physical mutilation and psychological humiliation of a woman who had agreed to be photographed as his ‘sex slave.’ A federal appeals court threw out the conviction, saying some of the offenses occurred before the 2000 Trafficking Victims Protection Act, which was used to prosecute Marcus.”

The McCreary County Voice: “The 10-year battle over the posting of the 10 Commandments in the McCreary County Courthouse is retracing earlier steps . . . A three-judge panel from the Court of Appeals will once again hear oral arguments surrounding the constitutionality of the postings . . . ”

WSJ: “The original version of the Federal Judgeship Act, proposed in March 2008 and co-sponsored by Utah Republican Orrin Hatch, was supposed to give both parties a say in the composition of an expanded federal judiciary . . . The idea was to pass a plan and then have it go into effect after the inauguration of the election winner in 2008. It had bipartisan support. Yet with a Democratic President now in the White House, Mr. Leahy wants to be sure Mr. Obama gets to do the picking—and not wait until the next election.”

Leah responds: I’m Working to Meet Judicial Needs

BBC: “Unofficial Islamic schools, many of which use teachers who have not had criminal record bureau checks should be better regulated, an MP has demanded.”

Law.com (National Law J.): “The Supreme Court on Tuesday declined to review a challenge by a Florida-based, national litigation group claiming that the Florida State Bar violated its First Amendment rights when the bar authorized an amicus brief in a controversial gay adoption case in state court.”

Liberty Counsel v. Florida Bar Board of Governors

Boston Herald: “University of Massachusetts officials are reopening a controversial bid to create the state’s first public law school five years after a similar plan was shot down due to fierce opposition from private law schools.”

ABC6.com: “Seven Pawtucket parents and their children are accusing the city of giving religious schools special treatment in using public athletic fields.”

Cardinal Newman Society: “Students from Notre Dame’s Progressive Student Alliance (PSA) petitioned the Student Activities Office and were granted funding to travel to and participate in the demonstration. The Notre Dame students marched two miles across D.C. and then joined gay rights activists for a Capitol Hill rally.”

Liberty Counsel: “Tomorrow morning a federal appeals court will hear oral argument on behalf of a former Syracuse kindergarten student whose art project was censored. Liberty Counsel represents Antonio Peck and his mother in the case of Peck v. Baldwinsville School District.”

Catholic Culture: “At their annual meeting this fall, the US bishops will discuss the draft of a pastoral letter on marriage. The draft– which has been obtained and published in its entirety by the National Catholic Reporter– emphasizes that authentic Christian marriage is a sacramental reality rather than an ‘individualistic project.’”

Marriage: Love and Life in the Divine Plan (USCCB document as reprinted by National Catholic Reporter)

The Hill: “Republican members of the Congressional Anti-Terrorism Caucus say the Council on American Islamic Relations (CAIR), tried to plant ‘spies’ within key national security committees to shape legislative policy in its favor.”

AP: “Amateur soccer club was banned from the French amateur league on Wednesday after refusing to play a match against a gay team.”

SCOTUS Blog: “In Perdue v. Kenny A., previewed yesterday by Akin Gump’s Scott Street, the Court will consider whether a reasonable attorney’s fee award under a federal fee-shifting statute can ever be enhanced based solely on quality of performance and results obtained when these factors already are included in the lodestar calculation.”

FOX 8: “A federal judge was scheduled to hear arguments in a Greensboro courtroom Wednesday morning over what kind of prayers should be allowed before Forsyth County Commissioners meetings . . . The plaintiffs are represented by the American Civil Liberties Union, while the county is being represented by the Alliance Defense Fund, which is defending the county at no charge.”

WFMY: “The lawsuit challenges a tradition at the Forsyth County Board of Commissioners meetings. The board starts meetings with a sectarian prayer . . . The Alliance Defense Fund has defended the right to pray nationwide, many which have gone all the way to supreme court.”

Ryan T. Anderson writes at the Weekly Standard: “The past few years have brought a revival of a largely 19th-century phenomenon: the attempt to deploy science to discredit religion . . . The story is always the same: a battle between irrational faith and rational science, in which the latter defeats the former. Of course, the real force behind these books is politics, especially where it intersects with morality . . . ”

Findlaw Courtside Blog: “But in an 18-page decision, the Fifth Circuit U.S. Court of Appeals concluded that the school official’s decision to ban Confederate flagged purses to prevent yet another racial conflict at BHS (the school has quite an unsavory track record in this area), they were well within their rights.”

A.M. v. Cash, No. 08-10477 (5th Cir. Oct. 13, 2009)

Google News (AP): “President Barack Obama has nominated a Minnesota policewoman to become the first openly gay person to serve as a U.S. marshal.”

OneNewsNow: “The cases involve one state department and one local official that decided to recognize homosexual ‘marriages’ that are legal in other states. Austin Nimocks is one of the ADF attorneys handling the cases. Marriage in the state of New York has always been the union between one man and one woman,’ he points out. ‘And [in these cases] you have a couple of state- and county-level executives who have it taken upon themselves to try to redefine this institution for the entire state.’”

OneNewsNow: “Charges have been dropped against two street preachers who had been arrested for violating a town noise ordinance in the vicinity of a rock concert . . . Joe Infranco, the ADF attorney representing the two men, comments on the officers’ remarks. ‘This is [the officers'] interpretation of how the world should be run, that if you express your beliefs in public on any number of issues, that’s fine — but somehow if you express your beliefs on your faith in Christ that that should not get First Amendment protection,’ he explains.”

The Journal News: “The state Court of Appeals on Tuesday heard arguments on whether Westchester County and the state can legally extend benefits to same-sex couples married in other states . . . Brian Raum, counsel for the Alliance Defense Fund, argued that only a new state law would allow local and state governments to extend benefits to same-sex married couples. ‘It’s really an issue for the people of New York to decide through their elected officials at the Legislature, and I think that’s clear in the law,’ he told reporters.”

New York Times: “New York’s highest court heard arguments in two cases on Tuesday that could have profound effects on the battle over same-sex marriage . . . Brian W. Raum, a lawyer for the plaintiffs, suggested that he would prefer a broad ruling that would block state officials from recognizing gay marriages of any kind, absent approval by the Legislature.” [photo included]

Winston-Salem Journal: “A federal judge will hear oral arguments today in a long-running legal dispute about what kind of prayers are allowed before meetings of the Forsyth County Board of Commissioners . . . Although the case involves a local prayer issue, each side is being represented by national players in church-state disputes. The plaintiffs are represented by the American Civil Liberties Union, and the county is being represented by the Alliance Defense Fund.”

Fox 23: “The Westchester County couple is now part of a legal battle to have their union recognized in the same way the county would honor any marriage certificate obtained outside of New York State joining a man and woman . . . ‘In essence, what’s already happened is that county executives and state officials have made broad proclamations that have to be reigned in,’ says Brian Raum, senior counsel for the Alliance Defense Fund. ‘Those officials do not have the authority to change the fundamental definition of marriage in New York.’”

Times Union: “The state Court of Appeals heard arguments Tuesday in two cases that could have a profound impact on how New York defines same-sex marriage. The alliance contends that Westchester and the Civil Service Department have no right to define ‘spouse’ as meaning partners from a same-sex marriage. Both government entities did so in extending benefits to same-sex couples who were married in Canada, Vermont, Connecticut or Massachusetts.”

Associated Press: “A Christian legal group seeking to stop New York agencies from recognizing same-sex marriages performed outside the state argued in the state’s highest court Tuesday that the practice amounts to a policy decision that requires approval by lawmakers. Attorney Brian Raum told state Court of Appeals judges that a law their court upheld three years ago defines marriage as between one man and one woman, based on ‘well established public policies linking marriage in New York to procreation and the welfare of children.’”

CitizenLink: “New York’s highest court heard arguments today in a pair of cases that could change the marriage landscape, The New York Times reported . . . ‘It is not the right of state and county executives to redefine marriage for all New Yorkers,’ said Austin Nimocks, senior legal counsel for ADF.”

“Supporters of Maine’s gay marriage law said Tuesday they’ve collected $2.7 million for their campaign against a ballot proposal to repeal it, more than double the amount the measure’s supporters said they raised.”

Orlando Sentinel: “Fathima Rifqa Bary, the Ohio teenager who fled to Orlando nearly three months ago, will return to her home state and foster care there, Florida and Ohio judges decided Tuesday. Orange County Circuit Judge Daniel Dawson ruled that an Ohio court has jurisdiction over the 17-year-old girl and that matters need to be handled there.”

Religion Clause Blog: BBC News reports that yesterday Britain’s Asylum & Immigration Tribunal reversed a government decision that refused right-wing Dutch politician Geert Wilders entry into the country last February. Wilders called the Tribunal decision a victory for free speech.

AP: “Russia’s leading gay activist said Wednesday that he was disappointed that Secretary of State Hillary Rodham Clinton met with an outspoken foe of gay rights during her two-day trip to Russia and did not decry homophobia in the country.”

Reuters: “Increased use of contraceptives has pushed global abortion rates down, but unsafe abortions kill 70,000 women each year and seriously harm or maim millions more, a global report said on Tuesday.”

Reuters: “The New Jersey governor’s race is virtually tied between Democratic incumbent Jon Corzine and Republican Christopher Christie after months in which the challenger held the lead, a poll released on Wednesday said.”

MSNBC: “A Palm Bay woman and her boyfriend were arrested Monday for child abuse after the couple went old school to punish their 8-year-old daughter for swearing. They washed her mouth out with soap.”

Times Record News: “If researchers want to uncover the roots of America’s bitter divisions on abortion, the first thing they should do is ask millions of citizens this question: How often do you attend worship services? This has been a consistent pattern in recent surveys and it can be seen in most pews, from conservative evangelicals to liberal mainline Protestants, said Greg Smith, senior researcher at the Pew Forum on Religion and Public Life. The pattern is especially clear among American Catholics.”

Associated Press: “President Barack Obama has nominated a Minnesota policewoman to become the first openly gay person to serve as a U.S. marshal.”

Christian Post: “A Coptic Christian man was reportedly arrested, abused and forced to pay a large sum of money for rescuing his 20-year-old daughter from her Muslim husband, who was said to be holding her against her will in Alexandria, Egypt.”

BBC News: “Far-right Dutch MP Geert Wilders has won an appeal against a Home Office decision barring his entry to the UK. The Asylum and Immigration Tribunal ruling overturns a government decision that led to Mr Wilders being turned back at Heathrow in February.”

Fox News: “A 17-year old girl who fled from her home, fearing her Muslim parents would kill her for converting to Christianity, must go back to Ohio, a Florida judge ruled Tuesday.”

Associated Press: “The anti-Mormon backlash after California voters overturned gay marriage last fall is similar to the intimidation of Southern blacks during the civil rights movement, a high-ranking Mormon says in a speech to be delivered Tuesday.”

Des Moines Register: “Keith Ratliff, president of the Iowa-Nebraska chapter of the NAACP, endorsed Republican gubernatorial candidate Bob Vander Plaats today, citing the Sioux City businessman’s position on the same-sex marriage debate as ‘an important factor’ . . . Vander Plaats has said he would issue an executive order staying same-sex marriages in Iowa until voters had the opportunity to vote on a referendum to amend the Iowa Constitution.”

Legislative Gazette: “The court will first hear arguments in a case involving Westchester County’s right to recognize marriages of same-sex couples performed in other states. The Arizona-based Alliance Defense Fund is challenging that right, claiming County Executive Andrew Spano’s 2006 executive order declaring Westchester’s recognition of out-of-state marriages unconstitutional.”

LifeNews: “Officials at a Pennsylvania school targeted a middle school student who came to class wearing a pro-life t-shirt with the message, ‘Abortion is Not Health Care’ . . . Alliance Defense Fund attorneys filed a lawsuit in federal court last week against the West Shore School District for prohibiting the student from wearing the shirt. ‘Pro-life students shouldn’t be censored for their views,’ ADF Senior Legal Counsel David Cortman told LifeNews.com on Monday.”

Philadelphia Inquirer: “A western Pennsylvania town will pay a church $100,000 to settle a feud created after it forced the parish to stop housing the homeless.”

Mansfield News Journal: “Shelby’s chief administrator said he is giving serious thought to vetoing an ordinance passed Monday at council permitting prayer at the start of council meetings.”

PR Newswire: “Citing ‘serious and irreversible harm to teens,’ the American Civil Liberties Union asked an Illinois court to strike down a newly effective law that prevents teens from having an abortion unless they notify a parent or go to court.”