Daily Archives: January 19, 2010

“Republican Scott Brown pulled off one of the biggest upsets in Massachusetts political history tonight, defeating Democrat Martha Coakley to become the state’s next United States senator and potentially derailing President Obama’s hopes for a health care overhaul.”

“His support for Proposition 8 sparked protests from supporters of same-sex marriage . . . ”

The Bay Area, New York Times: “Brian Raum, the senior lawyer for the Alliance Defense Fund, handled the cross-examination for the defense. His questions explored whether it is possible to be against same-sex marriage and not be motivated by prejudice. Specifically, Mr. Raum asked questions about the mayor’s former support of civil unions. ‘You didn’t think that was a hostile position to the gay and lesbian community,’ Mr. Raum said. ‘You don’t believe that you communicated hatred to the gay and lesbian community, did you?’ ‘I feel like my thoughts were grounded in prejudice, but I don’t feel like I communicated hatred,’ Mr. Sanders said. Mr. Raum, in his questioning, pointed out that many California voters had cast ‘good-faith’ votes against Proposition 8, in the belief that civil unions were a proper alternative.”

Ed Whelan: “In other words, rather than decide whether the traditional definition of marriage necessarily reflects an irrational animus against homosexuals, Walker is purporting to conduct a factual determination of the subjective intentions of the more than seven million California voters who supported Proposition 8 . . . Given how insane and unworkable Judge Walker’s factual inquiry into voter animus is, it should be no surprise that it’s contrary to established precedent.”

UKPA: “Devout Christian Nadia Eweida has launched an appeal against a ruling which cleared British Airways of discriminating against her by asking her to stop wearing a cross visibly at work. Miss Eweida, 58, from Twickenham, south-west London, wants three judges to overturn a 2008 decision by the Employment Appeal Tribunal (EAT) that she was not a victim of indirect religion or belief discrimination.”

WIBC: “Jim Merritt’s (R-Indianapolis) bill would establish sexting as a delinquent act of a minor creating, transmitting or possessing a photograph, video or other material that shows someone under age in a state of nudity.”

Alan Wilson writing in The Guardian: “[T]he fact that a whole range of religious leaders representing every major tradition in the UK feel chronically misunderstood must mean something . . . But it’s almost impossible for central figures in the media establishment to take such phenomena seriously, perhaps because when they were at public school many of them had religion all sewn up around about the fourth year. The kind of people they dine with just don’t do that sort of thing. It’s obvious that sneering is a suitable substitute for analysis. That’s all there is to it.”

Criminal charges dismissed against NJ man arrested for ‘trespassing,’ ‘obstructing justice’ on sidewalk outside high school

“In what could be a major international embarrassment for Germany a federal immigration judge in Memphis Tennessee is expected to rule this Wednesday on the political asylum case . . .

Washington Post: “The operations are covered by Cuba’s universal health care system, even though some have protested the decision to allow them – either because of general opposition to the procedure or due to its high costs for a developing country with economic problems.”

MarionStar.com: “. . . A report issued last month by the National Marriage Project noted that in recent decades the U.S. marriage rate has been in continuous decline. From 1970 to 2007, the annual number of marriages per 1,000 unmarried women age 15 and older has dropped by nearly 50 percent – from 76.5 to 39.2 – said the report, ‘The State of Our Unions, Marriage in America 2009.’”

LifeSiteNews: “Hawaii legislators reconvene today and are expected to address Bill HB 444, which would allow same-sex couples and unmarried opposite-sex couples to obtain all of the rights and benefits of legally married couples.”

ADF attorney Doug Napier appeared on AFR Focal Point with Bryan Fischer to provide an update on the California marriage trial.

The MP3 runs just under 13 minutes.

Mansfield News Journal: “A highway sign installed Monday trumpeted the opening of the new Adultmart store to motorists on Interstate 71 and Ohio 13. The shop, behind Taco Bell off Hanley Road, sells lingerie, adult DVDs and sex toys. It already has attracted attention from some City Council members . . . ”

WSMV: “In Cheatham County, the school board is strategizing with its lawyers on how to respond to a[n ACLU] lawsuit over student rights.”

Christian Post: “A Vietnamese man violently forced to recant his fledgling Christian faith faces pressure from authorities and clansmen to prove his return to traditional Hmong belief by sacrificing to ancestors next month.”

Contra Costa Times: “San Diego Mayor Jerry Sanders has completed his stay on the witness stand. Prop 8 lawyer Brian Raum asked repeatedly questions to Sanders about his support for Prop 8, and attempted to get him to acknowledge that people who oppose gay marriage are not necessarily motivated by ‘animus’ and ‘hostility.’ Raum pressed the mayor about his past position favoring civil unions over same-sex marriage, and asked whether he was motivated then by ‘hatred’ of gays and lesbians. ‘It can be a situation where it is not based on animus,’ Sanders said. ‘That doesn’t mean it isn’t grounded in prejudice.’”

“A Baltimore County delegate introduced legislation Thursday that would ban recognition of same-sex marriages performed in other states and countries.”

Volokh Conspiracy: “The 1987 confirmation fight over Robert Bork gave political salience to the dispute between originalism and living constitutionalism as interpretive methods. Within the academy, that dispute continues, with endless nuances, qualifications, and elaborate theoretical frameworks on both sides. Judging from subsequent confirmation proceedings, however, the debate is no longer relevant to judicial appointments. Nominees of both parties now present themselves as modest and humble servants of the law, respectful of existing precedent and without a desire to move the law in any particular direction. Most Senators on both sides of the aisle accept this as the proper model for judging, and the only real question now seems to be whether a given nominee is sincerely pledging allegiance to the accepted ideal . . . ”

LifeNews: “Rep. Anh ‘Joseph’ Cao of Louisiana could support the House bill because it banned abortion funding but he opposes the Senate version because it forces tax-funded abortions.”

The Hill: “The leading House Democrat on military policy said Friday that he opposes repealing the law that bans openly gay people from serving in the military. Seventeen years ago, Rep. Ike Skelton (D-Mo.) played a major role in crafting the controversial law known as ‘Don’t ask, don’t tell.’”

The Independent: “Europe’s main security and human rights watchdog said yesterday that Turkey was blocking some 3,700 Internet sites for ‘arbitrary and political reasons’ and urged reforms to show its commitment to freedom of expression.”

SCOTUS Blog: “As we have previously noted, the Court will issue opinions tomorrow. The next opinion day is Monday, January 25. After that, the Court is not scheduled to issue opinions until Tuesday, February 23.”

BBC: “At least 149 people have been killed during two days of violence between Christian and Muslim gangs in the Nigerian city of Jos, officials say.”

AP: “The visitors are Internet refugees from China’s western Xinjiang region, whose 20 million people been without links to the outside world since the government blocked virtually online access, text messages and international phone calls after ethnic riots in July. It’s the largest and longest such blackout in the world, observers say.”

OneNewsNow: “‘It’s questionable whether or not pictures of children who are topless are child pornography under Pennsylvania state law,’ says Alliance Defense Fund attorney Pat Trueman, former chief of the U.S. Justice Department’s Child Exploitation and Obscenity Section. ‘They certainly are not child pornography under federal law.’”

LifeNews: “‘Certainly the dynamic will change depending on what happens in Massachusetts,’ Pelosi told reporters yesterday. ‘Just the question of how we would proceed. But it doesn’t mean we won’t have a health care bill.’”

Virtue Online: “The Church of England is poised to give greater recognition to homosexual clergy in relationships, The Sunday Telegraph can reveal.”

The Guardian: “Despite periodic state crackdowns, increasing education and debate are bringing China’s gay community out of the shadows.”

National Law Journal: “. . . Criticism of the campus-based law firm recruiting model isn’t new, but the havoc the floundering economy has wreaked on law firm hiring and the push by law schools to move recruiting into late summer has prompted some law firm recruiters to pronounce the system broken. In response, the National Association for Law Placement (NALP) has proposed adoption of a nationwide offer kickoff date in January. Law firms would not be able to extend any summer associate offers until that time . . . ”

Catholic Medical Association Press Release: “Second, Brehany commented, ‘Coakley’s statements reveal a specific hostility to faithful Catholics. While some news stories of the interview have referred to “devout Catholics” in the emergency room, the interviewer actually referenced Catholics who “believe what the Pope teaches.” This is the definition of a real Catholic, not of a devout Catholic. Coakley’s dismissal of their faith and rights and is a shocking display of disrespect for members of one religion. Even on legal grounds, it is inadequate, as Matt Bowman of the Alliance defense fund has pointed out here.’”

Karen Lee Torre writes at the Connecticut Law Tribune: “They should have gone further and yanked him off that case. Already, Walker’s impartiality is suspect. Among many now publicly questioning it, Washington Post legal affairs editorialist Eva Rodriquez put it best when she observed that Walker’s pre-trial conduct has already sullied the proceedings. If Walker could not be ‘unflinchingly fair about something that simple,’ she wrote, ‘how can I trust him to be fair to both sides when deeply held beliefs and constitutional rights are at stake?”

“The push for a constitutional amendment to repeal the equal marriage statute that went into effect Jan. 1 will continue before the “House Judiciary Committee on Wednesday . . . ”

USA Today: “‘Marriage is a different deal than it was 40 years ago,’ says Pew economist Richard Fry, a co-author of the study. ‘Typically, most wives did not work, so for economic well-being, marriage penalized guys with more mouths to feed but no extra income. Now most wives work. For guys, the economics of marriage have become much more beneficial.’”

Sydney Morning Herald: “A Malaysian man has failed in a bid to overturn a ban on sodomy, after a court ruled that the law criminalising the act was constitutional, his lawyer says . . . The Court of Appeal however rejected the defence arguments and upheld the verdict against Abdul Rahim, a city hall worker who was also sentenced to 22 strokes of the cane.”

Jackson Sun (AP): “The Rev. Chester Shartzer sang God’s praises and talked of restoring his place in American government today as he hoisted a framed copy of the Ten Commandments back onto the wall of a Kentucky courthouse. More than 200 people joined Shartzer and Grayson County officials in returning the commandments to the county courthouse, just days after a federal appeals court allowed the display, saying it wasn’t religiously oriented.”

Jeffrey Lord responds to Olson’s “Conservative Case for Gay Marriage” in The American Spectator: “The fact that Olson seeks to impose the values of a handful of elite lawyers and judges on the people of California when they have made their views not only plain but constitutionally plain under the law is what concerns. Mr. Olson’s ‘lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics” is apparently limited to a resulting sympathy for gays . . . [I]t seems inescapable here that Olson has erred. If he has the passion he expresses for gay marriage, then his time would be more constructively spent for his cause convincing the voters of California and indeed other states. Seek consensus, convince, persuade, make the case. But, outstanding lawyer or not, resist the temptation to ‘resolve’ this by judicial fiat.’”

Arizona Republic: “A shooting, an attempted armed robbery and a fire at a Phoenix strip club early Monday morning ended with one man dead. Employees at Lacey’s Gentleman’s Club told police a 33-year-old man was upset after a dancer, who provided a private dance for him, refused a sexual solicitation. The man left and came back with a handgun and attempted to rob the business.”

Phyllis Schlafly writes at Townhall: “In a moment of exasperation, the teacher blurted out this question to the native-born students: ‘Why don’t you guys study like the kids from Africa?’ One of them shot back the answer. The kid replied, ‘It’s because they have fathers who kick their butts and make them study.’ Another student called out, ‘Ask the class, just ask how many of us have our fathers living with us.’”

EducationNews.org: “Angry parents yesterday ripped Albany for putting the teachers union before kids, as lawmakers moved to block the expansion of charter schools — jeopardizing New York state’s bid to win $700 million in federal education funds.”

San Francisco Chronicle: “For Bay Area author Helen Zia, it was what she called her ‘lesbian trial’ . . . Her testimony was protested by Brian Raum, a lawyer for the measure’s sponsors, who said one individual’s experiences were irrelevant to the legal issues. Walker allowed the testimony and said he would decide what it was worth.”

OneNewsNow: “Alliance Defense Fund (ADF) attorneys are preparing this week to appeal a Superior Court decision that bars Washington, DC, residents from the right to vote on marriage . . . ‘The DC charter, which outside the U.S. Constitution is the supreme law of the District of Columbia, provides the people the right of initiative, the right to initiate legislation, and the right to say [they] want to vote on the issue of marriage,’ Tracey explains.”

CitizenLink: “Focus on the Family is re-launching the Roe IQ Test. The quiz checks Americans’ knowledge of the landmark Roe v. Wade decision that legalized abortion on demand . . . ‘The current debate over the expansion of federal funding for abortion in the proposed health care reform legislation is just another manifestation of this debate,’ [Steven Aden] said. ‘In many ways, Roe is the defining issue of our times, and one that so many people know so little about.’”

FoxNews8 (includes video): “So important is faith to the community that a strategic planning committee mapping out the values of the school district added: “We value: Responsibility, honesty, respect, integrity, commitment, belief in God and religious freedom” to the statement. But in August the Wisconsin based Freedom From Religion Foundation filed a complaint warning the district it faces a lawsuit if it does not remove the name of God from the statement . . . ”

Religion Clause Blog: “A bestselling author and critic of Islam is very concerned about reports that a high-profile Christian convert from Islam has been receiving death threats from Muslims.”

Religion Clause Blog: “India’s Supreme Court yesterday dismissed a lawsuit asking it to order the government to amend India’s Constitution to eliminate a provision in Explanation II to Article 25 that says the reference in the Constitution to the power to legislate regarding Hindu religious institutions should be construed to also include Sikh, Jain and Buddhist institutions.”

Letter to the Editor of the Argus Leader: “In a nutshell, the ACLU is against anything representing the Christian faith, and its ultimate goal is to remove any acknowledgement of God whatsoever. It more aptly should be called the Anti-Christian Litigation Union. I’ve hardly touched the tip of the iceberg concerning this contemptible organization. Thank God for Christian law firms such as the Alliance Defense Fund (Alan Sears) and Liberty Counsel (Matt Staver) who are standing perpetually against the ACLU and its allies.”

Dan Levin has this report at Law.com (The Recorder) discussing the roles of various attorneys in the Proposition 8 trial.

” . . . all three judges seemed skeptical of the prosecutor’s claim that child pornography laws are violated when a teen transmits a nude image of herself.”

“On Wednesday morning the Indiana Senate Judiciary Committee will consider a marriage protection amendment . . . ”

Catholic Online: “‘In the course of the interview, Martha Coakley demonstrated hostility to conscience rights in general, and to the beliefs of faithful Catholics in particular,’ stated John F. Brehany, Ph.D., S.T.L., executive director of the CMA.”

Baptist Press: “Each day during the trial Baptist Press will post a blog entry from someone in the courtroom. Following is commentary on day five of the trial from Jordan Lorence, senior counsel with the Alliance Defense Fund, which is helping defend Prop 8: ‘The testimony Friday demonstrated why this case should not be in federal court and should rather be left to debate in the public square. The day was dominated by testimony from Michael Lamb, a professor of developmental psychology from the University of Cambridge in England . . .’”

ADF Senior Counsel Jordan Lorence writing at The Christian Post: “There is no hearing today in the Perry case because the federal court is closed for the Martin Luther King, Jr., holiday. This break in the action gives us an opportunity to describe what life is like behind the scenes at the California marriage amendment trial.”

Variety: “‘This is a trial. This is not a campaign,’ Andrew Pugno, representing Protectmarriage.com, griped at a press conference . . . The visuals aren’t there, but by week’s end, it became apparent that the case would be digested in 140 character bites, as Walker has allowed Twitter in the courtroom. And backers of Prop 8 have no objection to that form of communication. On the contrary. One group, the Alliance Defense Fund, even complained that its Tweets were somehow being blocked.”

Religion Clause Blog: “Askew v. New York State, 2010 U.S. Dist. LEXIS 3297 (ND NY, Jan. 15, 2010), involves discrimination charges by a Protestant Ministerial Program Coordinator (MPC) employed by the New York Department of Correctional Services.”

AP: “The appointment of Chief U.S. District Judge Vaughn Richard Walker to the bench was held up for two years during the late 1980s in part because he had angered gay rights activists.”

“Historically, marriage was the surest route to financial security for women. Nowadays it’s men who are increasingly getting the biggest economic boost from tying the knot, according to a new analysis of census data.”

AP: “A top lawmaker has asked West Virginia to re-examine its estimate that federal health care legislation could cost the state hundreds of millions of dollars.”

AP: “Religious violence between Christians and Muslims erupted again Tuesday in central Nigeria, and the state government called for more military units to enter the city where rioters have killed at least 27 people.”

Sarah Valentine, Legal Research as a Fundamental Skill: A Lifeboat for Students and Law Schools (January 10, 2010). University of Baltimore Law Review, Vol. 39, pp. 175-227, Winter 2009. Available at SSRN: http://ssrn.com/abstract=1537871

“This article argues that current legal research education is dangerously deficient and demonstrates how it can be reconceptualized to become a synergistic first year course that supports the learning of doctrine and legal analysis, as well as necessary research skills in accordance with recent suggestions by the ABA, the authors of the Carnegie Report, and other legal commentators.”

Steven Paul Goldberg, Neuroscience and the Free Exercise of Religion (January 15, 2010). LAW AND NEUROSCIENCE: CURRENT LEGAL ISSUES, M. Freeman, ed., Oxford University Press, 2010; Georgetown Public Law Research Paper No. 1537355. Available at SSRN: http://ssrn.com/abstract=1537355

“Recent developments in neuroscience that purport to reduce religious experience to specific parts of the brain will not diminish the fundamental cultural or legal standing of religion. William James debunked this possibility in The Varieties of Religious Experience (1902) when he noted that ‘the organic causation of a religious state of mind’ no more refutes religion than the argument that scientific theories are so caused refutes science. But there will be incremental legal change in areas like civil commitment where judges must sometimes distinguish between mental disorder and religious belief. The paradox is that the ecstatic religious experience of unorthodox individuals will fare less well in the courts than the beliefs of conventional groups, which is precisely the opposite of James’ view of authentic religious life.”

Edmund Ursin, How Great Judges Think: Judges Richard Posner, Henry Friendly, and Roger Traynor on Judicial Lawmaking (2009). Buffalo Law Review Vol. 57, July 2009; San Diego Legal Studies Paper No. 10-008. Available at SSRN: http://ssrn.com/abstract=1537316

“In his 2008 book, How Judges Think, Judge Richard Posner has written that in the ‘open area,’ where conventional legal materials – the Constitution, statues and prior decisions – ‘fail to generate acceptable answers to . . . legal questions that American judges are required to decide, judges perforce have occasional – indeed rather frequent – recourse to other sources of judgment, including their own political opinions or policy judgments.’ At these times judges ‘are legislators as well as adjudicators.’

This Article demonstrates that this is a view that was shared by two of the great judges of the twentieth century: Roger Traynor and Henry Friendly. And it is a perspective that places each of these judges at odds with the dominant jurisprudential movements of their respective eras – the legal process school in Traynor’s and Friendly’s case and the moral, constitutional, jurisprudential, and formalist (including originalist) theorists in Posner’s. The theorists, in other words, are out of touch with the reality of judicial lawmaking as it has been understood, and articulated, by the great judges who have shaped, and are continuing to shape, our law.

Unlike the theories of many, if not most, contemporary academics, the perspective shared by Traynor, Friendly, and Posner is not liberal or conservative – as can be seen in the vastly different ideologies of Traynor and Posner. And it is not original. It is the framework articulated by our greatest judge, Oliver Wendell Holmes.”

Ton Van den Brink, Internationalization of Public Law; Getting Grip of a Concept and Its Consequences (January 15, 2010). European Review of Public Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1537217

“This article focuses on the concept of internationalization of public law from a legal perspective. Public law is progressively subject to international influences. How to interpret this process, or even how to define it, is not that obvious. Internationalization may refer to different levels (conceptual, practical), different aspects (relevant actores, areas) or different points of view (national, international, citizens). Effects in and of national legal systems include processes of convergence and cross-fertilization. Also aspects of legitimacy, accountability and transparency are affected by internationalization. National legal orders provide for various coping mechanisms to deal with the effects of internationalization, such as ratification procedures for the approval of international treaties and – increased – involvement of states in international decision making procedures. Such coping mechanisms do, however, not always fully compensate for the negative effects of internationalization.”

Bruce Garen Peabody, Analogize This: Partial Constitutional Text, Religion, and Maintaining Our Political Order (January 15, 2010). Cardozo Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1537141

“In this essay, I respond to a debate between Geoffrey Stone, Seth Barrett Tillman, Alan Brownstein, and others about the complex relationships between the authors of the 1787 Constitution, contemporaneous religious practices and beliefs, and the enterprise of constitutional interpretation and textual exegesis. I identify religion and other ‘partial’ constitutional phenomena as concepts alluded to in the Constitution but not given a more complete, direct articulation. In order to describe our political system accurately, and sustain the general project of constitutionalism, we need to understand partial constitutional text by adopting a somewhat novel hermeneutic approach. First, we should assume a somewhat abstracted and ahistorical ‘framer’s perspective’ that contrasts rather sharply with the ‘Framer’s intention’ or ‘originalist’ stance holding such a prominent place in today’s constitutional analysis. Second, in reconciling religion and God as concepts incompletely contained within our supreme law, we need to consider the power and utility of constitutional analogies.”