Daily Archives: December 8, 2009

Rutherford Institute Press Release: “Voicing the concern that arts education in the public schools is in danger of being sanitized of any art with remotely religious themes or inspiration, The Rutherford Institute has asked the U.S Supreme Court to weigh in on a case in which public school officials banned the performance of an instrumental arrangement of Franz Biebl’s ‘Ave Maria’ at a high school graduation simply because the superintendent feared it might be religious.”

Free Speech & Election Law: Freedom of Speech vs. Anti-Discrimination Laws
Prof. David Bernstein, Prof. Andrew Koppelman, Prof. Kenneth L. Marcus, Prof. Eugene Volokh, Moderator: Prof. Lillian R. BeVier, 31 N.C. Cent. L. Rev. 207 (2009)

“. . . But gay students aren’t allowed to exclude Christians who have conservative views on sexuality, or Christians aren’t allowed to exclude gay rights activists. Given that the right of expressive association is implicated, so there is a First Amendment interest here, then the university is engaging in viewpoint discrimination. And I think in that case, the student group would have a very plausible and hopefully winning argument before the courts that they cannot be denied funding for exercising their expressive association rights when other groups are permitted to decide who their members and officers should be.”

The Senate on Tuesday voted 54-45 to defeat the Nelson amendment that would have removed the massive abortion funding from the Senate government-run health care bill.

ADF attorney Mike Johnson on the Drew Mariani Show with Wendy Wees to discuss the “War on Christmas.”

The MP3 runs 18 minutes.

Breitbart Big Government: “During the 2000 conference, workshop leaders led a ‘youth only, ages 14-21′ session that offered lessons in ‘fisting’ a dangerous sexual practice.”

Orin Kerr comments at the Volokh Conspiracy on law firm discrimination against members of the Federalist Society.

Liberty Counsel: “Principal Michelle Zundel of Bellview Elementary School in Ashland, Oregon, has banned Christmas trees and Santa Claus from her school.”

National Right to Life News with Views: “What little I know about South Korea would’ve precluded the development of significant opposition to abortion.
After all, the official tally from the Health Ministry says there are nearly as many abortions (350,000) annually as live births (450,000). Some estimates are far worse: ‘One politician,’ we’re told ‘says the number of abortions is actually four times higher–nearly 1.5 million.’”

Bishop Harry R. Jackson, Jr. writes at the Christian Post: “Last week, I was interviewed by US News and World Report and asked an interesting question: ‘What lessons can Christian conservatives take from the loss they received at the hands of the DC Council?’ I said that we needed to complement our grassroots organizational success with an increase in political sophistication. This means we need to start earlier in order to apply the same kind of pressure that gays have done for over five years.”

Fox21Online.com: “Sexually oriented businesses in Michigan would face tighter restrictions on their onsite advertising signs under terms of legislation that has passed the state Senate.”

Rasmussen: “Seventy-one percent (71%) of voters nationwide say they’re at least somewhat angry about the current policies of the federal government. That figure includes 46% who are Very Angry.”

“Last summer, the 15 jurists formally organized as the Alliance of Illinois Judges to, among other things, lobby other circuit judges for the appointment of more gays and lesbians as associate judges, mentor law students and encourage the state to extend judges’ pensions benefits to domestic partners.”

National Catholic Register: “As everyone knows, marriage is an outdated, fossilized, oppressive institution that is constantly changing under our feet, evolving into a freer and higher and better form. And if it isn’t morphing into one of its alternatives, we would be better off without it. As everyone doesn’t know, social science can now show that the ‘alternatives to marriage’ don’t work. A recent news story brought this home in a particularly vivid fashion for that most fashionable of alternatives to marriage: cohabitation . . . ”

LifeSiteNews: “Pope Benedict XVI has decried the ‘long painful night of violence and oppression’ that was the communist rule in Germany, and, in the same week, commemorated the suppression of Marxist-inspired Liberation Theology pushed by many Catholic churchmen in Latin America in recent decades.”

LifeSiteNews: “A Maine reporter is combating his termination after he says he was fired from his job for issuing a personal email rebutting a homosexualist group’s defamation of true marriage advocates.”

WorldNetDaily: “EDITOR’S NOTE: The following includes descriptions of adult themes and objectional subject material. More than four dozen members of Congress have signed a letter to President Obama urging the removal of Kevin Jennings, the pro-homosexual activist appointed to head the nation’s office of safe schools.”

Eugene Volokh writes at the Volokh Conspiracy: “To begin with, I should say that I agree with the Court’s Boy Scouts v. Dale decision: Private groups often do have the First Amendment right to discriminate in choosing their leaders (and their members, though Dale didn’t focus on that), when barring such discrimination would interfere with the groups’ ability to spread their message . . . But the question is not just whether the groups have a constitutional right to expressive association — it’s whether the government has a constitutional obligation to support this right. And there, I think, the answer is no.”

David French responds at the National Review Phi Beta Cons Blog: “I think Eugene’s key flaw is to treat the university environment and university student-organization system as essentially like any other government program, when they most assuredly are not. The Healy court got this . . . ”

The Daily Journal: “The State Department of Health and Environmental Control has reported that teen pregnancies among all races have increased in South Carolina in recent years, and statistics show Oconee and Pickens Counties aren’t immune.”

Christianity Today: “A leading Chinese religious scholar called the country ready for ‘an institutional guarantee for the legality and quality of all religions,’ according to a December article in China Daily, the official government English language newspaper. Religious freedom experts say they are cautiously optimistic about the public pronouncement.”

AP: “Proposed legislation would impose the death penalty for some gay Ugandans, and their family and friends could face up to seven years in jail if they fail to report them to authorities. Even landlords could be imprisoned for renting to homosexuals.”

ADF attorney Greg Baylor appeared on the Hugh Hewitt Show to discuss U.S. Supreme Court agrees to hear lawsuit against UC-Hastings.

The MP3 runs just over 5 minutes.

Mark Friedman writes at the AFA Action Rightly Concerned Blog: “A major problem, in Nolan’s view [Pat Nolan of Prison Fellowship], is that many sex offender statutes are written so broadly that they ‘lump many people convicted of relatively minor offenses in with the hardcore sex offenders.’”

Mark Walsh writes at the School Law Blog on Ed Week: “The U.S. Supreme Court today agreed to review whether a public college may deny recognition to a student religious group because the group requires its members to agree with its religious beliefs.” The post describes the case and some of its background and context.

AP: “Massachusetts voters are beginning the process of selecting Ted Kennedy’s replacement in the U.S. Senate.”

Sandhya Bathija, Communications Associate for Americans United for Separation of Church and State, writes at AlterNet: “The bombastic Fox News host declared that Washington Gov. Christine Gregoire had ‘insulted Christians all over the world’ when she ‘allowed’ a Winter Solstice display to stand next to a Christmas tree and a Nativity scene in the state’s capitol building. But what O’Reilly failed to acknowledge in his op-ed for The Washington Times was that Gregoire was just doing her job. She was enforcing a court order that stemmed from a case between the state and O’Reilly’s friends at the Alliance Defense Fund.

ADF Senior Counsel Joseph Infranco and ADF Legal Counsel Timothy Chandler will be available for media interviews following oral arguments in a long-running lawsuit over the Mt. Soledad Veterans’ Memorial. In March, ADF attorneys filed a friend-of-the-court brief on behalf of The American Legion Department of California in defense of the 55-year-old Mt. Soledad cross after the American Civil Liberties Union and atheist Steve Trunk challenged its constitutionality.

Religion Clause Blog: According to yesterday’s Knoxville News, the city of Maryville ended its 22-year tradition of having a local radio personality read the Christmas story from the book of Luke as part of the annual “Illumination of the Greenbelt” festivities.

Religion Clause Blog: “In Guerrier v. Southern New England Conference Association of Seventh-Day Adventists, 2009 Conn. Super. LEXIS 2962 (CT Super., Nov. 12, 2009), a Connecticut trial court invoked the ministerial exception doctrine to dismiss a group of tort and contract claims filed by a minister who had been removed by defendant as pastor of Shekinah Haitian Church in Norwich . . . ”

Homeschooling Research Notes: “Since [Kurowski] is a custody-related case, it, like the In re Rachel L. case in California, was at first not on the radar screen of the leading homeschooling watchdog groups. It is now. For a little over a month the story was unknown in the homeschooling world. But on August 24 an attorney for the Alliance Defense Fund (ADF), a conservative Christian legal organization Voydatch had contacted for support, issued to the New Hampshire court a motion for reconsideration. Two days later the ADF issued a news release on the case. By the next day the story had been picked up by onenewsnow.com, and it quickly spread around the internet, abetted especially by a post on August 28 on WorldNetDaily.”

Christian Post: “‘Christian students have the right to gather as Christians for a common purpose and around shared beliefs,’ added ADF Senior Legal Counsel Gregory S. Baylor with the ADF Center for Academic Freedom. ‘It’s completely unreasonable – and unconstitutional – for a public university to disrupt the purposes of private student groups by forcing them to accept as members and officers those who oppose the very ideas they advocate.’”

Religion Clause Blog: “The U.S. Court of Appeals for the D.C. Circuit is scheduled to hear oral arguments on Dec. 15 in Newdow v. Roberts, a case which challenged the use of ‘so help me God’ in the oath administered by Chief Justice John Roberts in swearing in President Barack Obama.”

CitizenLink: “The U.S. Supreme Court will soon decide the constitutionality of a non-discrimination policy at UC Hastings College of the Law in San Francisco . . . The Alliance Defense Fund is representing the students in the case.”

Joseph Martins writes at the Center for Academic Freedom Blog: “As the Supreme Court has repeatedly held, public universities—like all government entities—need to give private organizations a wide berth for the exercise of First Amendment freedoms, rather than looking for ways to encroach as far as the Constitution will technically permit.”

Greg Baylor writes at the ADF Center for Academic Freedom Blog: “More broadly, the freedom of all religious groups – not just campus organizations – to associate around shared religious commitment is under attack. For example, the ACLU and its allies are working to exclude faith-based social service providers from federally funded programs on the ground that they ‘discriminate’ on the basis of religion and ‘sexual orientation.’”

FIRE: “Martinez is possibly the most important case concerning FIRE’s core issues to come before the Supreme Court in our decade of existence, and Torch readers will be hearing much more about it in the weeks and months to come. In the meantime, check out initial reactions from UCLA Law professor and noted blogger Eugene Volokh and Alliance Defense Fund Senior Counsel and former FIRE President David French.”

Chronicle of Higher Education: “Gregory S. Baylor, a laywer for the Alliance Defense Fund, a Christian legal-advocacy group assisting the legal society in the case, said, ‘It’s completely unreasonable—and unconstitutional—for a public university to disrupt the purposes of private student groups by forcing them to accept as members and officers those who oppose the very ideas they advocate.’”

Thomas Berg at Mirror of Justice: “See the press release from CLS and the Alliance Defense Fund. It is excellent news for organizational freedom that the Court is willing to look at overturning the Ninth Circuit decision in this case.”

Watertown Daily Times reported at theBecket Fund: “The Amish say the town refuses to issue permits that allow them to build homes according to their beliefs. The Amish, members of the Old Order Swartzentruber sect, say their religious beliefs will be violated if the town forces them to install smoke detectors in their homes, submit engineering plans and allow home inspections.”

Townhall: “It’s time for a sex-oriented culture like Americas to consider the cost of this kind of pornographic saturation. Here is some of what the studies showed . . . ”

“Cheers erupted in the packed hearing room when the committee approved the bill 7-6. The 10:06 p.m. vote came after more than 1,000 people flooded the Statehouse yesterday . . . ”

Marvin Olasy writes at Townhall: “Under a provocative headline—’Will a Culture of Entitlement Bankrupt Higher Education?’—Shirvani compared colleges and universities to the auto industry and noted that “resistance to change in academe has helped create inflexible, unsustainable organizations” like General Motors . . . Rob Koons, the University of Texas professor removed last fall as head of a UT Western Civilization program (see “Losing a beachhead”, Sept. 12), is proposing that Texas legislators back the creation of charter colleges, as they now support the creation of charter schools.”

AP: “A state commission approved a slots commission license for a site in Anne Arundel County on Monday, but the proposal that would be the state’s largest slot machine facility still needs local zoning approval . . . ”

National Right to Life Committee: “Thirty-five senators today warned congressional Democratic leaders against attempting to use omnibus appropriations legislation as a vehicle to overturn longstanding pro-life policies on three different issues . . . ”

BBC: “Lessons in using the internet safely are set to become a compulsory part of the curriculum for primary schoolchildren in England from 2011.”

NY Times: “Nearly one in six American workers is foreign-born, the highest proportion since the 1920s, according to a census analysis released Monday.”

USA Today: “President Obama announced plans last month to ‘dramatically expand’ to 100,000 the number of U.S. students who study in China over the next four years, calling such exchanges ‘a clear commitment to build ties among our people in the steady pursuit of cooperation that will serve our nations, and the world.’ But Sun, who grew up in China’s Jiangxi province, is part of a surge already taking place in the other direction. Last year alone, 98,510 Chinese graduate and undergraduate students poured into U.S. colleges and universities, lured by China’s emphasis on academic achievement and the prestige of U.S. higher education . . . ”

ADF attorneys are defending legal protections for pre-born children on behalf of the Family Research Council in the European Court of Human Rights against three women who were denied abortions in Ireland and then sued to have the country’s constitutional amendment protecting innocent life abolished.

Larry D. Barnett, The Public-Private Dichotomy in Morality and Law (December 3, 2009). Brooklyn Journal of Law and Policy, Forthcoming; Widener Law School Legal Studies Research Paper No. 09-41. Available at SSRN: http://ssrn.com/abstract=1517971

“The article advances the thesis that the doctrines and concepts of law are attributable to the properties of society and to the forces molding these properties. The thesis, after being illustrated with the federal Investment Advisers Act, is assessed quantitatively using data from the General Social Survey. The Survey interviews a national sample of adults in U.S. households, and in 1991, it ascertained whether interviewees classified morality as a private matter or as a public issue.”

Beth A. Simmons, Civil Rights in International Law: Compliance with Aspects of the ‘International Bill of Rights’ (July 1, 2009). Indiana Journal of Global Legal Studies, Vol. 16, No. 2, pp. 437-481, July 2009; Harvard Law and Economics Discussion. Available at SSRN: http://ssrn.com/abstract=1517848

“International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-a-vis their own governments. This paper discusses the development of aspects of international law relating to civil rights, and argues that if this body of law is meaningful we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because not generally in the interest of potential ‘enforcers’), I argue that international civil rights treaties will have their greatest effect where stakeholders – local citizens – have the motive and the means to demand treaty compliance.”

Church Property and Institutional Free Exercise: The Constitutionality of Virginia Code Section 57-9
Fiona McCarthy, 95 Va. L. Rev. 1841 (2009)

“This Note argues that Section 57-9 of the Code of Virginia interferes with the free exercise of religion in violation of the U.S. Constitution. Section 57-9 is at the forefront of a national dispute over church property resulting from the departure of conservative congregations from the Episcopal Church of the United States. The statute purports to determine property rights in the event of a church division, but in doing so challenges the constitutional boundaries of a religious institution’s free exercise rights.”

The State of Affairs Regarding Counseling for Expectant Parents of a Child With a Disability: Do ACOG’s New Practice Guidelines Signify the Arrival of a Brave New World?
Matthew Diehr, 53 St. Louis U. L.J. 1287 (2009)

“[T]his Comment seeks to honestly discuss the impact the tort actions of wrongful birth and wrongful life–both premised as they are on the assertion that a fetus would have been aborted had the parents known of the fetus’ congenital condition–have on the disabled community and on society at large.”

Paid Sterilizations for Poor Women: Coercing Them Out of Poverty
Lynette Roberson, 3 S. Regional Black L. Students Ass’n L.J. 84 (2009)

“In September 2008, [Louisiana Representative John LaBruzzo of Metairie] suggested a plan to reduce the state’s public assistance payments to poor residents. He projected that, one day, persons receiving state assistance would outnumber taxpayers. His suggested solution to the potential problem is that the state should offer poor people $1,000 to undergo sterilization: tubal ligation for women and vasectomy for men . . . Part I of this article will discuss the similarities between LaBruzzo’s plan and its predecessors in federal law and Louisiana state law. Part II addresses the seemingly voluntary nature of the program and raises key challenges that the plan presents, including legal challenges under contract law, unexpected consequences, and outcomes of similar programs tried elsewhere. These challenges and criticisms of the plan are not limited to its application in Louisiana. Part III acknowledges the state’s interests in controlling its budget and debunks claims that families are profiting from public assistance. Part IV offers appropriate alternatives that would more adequately address LaBruzzo’s concerns. Part V concludes the article.”

Finding the Middle Ground: Acuna v. Turkish and the New Jersey Supreme Court’s Reaffirmation of a Doctor’s Role Under the Doctrine of Informed Consent in the Digital Age
Allyson M. Rucinski, 29 Pace L. Rev. 797 (2009)

“For general medical procedures, many doctors have resorted to computer generated printouts, prepackaged pharmaceutical marketing pamphlets, and website referrals to satisfy the bare minimum duty under the doctrine of informed consent. Conversely, some states have taken it upon themselves to over-legislate in the area of abortion by requiring doctors to make excessive disclosures that are arguably moral, philosophical, or religious in nature. There needs to be a middle ground between these two extremes. The New Jersey Supreme Court provides guidance as to what this middle ground should be in its decision in Acuna v. Turkish.”

Vows to Collide: The Burgeoning Conflict Between Religious Institutions and Same-Sex “Marriage” Antidiscrimination Laws
Fredric J. Bold, Jr., 158 U. Pa. L. Rev. 179 (2009)

“Rather than catalog the countless foreseeable legal conflicts between same-sex marriage and religion, as others have done, this Comment seeks to explore in greater depth the seriousness of the challenge to religious activity and to assess some potential First Amendment defenses with which a confronted religious actor or institution could respond, paying particular attention to the likeliest successful argument: the right to expressive association.”

No Closer to Clarity: The Establishment Clause and the Supreme Stumble in Van Orden v. Perry
Brett B. Larsen, 90 Marq. L. Rev. 155 (2009)

“This Note examines the Court’s Establishment Clause jurisprudence, culminating in an analysis of the decision in Van Orden. Part II contains a summary of Van Orden, and Part III outlines several of the Court’s Establishment Clause decisions since 1980. The examination of Van Orden follows in Part IV, which concludes that the Court’s holding was not only improper, both in its method and in light of the precedent outlined in this Note, but also brought the Court no closer to clarifying this complicated area of law.”

Open Your Mouth and Say “Ideology”: Physicians and the First Amendment
Lauren R. Robbins, 12 U. Pa. J. Const. L. 155 (2009)

“A South Dakota statute requires all doctors, under threat of criminal punishment, to tell patients seeking an abortion that an ‘abortion will terminate the life of a whole, separate, unique, living human being.’ This forced communication of the term ‘human being’ is a statement on when life begins and it goes well beyond the informed consent regime that was upheld as constitutional in the Supreme Court’s landmark decision of Planned Parenthood of Southeastern Pennsylvania v. Casey. This Comment examines whether a State can require that a doctor communicate to a pregnant patient that her developing fetus is a ‘human being,’ or whether such a law violates the basic tenets of the First Amendment.”